/raid1/www/Hosts/bankrupt/CAR_Public/161202.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 2, 2016, Vol. 18, No. 241
Headlines
ADEPTUS HEALTH: Saxena White Files Securities Class Action
ALERE INC: January 13 Class Action Lead Plaintiff Motion Set
ALEXION PHARMA: January 17 Lead Plaintiff Motion Deadline Set
ALL SHORE: Faces "Alvarado" Suit in Eastern Dist. of New York
AMICUS THERAPEUTICS: Awaits Ruling on Bid to Junk Securities Suit
ANTHEM INC: Submits "Pretrial" Brief in Cigna Merger Dispute
ARROWHEAD PHARMACEUTICALS: Jan. 16 Lead Plaintiff Motion Set
ARTHUR LAWRENCE: Faces "Hawes" Suit in District of Delaware
AT&T: 9th Circuit to Decide on Data Throttling Class Action
BERKELEY, CA: Students File Class Action Against School District
BILL WHATCOTT: Lawyers Says Class Action Political Witch Hunt
BOULDER CITY, NV: Ex-Mobile Home Park Tenants File Class Action
CALIFORNIA PHARMACY: Faces Suit Over Tainted Avastin Syringes
CANADA: Taxi Industry Sues Ottawa Over Old Regulatory System
CACH LLC: Judge Granted Bid to Arbitrate "Snyder" Suit
CASINO RAMA: Two Gamblers File Class Action Over Data Breach
CENTENE CORP: January 13 Lead Plaintiff Motion Deadline Set
CHARLESTON GASTROENTEROLOGY: Sued Over Sexual Assault by Doctor
COCA-COLA REFRESHMENTS: Magee Files Appeal in U.S. Supreme Ct.
COGNIZANT TECHNOLOGY: Strauss Troy Files Securities Class Action
CONVERGENT OUTSOURCING: Seeks Approval of Class Action Settlement
CORBEIL ELECTRIQUE: Quebec Court Authorizes Consumer Class Action
CREDIT CONTROL: Faces "Meisels" Suit in E.D. of New York
DOLE: Class Action Over "All Natural Fruit" Label Can Proceed
DTS INC: Faces "Garfield" Class Suit Over Acquisition by Tessera
DTS INC: Parshall Sues Seeking to Stop Acquisition by Tessera
EAGLE ROAD: Pawnee Citizens File Earthquake Class Action
EDWARD JONES: Faces Second Suit Over Excessive 401(k) Fees
ELDORADO RESORTS: Shareholders Challenge Casino Acquisition
ENVIRONMENTAL WASTE: Fails to Provide Sufficient Info, Court Says
EVERYDAY HEALTH: Faces Securities Class Action in New York
FAIRWAY GROUP: Faces $10MM Class Action Over Text Spamming
FANG HOLDINGS: California Court Dismisses Securities Class Action
FEDEX GROUND: Class Representatives Oppose $25MM Settlement
FERRING PHARMA: Class Action Over Bravelle Recall Can Proceed
FITNESS CONNECTION: "Arceneaux" Suit to Recover Overtime Pay
FLINT, MI: Water Crisis Class Action Heads to Local Court
FLINT, MI: Controversy Provides Civil Procedure Lesson
FRESH & EASY: Wins Preliminary Approval of $50K Class Suit Accord
GC SERVICES: Court Tosses Dickens' Class Certification Bid
GEORGETOWN UNIVERSITY: Faces Suit for Disability Discrimination
GOODLIFE FITNESS: Faces Class Action Over Unpaid Overtime Wages
GOPRO INC: January 17 Lead Plaintiff Motion Deadline Set
IAC/INTERACTIVECORP: Faces Class Action Over RICO Violations
INGRAM & ASSOCIATES: Faces "Regan" Suit in E.D.N.Y.
IRON HILL: Settles Tip Class Action for $1.3 Million
JACKSON HEWITT: Wins Bid to Compel Arbitration in Spam Text Case
JACKSON NATIONAL: Faces Class Suit Over Surrender Charges
JAMES HARDIE: Cluta Health May Opt to Join Cladding Class Action
JOHNSON CONTROLS: Lead Plaintiff & Counsel Named in Merger Suit
KEYBANK NA: Detter's Second Amended Complaint Dismissed
KLOCHKO EQUIPMENT: Wacker's Bid to Dismiss Vinny's Suit Denied
KROGER: Faces Pregnancy Discrimination Class Action in Tennessee
LANNETT COMPANY: Rosen Law Firm Files Securities Class Action
LEGAL SEA: Faces "Diaz" Suit in Eastern District of New York
LIGAND PHARMACEUTICALS: Rosen Law Firm Files Class Action
LORILLARD TOBACCO: Court Tosses Failure-to-Warn Class Action
LOS ANGELES, CA: Overcharged Customers $67.5MM, Monitor Finds
MAGIC CASTLE: Faces Wage Class Action in California
MDL 2521: Judge to Certify 2 Classes in Lidoderm Antitrust Suit
METROPOLITAN MUSEUM: Class Settlement Granted Preliminary OK
MICHIGAN SUGAR: Faces Class Action Over Bay City Plant Smells
MIDLAND CREDIT: "Lopera" Complaint Survives Dismissal Bid
MONT-SACRE-COEUR: Parent to Assume Liability in Sexual Abuse Case
MOTION PICTURE: Movie Studios Successful in Anti-SLAPP Motion
MYLAN: Faces Another Class Action Over EpiPen Price Gouging
NOODLES & CO: Agrees to Settle Class Suit by Former Employees
NOODLES & CO: Faces 3 Class Suits Over Data Security Incident
NORTHROP GRUMMAN: Oyster Bay Added as Defendant in Class Action
NORTHWESTERN UNIVERSITY: Ex-Basketball Player Files Class Action
PLY GEM: $1.4-Mil. Liability Still Outstanding in Vinyl Clad Deal
PLY GEM: "Carrillo-Hueso" Suit Remains Pending in California
PLY GEM: Defends Against "Morgan" Suit Over Overtime Pay
PLY GEM: Faces "Kiefer" Suit Alleging Defective Simonton Windows
PLY GEM: "Pagliaroni" Class Suit Remains Pending in Massachusetts
PLY GEM: S.D.N.Y. Judge Narrows Claims in Securities Suit
POWAY ACADEMY: Must Face Wage-and-Hour Class Action, Judge Rules
PPJMA CONTRACTING: Villa et al. Allege Violation of Overtime Laws
PURITAN'S PRIDE: "Sharpe" Suit Moved from Super. Ct. to N.D. Cal.
RED LOBSTER: Faces "Marett" Suit in Southern Dist. of New York
REMINGTON: Families of Sandy Hook Victims Appeal Case Dismissal
REMINGTON: Rifle Owners Can Examine Internal Company Documents
ROKA BIOSCIENCE: Settlement in Yedlowski Suit Wins Final Approval
SANTANDER CONSUMER: Court Denies Motion to Certify Class Action
SCHIFF NUTRITION: False Advertising Class Action Withdrawn
SCOUT INDUSTRIES: Faces TCPA Class Action in California
SHELBY COUNTY, TN: Faces Class Action Over Jail Computer Problems
SIRIUS XM: Settles The Turtles Copyright Class Action
SP AUSNET: Maurice Blackburn Blamed for $20MM Bushfire Tax Bill
SPEEDWAY LLC: Faces Class Suit Over $125 Debit Card Hold
ST. CLAIR COUNTY, IL: Judge Reschedules Trial in Suarez Case
STAR CAREER: Shuts Down Operations After Class Action Defeat
SUMITOMO: Settles Wireless Harness System Class Action
SUNSHINE ISA: Settlement in "Yang" Wage & Hour Suit Approved
SYSCO SAN FRANCISCO: Faces Employee Class Action
TERRAVIA HOLDINGS: Rosen Law Firm Files Securities Class Action
TOKAI PHARMA: Faces Class Action, Dec. 13 Lead Plaintiff Deadline
TRANSAMERICA LIFE: Court Certifies Can-Am Fund Class Action
TURANO BAKING: Faces Wage Class Action in Chicago
TWITTER INC: Faces String of Securities Fraud Class Actions
TYSON FOODS: Faces Investor Suit Over Stock Price Drop
UNITED COLLECTION: Court Allows Limited Discovery in TCPA Suit
UNITEDHEALTH: Keller Rohrback Files Class Action Over "Clawbacks"
UTAH: Judge Dismisses "Webb" Third Amended Complaint
VALEANT PHARMACEUTICALS: COLD-FX Class Action Dismissed
VIRGINIA: Justice Department Files Brief in DMV Class Action
VISA INC: Loses Appeal in Antitrust Class Actions
VITAL SUPPORT: Settles Pennsylvania Home Health Aid Class Action
VIVA LABS INC: Faces Coconut Oil False Advertising Class Action
VOLKSWAGEN AG: May Face Higher Costs to Resolve Emissions Scandal
WINDSTREAM HOLDINGS: "Doppelt" Stockholder Suit Remains Pending
WORLD WRESTLING: Judge Admonishes Attorney in Concussion Suits
* Arbitration Agreement May Be Beneficial for Consumers
* Class Actions to Experience Major Growth in Coming Years
* GCs Go-to-Person for Handing Data Breach Compliance Issues
* Lawyers Uncertain on Donald Trump's Stance on Tort Reform
* NAD Plays Role in Resolving Product Marketing Issues
* NLRB Fights Class Action Waiver in Arbitration Agreements
* Qld. New Legislation May Spur More Class Action Activity
* Rule 68 Subject of Four Split U.S. Supreme Court Decisions
Asbestos Litigation
ASBESTOS UPDATE: Denial of Bid to Dismiss "Turner" Affirmed
ASBESTOS UPDATE: La. District Court Refuses to Remand "Sheppard"
ASBESTOS UPDATE: Bid for Leave to Appeal in "North" Denied
ASBESTOS UPDATE: Berkshire's Suit vs. City of Phoenix Dismissed
ASBESTOS UPDATE: Noble Corp. Faces 42 Asbestos Suits at Sept. 30
ASBESTOS UPDATE: BNS Sub Faces 1,367 Asbestos Claims at Sept. 30
ASBESTOS UPDATE: Dupont Faces 1,982 Asbestos Claims at Sept. 30
ASBESTOS UPDATE: NL Industries Faces 103 Suits at Sept. 30
ASBESTOS UPDATE: Met-Pro Continues to Defend Suits at Sept. 30
ASBESTOS UPDATE: Ceco Faces 217 Asbestos Suits at Sept. 30
ASBESTOS UPDATE: Watts Water Faces 325 Suits at Sept. 30
ASBESTOS UPDATE: American Optical Faces 56,000 Claims at Sept. 30
ASBESTOS UPDATE: Everest Had $275.4MM Loss Reserves at Sept. 30
ASBESTOS UPDATE: Manitex Continues to Defend Suits at March 31
ASBESTOS UPDATE: Liggett Continues To Defend Cases at Sept. 30
ASBESTOS UPDATE: Suit vs. AC&S Remains Stayed at Sept. 30
ASBESTOS UPDATE: AMPCO-Pittsburgh Has 6,465 Claims at Sept. 30
ASBESTOS UPDATE: AMPCO Insurance Appeals Are Pending at Sept. 30
ASBESTOS UPDATE: AMPCO-Pittsburgh Had $114MM Insurance Receivable
ASBESTOS UPDATE: Park-Ohio Faces 101 Cases at Sept. 30
ASBESTOS UPDATE: Intricon Continues to Defend Suits at Sept. 30
ASBESTOS UPDATE: Haynes Int'l. Faces Three Suits at Sept. 30
ASBESTOS UPDATE: Rockwell Had $20MM Reserves at Sept. 30
ASBESTOS UPDATE: Rockwell Continues to Defend Suits at Sept. 30
ASBESTOS UPDATE: Insurers Face Extra $15-Bil. Asbestos Bill
ASBESTOS UPDATE: EPA To Consider Banning Asbestos
ASBESTOS UPDATE: Asbestos Imports Continue Despite Canadian Ban
ASBESTOS UPDATE: Asbestos Risk Assessed at 5,000 Irish Homes
ASBESTOS UPDATE: AM Best Ups Asbestos Losses Estimate to $100MM
ASBESTOS UPDATE: Israeli Fires Raise Concerns Over Exposure
ASBESTOS UPDATE: Leeds Man Killed by Asbestos Disease
ASBESTOS UPDATE: Labour Dept. Closes Rustenburg Court
ASBESTOS UPDATE: Peterborough Council Urges Ban on Asbestos
ASBESTOS UPDATE: Rainham Man Dies From Asbestos Exposure
*********
ADEPTUS HEALTH: Saxena White Files Securities Class Action
----------------------------------------------------------
Saxena White P.A. on Nov. 17 disclosed that it has filed a
securities fraud class action lawsuit in the United States
District Court for the Eastern District of Texas against Adeptus
Health Inc. ("Adeptus Health" or the "Company") (ADPT) and certain
of the Company's executive officers and/or directors and
underwriters. This class action is filed on behalf of investors
who purchased or otherwise acquired the Class A common shares of
the Company during the period between June 25, 2014 and
November 1, 2016, inclusive (the "Class Period). The complaint
brings forth claims for violations of the Securities Exchange Act
of 1934.
In addition, the class action complaint is also filed on behalf of
investors who purchased Adeptus Health's common stock pursuant or
traceable to the Company's initial public offering of its common
stock (the "IPO") on or about June 25, 2014 and the Company's
secondary public offerings on or about May 5, 2015, July 29, 2015,
and June 2, 2016 (together with the IPO, the "Offerings"). The
complaint brings forth claims for violations of the Securities Act
of 1933.
Adeptus Health is one of the largest operators of independent
freestanding emergency rooms in the United States and has a large
network of partnerships with certain healthcare systems. The
Complaint alleges that, throughout the Class Period, Defendants
made false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants made false
and/or misleading statements and/or failed to disclose to
investors that: (i) Adeptus Health was engaged in the widespread
overbilling of patients, including low-acuity patients; (ii)
Adeptus Health's billing practices were causing decreases in
patient volume and would subject it to decreased revenues; (iii)
the Company's billing practices exposed it to major financial,
reputational, legal and regulatory risks; (iv) the Company's
financial statements were not compliant with Generally Accepted
Accounting Principles ("GAAP"); and (v) as a result, the Company's
statements were false and misleading at all relevant times.
You may obtain a copy of the Complaint and join the class action
at www.saxenawhite.com.
If you purchased Adeptus Health common stock between June 25, 2014
and November 1, 2016, inclusive, and/or pursuant to one of the
Company's public offerings during the Class Period, you may
contact Lester Hooker (lhooker@saxenawhite.com) at Saxena White
P.A. to discuss your rights and interests.
If you purchased Adeptus Health common stock during the expanded
Class Period of June 25, 2014 through November 1, 2016, and/or
pursuant to one of the Company's Offerings during the Class
Period, and wish to apply to be the lead plaintiff in this action,
a motion on your behalf must be filed with the Court by no later
than December 27, 2016. You may contact Saxena White P.A. to
discuss your rights regarding the appointment of lead plaintiff
and your interest in the class action. Please note that you may
also retain counsel of your choice and need not take any action at
this time to be a class member.
Saxena White P.A., located in Boca Raton, Florida, concentrates
its practice on prosecuting securities fraud and complex class
actions on behalf of institutions and individuals. Currently
serving as lead counsel in numerous securities fraud class actions
nationwide, the firm has recovered hundreds of millions of dollars
on behalf of injured investors and is active in major litigation
pending in federal and state courts throughout the United States.
ALERE INC: January 13 Class Action Lead Plaintiff Motion Set
------------------------------------------------------------
Lundin Law PC, a shareholder rights firm, on Nov. 15 announced the
filing of a class action lawsuit against Alere Inc. ("Alere" or
the "Company") concerning possible violations of federal
securities laws between February 29, 2012 and November 4, 2016
inclusive (the "Class Period"). Investors who purchased or
otherwise acquired shares during the Class Period should contact
the firm in advance of the January 13, 2017 lead plaintiff motion
deadline.
To participate in this class action lawsuit, you can also call
Brian Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-
mail him at brian@lundinlawpc.com.
No class has been certified in the above action. Until a class is
certified, you are not considered represented by an attorney. You
may also choose to do nothing and be an absent class member.
According to the Complaint, Alere made false and misleading
statements and/or failed to disclose: that the Company's wholly-
owned subsidiary, Arriva Medical, LLC ("Arriva"), was submitting
claims to Medicare for deceased patients; that this conduct
subjected Arriva to revocation of its Medicare enrollment; and
that as a result of the above, Alere's statements about its
business, operations, and prospects, were false and misleading
and/or lacked a reasonable basis at all relevant times.
On November 4, 2016, Alere announced that the Centers for Medicare
and Medicaid Services alleged that Arriva submitted claims for 211
deceased patients over a five-year period, and thus revoked
Arriva's Medicare enrollment.
Lundin Law PC was established by Brian Lundin, a securities
litigator based in Los Angeles dedicated to upholding
shareholders' rights.
ALEXION PHARMA: January 17 Lead Plaintiff Motion Deadline Set
-------------------------------------------------------------
Lundin Law PC, a shareholder rights firm, on Nov. 17 announced the
filing of a class action lawsuit against Alexion Pharmaceuticals,
Inc. ("Alexion" or the "Company") concerning possible violations
of federal securities laws between February 10, 2014 and November
9, 2016 inclusive (the "Class Period"). Investors, who purchased
or otherwise acquired shares during the Class Period, are
encouraged to contact the firm in advance of the January 17, 2017
lead plaintiff motion deadline.
To participate in this class action lawsuit, you can call Brian
Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-mail him
at brian@lundinlawpc.com
No class has been certified in the above action. Until a class is
certified, you are not considered represented by an attorney. You
may also choose to do nothing and be an absent class member.
According to the Complaint, Alexion made false and/or misleading
statements and/or failed to disclose: that Alexion employed
improper sales practices with respect to its product Soliris; that
the Company's revenues from Soliris sales were unlikely to be
sustainable; and that as a result of the above, Alexion's public
statements were materially false and misleading at all relevant
times. On November 4, 2016, Alexion cancelled an appearance at
the Credit Suisse Healthcare Conference. Following the
cancellation, analysts noticed that the Company also failed to
file its Quarterly Report on Form 10-Q with the SEC within two
days of its earnings announcement on October 27, 2016. On
November 9, 2016, Alexion announced that the Company would not be
able to timely file its financial and operating results for the
quarter ended September 30, 2016.
Lundin Law PC was founded by Brian Lundin, a securities litigator
based in Los Angeles dedicated to upholding shareholders' rights.
ALL SHORE: Faces "Alvarado" Suit in Eastern Dist. of New York
-------------------------------------------------------------
A class action lawsuit has been filed against All Shore Paving
Corp. The case is captioned Jorge Luis Alvarado, on behalf of
himself and all other persons similarly situated, the Plaintiff,
v. All Shore Paving Corp. and Jonathan Accardi, the Defendants,
Case No. 2:16-cv-06433 (E.D.N.Y., Nov. 21, 2016).
All Shore offers paving installation and repair services.
The Plaintiff appears pro se.
AMICUS THERAPEUTICS: Awaits Ruling on Bid to Junk Securities Suit
-----------------------------------------------------------------
Amicus Therapeutics, Inc., awaits ruling on the Defendants' motion
to dismiss the consolidated securities lawsuit pending in New
Jersey, according to the Company's Form 10-Q filing with the
Securities and Exchange Commission on November 7, 2016, for the
quarterly period ended September 30, 2016.
Since October 1, 2015, three purported securities class action
lawsuits have been commenced in the United States District Court
for New Jersey, naming as defendants the Company, its Chairman and
Chief Executive Officer, and in one of the actions, its Chief
Medical Officer. The lawsuits allege violations of the Securities
Exchange Act of 1934 in connection with allegedly false and
misleading statements made by the Company related to the
regulatory approval path for migalastat. The plaintiffs seek,
among other things, damages for purchasers of the Company's Common
Stock during different periods, all of which fall between March
19, 2015 and October 1, 2015. It is possible that additional suits
will be filed, or allegations received from stockholders, with
respect to similar matters and also naming the Company and/or its
officers and directors as defendants.
On May 26, 2016, the Court consolidated these lawsuits into a
single action and appointed a lead plaintiff. The lead plaintiff
filed a Consolidated Amended Complaint on July 11, 2016.
Defendants' motion to dismiss was fully briefed on October 28,
2016.
The Company believes that it has meritorious defenses and intends
to defend the lawsuits vigorously. These lawsuits and any other
related lawsuits are subject to inherent uncertainties, and the
actual cost will depend upon many unknown factors. The outcome of
the litigation is necessarily uncertain, the Company could be
forced to expend significant resources in the defense of these
lawsuits and it may not prevail.
Amicus Therapeutics, Inc., is a global patient-focused
biotechnology company engaged in the discovery, development, and
commercialization of a diverse set of novel treatments for
patients living with devastating rare and orphan diseases. The
lead product, migalastat HCl is a small molecule that can be used
as a monotherapy and in combination with enzyme replacement of
therapy ("ERT") for Fabry disease.
ANTHEM INC: Submits "Pretrial" Brief in Cigna Merger Dispute
------------------------------------------------------------
C. Ryan Barber, writing for The National Law Journal, reports that
Anthem Inc. and the U.S. Justice Department on Nov. 10 presented
contrasting visions of the health care industry in the ramp-up to
trial in the government's push to block the insurance company's
proposed $54 billion deal to acquire Cigna Corp.
The opposing sides, locked in a bitter dispute in the U.S.
District Court for the District of Columbia, submitted their
"pretrial briefs" to the presiding judge, Amy Berman Jackson, who
had set trial for Nov. 21. Antitrust enforcers in July sued to
stop the merger, which Justice Department officials said would
raise insurance premiums and lower the quality of health care.
That dire prediction, of course, is not shared by Anthem's lawyers
at White & Case and Arnold & Porter.
"The U.S. Department of Justice's Antitrust Division and a handful
of state AGs seek to enjoin a merger they acknowledge is likely to
reduce healthcare costs for millions of working Americans,"
Anthem's attorneys said in their court papers on
Nov. 10.
Anthem's lawyers, including White & Case's Christopher Curran,
called the Justice Department's antitrust suit "an extraordinary
action in which federal and state competition authorities are,
according to their own allegations, seeking to deprive American
consumers of lower healthcare costs."
Lawyers for Anthem said the government at trial cannot show the
merger will cause a "substantial lessening" of competition in the
health care insurance arena.
"Anthem will establish that its proposed merger with Cigna would
be a decidedly procompetitive transaction, bringing lower
healthcare costs -- as well as greater innovation -- to millions,"
Anthem's attorneys wrote.
The Justice Department has alleged Anthem's acquisition of Cigna
would hurt competition for millions of consumers who receive
commercial insurance from large national employers, as well as
from large-group employers in at least 35 metropolitan areas and
from public exchanges created by the Affordable Care Act.
In its brief on Nov. 10, the Justice Department said it needs only
to show a substantial loss to competition in one of those markets.
"Plaintiffs will clear that standard by a wide margin," government
lawyers said in their court filing.
The Justice Department said at trial it will present "extensive
evidence that the merger is likely to have serious anticompetitive
effects in dozens of markets -- increasing Anthem's market power,
raising prices of health-insurance plans, forcing down payments to
healthcare providers, and reducing the availability and quality of
healthcare services--harming consumers and healthcare providers
alike."
Judge Jackson has suggested she will split the trial into two
parts, considering the merger's effect on the national market
before hearing arguments on its effect on local markets. In
September, Judge Jackson said she might give a preliminary
decision after the first phase, but she would not hand down a
final decision until January.
ARROWHEAD PHARMACEUTICALS: Jan. 16 Lead Plaintiff Motion Set
------------------------------------------------------------
Pomerantz LLP on Nov. 15 disclosed that a class action lawsuit has
been filed against Arrowhead Pharmaceuticals, Inc. ("Arrowhead" or
the "Company") and certain of its officers. The class action,
filed in United States District Court, Central District of
California, and docketed under 16-cv-08505, is on behalf of a
class consisting of all persons or entities who purchased or
otherwise acquired Arrowhead between May 11, 2015 and November 8,
2016, both dates inclusive (the "Class Period"), seeking to
recover compensable damages caused by Defendants' violations of
the federal securities laws and to pursue remedies under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 (the
"Exchange Act") and Rule 10b-5 promulgated thereunder.
If you are a shareholder who purchased Arrowhead during the Class
Period, you have until January 16, 2017 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss
this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll
free, ext. 9980. Those who inquire by e-mail are encouraged to
include their mailing address, telephone number, and number of
shares purchased.
Arrowhead is a biopharmaceutical company that develops novel drugs
to treat intractable diseases in the United States. Among the
Company's products under development at all relevant times was
ARC-520, an RNAi-based therapeutic in Phase IIb clinical efficacy
studies to treat chronic hepatitis B virus infection.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) ARC-520 was fatal at certain
doses; (ii) consequently, the U.S. Food & Drug Administration
("FDA") was unlikely to approve ARC-520 as a hepatitis B
treatment; (iii) Arrowhead had overstated the approval prospects
and commercial viability of ARC-520; and (iv) as a result,
Arrowhead's public statements were materially false and misleading
at all relevant times.
On November 8, 2016, post-market, Arrowhead issued a press release
announcing that the FDA would be placing a clinical hold on the
Company's Heparc-2004 clinical study of ARC-520, likely due to
deaths at the highest dose of an ongoing non-human primate
toxicology study.
On this news, Arrowhead's share price fell $1.91, or 31.26%, to
close at $4.20 on November 9, 2016.
With offices in New York, Chicago, Florida, and Los Angeles, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
ARTHUR LAWRENCE: Faces "Hawes" Suit in District of Delaware
-----------------------------------------------------------
A class action lawsuit has been filed against Arthur Lawrence US,
LLC. The case is styled DANIEL HAWES, on behalf of himself and
other similarly situated employees, the Plaintiff, v. ARHTUR
LAWRENCE US, LLC, a Texas Limited Liability Company, the
Defendant, Case No. 1:16-cv-01072-UNA (D. Del., Nov. 21, 2016).
Arthur Lawrence US, LLC is a business management and technology
consulting firm.
The Plaintiff is represented by:
Michael L. Sensor, Esq.
TYBOUT, REDFEARN & PELL
750 Shipyard Drive, Suite 400
P.O. Box 2092
Wilmington, DE 19899-2092
Telephone: (302) 658 6901
Facsimile: (302) 351 0301
E-mail: msensor@trplaw.com
AT&T: 9th Circuit to Decide on Data Throttling Class Action
-----------------------------------------------------------
Gianni da Costa, writing for Northern California Record, reports
that the 9th Circuit Court of Appeals will decide whether or not a
group of consumers can continue with their class-action lawsuit
against telecommunications giant AT&T. The consumers seek to hold
AT&T legally responsible for their "data-throttling" practices.
Data-throttling is a term used to describe AT&T's practice of
allegedly reducing the data of some consumers who had originally
purchased unlimited data plans. Allegedly, AT&T throttled
consumers' data when their usage reached between three and five
gigabytes. Between 2011 and 2015, the company allegedly throttled
3.5 million users who had purchased data plans that they perceived
to be unlimited. Now, AT&T claims to only reduce the data of
users who use more than 22 gigabytes within a given month. The
class-action suit stems from action taken by AT&T before the
company altered its data-throttling policies.
The case had been sent to arbitration by U.S. District Court Judge
Edward Chen. Judge Chen's decision was based on the fact that the
customers technically agreed to a standard of individual
arbitration within the contracts they signed upon joining AT&T.
The Federal Trade Commission has been involved in regulating
AT&T's data-throttling tactics. In August, they tried to bring
AT&T to court for slowing down their customers' data, but the 9th
Circuit Court rejected their suit, claiming that the FTC doesn't
possess the legal authority to sue the telecommunications giant.
Harry Shulman with Shulman Law Firm, a consumer lawyer whose
expertise lies in suits against schools, colleges and vocational
institutions, is currently helping solicit plaintiffs for data-
throttling cases against AT&T.
Mr. Shulman said that these suits are somewhat frequent.
"I don't think that it's unique to AT&T, but what makes it
different is the advertising," Mr. Shulman told the Northern
California Record. "That, in a nutshell, is the basis of these
kinds of cases that are brought against big telecommunications
companies such as AT&T. The customers believe one thing only to
experience something entirely different."
Mr. Schulman said that when it's unlimited data and AT&T begins to
throttle a customer at a certain point, the court has to decide if
it is limited or not.
"We would say it's limited," Mr. Schulman said.
The case against data-throttling begins with an allegedly false
advertisement. But even when consumers began to realize their
data is being throttled, they can't just simply walk away from
their contract without reaching into their wallet first,
Mr. Schulman said.
"One of the problems with what AT&T did is that people who
suddenly found themselves throttled couldn't cancel their
contracts because they would be exposed to an early termination
fee," said Mr. Shulman. "This, in a nutshell, explains why these
consumers didn't just leave AT&T when their data was being
reduced. If there were no such thing as early termination fees,
it's possible that AT&T could have avoided all of this legal
trouble."
But even with AT&T's current data-throttling policies that
drastically differ from its actions from 2011-2015, the company
faces an uphill climb toward exoneration, Schulman said.
"So it's sort of a 'gotcha' situation where as they're saying hey,
you're gonna pay one way or the other," he said. "Which way do
you prefer?"
BERKELEY, CA: Students File Class Action Against School District
----------------------------------------------------------------
Berkeley Patch reports that eight Berkeley Unified School District
students filed a class-action civil rights lawsuit in federal
court on Nov. 17 alleging they were racially targeted and
intimidated by district officials.
The suit names several district employees, including
Superintendent Donald Evans, district lawyer Marleen Sacks and all
five members of the Board of Education, among others.
The suit claims that between Sept. 21 and Nov. 2 of this year,
district staff pulled aside 21 students from Martin Luther King
Jr. Middle School and Berkeley High School who are either current
or former English language development students of
Yvette Felarca.
The students were asked about their immigration status, the
languages they spoke at home, their political activities outside
of school hours and their association with Ms. Felarca, according
to the suit. Ms. Felarca, a teacher at Martin Luther King, was
placed on leave for six weeks by the district after a YouTube
video surfaced of her attacking a demonstrator at a neo-Nazi rally
in Sacramento in June.
While she was on leave, the district "interrogated and
intimidated" her students, either without notifying or
inadequately notifying their parents, in an effort to "send a
hostile message to immigrant and Latina/o students and parents
that they would be targeted and driven out of BUSD if they acted
against racism and defended immigrant rights," according to the
suit.
"This is connected to the district's political witch hunt against
me," Ms. Felarca said. "They asked (the students) questions about
their own political activities and beliefs and their families'
national origins, the languages that their families spoke and
whether they had brothers and sisters who were born in the U.S. or
not."
Ms. Felarca is a member of the activist group By Any Means
Necessary, a group that says it was formed to, in part, defend
affirmative action, public education and immigrant rights.
She said the students' lawsuit was critical in light of the city
of Berkeley's status as a sanctuary city that refuses to prosecute
undocumented immigrants solely based on their immigration status.
"That status needs to mean something more than just words,"
Ms. Felarca said. "We have to actively protect immigrant students
and families."
The suit seeks damages for intentional infliction of emotional
distress, violations of the students' right to free speech and
equal protection under the U.S. Constitution and racial
discrimination, among other claims.
District officials haven't had enough time to review the suit so
they could not comment on its allegations on Nov. 17, according to
BUSD spokesman Charles Burress.
Mr. Burress did provide an email statement reiterating the
district's policy of non-discrimination. "The Berkeley Unified
School District does not discriminate on the basis of race, color,
national origin, sex, disability, age, religious creed, gender,
sexual orientation, gender expression, marital or parental status,
ancestry, ethnic group identification, disability, medical
condition, homelessness or foster status, in its programs and
activities," according to the statement.
The lawyers who filed the suit are members of the United for
Equality and Affirmative Action Legal Defense Fund.
BILL WHATCOTT: Lawyers Says Class Action Political Witch Hunt
-------------------------------------------------------------
Christie Blatchford, writing for National Post, reports that a
class-action lawsuit against a well-known anti-gay activist who
infiltrated the Toronto Pride Parade is nothing more than a
political witch hunt to silence dissent and put a chill on free
speech.
So say lawyers Dr. Charles Lugosi and John Findlay, who represent
activist Bill Whatcott and unnamed others who marched in this
year's parade.
Mr. Whatcott and the others, who disguised themselves as members
of the Gay Zombies Cannabis Consumers Association and handed out
graphic leaflets warning of the health risks and "descending moral
depravity" of gay sex, are defendants in the $104-million lawsuit,
which hasn't yet been certified as a class action.
"Whatcott says that public debate at political events ought to be
encouraged in a healthy constitutional democracy," the lawyers say
in a factum filed with the Ontario Superior Court, and that
constitutionally protected free speech "trumps any civil claim to
hurt feelings."
The lawyers were briefly in court on Nov. 15 to argue a motion
from Douglas Elliott, whose firm filed the lawsuit, to force
Mr. Whatcott to identify the other "Zombies" and anyone who helped
him financially.
That argument and a counter motion to have the lawsuit dismissed
are now scheduled to be heard in February.
Mr. Elliott's firm represents Christopher Hudspeth, a veteran gay
activist, and George Smitherman, an openly gay long-time Liberal
and former deputy Ontario premier.
The two are what's called the "representative plaintiffs" in the
proposed class action who stand in for the "classes" of those
allegedly affected.
Mr. Hudspeth, according to the statement of claim filed last
August, represents the "marcher" class of people who marched in
the parade and the "recipient" class who may have actually
received Mr. Whatcott's leaflets.
Where it gets interesting is that the suit alleges there's a third
class, or a subclass, of about 500 injured people
Mr. Smitherman purports to represent -- members of the Ontario and
federal Liberal Party, marchers who previously held elected office
as Liberals, and anyone who "self-identified as Liberals" by
walking with the Liberal contingent in the parade.
The three groups are seeking damages for "intentional infliction
of mental suffering" and defamation, particularly "members of the
Liberal subclass," including Prime Minister Justin Trudeau and
Ontario Premier Kathleen Wynne, who marched in the parade and were
singled out in some of the literature handed out by
Mr. Whatcott's group.
Messrs. Lugosi and Findlay say it's the overtly political nature
of the Pride parade that so distinguishes this case from others
where Whatcott has been successfully prosecuted for violation of
hate-crime laws.
In 2013, for instance, the Supreme Court of Canada upheld in part
an earlier decision of the Saskatchewan Human Rights Commission
that found Whatcott had breached hate laws with two of his
pamphlets, once of which was entitled "Sodomites in our Public
Schools."
But, his lawyers say, that was "a case where the facts did not
involve public participation in a political event and political
opposition to the political agendas of the ruling Liberal
provincial and federal governments."
And, the lawyers argue, the message from the Zombies, who wore
green bodysuits and face coverings in the parade, "was at its core
political statements that represent an opposing viewpoint."
Like the Black Lives Matter group, whose members held up the
progress of the parade and arguably if temporarily hijacked the
Pride agenda by demanding police marchers be expelled from future
parades, Messrs. Lugosi and Findlay say this was "a golden
opportunity" for the Zombies to make a political statement.
In fact, the lawyers say, "Pride Toronto grants only unto itself
the constitutional right to freedom of expression, and suppresses
any opposing or dissenting viewpoints" and requires official
marchers to "tailor their messaging to be in accordance with . .
. solidarity with the (gay) communities."
The statement of claim actually says the same thing -- that Pride
"is not a public forum in which everyone has the right to
participate and deliver whatever message they choose."
Yet the parade is significantly funded out of the public purse.
According to Lugosi and Findlay, this year's version received
$140,000 from the federal government, $270,000 from the province
and $160,500 from the city of Toronto.
It was, the lawyers say, "a significant political event for
leading members of the Liberal governments of Canada and Ontario
marched as a very large group to show solidarity with the
political goals and agenda of the gay community."
And now, those governments, "through the Liberal subclass,
indirectly join in as partners" in the lawsuit with Messrs.
Hudspeth and Smitherman.
"The tyranny here is the intentional misuse of the instrument of
class action litigation to intimidate, chill and crush legitimate
political freedom of expression by not only silencing opposing
viewpoints, but also to force disclosure of the identities of
those who support and assist Whatcott, so they can then be
financially destroyed," Messrs. Lugosi and Findlay say.
They argue the suit is an abuse of process, "for it is used as a
weapon of mass destruction" against a small but vocal minority
"who oppose the viewpoints of the politically powerful."
Ontario Superior Court Judge Paul Perell has scheduled two days
for the motions hearing.
BOULDER CITY, NV: Ex-Mobile Home Park Tenants File Class Action
---------------------------------------------------------------
Max Lancaster, writing for Boulder City Review, reports that
current and former residents of the Boulder City Mobile Home Park
on Nevada Highway filed a class action lawsuit Oct. 18 claiming
that the owner and manager of the park intentionally committed
harmful and negligent acts that caused the evictions of over 100
residents.
The lawsuit is individually suing RPS Properties, the Boulder City
Trailer Park and the owner of the two companies along with his
business partners and family. Randy Schams, his wife Christine
Schams and his daughter Jackie Schams, who manages the trailer
park, are each being sued.
The lawsuit filed by Matthew Callister, attorney for the six one-
time trailer park residents, states that Randy Schams and other
employees of RPS Properties and the mobile home park cut off
necessary utilities without notice, put illegal liens on
residents' homes, evicted residents without proper notice and
illegally auctioned off homes.
"The tenants of the mobile home park were never properly notified
of Randy Schams' intention of dismantling the park,"
Mr. Callister said. "Nothing that has been done has been in
compliance with Nevada law."
Jackie Schams said the lawsuit is pointless and that residents of
the park were properly notified about any changes and anyone who
was evicted did not pay their rent.
"This lawsuit is frivolously because I properly notified everyone
that they had a 180 days to vacate the premises and anyone who was
evicted did not pay their rent for the space," she said.
Randy Schams purchased the mobile home park in December 2015 after
its former owner Brett Caruso filed for bankruptcy. The purchase
was only for the land and did not include the trailers; however,
Schams now owns many of the trailers in the park.
The lawsuit states that when Randy Schams bought the land he told
residents he planned to keep it as a renovated mobile home park
"giving the tenants false hope."
The lawsuit then states that his company, RPS, invested $110,000
in improvements for the park while Jackie Schams continued
collecting rent from tenants for the spaces that the trailers
occupied. Randy Schams then notified tenants on Jan. 28 that he
would be increasing rent effective May 1. He then notified the
tenants that he was raising the rent again starting Nov. 1, but as
of right now the Schams have not enforced the new rent increase.
Mr. Callister said that the Schams' actions were fraudulent
because they continued to collect rent while never properly
informing park residents that Randy Schams was planning to remove
them to create townhomes on the property.
Jackie Schams said that she and her father never lied to tenants
and always properly informed them of their plans for the land.
"When my father bought the land he did intend to keep it as a
mobile home park," Jackie Schams said. "But the costs and some of
the people we had to deal with made our original intent
impossible. We are still having issues with squatters and drug
use in the park, and when the bad outweighed the good we notified
everyone that we were no longer going to keep the area as a mobile
home park."
Jackie Schams said that every resident was properly notified Oct.
26 to leave the park within 180 days and that the cost of
relocation would be paid for up to 150 miles or that the landlords
would buy the tenants' trailers pending an appraisal.
Four tenants of the mobile home park who did not wish to be named
confirmed that they were approached by the Schams about a buyout
or coverage of relocation costs.
The lawsuit also states that the Schams illegal evicted tenants
from their mobile homes and cut off necessary utilities because of
late payments.
A complaint filed by former tenants Lori Conners and Doug Helvey
stated that they were illegally evicted and locked out of their
home after owing $800 in past due rent. Mr. Callister said that
locking the two tenants from their home was illegal because the
trailer was not owned by Jackie Schams or Randy Schams.
Jackie Schams said that anyone who did not pay rent for the space
was informed that they had to leave the property and that the
process of locking someone out of their homes was done legally
through the Boulder City constable.
"Anyone who did not pay rent was notified that they had to leave
the trailer park and if they did not, the constable had the right
to evict them from their home if they did not comply," she said.
"I did not lock anyone out of their homes and no one was even
evicted till April and they were only evicted if they didn't pay
any rent."
Jackie Schams went on to say that anyone who has consistently paid
rent has been happy with the way she and her father have handled
the situation.
"I don't know anyone in the park that pays their rent that is
unhappy with the way we have conducted business," Jackie Schams
said. "We understand that this is a tough situation and we could
have legally told everyone that they needed to get out within 30
days, but we didn't do that because we didn't think it was fair."
Mr. Callister said that his tenants were also given statements for
past due utility fees, a claim that Jackie Schams denies because
they do not charge for utilities.
Randy Schams said he feels confident that the court will drop the
lawsuit.
"I am not worried about this lawsuit and I am confident that the
courts will drop the case."
Tenants have been notified that they must leave the park no later
then Jan. 1.; however, Jackie Schams said she would be willing to
work with tenants who are having trouble leaving.
Randy Schams' attorney David Merrill did not respond to multiple
requests for comment.
CALIFORNIA PHARMACY: Faces Suit Over Tainted Avastin Syringes
-------------------------------------------------------------
Courthouse News Service reported that a man claims in a class
action filed in Sacramento, Calif., that the California Pharmacy
and Compounding Center repackaged the drug Avastin -- for off-
label treatment of macular degeneration -- into tainted syringes
that deposited silicone in his eye.
The case is captioned, MATT GELSO,JR.; VS Plaintiff, CALIFORNIA
PHARMACY AND COMPOUNDING CENTER INC, a California Corporation;
VITREO-RETINAL MEDICAL GROUP,INC.,a California Corporation; and
DOES l-100,Inclusive, Defendants, Case No. 16-_____ (Cal. Super,
Sacramento County).
Attorneys for Plaintiff:
MATTHEW R.SCHOECH, Esq
SCHOECH LAW GROUP PC
4020 Lennane Drive, ste.102
Sacramento, CA 95834
Tel: (916) 569-1940
Fax: (916) 569-1939
E-mail: matt@nnorcallawfirm.com
- and -
GLEN VAN DYKE, Esq.
VAN DYKE LAW GROUP
12277 Soaring Way,Ste.300
Truckee, CA 96161
Tel: (530) 587-2130
Fax: (530) 587-2829
E-mail: gvandyke@vandykelawgroup.com
CANADA: Taxi Industry Sues Ottawa Over Old Regulatory System
------------------------------------------------------------
Jon Willing, writing for Ottawa Citizen, reports that a new
document filed in court by the taxi industry argues that the
city's old regulatory system encouraged cabbies to "invest in the
industry."
It allowed cabbies to have job stability, good wages and full-time
employment while partially funding a municipal scheme that
enforced the regulations, the document says.
The taxi industry believes that's been thrown out the window with
the city's new dual-licensing system.
The document is a reply to the city's statement of defence filed
in a $215-million lawsuit by taxi stakeholders.
Marc Andre Way and Metro Taxi, a company he co-owns, are the
plaintiffs in the proposed class-action lawsuit. The city is the
only named defendant.
None of the allegations by either side have been tested in court.
The taxi industry's lawsuit criticizes the city for changing the
taxi regulatory system in a way that has allegedly harmed cabbies.
Taxi plates, despite being owned by the city, can be bought and
sold on a secondary market. The taxi industry alleges the city
didn't consider the value of the taxi plates when creating new
regulations allowing competition in the ride-ordering market.
At the end of September, the city launched a new licensing system
with different regulations for traditional taxi companies and
Uber, which is currently the only licensed private transportation
company in Ottawa.
The taxi lawsuit accuses the city of failing to enforce the
previous taxi bylaw when Uber drivers were on the road illegally.
The city has countered by noting the 100-plus convictions against
scofflaw drivers.
In the new document, the taxi plaintiffs suggest the city has
recognized "the benefits of a regulatory scheme which limits the
number of plates." Those benefits, according to the document,
have been promoted by the city.
"The city has consistently acted to promote a healthy secondary
market for the transfer of plates," the plaintiffs say in the
document before pointing out the city's past decisions to delay
the harmonization of taxi zones after amalgamation and to allow
the transferability of accessible plates.
The taxi industry also attacks the city's reasoning for not
pursuing court action against Uber.
In its statement of defence, the city says it didn't have
reasonable prospects of winning a prosecution against Uber based
on Toronto and Edmonton failing in their own attempts.
The taxi industry in the new court document says the city
"overlooked or ignored" what happened in Calgary with a successful
Uber injunction. Vancouver and Halifax have also been successful
in shutting out Uber, the document says.
The status of the class action, proposed to include all plate
owners and taxi brokers on or after Sept. 1, 2014, has not yet
been considered by the court. The taxi industry and city are
currently working to get a court date for a motion on the class
action and to discuss other pre-hearing matters.
CACH LLC: Judge Granted Bid to Arbitrate "Snyder" Suit
------------------------------------------------------
District Judge Alan C. Kay of the District of Hawaii, granted
defendants' motion to compel arbitration and dismiss claims, in
the case MARIA SNYDER, Plaintiff, v. CACH, LLC, AND MANDARICH LAW
GROUP, LLP, Defendants, Civ. No. 16-00097 ACK-KJM (D. Haw.)
On May 2, 2015, Mandarich Law Group, LLP sent plaintiff Maria
Snyder a letter informing her that her Bank of America N.A. (BANA)
account had been sold and assigned to Mandarich's client, CACH,
LLC. The letter stated that plaintiff had a current balance of
$8,765.10 on a BANA account number ending in 5522.
On June 16, 2015, Mandarich sent plaintiff another letter
attempting to collect the debt. The account summary page attached
to the letter provided that the BANA account ending in 5522 was
placed for collection with CACH on November 19, 2009 with an
account balance of $6,835.10.
Plaintiff alleges that she obtained a copy of her credit report
dated June 23, 2015, which showed that BANA had been communicating
information to the credit reporting agency related to her debt
owed. BANA reported that plaintiff's account had been charged-off
with a date of first delinquency of April 2009. BANA reported that
the balance of plaintiff's account at the time of charge-off was
$6,835.
On February 24, 2016, plaintiff called Mandarich to discuss her
account. At that time, Mandarich informed her that she owed CACH
$8,765.10 on her BANA account number ending in 5522.
On March 7, 2016, Snyder filed a lawsuit seeking declaratory and
injunctive relief, as well as actual and statutory damages for
defendants' alleged violations of the Fair Debt Collection
Practices Act, Hawaii Revised Statutes (HRS) Sections 443B-18, 19,
and 20 and Hawaii's Unfair or Deceptive Acts or Practices law, HRS
Chapter 480. Snyder alleges that defendants made false,
misleading, and deceptive representations in connection to the
interest rate used and the amount owed and that defendants
employed unfair practices in attempting to collect the debt.
Plaintiff claims that BANA charged off the alleged debt in October
2009 in the amount of $6,835 and that was the amount of the debt
when BANA sold it on November 19, 2009. Plaintiff maintains that
BANA did not charge interest after the charge-off and that CACH
was accordingly not entitled to demand payment of any amount of
interest they added to the account after BANA charged off the
account. According to plaintiff, BANA waived the right to add
interest after charge-off and CACH acquired the debt subject to
said waiver.
Plaintiff also claims that defendants demand odd amounts from her,
noting that the balance stayed the same, at $6,835 between October
2009 and November 19, 2009, mysteriously increases to $8,765.10
between November 19, 2009 and May 2, 2015, with an interest rate
of 4.665% and then stays the same at $8,765.10 through February
24, 2016 with 0% interest.
On May 6, 2016, defendants filed a motion to compel arbitration
and dismiss claims. In support of their motion to compel
arbitration, defendants submitted a declaration by Yekaterina
Livits, custodian of records for CACH, and according to Livits, at
the time plaintiff opened the account, and she also received a
Bank of America Credit Card Account Agreement which contains an
arbitration agreement.
On May 13, 2016, plaintiff filed a motion to dismiss for lack of
jurisdiction defendant's counterclaim.
Judge Kay granted defendants' motion to compel arbitration and
dismiss claims, and denied plaintiff's motion to dismiss
defendant's counterclaim as moot. The court dismisses the
complaint as well as the counterclaim, a both must be submitted to
arbitration.
According to Judge Kay, as defendants point out, there is nothing
in the record to demonstrate that plaintiff's account could not
have been sold prior to the statement due date. To the contrary,
the unrebutted documents submitted to the court by defendants
provide that plaintiff's account was sold to CACH at the latest,
on November 19, 2009. Because BANA/FIA no longer owned the account
on the date the relevant portion of the settlement agreement
became effective, plaintiff has failed to demonstrate that the
settlement agreement applies to bar defendants' rights to
arbitration.
A copy of Judge Kay's order dated November 10, 2016, is available
at https://goo.gl/Ck6F7o from Leagle.com.
Maria Snyder, Plaintiff/Counter Defendant, represented by Justin
A. Brackett -- justinbrackettlaw@gmail.com -- at Justin A.
Brackett, Attorney at Law
CACH, LLC and Mandarich Law Group, LLP, Defendants/Counter
Claimants, represented by:
Thomas M. McGreal, Esq.
Law Offices of Thomas McGreal
301 W. Mission Blvd
Pomona, CA 91766-1606
Telephone: 909-620-5000
Facsimile: 909-397-7119
CASINO RAMA: Two Gamblers File Class Action Over Data Breach
------------------------------------------------------------
Colin Perkel, writing for The Canadian Press, reports that two
gamblers who allege their privacy was breached are spearheading a
proposed class-action against Casino Rama, whose databases were
hacked.
In a notice of action, they also alleged on Nov. 14 Casino Rama
unjustly enriched itself at the expense of the claimants.
In the allegations contained in the notice, Leonid Kaplan, of
Barrie, said he provided casino staff with copies of his driver's
license and credit card when he went there to gamble in September.
Mr. Kaplan said he received an email by the CEO of Casino Rama,
John Drake, Nov. 10 with the subject line: "Unauthorized Access to
Personal Information."
The email stated the organization had been the "victim of a
cyberattack that resulted in the theft of past and present patron,
employee and vendor information."
The casino publicly confirmed the attack but did not say exactly
when it occurred or over what period.
The other proposed representative plaintiff, Cheryl Mizzi, of
Stouffville, said she and her husband regularly went to Casino
Rama starting in 1999. They last visited in 2015. She, too,
provided various forms of identification.
Neither proposed plaintiff has said what losses, if any, he or she
incurred as a result of the privacy breach.
The lawsuit also names Ontario's gaming commission, the Penn
National Gaming and its Ontario subsidiary, which run the casino,
and the Chippewas of Rama First Nation, where the facility is
located.
The suit, which has yet to be certified as a class action or
tested in court, seeks $50 million in damages as well as $10
million in punitive damages.
Lawyer Ted Charney said on Nov. 14 the "unjust enrichment" claim
arises from the casino generating revenues from gambling when
customers thought reasonable security measures were in place to
protect privacy.
"The casino elected not to invest in adequate staff and technology
while collecting gambling revenues, promising to provide adequate
security measures," Mr. Charney said.
The suit also alleges the defendants breached contracts and
violated consumer laws.
A Casino Rama spokesperson did not address the allegations but
said on Nov. 14 the organization was working with the authorities
on the ongoing investigation.
"We are limited in how much detail we can provide," Jenna Hunter
said. "We deeply regret this situation and recognize the
seriousness of the issue."
Casino Rama Resort warned its customers, vendors as well as
current and former staff on Nov. 10 to keep an eye on their bank
accounts, credit cards and other financial information.
The casino said it had "recently" discovered becoming the victim
of a cyberattack that resulted in the large-scale data theft.
Stolen data appeared to include internal financial and security-
incident reports, email, payroll data, client information, social
insurance numbers, and dates of birth, according to the casino.
"The hacker claims that the employee information dates from 2004
to 2016, and that some of the other categories of information
taken date back to 2007," the casino said in a statement.
The resort, which has 2,500 slot machines and more than 110 gaming
tables, said the games themselves weren't hacked.
CENTENE CORP: January 13 Lead Plaintiff Motion Deadline Set
-----------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Centene Corp. ("Centene") between April 26, 2016 and
September 6, 2016.
You are hereby notified that a securities class action lawsuit has
been commenced in the United States District Court for the Central
District of California. If you purchased or otherwise acquired
Centene securities between April 26, 2016 and September 6, 2016,
your rights may be affected by this action. To get more
information go to:
http://www.zlk.com/pslra/centene-corp
or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com
or by telephone at (212) 363-7500, toll-free: (877) 363-5972.
There is no cost or obligation to you.
The complaint alleges that during the Class Period, Centene made
materially false and misleading statements concerning the
acquisition of Health Net, Inc. and failed to disclose: (1) that
certain Health Net insurance programs were significantly
underperforming, which led to the need to increase reserves to
offset losses caused by these programs; (2) that Centene
overstated the financial prospects of Health Net; and (3) that as
a result of the above, the Company's statements concerning its
business, operations, and prospects were false and misleading
and/or lacked a reasonable basis at all relevant times.
If you suffered a loss in Centene you have until January 13, 2017
to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve as
a lead plaintiff.
Levi & Korsinsky -- http://www.zlk.com-- is a national firm with
offices in New York, New Jersey, California, Connecticut, and
Washington D.C. The firm's attorneys have extensive expertise and
experience representing investors in securities litigation
involving financial fraud, and have recovered hundreds of millions
of dollars for aggrieved shareholders.
CHARLESTON GASTROENTEROLOGY: Sued Over Sexual Assault by Doctor
---------------------------------------------------------------
Kyla Asbury, writing for West Virginia Record, reports that a
class action lawsuit has been filed against Charleston
Gastroenterology Associates after an unnamed woman claims one of
its physicians was sexually assaulting unconscious women during
colonoscopies.
Dr. Steven R. Matulis and Day Surgery Limited Liability Company
also were named as defendants in the suit.
On Feb. 18, 2015, Dr. Matulis performed a colonoscopy on the
unnamed plaintiff -- listed as Jane Doe -- and she had been
anesthetized with Propofol prior to the surgical procedure and has
no recollection of it, according to a complaint filed Nov. 16 in
Kanawha Circuit Court.
Following the procedure, Dr. Matulis did not speak to or interact
with Doe, not even to discuss the results of the colonoscopy, and
Doe thought this was unusual.
Doe claims she experienced significant soreness in her abdomen for
several days following the procedure.
On April 5, Doe was alerted to a news report that Dr. Matulis had
been sued for sexually assaulting a female patient during a recent
colonoscopy and that his privileges to practice medicine at a
local hospital had been suspended and then terminated as a result
of the allegations and that he had reportedly engaged in a pattern
and practice of sexually assaulting female patients during
colonoscopies, according to the suit.
Doe claims she became concerned that she may have been sexually
assaulted by Dr. Matulis and that her colonoscopy was not
performed within the standard of care, even if she had not been
physically assaulted by Dr. Matulis, "due to him likely being
distracted by his reported perversion and his proclivity for
sexually assaulting unconscious female patients during
colonoscopies."
Given his pattern and practice of sexually assaulting female
patients during colonoscopies, it is more likely than not that Dr.
Matulis suffered from impaired professional judgment when
performing Doe's colonoscopy and it is more likely than not that
Dr. Matulis' impaired professional judgment was chronic in nature
in the absence of professional intervention and had likely
manifested itself with his female patients for many years,
according to the suit.
Doe claims Dr. Matulis' actions are a deviation from the
applicable standard of care, which constitutes medical negligence.
Dr. Matulis' actions constitute an invasion of privacy, and, as a
result, Doe was harmed, according to the suit.
Doe claims Charleston Gastroenterology Associates is vicariously
liable for Dr. Matulis' actions.
Day Surgery was negligent is deviating from the standard of care
by failing to implement such quality assurance or performance
review or by doing so in an unreasonable and inadequate manner
with respect to Dr. Matulis, according to the suit.
P. Rodney Jackson of the Law Offices of P. Rodney Jackson said the
next step in the lawsuit will be moving to certify the class.
"We're expecting the class to be in the hundreds," Mr. Jackson
said. "We are expecting there to be a lot."
Mr. Jackson said while you can never know how long a lawsuit will
take to go through the courts, the attorneys will be pushing for
it to move quickly.
"We're hoping to move it through as fast as possible," he said.
"We're going full throttle."
Doe is seeking punitive damages. She is being represented by
Mr. Jackson and by Stuart Calwell of the Calwell Practice.
Kanawha Circuit Court case number: 16-C-1723
COCA-COLA REFRESHMENTS: Magee Files Appeal in U.S. Supreme Ct.
--------------------------------------------------------------
Emmett Magee, Individually and on Behalf of All Others Similarly
Situated, Petitioner v. Coca-Cola Refreshments USA, Inc., Case No.
16-668 (U.S. Sup. Ct., Nov. 21, 2016), is an appeal filed before
the United States Supreme Court from a lower court decision in
Case No. 15-31018 (5th Cir., Aug. 15, 2016).
Coca-Cola Refreshments produces, distributes, and markets bottled
and canned liquid non-alcoholic refreshment products in North
America.
The Petitioner is represented by:
Toby Heytens, Esq.
COUNSEL OF RECORD
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903
Telephone: (434) 924 3127
E-mail: heytens@virginia.edu
COGNIZANT TECHNOLOGY: Strauss Troy Files Securities Class Action
----------------------------------------------------------------
On October 27th, 2016, Strauss Troy filed a class action lawsuit
on behalf of all purchasers of Cognizant Technology Solutions
Corporation ("Cognizant" or the "Company") (CTSH). The Complaint
was filed in the United States District Court for the District of
New Jersey on behalf of investors who purchased shares in
Cognizant during the period from February 25, 2016 through
September 30, 2016 (the "Class Period").
The Complaint alleges that Cognizant and certain of its officers
violated federal securities laws by: (i) issuing a series of false
and misleading statements; (ii) failing to maintain effective
internal controls over its financial reporting; and (iii) failing
to disclose that the Company made improper payments for permits
and building licenses for some of its facilities in India.
On September 30, 2016, the Company filed a Form 8-K which revealed
for the first time that the Company was conducting an internal
investigation into whether payments relating to their facilities
in India were improper and in violation of the US Foreign Corrupt
Practices Act. The Company also disclosed that the President of
Cognizant had resigned on September 27, 2016. As a result of
these announcements on September 30, 2016, the price of
Cognizant's common stock fell over 17% and wiped out nearly $4.4
billion in Cognizant's market capital.
Plaintiffs seek to recover damages on behalf of themselves and all
other investors who purchased Cognizant common stock during the
Class Period, excluding Defendants and their affiliates.
Plaintiffs are represented by Strauss Troy, a law firm with
extensive experience in prosecuting class actions for violations
of the federal securities laws. If you are interested in becoming
a lead plaintiff, you may file a motion with the court no later
than December 5, 2016, and request that the court appoint you as
lead plaintiff. A lead plaintiff is a representative party acting
on behalf of class members. If you would like more information
about the Cognizant shareholder lawsuit, or have any questions
concerning your rights or interests, please contact:
Richard S. Wayne, Esq., Robert R. Sparks, Esq. or Annie C. Jansen,
STRAUSS TROY, 150 E. Fourth Street, Cincinnati, Ohio 45202 (513)
621-2120, rswayne@strausstroy.com, rrsparks@strausstroy.com or
acjansen@strausstroy.com
CONVERGENT OUTSOURCING: Seeks Approval of Class Action Settlement
-----------------------------------------------------------------
Julie D. Hoffmeister, Esq. --
julie.hoffmeister@troutmansanders.com -- and David N. Anthony,
Esq. -- david.anthony@troutmansanders.com -- of Troutman Sanders
LLP, in an article for Mondaq, report that a class of consumers in
multidistrict litigation (MDL) recently filed their Motion for
Final Approval of a Telephone Consumer Protection Act class action
settlement against a debt collection company, Convergent
Outsourcing Inc. ("Convergent").
Between October 2012 and June 2013, the named plaintiffs initiated
separate putative class actions throughout the country alleging
that Convergent violated the TCPA. On November 5, 2013, the
Judicial Panel on Multidistrict Litigation consolidated the
actions as an MDL. According to the Consolidated Amended
Complaint, Convergent called Plaintiffs and the putative class
members without their consent using an automatic telephone dialing
system ("ATDS") on behalf of various creditors.
The settlement consists of two classes:
A Rule 23(b)(3) damages class that includes several hundred
thousand people that Convergent called after October 26, 2008 who
can point to certain objective facts to argue Convergent lacked
consent to call them. This class will share a $5.5 million common
fund.
A Rule 23(b)(2) injunction class that includes those persons not
in the Rule 23(b)(3) damages class who Convergent called since
October 26, 2008. These individuals retain their right to sue
Convergent individually but waive their right to bring a class
action. In exchange, Convergent agreed to an injunction
prohibiting it from seeking to dismiss any TCPA claim for failing
to plead an ATDS was used and, in any answer to such suit, it will
admit that it used an ATDS.
No objections were filed to the settlement, and only twenty-three
class members opted out. A final approval hearing was scheduled
for November 10.
CORBEIL ELECTRIQUE: Quebec Court Authorizes Consumer Class Action
-----------------------------------------------------------------
Gillian S.G. Scott, Esq. -- gscott@osler.com -- Eric Prefontaine,
Esq. -- eprefontaine@osler.com -- and Fran‡ois Laurin-Pratte, Esq.
-- flaurinpratte@osler.com -- of Osler Hoskin & Harcourt LLP, in
an article for Lexology, report that in the recently decided case
Cantin c. Ameublements Tanguay inc., 2016 QCCS 4546 (the "Cantin
Case"), the Superior Court of Quebec granted authorization of a
proposed class action by consumers against various respondents,
including a franchisor Corbeil Electrique Inc. ("Corbeil"), for
alleged misrepresentations in relation to the purchase of extended
warranties. In doing so it confirmed a trend that Quebec Courts,
at least at the authorization stage, are unwilling to unpack
whether or not a contractual relationship exists between a
franchisor and a customer of its franchisee.
Key Factual Background & Decision
Corbeil is the owner of a franchise system in respect of the sale
of household appliances. According to the claim, false
representations were made to the petitioner by: (1) Corbeil on
their website; and (2) by an employee of the franchisee, Eric
Dubreuil Inc. (the "Corbeil Franchisee"); about the need to
purchase an extended warranty. Corbeil sought to have the claim
against it dismissed at the authorization stage on the basis that
there was no legal relationship between it and the petitioner.
However, the Court rejected Corbeil's argument and authorized the
class action against it, concluding that it would be premature at
the authorization stage to attempt to unravel the legal
relationships connecting Corbeil, the Corbeil Franchisee and the
petitioner. Notably, at the authorization stage, the allegations
of a petitioner are taken to be true, and according to the Court,
the following allegations as pleaded by the petitioner created
confusion as to the identity of the petitioner's co-contracting
party:
-- The invoice for the purchases received by the petitioner
included Corbeil's business name and logo;
-- The Corbeil Franchisee was listed as one of Corbeil's
branches on Corbeil's website;
-- Corbeil did in fact offer extended warranties directly to
consumers, and it was therefore impossible at the authorization
stage to distinguish between Corbeil warranties and the one
purchased by the petitioner from the Corbeil Franchisee; and
The petitioner alleged that he chose to do business with Corbeil,
which is why he chose to purchase his appliance from the Corbeil
Franchisee.
A Trend in Franchise Cases
This outcome is not unprecedented. In an earlier case, Fortier c.
Meubles LEon ltEe, 2014 QCCA 195 (the "Fortier Case"), a similar
alleged confusion as to the identity of the consumer's co-
contracting party led the Court to authorize a class action
against Corbeil. Affirming the reasoning of the Superior Court,
the Court of Appeal noted in the Fortier Case that Corbeil's
invoice stated that it "[our translation] was represented by the
franchisee", suggesting that the Corbeil franchisee was Corbeil's
agent as opposed to an independent party.
The franchise business model is by its very definition one where
independently operated businesses, "franchisees", contract with a
franchisor for the use of the franchisor's established system of
operations, branding and trademarks. Transactions at the consumer
level occur between the consumer and the franchisee, and do not
tend to involve the franchisor. The doctrine of corporate
separateness therefore dictates that absent certain narrow and
specific circumstances, a franchisor should not be held directly
responsible to consumers for issues that arise in their business
interactions with franchisees. However, despite the corporate
separateness of a franchisor and a franchisee, consumers may
nonetheless assume that they are dealing directly with the
franchisor given the association of the franchise business with
the franchisor's often well-known and established trademarks and
brand. As class actions become an increasingly common way for
consumers to enforce their rights, this assumption may have
particularly detrimental consequences for franchisors.
The Consequences
The authorization decisions in the Fortier Case and more recently
in the Cantin Case are preliminary decisions only, and as such
they do not preclude franchisors from ultimately demonstrating
that there are insufficient legal connections between them and the
customers of their franchisees to establish liability. However,
these decisions confirm that at least at the authorization stage
of an action, where the allegations of a petitioner are accepted
as true, it will be difficult for franchisors to extricate
themselves from actions brought against them by ultimate
consumers. This signals a likely increase in class actions with
multiple defendants in a franchise context and of more franchisors
having to mount costly defences for the successful determination
of these cases on their merits.
In order to protect themselves from consumer class actions,
franchisors must work to ensure that their role vis-…-vis
consumers is as clear as possible. Maintaining such clarity
should increase a franchisor's chance of defeating a consumer
class action at the authorization stage, and certainly, if
necessary, later on its merits.
CREDIT CONTROL: Faces "Meisels" Suit in E.D. of New York
--------------------------------------------------------
A class action lawsuit has been filed against Credit Control, LLC.
The case is entitled Simon Meisels, on behalf of himself and all
other similarly situated consumers, the Plaintiff, v. Credit
Control, LLC doing business as, Credit Control & Collections, LLC,
the Defendant, Case No. 1:16-cv-06478 (E.D.N.Y., Nov. 21, 2016).
Credit Control is a St. Louis credit collection service that
offers debt collections, and accounts receivables management.
The Plaintiff is represented by:
Maxim Maximov, Esq.
MAXIM MAXIMOV, LLP
1701 Avenue P
Brooklyn, NY 11229
Telephone: (718) 395 3459
Facsimile: (718) 408 9570
E-mail: m@maximovlaw.com
DOLE: Class Action Over "All Natural Fruit" Label Can Proceed
-------------------------------------------------------------
Robert Lawson, writing for Legal Newsline, reports that a federal
appeals court has allowed a class action lawsuit against Dole over
the term "all natural fruit" to proceed.
In September, the U.S. Court of Appeals for the Ninth Circuit
reversed a lower court's decision that dismissed the case. An
attorney for Dorsey & Whitney says the court in Brazil v. Dole
pointed to warning letters from the Food and Drug Administration
about additives in Dole's products.
The plaintiff claimed fruit sold by Dole was labeled "all-natural
fruit," and the basis for the lawsuit asserts that preservatives
contained within the packaged product disqualified the products to
be considered all-natural and deceived consumers. Robert J.M. Lee
-- lee.robert@dorsey.com -- Dorsey & Whitney LLP attorney,
recently wrote that the Ninth Circuit answered this question of
labeling with a "definitive 'maybe.'"
The warning letters used by the plaintiff, Chad Brazil, pointed to
claims about natural labels on tomatoes that contained some
artificial citric acid.
"The warning letter about additives in tomatoes was an example of
an important point by the Ninth Circuit: the mere presence or
absence of a substance is not necessarily the FDA's focus,"
Mr. Lee said.
"In that example, citric acid [one of the two additives around
which the lawsuit revolved] is found naturally in tomatoes but
added synthetic citric acid makes the 'natural' label
objectionable to the FDA in the court's view.
"In contrast, the district court's summary judgment order focused
only on whether a substance 'would not normally be expected to be
in' those products'."
Mr. Lee pointed out the current FDA rules about these kinds of
product label issues are informal.
"Here, 'informal' means that the FDA has not gone through official
rule making to define 'natural,'" Mr. Lee said. "As cited by both
the district court and the Ninth Circuit, the FDA considered
officially defining the term, but ultimately declined to do so in
1993."
The Ninth Circuit reversed a decision by the district court, which
noted the plaintiff needed to provide more evidence in court to
satisfy the burden of proof that a significant number of consumers
were impacted for summary judgement and also ruled that FDA
warning letters to Dole used in court were insufficient to provide
grounds for a solid argument.
The Ninth Circuit reversed the ruling and sent it to a jury.
Mr. Lee says some specific ways that food manufacturers and brands
can protect themselves from liabilities related to ads and labels.
Mr. Lee also said expenses and costs related to this vary for
companies considering keeping themselves protected from such
liability.
"As with any shift in a company's policies or strategies, it could
vary substantially depending on the company's specific products
and the extent of the company's efforts," Mr. Lee said.
"For example, generally, once a company knows the lay of the land
as to the FDA warning letters important to its specific product
lines, keeping up to date on new letters of interest should not be
too time-intensive or costly.
"Something like focusing in on a consumer's non-literal
understanding of a label or advertisement, on the other hand,
could represent a more substantial investment because that could
require some sort of market-based research to be conducted by the
company."
Mr. Lee said companies should also not simply focus on the literal
wording of labels and ads alone, considering these "informal"
policies by the FDA.
DTS INC: Faces "Garfield" Class Suit Over Acquisition by Tessera
----------------------------------------------------------------
DTS, Inc., said in its Form 10-Q filed with the Securities and
Exchange Commission on November 7, 2016, for the quarterly period
ended September 30, 2016, that Robert Garfield commenced a
putative class action lawsuit challenging the acquisition of the
Company by Tessera Technologies, Inc.
On October 26, 2016, an alleged stockholder of the Company filed a
putative class action lawsuit, captioned Robert Garfield v. DTS,
Inc., et al., Case Number TBD, in the Superior Court of
California, Ventura County. The defendants are the Company, the
members of its Board of Directors, the Company's financial advisor
in connection with the DTS Merger, and Tessera. The complaint
alleges that the Company's directors breached their fiduciary
duties by agreeing to inadequate merger consideration and engaging
in a sales process that is in their best interests, but not the
interests of the Company's other stockholders, and that the
Company and its directors committed a breach of fiduciary duty by
causing the issuance of a Proxy Statement that fails to disclose
all material facts concerning the DTS Merger. The complaint
alleges that the Company's financial advisor and Tessera abetted
the purported breaches. The complaint seeks an order enjoining the
merger or, if it is consummated, an order rescinding it. The
complaint also seeks a reduction in the termination fee payable by
the Company to Tessera, plus damages and attorneys' fees.
The Company believes the complaint is meritless and intends to
defend the action.
DTS, Inc., provides audio solutions for high-definition
entertainment experiences. The Company's audio solutions are
designed to enable recording, delivery and playback of simple,
personalized, and immersive high-definition audio which are
incorporated by hundreds of licensee customers around the world,
into an array of consumer electronics devices, including
televisions, personal computers, smartphones, tablets, automotive
audio systems, digital media players, set-top-boxes, soundbars,
wireless speakers, video game consoles, Blu-ray Disc players,
audio/video receivers, DVD-based products, and home theater
systems.
DTS INC: Parshall Sues Seeking to Stop Acquisition by Tessera
-------------------------------------------------------------
Paul Parshall commenced a putative class action lawsuit
challenging the acquisition of DTS, Inc., by Tessera Technologies,
Inc., according to the Company's Form 10-Q filing with the
Securities and Exchange Commission on November 7, 2016, for the
quarterly period ended September 30, 2016.
On November 2, 2016, an alleged stockholder of the Company filed a
putative class action lawsuit, captioned Paul Parshall v. DTS,
Inc., et al., Case Number 12870-CB, in the Court of Chancery of
the State of Delaware. The defendants are the Company, the members
of its Board of Directors, Tessera, Tempe Holdco Corporation,
Tempe Merger Sub Corporation, and Arizona Merger Sub Corporation.
The complaint alleges that the Company's directors breached their
fiduciary duties by causing the issuance of a Proxy Statement that
fails to disclose all material facts concerning the DTS Merger.
The complaint alleges that the Company, Tessera, Tempe Holdco
Corporation, Tempe Merger Sub Corporation, and Arizona Merger Sub
Corporation abetted the individuals' purported breaches. The
complaint seeks an order enjoining the merger or, if it is
consummated, an order rescinding it, plus rescissory damages and
attorneys' fees.
The Company believes the complaint is meritless and intends to
defend the action.
DTS, Inc., provides audio solutions for high-definition
entertainment experiences. The Company's audio solutions are
designed to enable recording, delivery and playback of simple,
personalized, and immersive high-definition audio which are
incorporated by hundreds of licensee customers around the world,
into an array of consumer electronics devices, including
televisions, personal computers, smartphones, tablets, automotive
audio systems, digital media players, set-top-boxes, soundbars,
wireless speakers, video game consoles, Blu-ray Disc players,
audio/video receivers, DVD-based products, and home theater
systems.
EAGLE ROAD: Pawnee Citizens File Earthquake Class Action
--------------------------------------------------------
Cole Poland, NEWS9.com, reports that a class action petition has
been filed in Pawnee County district court on behalf of Pawnee
County citizens stating recent earthquakes were caused by oil and
gas companies.
Defendants listed in the petition are Eagle Road Oil LLC, Cummings
Oil Company, and 25 John Does comprised of other Oklahoma oil and
gas companies.
The petition alleges the:
"Defendants introduced contaminants into the natural environment
that caused adverse change to it in the form of unnatural seismic
activity. In other words, due to Defendants' pollution of the
environment they caused man-made earthquakes at issue in this
case."
The suit seeks to recover damages in the form of physical damages
to real and personal property, market value losses to real
property, emotional distress, and punitive distress.
Pawnee lawyer Billy Joe Ellington submitted to petition along with
Weitz & Luxenberg, PC, of New York, Poynter Law Group, of Little
Rock, Ark., and Steel, Wright, Gray, & Hutchinson, PLLC, of Little
Rock, Ark.
EDWARD JONES: Faces Second Suit Over Excessive 401(k) Fees
----------------------------------------------------------
Greg Iacurci, writing for Investment News, reports that
Edward Jones has been sued for excessive fees and self-dealing in
its 401(k) plan, representing the second such legal ordeal to
befall the company this year and coming amid a barrage of
litigation targeting financial services companies for their own
retirement plans.
The lawsuit, Schultz et al v. Edward D. Jones & Co., L.P. et al,
alleges the broker-dealer and several employees overseeing the
retirement plan breached their fiduciary duties by selecting high-
cost mutual funds when identical, lower-cost ones were available,
choosing "an unreasonable number" of high-risk investment options,
and including a "poorly performing" money market fund in place of
a stable value fund.
Plaintiffs also claim Edward Jones engaged in self-dealing through
a distribution relationship with several fund companies such as
American Funds, Franklin Templeton Investments, Goldman Sachs and
BlackRock.
They allege Edward Jones entered into arrangements with such
"product partners" whereby fund companies paid for access to the
"captive market" of 401(k) participants by giving revenue-sharing
fees to Edward Jones in return for "shelf space" on the retail
side of the brokerage business.
These revenue-sharing arrangements, plaintiffs claim, were
"contingent upon" Edward Jones offering the partners' investment
options in the roughly $4 billion Edward D. Jones & Co. Profit
Sharing and 401(k) Plan.
"Edward Jones was able to negotiate and secure these acknowledged
Revenue Sharing Agreements with its Product Partners in part by
guaranteeing them access to the billions of assets under
managements in the Plan, where Edward Jones, through its
designees, could choose all of the investment options," according
to the legal complaint, filed Nov. 11 in Missouri district court.
Such arrangements clouded fiduciaries' decision-making and
ultimately cost participants millions of dollars in excessive
fees, according to plaintiffs, who are seeking class-action
status.
John Boul, a spokesman for Edward Jones, said the company will
"vigorously defend" against such allegations in court.
"The Plan's Investment Committee takes very seriously its
obligation to provide quality investment options for associates to
choose from to achieve their individual retirement goals,"
Mr. Boul said in an e-mailed statement. "The lawsuit's
allegations that Edward Jones, its affiliates and plan fiduciaries
violated their fiduciary duties or engaged in prohibited
transactions related to plan assets are not true."
The "underlying theory of liability" appears to be the same in
this case when compared with a separate case filed against Edward
Jones in August, according to James Fleckner, chair of the ERISA
litigation practice at Goodwin Procter.
Contrary to the first suit, defendants in the new case include
James D. Weddle, managing partner of Edward Jones, as well as
Brett G. Bayston, an Edward Jones financial adviser who, according
to plaintiffs, serves as chairman of the 401(k) investment and
education committee.
The most recent complaint was filed by Armstrong Law Firm, based
in St. Louis. Bailey Glasser, based in Clayton, Mo., brought the
first.
BROADER THEME
The Edward Jones suits fit within a broader theme of the
plaintiff's bar suing financial services companies over fiduciary
breach in their own 401(k) plans. Firms such as Morgan Stanley,
Neuberger Berman, Franklin Templeton, New York Life Insurance Co.
and American Century Investments are among those targeted this
year.
"I think there's been a significant uptick in the last 12 months
in suits that have focused on financial services companies that
sponsor plans for their employees," according to Mr. Fleckner, who
represents defendants in such litigation. He's unaffiliated with
the Edward Jones lawsuit.
Allegations centering on Edward Jones' retail distribution
relationships and revenue-sharing payments influencing its 401(k)
fund selection seem unique among the lot, though.
"These two complaints against Edward Jones are the first I've seen
that make that direct allegation that funds have been utilized for
a 401(k) plan due to outside arrangements that the fund complexes
have with the sponsor of the 401(k) plan,"
Mr. Fleckner said.
Courts are typically "sensitive" to whether a sponsor is operating
solely in the interest of plan participants, which may make a
dismissal of this particular case more challenging for Edward
Jones, he added.
Litigation against retirement plan sponsors has also been
extending to different corners of the defined contribution market.
In August, one firm sued more than 10 universities over their
403(b) plans, a first for the plaintiff's bar.
ELDORADO RESORTS: Shareholders Challenge Casino Acquisition
-----------------------------------------------------------
Robert Kahn, writing for Courthouse News Service reported that
former Republican National Committee Chairman Frank Fahrenkopf Jr.
is among the director defendants in a shareholder class action in
Las Vegas, challenging Eldorado Resorts' $1.7 billion acquisition
of the Isle of Capri Casinos.
Lead plaintiff Warren Morse sued Eldorado Resorts Inc. and its
seven-member board on Nov. 23 in Clark County Court, citing a
number of problems with the proposed merger, in which Eldorado
offers $23 a share for Isle of Capri, or 1.638 shares of Eldorado
stock for each Isle of Capri share, at Isle of Capri shareholders'
discretion.
First, Morse claims Eldorado failed to disclose material
information about the "highly dilutive share issuance conducted in
connection with (the) merger." In its SEC registration statement,
Eldorado said it will issue 28.5 million shares of stock for Isle
of Capri shareholders.
Second, J.P. Morgan Securities was paid $11 million as Eldorado's
sole financial adviser on the deal, and is providing Eldorado with
$2.1 billion in debt financing for the merger, for which it can
expect to receive even more than the $11 million it got for its
advice, Morse says in the complaint.
Eldorado owns and operates casinos and hotels in five states, with
more than 10,300 slot and video lottery machines and 4,900 hotel
rooms.
Fahrenkopf, 77, was chairman of the Republican National Committee
from 1983 to 1989, is co-chairman of the Commission on
Presidential Debates, and was the American Gaming Association's
first president, from which he retired in 2013. He has been a
director of Eldorado since 2014.
Also named as defendants are the company's CEO Gary L. Carano; CFO
Michael E. Pegram; and directors James B. Hawkins, Thomas R. Reeg,
David P. Tomick and Roger P. Wagner.
Morse seeks class certification and an injunction blocking the
merger and the issuance of shares until the directors disclose all
the necessary material information to the shareholders who will be
asked to vote on the merger.
He is represented by Andrew Muehlbauer -- Andrew@mlolegal.com --
Muehlbauer Law Office Ltd, in Las Vegas, and Andrews & Springer in
Wilmington, Del.
The case is captioned, Warren Morse, Individually and on behalf of
all others similarly situated, Plaintiff, v. Eldorado Resorts,
Inc. et al., Case No. A-16-747176-B (Eighth Judicial District
Court, Clark County Nevada).
ENVIRONMENTAL WASTE: Fails to Provide Sufficient Info, Court Says
-----------------------------------------------------------------
Magistrate Judge Richard L. Bourgeois, Jr. of the United States
District Court for the Middle District of Louisiana granted in
part Plaintiffs Waste Away Consulting, LLC's; Efficient Waste
Solutions, Inc.'s; and Envirosource Waste Solutions, LLC's motion
to compel compliance with Rule 26 in the case captioned, WASTE
AWAY CONSULTING, LLC, ET AL., v. ENVIRONMENTAL WASTE SOLUTIONS, ET
AL., Case No. 16-389-JWD-RLB (M.D. La.).
Plaintiffs filed a putative class action involving an alleged
failure by Defendant Environmental Waste Solutions, LLC (EWS) to
pay sums due under certain "Joint Venture Agreements" with its
"Affiliates." Plaintiff argue that the "names and other
information about affiliates and/or representatives who did or did
not enter into joint venture agreements" are "notably absent" from
Defendants' initial disclosures. Defendants are also alleged to
have failed to provide copies or adequate descriptions or
locations of certain documents pursuant to Rule 26(a)(1)(A)(ii).
In response, Defendants correctly note that the disclosure
requirements under Rule 26(a)(1)(A)(i) are those individuals that
the "disclosing party may use to support its claims or defenses."
In his Order dated November 14, 2016 available at
https://is.gd/YgbtM0 from Leagle.com, Judge Bourgeois, Jr. found
that the Defendants are deficient for failing to provide the
specific information argued for by Plaintiffs. The disclosures
fail to provide the name or address for any individual identified
or whether such information is known by Defendants.
Defendants are ordered to supplement their disclosures pursuant to
Rule 26(a)(1)(A)(i) providing the address and telephone numbers of
any disclosed individual.
Waste Away Consulting, LLC, et al are represented by Gary J.
Gambel, Esq. -- ggambel@mrsnola.com -- MURPHY, ROGERS, SLOSS &
GAMBEL -- and -- Jennifer N. Willis, Esq. --
Jenniferwblaw@bellsouth.net -- WILLIS & BUCKLEY APC.
They are also represented by:
David Paul Vicknair, Esq.
Christopher A. Meeks, Esq.
SCOTT, SEVIN & VICKNAIR
3850 North Causeway, Suite 1130
Metairie, LA 70002
Tel: (504) 264-1057
Environmental Waste Solutions, LLC, et al. are represented by Van
R. Mayhall, Jr., Esq. -- van.mayhall.iii@bswllp.com -- David
Robert Kelly, Esq. -- david.kelly@bswllp.com -- and Sunny Mayhall
West, Esq. -- sunny.west@bswllp.com -- BREAZEALE, SACHSE & WILSON,
L.L.P.
EVERYDAY HEALTH: Faces Securities Class Action in New York
----------------------------------------------------------
Gainey McKenna & Egleston on Nov. 15 disclosed that a class action
lawsuit has been filed against Everyday Health, Inc. ("Everyday
Health" or the "Company") in the United States District Court for
the Southern District of New York on behalf of current stock
holders of Everyday Health, seeking to pursue remedies under the
Securities Exchange Act of 1934 (the "Exchange Act").
The Complaint alleges that Everyday Health and the members of its
Board of Directors violated Section 14(a) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act"), 15.U.S.C.
Secs. 78n(a), 78t(a), and SEC Rule 14a-9, 17 C.F.R. 240.14a-9.
On October 21, 2016, Everyday Health announced the definitive
Agreement and Plan of Merger pursuant to which each outstanding
common share of Everyday Health will be exchanged for $10.50 per
share in cash or a transaction value of approximately $465 million
(the "Proposed Transaction" or "Merger"). The Proposed
Transaction is structured as an all-cash tender offer, which
requires a simple majority of Everyday Health shares to be
tendered to Ziff Davis, LLC ("Ziff") by the close of the offer
period.
The Complaint alleges that Defendants have agreed to lock up the
Proposed Transaction with deal protection devices that preclude
other bidders from making a successful competing offer for the
Company. Specifically, pursuant to the Merger Agreement,
Defendants agreed to: (a) a strict no-solicitation provision that
prevents the Company from soliciting other potential acquirers or
even from continuing discussions and negotiations with potential
acquirers; (b) a termination fee of up to $15,180,000 payable by
Everyday Health to Ziff under certain circumstances, including the
sale of the Company to another bidder; and (c) a "matching rights"
provision that allows Ziff to match any competing proposal in the
event one emerges. These provisions substantially and improperly
limit the Board's ability to act with respect to investigating and
pursing superior proposals.
If you wish to discuss your rights or interests regarding this
class action, please contact Thomas J. McKenna, Esq. or Gregory M.
Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or
via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm.
FAIRWAY GROUP: Faces $10MM Class Action Over Text Spamming
----------------------------------------------------------
Robert Storace, writing for The Connecticut Law Tribune, reports
that a Stamford man has filed a $10 million prospective federal
class action lawsuit against the supermarket chain Fairway for
spamming shoppers with text messages despite requests to opt out
of the grocer's texting program.
Craig Moskowitz alleges in his 12-page Nov. 7 complaint that
"Fairway's disregard for consumers' opt-out request constitutes a
willful and knowing violation of the TCPA [Telephone Consumer
Protection Act of 1991]."
In an effort to market its products, Fairway established an
automated text messaging program that introduced promotions and
discounts to consumers via automated text messages to their
cellphones, according to the suit. Mr. Moskowitz alleges Fairway
-- which operates supermarkets in New York City and surrounding
areas -- sent him a text message on Oct. 18 reading, "Fairway
Market: Get $10 off when you tell us your preferred store."
Fairway's message also included the instruction, "Reply STOP to
opt-out," which Mr. Moskowitz did. Fairway immediately responded
that Mr. Moskowitz "will receive no more messages."
In his lawsuit, Mr. Moskowitz said replying "stop" did not end the
messages. In fact, he claimed Fairway sent two additional text
messages within seconds. It's not clear from the lawsuit if Mr.
Moskowitz received more than just the two telemarketing messages
from Fairway.
The lawsuit alleges "thousands" of other people also received
messages after opting out. Additional plaintiffs in the class
action -- as identified in the lawsuit -- can include people
living in the United States who since Nov. 7, 2012, received at
least one text message from Fairway, replied "stop" and still
received at least one additional text message to the same phone.
The Federal Communications Commission has clarified that text
messages qualify as "calls" under the TCPA. The FCC has also
ruled that "one-time texts confirming a request that no further
text messages will be sent does not violate the TCPA if the auto-
dialer had prior express consent."
Fairway never got prior express consent, according to
Mr. Moskowitz's lawsuit. The lawsuit says Mr. Moskowitz and
others who might join are entitled to an award of $500 in
statutory damages for each message sent in violation of the TCPA.
The lawsuit is asking for a jury trial.
Mr. Moskowitz is represented by Sergei Lemberg of the Wilton-based
Lemberg Law. Mr. Lemberg declined comment on Nov. 16.
No one from the New York City-based Fairway Group Holdings Corp.
was available for comment on Nov. 16.
FANG HOLDINGS: California Court Dismisses Securities Class Action
-----------------------------------------------------------------
Andy Parker, writing for Market Exclusive, reports that a year-
long class action lawsuit against Fang Holdings Ltd has collapsed.
The company said the U.S. District Court for the Central District
of California dismissed all claims leveled against it by the lead
plaintiffs in the class action. The suit was dismissed with
prejudice, the company said in a statement.
The securities class action lawsuit was brought up by a
disgruntled shareholder of Fang Holdings on October 30, 2015. The
lawsuit sought to represent the interest of shareholders who
acquired equity stake in Fang Holdings between May 20, 2015 and
October 27, 2015. The company and some of its former and existing
officials were sued in the securities class action.
However, on October 27, 2015, Fang Holdings said the court granted
it and the sued officers the motion to shoot down the First
Amended Complaint. With the lead plaintiffs failing to bring up
further amendments to the suit, the case collapsed.
No payments
Fang Holdings explained that despite the case dragging on for
slightly more than a year, neither it nor its officers paid
anything in connection with the dismissal of the class action
lawsuit.
Fang Holdings is the operator of the largest online real-estate
portal in China by visits. The company's services range from
marketing, listing to value-added services. Fang Holdings is
hoping to profit from China's expanding newly affluent population
that is also helping fuel growth at e-commerce companies like
Alibaba Group Holding Ltd and JD.com Inc.
3Q16 results
Fang Holdings is due to release its 3Q16 results on November 16.
The company reported EPS loss of $0.08 on revenue of $287 million
in 2Q16, beating the consensus estimates that called for EPS loss
of $0.12 on revenue of $269.8 million. In 3Q15, Fang Holdings
posted EPS profit of $0.08, again beating the consensus estimate
that called for EPS of $0.03 for the quarter. Revenue of $248.5
million in 3Q15 also topped the consensus estimate of $247.3
million.
Fang Holdings stock is down nearly 60% YTD.
FEDEX GROUND: Class Representatives Oppose $25MM Settlement
-----------------------------------------------------------
Charles Toutant, writing for New Jersey Law Journal, reports that
in a multidistrict litigation accusing FedEx Ground of
misclassifying its drivers as independent contractors, all seven
New Jersey class representatives in the case have expressed their
opposition to a proposed $25 million settlement.
The proposed settlement, on behalf of roughly 900 members of a New
Jersey class, short-changes class members by $50 million because
it fails to account for their claim under the New Jersey Consumer
Fraud Act, according to the objectors. What's more, the
settlement fails to consider plaintiffs' increased likelihood of
success in the case under a 2015 New Jersey Supreme Court ruling
in Hargrove v. Sleepy's, in which the court confirms that the
"ABC" test applies to such situations, according to the objectors.
The suit, Tofaute v. FedEx Ground Package System, claims that the
company fraudulently induced the plaintiffs to purchase their
routes and delivery trucks in an illegal shift of the cost of
doing business. The plaintiffs also claim they are "micromanaged"
by FedEx to the point that they become defacto employees. The
U.S. Judicial Panel on Multidistrict Litigation consolidated more
than 70 similar cases before U.S. District Judge Robert Miller Jr.
of the Northern District of Indiana in 2005.
In 2015, the U.S. Court of Appeals for the Seventh Circuit ruled
that FedEx drivers are employees and not contractors. That
decision followed a 2014 ruling from the U.S. Court of Appeals for
the Ninth Circuit that made a similar ruling in cases concerning
workers in California and Oregon.
In early 2016, FedEx Ground began to make settlement offers for
the 20 state plaintiff groups that remained in the MDL, said David
DiSabato of DiSabato & Bouckenooghe in Mendham, who represents the
class representatives along with Greg Kohn of Nagel Rice in
Roseland. The offers were made from a $240 million settlement
fund, he said. A handful of individual class members have
objected to their settlement offers, said Mr. DiSabato, but he
knows of no other case where an entire state delegation of class
representatives have opposed the settlement.
The judge granted preliminary approval to the settlement in
August, and the seven New Jersey class representatives filed their
objection to final approval of the settlement in the New Jersey
action on Nov. 16. The judge in the case is expected to hold a
fairness hearing on the settlement on Jan. 23, 2017.
In their objection, the New Jersey class representatives note that
the settlement offer to the North Carolina class does include
treble damages and attorney fee-shifting, which are elements of
the New Jersey Consumer Fraud Act but are excluded from the New
Jersey settlement.
The Consumer Fraud Act applies in the present case because
"defendants market the opportunity to become an 'independent
contractor' to members of the public under what has been held to
be a sophisticated nationwide ruse to avoid basic worker
protection laws," the objectors said in court papers.
Mr. DiSabato said the class representatives in the case, "if they
believe they are acting in and putting forth the best interests of
the class, do not have to represent the class representatives if
the class representatives are urging a better settlement."
Robert Harwood -- rharwood@hfesq.com -- of Harwood Feffer in New
York and Susan Ellingstad of Lockridge Grindal Nauen in
Minneapolis, who are plaintiffs' co-lead counsel, and Anthony
Marchetti Jr. of Marchetti Law in Cherry Hill, who is plaintiffs'
co-counsel, did not return calls seeking comment.
Alison Fox -- alison.fox@FaegreBD.com -- of Faegre Baker Daniels
in South Bend, Indiana, represented FedEx Ground, and she did not
return calls seeking comment.
FERRING PHARMA: Class Action Over Bravelle Recall Can Proceed
-------------------------------------------------------------
Gordon Gibb, writing for LawyersandSettlements.com, reports that
when the manufacturers of the Bravelle infertility drug
temporarily recalled, and stopped selling the product a little
more than a year ago over lack of potency, attorneys and legal
professionals at the time predicted that plaintiffs would have a
bit more of a challenging time bringing a Bravelle lawsuit given
that there was no primary safety issue involved. To that end, any
Bravelle Infertility Drug lawsuit brought since then has focused
on the lack of quality and potency, rather than safety claims.
Indeed, a class action lawsuit brought against Ferring
Pharmaceuticals and challenged by the manufacturer will proceed,
after a judge granted only partially a motion brought by Ferring
for summary judgement.
That means the nationwide class action Bravelle Recall lawsuit can
go forward (Keith, et al v. Ferring Pharmaceuticals, Inc. case no.
1:15-cv-10381 US District Court for the Northern District of
Illinois).
In October of last year, when Ferring issued a Bravelle
Infertility Drug Recall, it did so due to the results of the
Switzerland-based drug maker's own testing for quality. When it
was discovered that certain batches of the fertility drug
manufactured in 2014 "did not meet potency specifications for the
full 24-month shelf life," Ferring called a halt to product
distribution "until the situation is rectified."
Industry watchers at the time noted that Ferring had pushed all
the right buttons and undertook the necessary protocols to remove
the affected lots and temporarily cease distribution -- which it
did quietly and with little fanfare.
One attorney told Law 360 at the time that would-be plaintiffs
would have a difficult time attempting to proceed with failure-to-
warn claims, given that the issue had little to do with the
potential for physical harm. While the attorney noted that a
costly cycle of Bravelle that was insufficiently robust in
strength to be effective would prove vexing for the plaintiff, no
harm was done.
Another attorney noted at the time one strategy that might be
effective in the pursuit of compensation would be the potential
for side effects that could pose a health risk for the plaintiff.
To that end, plaintiffs could argue that they should not have been
made to assume the risk if the efficacy of the product was in
doubt.
Fast forward a year. In lawsuits over the Bravelle Infertility
Drug Recall, plaintiffs allege that Ferring knew about the lack of
potency inherent to its Bravelle product well before the subdued
Bravelle recall was initiated in October of last year.
Even without any claims against safety, the prior knowledge card
is a big one for plaintiffs, given the costs associated not only
for the drug, but the cost for treatments at fertility clinics as
well as costs associated with travel, accommodation and time off
work. The costs can add up to tens of thousands of dollars, funds
which many couples allege it takes years to build up, and is not
economically feasible to repeat if a treatment doesn't work.
Some Bravelle plaintiffs claim to be out as much as $25,000 when
all costs are factored in, and are unable -- due to financial
hardship -- to repeat the attempt. For them, the allegation that
Ferring knew about the deficient potency long before the Bravelle
infertility drug recall, is beyond vexing.
Ferring offered to reimburse patients for the cost of the drug,
which is the smallest cost component when all costs are factored
in for clinic and clinician costs, time, travel and accommodation.
Ferring has not offered to reimburse patients for any other costs
beyond the cost of the drug itself.
In April, Ferring moved to have the class action Bravelle
Infertility drug lawsuit dismissed. In September, Judge Amy St.
Eve of the US District Court for the Northern District noted, in
her 31-page ruling that the plaintiffs "have plausibly alleged
that all of the Recalled Lots (sic) were sub-potent or had the
potential to be sub-potent," and that the plaintiffs' allegations
"raise a reasonable inference that Defendant knew about the sub-
potency issues well before October 2015."
FITNESS CONNECTION: "Arceneaux" Suit to Recover Overtime Pay
------------------------------------------------------------
Wesley Arceneaux, Samuel Barnhardt, Adam Bellinger, Ramiro
Berones, Jose Benitez, Ethan Callahan, Damon Hodge, Willis Holman,
Dwayne Jones, Herman Mccord, Ike Miller, Randy Reyna, Laderrick
Stills, Sunshine Thornton, William Valk, Candace Weaver and John
Yarbrough, Plaintiffs v. Fitness Connection Option Holdings, LLC,
Titan Fitness, LLC, Titan Fitness Holdings, LLC, Titan Fitness-
Dublin, LLC, Titan Fitness-GBC, LLC, Titan Fitness-SA, LLC, Titan
Fitness NC, LLC and Titan Fitness Texas, LLC, Defendants, Case No.
4:16-cv-03418 (S.D. Tex., November 18, 2016), is a collective
action seeking overtime compensation, punitive damages, liquidated
damages, interest, and attorneys' fees and costs under the Fair
Labor Standards Act.
Defendants own and operate health and fitness facilities in the
State of Texas and the State of Kansas where Plaintiffs are and/or
formerly were General Managers, Assistant General Managers and
Fitness Managers, Sales Counselors, Fitness Directors and/or
Personal Trainers.
Plaintiffs, on behalf of themselves and all similarly situated
allege they have been denied overtime pay for work rendered in
excess of 40 hours per week as well as for off-the-clock duties.
Plaintiff is represented by:
Richard C. Dalton, Esq.
1343 West Causeway Approach
Mandeville, LA 70471
E-mail: rdalton746@aol.com
Tel. (985) 778-2215
Fax: (985) 778-2233
FLINT, MI: Water Crisis Class Action Heads to Local Court
---------------------------------------------------------
WSJM report that a class-action lawsuit potentially affecting tens
of thousands of people in the Flint water disaster will go to a
local court, not miles away to federal court. A federal appeals
court made the decision on Nov. 16, affirming a ruling by a
federal judge in Ann Arbor. An engineering company, Lockwood,
Andrews & Newnam, is being sued over its work at the Flint water
treatment plant. Residents accuse the company of failing to
ensure that the plant would be equipped to treat Flint River water
for corrosion. The corrosive water caused lead to leach from old
plumbing and fixtures, contaminating Flint's water supply.
Lockwood, Andrews denies that it's responsible for the problem.
In a 2-1 decision, the appeals court says it's a "local
controversy" that belongs in Genesee County.
FLINT, MI: Controversy Provides Civil Procedure Lesson
------------------------------------------------------
Larisa Vaysman, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, reports that in Mason v.
Lockwood, Andrews & Neuman, a split panel of the Sixth Circuit
affirmed a district court's decision to remand a class action to
state court under the "local controversy" exception to the Class
Action Fairness Act. CAFA requires a court to "decline"
jurisdiction over a class action that otherwise qualifies for
federal court if the class action meets three requirements. One
of these is that more than two thirds of the class members must be
"citizens of the State in which the action was originally filed."
In Mason, the plaintiff class consisted of "residents and property
owners in the City of Flint," Michigan, who used water from the
Flint River from April 25, 2014 and onward. The district court
relied largely on the principle that an allegation of residency
creates a rebuttable presumption of domicile, and therefore
citizenship. The Sixth Circuit acknowledged that --rebuttable
presumption notwithstanding -- alleging residence is insufficient
to establish citizenship for the purpose of creating federal
subject matter jurisdiction, but distinguished the "local
controversy" exception as "not jurisdictional." Thus, the court
explained, a party seeking to establish citizenship for purposes
of the local controversy exception did not face "the unrelenting
headwinds of limited federal jurisdiction," and could rely on the
rebuttable residency-domicile presumption to establish
citizenship. The court declined to follow contrary decisions from
other circuits because they "extended the 'mere averment of
residency' principle without accounting for its underlying
rationale."
Judge Kethledge dissented, pointing out, among other things, that
"every circuit to have considered the issue -- five so far -- has
held that 'there must ordinarily be at least some facts in
evidence from which the district court may make findings regarding
the class members' citizenship for purposes of CAFA's local-
controversy exception.'" He also characterized the case as
presenting a question of "abstention," which is only permitted
with the "clearest of justifications."
It is important to note that the majority in this case did not
rely exclusively on "the presumptive force of residency," but also
noted "other attributes . . . that bolster the inference." The
court noted that the class definition required members to "have
continuously resided in Flint . . . for several years," that there
were no circumstances that suggested a large number of the class
members would be transient (students, vacationers, etc.), that
property ownership is a strong indicator of domicile, and that
Flint is "nowhere near a state line." It will be interesting to
see how future panels applying Mason will use these additional
"attributes" in their analyses. And, of course, given that Mason
appears to create a circuit split, we will be looking out for a
cert petition.
FRESH & EASY: Wins Preliminary Approval of $50K Class Suit Accord
-----------------------------------------------------------------
The Delaware Bankruptcy Court granted preliminary approval of the
settlement agreement of the class action captioned as, Darlene
Lewis, on behalf of herself and all other similarly situated,
Plaintiff, vs. Fresh & Easy, LLC, and Does 1 through 25,
inclusive, Defendants, Adv. Proc. No. 16-50030 (Bankr. D. Del.).
The Court certified, for settlement purposes, a class of all
former employees of Fresh & Easy who worked at the Company's
Nevada or Arizona locations and who filed proofs of claim seeking
accrued and unused paid-time-off that was not paid to them upon
their separation of employment.
The Settlement Agreement would result in the satisfaction of
disputed, contingent, unliquidated proofs of claim in exchange for
these terms:
(1) a priority claim in the amount of 33.3% of their
calculated value;
(2) attorneys' fees in the amount of 50% of the total
sum paid to Class Members;
(3) costs in the amount of $3,500; and
(4) an unsecured claim in the amount of $10,000 to
Class Representative Darlene Lewis.
The total amount of the settlement is approximately $50,000.
The Settlement Agreement contemplates distributions to Class
Members within 30 days of the Settlement Effective Date.
Ms. Lewis is appointed class representative. Thierman Buck LLP
and the Law Office of Edward J. Komowski LLC are appointed class
counsel.
Epiq Bankruptcy Solutions serve as claims administrator.
A settlement fairness hearing is set for March 29, 2017.
Attorneys for Darlene Lewis on behalf of herself and all other
similarly situated persons:
Edward J. Kosmowski, Esq.
The Law Office of Edward J. Kosmowski, LLC
2 Mill Road, Suite 202
Wilmington, DE 19806
Telephone: (302) 351-9010
Facsimile: (302) 635-1805
E-mail: Ed@KosmowskiLaw.com
- and -
Mark R. Thierman, Esq.
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
Tel: (775) 284-1500
Fax: (775) 703-5027
Martin O'Sullivan, writing for Bankruptcy Law360, reported that
Delaware Bankruptcy Judge Brendan L. Shannon gave initial approval
to the settlement, weeks after labeling a class action waiver in
the company's arbitration agreement illegal. In an issue of first
impression in the Third Circuit, Judge Shannon in October ruled
that Fresh & Easy's class action waiver in an employee arbitration
agreement violates the National Labor Relations Act.
Fresh & Easy, LLC, a chain of grocery stores in the Southwest
United States, filed a Chapter 11 bankruptcy petition (Bankr. D.
Del. Case No. 15-12220) on Oct. 30, 2015.
GC SERVICES: Court Tosses Dickens' Class Certification Bid
----------------------------------------------------------
District Judge James S. Moody, Jr. of the United States District
Court for the Middle District of Florida granted Plaintiff's
Motion for Summary Judgment on Defendant's liability but denied
Plaintiff's Motion for Class Certification and Appointment of
Class Counsel in the case captioned, RONNIE E. DICKENS, Plaintiff,
v. GC SERVICES LIMITED PARTNERSHIP, Defendant, Case No. 8:16-cv-
803-T-30TGW (M.D. Fla.).
The Court ruled that Dickens, the named and only plaintiff, will
be awarded the nominal damages of $1.
In the putative class action lawsuit, Plaintiff Ronnie Dickens
alleges that Defendant violated the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. Sections 1692-1692p, by failing to adhere
to certain debt-collection practices required by the Act. More
specifically, Dickens alleges that Defendant failed to notify him
and other similarly situated debtors in its initial notice to them
that if they disputed their debts, they would have to notify
Defendant in writing in order to trigger Defendant's legal
obligation to verify the debts. In short, even though Defendant
notified Dickens and others that they did have these rights,
Dickens alleges that Defendant's failure to explicitly state that
the rights must be invoked in writing violated the Act,
specifically sections 1692e, 1692g(a)(4), and g(a)(5).
In December 2015, Defendant sent Dickens an initial debt-
collection notice. On the basis of this communication, Dickens
filed suit against Defendant. Counts I and II of the complaint
allege that both paragraphs in the notice -- the first informing
Dickens of his right to dispute the debt, the second informing him
of how he can obtain verification -- were required by the Act to
specify that the dispute and verification invocations must be made
in writing. Count III alleges more broadly that these same
paragraphs, in the same ways, amounted to a "false, deceptive, or
misleading representation in connection with the collection of any
debt." The complaint asks the Court to award only statutory
damages, not actual damages.
Defendant sent similar communications to 9,862 people in Florida,
all of which neglected to include the in-writing specification.
Defendant's internal standard operating procedures on debt
collection suggest, as Defendant asserts, that the communications
did not include the in-writing specification because Defendant had
a policy of respecting disputes and verification requests
communicated in any way, not just in writing.
Dickens moves for summary judgment on Defendant's liability. He
also moves for class certification of the 9,862 Florida debtors,
with him as class representative and with his counsel as class
counsel.
Dickens proposes a class of "(1) All persons with a Florida
address, (2) to whom GC Services Limited Partnership mailed an
initial communication that stated: (a) if you do dispute all or
any portion of this debt within 30 days of receiving this letter,
we will obtain verification of the debt from our client and send
it to you, and/or (b) if within 30 days of receiving this letter
you request the name and address of the original creditor, we will
provide it to you in the event it differs from our client,
Synchrony Bank, (3) between April 4, 2015 and April 4, 2016, (4)
in connection with the collection of a consumer debt, (5) that was
not returned as undeliverable to GC Services Limited Partnership."
In his Order dated November 14, 2016 available at
https://is.gd/ZEo8on from Leagle.com, Judge Moody, Jr. concluded
that Defendant's omission of the FDCPA's in-writing requirement
would deceive or mislead the least-sophisticated consumer and that
omitting the in-writing requirement under 15 U.S.C. Section
1692g(a)(4) and (5) violates the FDCPA. As to Plaintiff's motion
for class certification, the Court found that he has not satisfied
the Rule 23(a) and (b) requirements.
Applying the factors the Court must apply under Section 1692k of
the FDCPA, the Court concluded in its discretion that the facts of
the case call for the award of only nominal damages. The plaintiff
or plaintiffs in the case, however many they may have been, would
have been awarded $1.00 in statutory damages.
Ronnie E. Dickens, is represented by James L. Davidson, Esq. --
jdavidson@gdrlawfirm.com -- and Michael L. Greenwald, Esq. -
mgreenwald@gdrlawfirm.com -- GREENWALD DAVIDSON RADBIL, PLLC
GC Services Limited Partnership is represented by Michael Shelby
Sperounes, Esq. -- michael.sperounes@lewisbrisbois.com -- and --
William S. Helfand, Esq. -- william.helfand@brisbois.com -- LEWIS,
BRISBOIS, BISGAARD & SMITH, LLP
GEORGETOWN UNIVERSITY: Faces Suit for Disability Discrimination
---------------------------------------------------------------
Courthouse News Service reported that a teacher claims in a class-
action lawsuit in Washington D.C., that he lost an English
fellowship position because Georgetown University denied him
unconditional medical clearance based on his disability.
Lead plaintiff Tait Bergstrom is an educator who has previously
taught courses at universities in China for about six years,
according to the complaint he filed last week in Washington, D.C.,
federal court against Georgetown University and U.S. Secretary of
State John Kerry.
Last year, Bergstrom accepted a conditional offer from Georgetown
to work as an English language fellow in China. The English
language program offered by the university is sponsored by the
U.S. Department of State, according to Georgetown's website.
The fellow positions are described on a State Department website
as 10-month programs "for professionals with a graduate degree in
English language teaching and two years' classroom [teachers of
English to speakers of other languages, or TESOL] teaching
experience."
Bergstrom says the teaching position is contingent on applicants
passing a medical exam by a State Department doctor. After
accepting the employment offer, Bergstrom submitted extensive
medical information for the exam, which he claims supports his
ability to serve as an English language fellow.
Bergstrom does have a disability, but says he has experienced no
difficulty during his previous years in China because of it. He
claims his disability, which is not specified in his lawsuit, is
recognized under the Rehabilitation Act of 1973 and the District
of Columbia Human Rights Act of 1977. Roughly two weeks after
Bergstrom was offered the fellow position, the offer was rescinded
due to the medical exam, he claims.
According to the Nov. 23 complaint, the doctor conducting the
examination denied Bergstrom unconditional medical clearance
because he did not include a treatment plan for his conditions
while he would be teaching in China.
Bergstrom claims he was never given an opportunity to submit
documentation of his treatment plan, and the health verification
form he was given as part of the clearance process did not have
any area requesting him to submit a treatment plan.
After hearing his results, Bergstrom consulted with a Georgetown
employee to see if there was a way to contest the denial, but he
was told there was no appeal process available, the complaint
states.
Bergstrom says the hiring process is discriminatory because no one
with an actual or perceived disability will receive unconditional
medical clearance, with or without reasonable accommodation. He
alleges the fellow program's hiring policy violates the Rehab Act
and the D.C. Human Rights Act.
Bergstrom wants to represent a proposed class of all people who
have lost job opportunities since April 2015 because the State
Department and Georgetown denied them unconditional medical
clearance. He seeks injunctive relief against the medical
clearance policy, as well as compensatory and punitive damages,
and is represented by Bryan Schwartz in Oakland, Calif.
Neither Georgetown nor the State Department organization
responsible for the English language programs responded on
November 29, to requests for comment.
The case is captioned, Tait Bergstrom, individually, on behalf of
others similarly situated, and on behalf of the general public
3801 Brooklyn Avenue NE, K207 Seattle, Washington 98105,
Plaintiff, vs. John Kerry, in his official capacity as Secretary,
United States Department of State The Executive Office Office of
the Legal Adviser, Room 5519 United States Department of State
2201 C Street, NW Washington, DC 20520-6310; and Georgetown
University Office of the General Counsel 37th and O Streets, N.W.,
Washington D.C. 20057; DOES 1-20, inclusive, Defendants, Case
1:16-cv-02330-ABJ (D.D.C, November 23, 2016).
Attorneys for Plaintiff Bergstrom and the Putative Class:
Bryan J. Schwartz, Esq.
Eduard R. Meleshinsky, Esq.
BRYAN SCHWARTZ LAW
1330 Broadway, Suite 1630
Oakland, CA 94612
Telephone: (510) 444-9300
Facsimile: (510) 444-9301
Email: bryan@bryanschwartzlaw.com
eduard@bryanschwartzlaw.com
- and -
Raymond C. Fay, Esq.
Dionna M. Lewis
FAY LAW GROUP PLLC
1250 Connecticut Ave, NW Suite 200
Washington DC 20036
Telephone: (202) 263-4604
Facsimile: (202) 261-3508
Email: rfay@faylawdc.com
dlewis@faylawdc.com
GOODLIFE FITNESS: Faces Class Action Over Unpaid Overtime Wages
---------------------------------------------------------------
Sara Mojtehedzadeh, writing for Toronto Star, reports that
corporate gym chain GoodLife Fitness has "systematically failed"
to accurately compensate thousands of employees across Ontario for
their hours of work and overtime, according to a new $60 million
class-action lawsuit.
The suit, filed by renowned labour law firm Goldblatt Partners,
makes numerous allegations against the fitness giant with 166
locations across the province -- including that its policies "fail
to appropriately compensate" employees and create "an unlawful
barrier to payment of overtime."
It also claims GoodLife regularly fails to pay its employees for
certain types of work, such as preparation for classes and seeking
out new clients.
"These are precarious workers, these are young workers, these are
in many cases part-time workers, workers who face precarious
schedules," said Josh Mandryk -- jmandryk@goldblattpartners.com
-- co-counsel on the case. "It's really crucial for workers in
these situations who face challenges standing up to these sorts of
policies alone to come together and defend that principle that
they should be paid for all their hours of work."
In an emailed statement to the Star, a spokesperson for GoodLife
said a fair and supportive work environment was a "key priority"
for the company.
"We disagree with the allegations outlined in this claim. We are
currently in the process of reviewing and assessing the
allegations so that we may defend ourselves," the statement added.
In order to proceed, the class action must first be certified in
court. Mr. Mandryk expects that hearing to take place next year.
The Star has previously reported on an organizing campaign at
GoodLife that resulted in around 650 Toronto personal trainers
unionizing after complaints of poor pay and health and safety
concerns. A Ministry of Labour inspection blitz focused on
precarious employment slapped the company with five orders for
violating employment standards.
The new class-action suit represents any non-unionized employee
past or present who has worked at GoodLife since 2014, a number
Mandryk says he expects is in the thousands.
In its statement of claim, lawyers for the class action argue that
GoodLife prevented workers from accurately recording and claiming
for all their hours of work, since their electronic time sheets
"are altered by managers and club administrators" when they
surpass the overtime threshold of 44 hours a week.
Workers can be disciplined by GoodLife for working unauthorized
overtime -- but must also maintain an average of 96 personal
training hours with clients each month, according to the suit. To
reach that, employees must spend time "prospecting" new clients --
but they are "not compensated for all of these hours," the claim
alleges.
The suit cites the examples of representative plaintiff
Carrie Eklund, who says she performed around 100 hours of
prospecting work in one month. She was not paid for any of it,
the statement of claim alleges.
"To me, this case is about standing up for what's right,"
Ms. Eklund told the Star. "GoodLife employees deserve to be paid
for all of the work that they do."
Trainers are also required to prepare for classes as well as spend
hours completing mandatory paperwork for the company, the lawsuit
claims, all of which is not compensated.
The lawsuit says the class action "will advance the goal of access
to justice by providing a remedy for GoodLife's employees" who it
says "face well-documented systemic barriers to enforcing their
rights."
GOPRO INC: January 17 Lead Plaintiff Motion Deadline Set
--------------------------------------------------------
Pomerantz LLP on Nov. 16 disclosed that a class action lawsuit has
been filed against GoPro, Inc. ("GoPro" or the "Company")
(NASDAQ:GPRO) and certain of its officers. The class action,
filed in United States District Court, Northern District of
California, and docketed under 16-cv-06654, is on behalf of a
class consisting of all persons or entities who purchased or
otherwise acquired GoPro between September 19, 2016 and
November 4, 2016, both dates inclusive (the "Class Period"),
seeking to recover compensable damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder.
If you are a shareholder who purchased GoPro during the Class
Period, you have until January 17, 2017 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss
this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll
free, ext. 9980. Those who inquire by e-mail are encouraged to
include their mailing address, telephone number, and number of
shares purchased.
GoPro develops and sells mountable and wearable cameras and
accessories in the United States and internationally. The
Company's cameras are designed primarily for filming while
immersed in action, such as outdoor or extreme sports. On October
23, 2016, following months of delays, GoPro released the Karma
drone, a compact, foldable drone designed for aerial photography
using GoPro's cameras.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) GoPro's Karma drones were
prone to losing power midflight, causing them to fall out of the
sky; (ii) the Company had thus significantly overstated the
utility of and likely customer demand for the Karma drone; (iii)
the foregoing issue, when publicly known, would necessitate a
costly recall of the Company's Karma drones; and (iv) as a result,
GoPro's public statements were materially false and misleading at
all relevant times.
On November 3, 2016, shortly before the market closed, GoPro
issued a press release and filed a Current Report on Form 8-K with
the SEC announcing the Company's financial and operating results
for the quarter ended September 30, 2016 (the "Q3 2016
8-K"). Among other information, the Q3 2016 8-K provided revenue
guidance for 2016 in the range of $1.25 billion and $1.3 billion -
- a significant decrease from the revenue guidance of $1.35
billion and $1.5 billion that the Company had provided in
reporting its financial and operating results for the previous
quarter, and consistent with an anticipated recall of the
Company's Karma drone.
On this news, GoPro's share price fell $0.90, or 7.01%, to close
at $11.94 on November 3, 2016, and fell an additional $0.78, or
6.53%, to close at $11.16 on November 4, 2016.
On November 8, 2016, post-market, GoPro announced the recall of
the approximately 2,500 Karma drones purchased by consumers since
the product's release, advising that the Company had discovered
that Karma units were prone to losing power during operation.
On this news, GoPro's share price fell $0.45, or 4.14%, to close
at $10.41 on November 9, 2016.
With offices in New York, Chicago, Florida, and Los Angeles, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
IAC/INTERACTIVECORP: Faces Class Action Over RICO Violations
------------------------------------------------------------
In a class action lawsuit pending in federal court against
IAC/InteractiveCorp (NASDAQ: IAC), a media and Internet company,
and its operating business, HomeAdvisor (formerly ServiceMagic),
Chimicles & Tikellis LLP filed an Amended Complaint on November
14, 2016 on behalf of tens of thousands of home service
professionals nationwide, comprised primarily of small to mid-size
home contractors. The Amended Complaint, filed in AirQuip, Inc,
et al. v. HomeAdvisor, Inc, IAC/InteractiveCorp, et al, Civil
Action No. 1:16-cv-01849 (U.S.D.C. District of Colorado), by three
home service professionals based in New York, Florida and Indiana,
charges IAC and HomeAdvisor with violations of RICO -- the
Racketeer Influenced and Corrupt Organizations Act -- and state
law claims, and seeks monetary and injunctive relief on behalf of
the home service professionals.
The Amended Complaint alleges how IAC and HomeAdvisor charge home
service professionals (and often automatically debit from their
bank accounts) hundreds of thousands of dollars for business
leads, sight unseen, that are purportedly qualified new business
opportunities from targeted, serious, qualified and project-ready
homeowners who are seeking the services of home service
professionals. Based on a months' long investigation by
Plaintiffs' Counsel, including interviewing former employees, home
service professionals and homeowners from around the country, the
Amended Complaint details how IAC and HomeAdvisor hard-sell the
service to unsuspecting home service professionals so as to charge
them for thousands of leads that are actually illusory and the
product of a systemically defective process that is incapable of
producing project-ready and quality leads.
The Amended Complaint alleges that leads are generated through
third-parties, including from sweepstake entries premised on free
giveaways, and the home service professionals are then charged for
the leads, notwithstanding that IAC and HomeAdvisor have not
vetted nor taken any measure to ensure that the "leads" are of the
necessary nature and quality to constitute a qualified lead.
Consequently, Plaintiffs' Counsel's investigation uncovered, as
detailed in the Amended Complaint, that the home service
professionals are charged for leads comprised of: persons not
interested in the offered services; wrong or disconnected phone
numbers; wrong contact information; persons who are not
homeowners; persons who never even heard of HomeAdvisor; projects
that were completed months or years prior; contacts for homes that
were listed for sale; contacts for vacant or non-existent
residences; and leads sent to a number of home service
professionals far in excess of the number represented by
HomeAdvisor.
Such conduct on the part of IAC and HomeAdvisor, as detailed in
the Amended Complaint, is uniform and systemic, and appears to be
motivated by the objective to materially pump up revenues and
report "record" growth at HomeAdvisor so as to position it as the
next IAC spin-off. As the Amended Complaint alleges, "Such
purported growth however, has been built on a fraudulent business
model, and has been achieved at the expense, livelihoods and on
the backs of the Home Service Professionals." The Action seeks to
bring an end to this conduct.
A copy of the Amended Complaint is available at www.chimicles.com.
If you are or were a HomeAdvisor home service professional and are
interested in discussing your legal rights, and/or you have
information relating to this Action and the claims asserted
therein, please contact Plaintiffs' counsel Nicholas E.
Chimicles, Kimberly Donaldson Smith or Stephanie E. Saunders toll
free at 1-888-805-7848 or via e-mail at KMD@chimicles.com or
SES@chimicles.com.
For over 30 years, Chimicles & Tikellis LLP has pursued hundreds
of securities, consumer and shareholder rights cases and recovered
billions of dollars for its clients. The firm is nationally
recognized, and its litigators hold many professional honors and
distinctions.
INGRAM & ASSOCIATES: Faces "Regan" Suit in E.D.N.Y.
---------------------------------------------------
A class action lawsuit has been filed against Ingram & Associates
LLC. The case is captioned Patricia Regan, on behalf of herself
and all others similarly situated, the Plaintiff, v. Ingram &
Associates LLC, the Defendant, Case No. 1:16-cv-06449 (E.D.N.Y.,
Nov. 21, 2016).
Ingram & Associates is a home marketing and sales firm in the
Alabama area.
The Plaintiff is represented by:
Alan J Sasson, Esq.
LAW OFFICE OF
ALAN J. SASSON, P.C.
2687 Coney Island Avenue, 2nd Floor
Brooklyn, NY 11235
Telephone: (718) 339 0856
Facsimile: (347) 244 7178
E-mail: alan@sassonlaw.com
IRON HILL: Settles Tip Class Action for $1.3 Million
----------------------------------------------------
Jim Walsh, writing for Courier-Post, reports that the Iron Hill
Brewery chain is paying $1.3 million to settle a lawsuit alleging
it improperly diverted tips from servers and bartenders.
The company, with local outlets in Maple Shade and Voorhees, also
has agreed to end a policy that required employees to share
gratuities with workers who would not normally be tipped.
An Iron Hill worker had challenged that policy in a class-action
lawsuit filed in federal court, Philadelphia, in February.
U.S. District Judge Mark Kearney approved the suit's resolution on
Nov. 14, calling it "fair, reasonable and adequate."
"The settlement is the result of a lot of hard work and compromise
by the parties," Peter Winebrake, a Dresher, Pa., attorney for the
workers, said on Nov. 16.
An attorney for Iron Hill and its parent firm, Chesapeake &
Delaware Brewing Holdings LLC, did not respond to a request for
comment.
The settlement includes about $915,000 for almost 1,000 people who
filed claims as current or former servers and bartenders. The
average payment will be about $925, with the exact amount based on
a claimant's share of work hours during a three-year period.
The settlement also has about $23,000 -- or $75 each -- for some
300 class members who have not filed claims.
The worker who brought the suit, Matthew Schaub of New Britain,
Pa., will receive a "service payment" of $9,000; the remainder --
about $340,000 -- will go to the employees' lawyers.
Iron Hill, a 20-year-old firm based in Delaware, operates a dozen
restaurants in the tri-state area.
The lawsuit focused on the firm's use of a tip credit. The
company paid bartenders and servers $2.83 per hour, then relied on
customers' gratuities to bring their pay up to the minimum wage.
But Iron Hill also diverted some of the tip income to "expos,"
workers who prepare meals for pick-up by servers. Expos typically
work near the kitchen and don't interact with Iron Hill patrons,
the lawsuit said.
It argued employers lose the right to use a tip credit when tips
must be shared with workers, like the expos, "whose direct
customer interaction is minimal."
The class-action suit initially sought $4.42 for every hour worked
by a qualifying employee, as well as interest, damages and
attorney's fees.
In New Jersey, the settlement applies to people who worked as
bartenders or servers for Iron Hill between July 1, 2013 and
June 30, 2016.
JACKSON HEWITT: Wins Bid to Compel Arbitration in Spam Text Case
----------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that a
suburban Marengo man will not -- for now -- be able to press his
claim income tax return preparer Jackson Hewitt, and its partners
American Express and Restaurant.com, illegally spammed his phone
with text messages, after a Chicago federal judge ruled the
agreement he signed with Jackson Hewitt also mandated all disputes
over the contract be handled through arbitration.
On Nov. 16, U.S. District Judge Philip D. Reinhard granted the
request from Jackson Hewitt to compel arbitration in the case,
rejecting the contention from plaintiff Phil Hollingsworth that
the agreement's arbitration provision shouldn't apply in this
case.
"The Agreement was offered to him and accepted by him, as part of
the tax preparation services provided by Jackson Hewitt," Judge
Reinhard wrote. "As noted above, the terms of the arbitration
provision of the Agreement require 'all claims, disputes, or
controversies asserted individually or collectively against . . .
any of the Jackson Hewitt System' to be arbitrated.
"The court cannot say 'with positive assurance' that the
arbitration provision does not reach Hollingsworth's claims
against Jackson Hewitt. Whether the scope of the arbitration
agreement reaches these claims is for the arbitrator to decide."
The ruling comes as the latest step in litigation dating back to
March, when Mr. Hollingsworth filed his complaint against the tax
services provider, AmEx and discounted dining voucher provider,
Restaurant.com, arguing text messages sent by Jackson Hewitt on
its behalf and to promote offers through AmEx and Restaurant.com
violated federal telecommunications law.
Mr. Hollingsworth, through his attorney Sergei Lemberg, of Lemberg
Law, of Wilton, Conn., had sought to extend the putative class
action to also cover potentially tens of thousands of others who
may have received similar alleged spam messages.
The complaint acknowledged Mr. Hollingsworth, like many across the
country, had provided his mobile phone number to Jackson Hewitt as
part of his interactions with the company.
However, Mr. Hollingsworth's complaint alleged the text messages
exceeded the consent to contact him using that number when he
provided it. The complaint alleged Jackson Hewitt was not clear
enough in explaining to Mr. Hollingsworth and others believed to
have received similar text messages about "the consequence of
providing Jackson Hewitt their phone number" and did not specify
the customer was agreeing "unambiguously to receive automated text
messages from or on behalf of" Jackson Hewitt, AmEx or
Restaurant.com.
Further, Mr. Hollingsworth alleged Jackson Hewitt violated the law
by continuing to send text messages even after receiving a reply
from the recipient asking them to stop.
The complaint asked the court to issue injunctions barring Jackson
Hewitt from continuing to send the text messages, and statutory
damages of $500-$1,500 per text message, plus attorney fees.
In response, Jackson Hewitt argued the case did not belong in
court, but rather in arbitration, as mandated by the customer
agreement Mr. Hollingsworth signed, which was governed by the laws
of Kentucky.
Mr. Hollingsworth argued the arbitration agreement should not
apply in this case, as the agreement was issued through Jackson
Hewitt's financial services provider, Republic Bank & Trust, and
should not apply to his claims against the other defendants, AmEx
and Restaurant.com, at all.
The judge, however, said the arbitration agreement should be
considered valid in this case, as the agreement was executed "as
part of the tax preparation services provided by Jackson Hewitt."
And the judge said the task of determining the legal reach of the
arbitration agreement is better left to an arbitrator.
Jackson Hewitt was defended in the case by attorneys with the firm
of Locke Lord LLP, with offices in Chicago and Morristown, N.J.
JACKSON NATIONAL: Faces Class Suit Over Surrender Charges
---------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
federal class action in Sherman, Texas, claims Jackson National
Life Insurance Co. charges policyholders thousands of dollars of
improper surrender charges on life annuity contracts.
The case is captioned, RICHARD AND EILEEN TREDINNICK, IRWIN AND
RUTH SEARS, DAVID CRUSON, JAMES R. GLENN, SUZANNE HOUSEWRIGHT,
JEFFREY R. AND KAREN T. MILLER, DALE AND JANICE MORRIS, BILLY AND
CAROLYN WALKER, AND RONALD L. WYATT Plaintiff, v. Jackson National
LIFE INSURANCE COMPANY, Defendant, Civil Action No. 4:16-CV-912
(E.D. Tex., November 29, 2016).
Attorney for Plaintiff:
Lewis T. LeClair, Esq.
MCKOOL SMITH, P.C.
300 Crescent Court Suite 1500
Dallas, TX 75201
Telephone: (214) 978-4000
Telecopier: (214) 978-4044
E-mail: lleclair@mckoolsmith.com
JAMES HARDIE: Cluta Health May Opt to Join Cladding Class Action
----------------------------------------------------------------
Samuel White, writing for Otago Daily Times, reports that
Clutha Health First, in Balclutha, is waiting to find out if it
will be party to a class action suit against a building materials
company for an alleged faulty product.
Clutha Health First used James Hardie exterior cladding product in
stage one of its recent redevelopment.
A $200 million-plus leaky building class action suit against James
Hardie, which seeks compensation for damages caused by the
cladding manufacturers' alleged faulty products, is working its
way through the courts after a High Court decision to permit the
class action by Parker & Associates to proceed.
Clutha Health Inc chairman Ken Blair said in the organisation's
annual report it had come to its attention earlier this year that
buildings throughout New Zealand had issues with the James Hardie
exterior cladding product.
The class action already involved more than 80 property owners who
allege they have suffered losses from using cladding materials
produced by James Hardie.
Building owners with property built after 1987 using the exterior
cladding, who claimed to have suffered damage as a result of
alleged product defects, can join the claim.
Clutha Health Inc board member Mervyn Jones said the trust had
contacted the lawyers involved to determine if it was possible to
become a party to the class action.
It was not clear whether the cladding used in the redevelopment
was one of the three types involved in the class suit, so an
independent expert's assessment would also be needed.
Clutha Health First chief executive Ray Anton said cracking had
been identified in the building exterior, but the extent of the
problem was unclear.
"The next thing for us is to get a professional to assess it."
The 15 various companies within the James Hardie Group are
defending the leaky buildings claim and stand by the integrity of
their product.
JOHNSON CONTROLS: Lead Plaintiff & Counsel Named in Merger Suit
---------------------------------------------------------------
District Judge Pamela Pepper of the United States District Court
for the Eastern District of Wisconsin approved JCI Shareholders
Group as lead plaintiff; Lockridge Grindal Nauen, P.L.L.P. as lead
counsel; and Wagner Law Group, S.C. as liaison counsel in the case
captioned, ARLENE D. GUMM, ET AL, Plaintiffs, v. ALEX A.
MOLINAROLI, ET AL, Defendants, Case No. 16-CV-1093-PP (E.D. Wis.).
Johnson Controls, Inc. (JCI) and Tyco International (Tyco) entered
into a plan of merger on January 24, 2016. In its January 25, 2016
announcement, JCI stated that the merger would be tax-free to Tyco
shareholders and taxable to JCI shareholders. The complaint
asserts that the merger specifically was structured to allow JCI
to gain tax benefits by reincorporating in Ireland-- Tyco's legal
domicile (referred to as an inversion or tax inversion).
On August 16, 2016, plaintiffs Arlene Gumm, Paul Pontier, Cynthia
Pontier, Danny High, and Michael Holtzhauer filed a complaint on
behalf of themselves and all other similarly situated stockholders
of JCI against certain senior executive officers, all members of
the Board of Directors of JCI, JCI, Jagara Merger Sub LLC and
Tyco. The plaintiffs alleged that the merger hurts two classes of
shareholders: (1) public shareholders and (2) shareholders with
potential exposure to capital gain taxation.
On August 16, 2016, in accordance with the statute governing the
procedure for private securities class actions (15 U.S.C. Section
78u-4(a)(3)(A)), the plaintiffs published notice of the action to
investors and informed potential plaintiffs of the October 17,
2016 deadline to file lead plaintiff motions. On October 17, 2016,
Peter Smykla, Cathreen Clark, Cynthia Pontier, Henry Nisiewicz,
and Brian Ellison (collectively the Group) and John and Vivian
Fifrick filed competing motions before the court, each seeking
appointment as lead plaintiffs and each seeking approval of
different lead counsel.
In her Decision and Order dated November 14, 2016 available at
https://is.gd/wksCsN from Leagle.com, Judge Pepper found that the
JCI Shareholders Group is the most adequate lead plaintiff because
(1) it filed a timely motion; (2) it has the largest financial
interest; and (3) it satisfies the requirements of Rule 23. The
Court approved the Group's selection of Lockridge Grindal Nauen,
P.L.L.P. as lead counsel and Wagner Law Group, S.C. as liaison
counsel.
Arlene D Gumm, et al. are represented by Gregg M. Fishbein, Esq. -
- gmfishbein@locklaw.com -- and -- Vernon J. Vander Weide, Esq. --
vjvanderweide@locklaw.com -- LOCKRIDGE GRINDAL NAUEN PLLP -- K.
Scott Wagner, Esq. -- ksw@wagner-lawgroup.com -- WAGNER LAW GROUP
SC
Alex A Molinaroli, et al. are represented by Ben M. Germana, Esq.
-- BMGermana@wlrk.com -- Cecilia A. Glass, Esq. --
CAGlass@wlrk.com -- Claire E. Addis, Esq. -- CEAddis@wlrk.com --
and -- Jonathan M. Moses, Esq. -- JMMoses@wlrk.com -- WACHTELL
LIPTON ROSEN & KATZ -- Kate E. Gehl, Esq. -- mgehl@foley.com --
Thomas L. Shriner, Jr., Esq. -- tshriner@foley.com -- Bryan B.
House, Esq. -- bhouse@foley.com -- and -- Philip C. Babler, Esq.
-- pbabler@foley.com -- FOLEY & LARDNER LLP
Juan Pablo del Valle Perochena, et al. are represented by Kate E.
Gehl, Esq. -- mgehl@foley.com -- Thomas L. Shriner, Jr., Esq. --
tshriner@foley.com -- Bryan B. House, Esq. -- bhouse@foley.com --
and -- Philip C. Babler, Esq. -- pbabler@foley.com -- FOLEY &
LARDNER LLP
KEYBANK NA: Detter's Second Amended Complaint Dismissed
-------------------------------------------------------
District Judge Ortrie D. Smith of the United States District Court
for the Western District of Missouri granted Defendant Keybank's
motion to dismiss Plaintiff's Second Amended Complaint in the case
captioned, TIMOTHY DETTER, Plaintiff, v. KEYBANK N.A., Defendant,
Case No. 16-00498-CV-W-ODS (W.D. Mo.).
On April 21, 2016, Plaintiff Timothy Detter filed a Petition in
the Circuit Court of Jackson County, Missouri, alleging KeyBank
violated the Fair Credit Reporting Act (FCRA). KeyBank is a large
national bank. Detter, a consumer, had a relationship with
KeyBank that financially obligated him to KeyBank. Prior to June
2, 2015, Detter paid all obligations to KeyBank in full. On June
2, 2015, when no creditor-debtor relationship existed, Detter
alleges KeyBank accessed his consumer report without a permissible
purpose or his authorization in violation of the FCRA. Detter also
alleges KeyBank acted willfully in its conduct.
KeyBank timely removed the action to the District Court.
Thereafter Detter filed his Second Amended Complaint, alleging
KeyBank violated section 1681b(f) by accessing Detter's consumer
report without a permissible purpose or authorization, and sought
to represent a class of similarly situated individuals. Detter
seeks statutory damages, punitive damages, attorney's fees, and
costs.
KeyBank's motion to dismiss argues Detter lacks standing, fails to
state a claim upon which relief can be granted, and the matter is
not appropriate for class action certification.
In the Order dated November 14, 2016 available at
https://is.gd/Muafzs from Leagle.com, Judge Smith concluded that
Detter fails to establish he suffers an injury in fact sufficient
to confer standing because the Court has determined it lacks
subject-matter jurisdiction over Detter's claim, the Court does
not decide whether Detter plead a claim upon which relief can be
granted, or whether class-action certification is appropriate. As
such, Detter fails to establish Article III standing, and the
Court grants KeyBank's motion to dismiss.
Timothy Detter is represented by Alan J. Stecklein, Esq. -- and
Michael H. Rapp, Esq. -- STECKLEIN & RAPP CHARTERED.
Detter is also represented by:
Amy L. Wells, Esq.
Keith J. Keogh, Esq.
KEOGH LAW LTD
55 W Monroe St #3390,
Chicago, IL 60603, USA
Tel: (312)726-1092
KeyBank N.A. is represented by Brett D. Anders, Esq. --
banders@polsinelli.com -- Brian J. Lamb, Esq. --
patrick.lamb@valoremlaw.com -- Kip T. Bollin, Esq. --
Bollin@thompsonhine.com -- Richard A. Freshwater, Esq. --
Freshwater@ThompsonHine.com -- and -- Bradley Robert Gardner,
Esq. -- bgardner@polsinelli.com -- POLSINELLI PC
KLOCHKO EQUIPMENT: Wacker's Bid to Dismiss Vinny's Suit Denied
--------------------------------------------------------------
District Judge Stephen J. Murphy, III of the United States
District Court for the Eastern District of Michigan denied as moot
Defendant Wacker Neuson Corporation's motion to dismiss in the
case captioned, VINNY'S LANDSCAPING, INC., Plaintiff, v. KLOCHKO
EQUIPMENT RENTAL COMPANY, INC., et al., Defendants, Case No. 2:16-
CV-10846 (E.D. Mich.).
Plaintiff claims Defendants sent unsolicited faxes in violation of
the Junk Fax Prevention Act, 47 U.S.C. Section 227. Plaintiff
brought the case as a putative class action on behalf of itself
and others who allegedly received the unwanted faxes. On the same
day Plaintiff filed the initial complaint, it filed another motion
-- a so-called "placeholder" motion for class certification.
Plaintiff rejected defendant's settlement offer and then amended
its complaint to seek class certification. Defendant "subsequently
filed a motion to dismiss, arguing that because the rejected
settlement offer covered all of the plaintiff's demanded relief,
the plaintiff's claims were moot." The district court denied the
motion and the court of appeals affirmed.
Defendant Wacker moved to be dismissed from the complaint.
In his Order dated November 14, 2016 available at
https://is.gd/1NJ4Pf from Leagle.com, Judge Murphy III addressed
the Plaintiff's placeholder motion for class certification,
Wacker's motion to dismiss and the need for a scheduling
conference.
As to the placeholder motion, Judge Murphy sees no need to keep a
motion "pending" to protect the rights of potential class members.
But prior to denying the motion without prejudice to file anew
later, the Court permits Plaintiff to orally argue its position
when the parties appear for a scheduling conference in the case.
The Court ordered that a scheduling conference pursuant to Civil
Rule 16 is scheduled for December 7, 2016 at 10:00 a.m. before the
Honorable Stephen J. Murphy, III.
As to Wacker's motion to dismiss, the judge said the request is
moot as the Plaintiff has timely filed an amended complaint.
Vinny's Landscaping, Inc. d/b/a San Marino Outdoor Services is
represented by Ross M. Good, Esq. -- RGood@andersonwanca.com --
Ryan M. Kelly, Esq. -- RKelly@andersonwanca.com -- and -- Brian J.
Wanca, Esq. -- BWanca@andersonwanca.com -- ANDERSON & WANCA
Wacker Neuson Corporation, et al. are represented by Bryan R.
Walters, Esq. -- brwalters@varnumlaw.com -- VARNUM, RIDDERING
KROGER: Faces Pregnancy Discrimination Class Action in Tennessee
----------------------------------------------------------------
Jamie McGee, writing for The Tennessean, reports that Jessica
Craddock had worked at the Kroger on Charlotte Pike for two years
when she began feeling sharp abdominal pains from her pregnancy,
the Nashville woman recalls.
In her fifth month of pregnancy, her baby dropped in her cervix
and she was at risk for preterm labor. Her doctor said in a note
that she would need to refrain from heavy lifting at work. For two
weeks, a manager allowed her to avoid carrying boxes of chicken
and supplies in the deli department. But after another doctor
visit, a store manager told her such lifting restrictions were
against Kroger policy and sent her home, Ms. Craddock said. She
could return when she had no restrictions, according to the
filing.
"I was in shock," Ms. Craddock, 24, said. "I was thinking to
myself, 'How am I going to pay my bills? How am I going to provide
for my child?'"
In a class action lawsuit filed on Nov. 15, Ms. Craddock is
seeking a policy change from Kroger that will allow pregnant women
to receive workplace accommodations. The suit claims that
Kroger's current policies violate the Pregnancy Discrimination Act
that requires employers to treat pregnant workers the same as
other workers. Kroger allows workers injured on the job to
receive accommodations and the same policies should apply to
pregnant workers who needed similar restrictions, according to the
lawsuit.
Workers "must risk their health, or the health of their pregnancy,
for fear of losing income during a critical period," the complaint
says. "Pregnant workers at Kroger should not have to choose
between their health and their careers."
The lawsuit is filed in U.S. District Court in the Middle District
of Tennessee and involves stores in Tennessee, Kentucky and
Alabama, a region that includes 90 stores and more than 12,000
workers, according to the filing.
A Kroger spokeswoman said the company has not received a copy of
the lawsuit and it generally does not comment on legal matters.
Once on unpaid leave, Craddock was unable to make her rent payment
and she had to move into her grandmother's home, she said.
A Better Balance, a legal team focused on work-family issues,
filed a discrimination charge with the Equal Employment
Opportunity Commission on Ms.Craddock's behalf. In a response
letter, Kroger said it had mistakenly put her on a leave of
absence, the lawsuit states. Kroger has not changed its existing
policy in which restrictions only apply to those who were injured
on the job, according to the filing. The EEOC found "reasonable
cause to support discrimination" based on a violation of the
Pregnancy Discrimination Act, the filing said.
Kroger allowed Ms. Craddock to return to work as a cashier, where
her wages stayed at $7.85 an hour, she said. It was a role she
had been trained for when she first started, before she moved to
the deli. While Craddock is glad to be back at work, she said
does not want other women to experience the stress she felt during
those seven weeks on unpaid leave.
"I don't want anyone to go through what I had to go through," she
said.
Elizabeth Gedmark, A Better Balance lawyer representing Craddock,
said the class action suit is meant to benefit other workers who
have experienced similar responses from Kroger or might in the
future, but who do not want to pursue a lawsuit out of fear of
retaliation.
"Folks are really put between a rock and a hard place," Ms.
Gedmark said. "They are choosing between their health and their
job, which is something that in 2016 no worker should have to do."
Ms. Gedmark said that in Craddock's situation, Kroger also
violated the Americans with Disabilities Act, which applies to
pregnancy-related disabilities.
In addition to implementing a policy change at Kroger,
Ms. Craddock seeks compensatory damages that include lost wages
and benefits for herself and other class members, punitive damages
and attorney costs.
The lawsuit comes after a recent victory for two police officers
in Kentucky who filed a complaint against their employer based on
the Pregnancy Discrimination Act and the Americans with
Disabilities Act. The Justice Department announced a settlement
in which the city of Florence, Ky., would allow accommodations for
pregnant workers and the workers received $135,000.
Last year, the U.S. Supreme Court ruled that a UPS worker could
sue for pregnancy discrimination if other workers were given
accommodations. UPS has since changed its policies, allowing for
restrictions for pregnant workers.
Ms. Gedmark said in recent years A Better Balance has seen many
companies pushing pregnant women out of jobs by denying medical
restrictions and the tactic disproportionately affects low wage
workers. Instead of contributing financially to their families,
they were more likely to turn to turn to public benefits after
losing wages. Meanwhile, companies were losing valuable employees
that were still capable of working.
Ms. Craddock, whose son is now two, is still an employee at Kroger
and she has since moved to the customer service department, a role
she loves, she said. "You get to interact with a lot of
customers," she said. "You can really make an upset customer
happy."
When she was pregnant with her second child, she had a normal
pregnancy and did not need the same restrictions. And this time,
she felt supported by other staff members, who often asked her how
she was feeling. "It was a whole lot better," she said.
She wants to ensure that is the norm for other women with
complicated pregnancies, not the exception.
"I don't know how many people have a story like mine and are
scared to come out with it," Ms. Craddock said.
LANNETT COMPANY: Rosen Law Firm Files Securities Class Action
-------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Nov. 17
disclosed that it has filed a class action lawsuit on behalf of
purchasers of Lannett Company, Inc. securities (LCI) from
September 12, 2013 through November 3, 2016, both dates inclusive
(the "Class Period"). The lawsuit seeks to recover damages for
Lannett investors under the federal securities laws.
To join the Lannett class action, go to
http://www.rosenlegal.com/cases-978.htmlor call Phillip Kim, Esq.
or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) Lannett's drug pricing relied on unsustainable pricing
methodologies; (2) Lannett lacked effective internal controls
concerning its drug pricing methodologies; (3) as a result,
Lannett's public statements were materially false and misleading
at all relevant times and spurred ongoing investigations by the
State of Connecticut Office of the Attorney General and the U.S.
Department of Justice. Additionally, media outlets reported that
the underlying conduct would likely lead U.S. prosecutors to file
criminal charges against Lannett by the end of 2016 for suspected
price collusion.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
January 17, 2017. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-978.htmlor to discuss your rights
or interests regarding this class action, please contact Phillip
Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-3653 or
via email at pkim@rosenlegal.com or kchan@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
LEGAL SEA: Faces "Diaz" Suit in Eastern District of New York
------------------------------------------------------------
A class action lawsuit has been filed against Legal Sea Foods,
LLC. The case is styled Cristhian Diaz, on behalf of himself and
all others similarly situated, the Plaintiff, v. Legal Sea Foods,
LLC, the Defendant, Case No. 1:16-cv-06474 (E.D.N.Y., Nov. 21,
2016).
Legal Sea Foods is an American restaurant chain of upscale casual-
dining seafood restaurants.
The Plaintiff appears pro se.
LIGAND PHARMACEUTICALS: Rosen Law Firm Files Class Action
---------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Nov. 18
disclosed that it has filed a class action lawsuit on behalf of
purchasers of Ligand Pharmaceuticals Incorporated securities from
November 9, 2015 through November 14, 2016, both dates inclusive
(the "Class Period"). The lawsuit seeks to recover damages for
Ligand investors under the federal securities laws.
To join the Ligand class action, go to
http://www.rosenlegal.com/cases-996.htmlor call Phillip Kim, Esq.
or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) Ligand overstated the value of certain Deferred Tax
Assets by approximately $27.5 million or 13%; (2) Ligand's
outstanding convertible senior unsecured notes due 2019 should
have been classified as short-term debt rather than long-term debt
as of December 31, 2015; (3) Ligand did not maintain effective
controls over the accuracy and presentation of the accounting for
income taxes related to complex transactions; (4) in turn, Ligand
lacked effective internal control over financial reporting; and
(5) as a result, Defendants' statements about Ligand's business,
operations and prospects were materially false and misleading
and/or lacked a reasonable basis at all relevant times. When the
true details entered the market, the lawsuit claims that investors
suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
January 17, 2017. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-996.htmlor to discuss your rights
or interests regarding this class action, please contact Phillip
Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-3653 or
via email at pkim@rosenlegal.com or kchan@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
LORILLARD TOBACCO: Court Tosses Failure-to-Warn Class Action
------------------------------------------------------------
Domenic B. Sanginiti, Jr. -- dsanginiti@stark-stark.com -- of
Stark & Stark, in an article for The National Law Journal, reports
that a class action failure-to-warn lawsuit against e-cigarette
companies was thrown out by the Central District Court of
California. The suit, filed by plaintiffs from CA, IL, and NY,
included claims that the accused companies, including Lorillard
Tobacco Co. and Reynolds American Inc. (which bought Lorillard in
2014), deceptively advertised the health benefits of e-cig
products over traditional cigarettes.
The judge ruled federal law superceded state regulations citing
the U.S. Food and Drug Administration (FDA)'s rule making
e-cigarettes subject to the Family Smoking Prevention and Tobacco
Control Act. Under Federal law tobacco products only need to
carry a warning regarding the addictive properties of nicotine.
States cannot mandate stricter labeling requirements.
The only claim that appears to have survived is an unfair
competition claim that the companies neglected to warn consumers
of the dangers of toxic chemicals in the products. California's
Safe Drinking Water and Toxic Enforcement Act of 1986 requires
notices on the labels for certain hazardous chemicals including
formaldehyde which are known to be present in e-cigarettes. The
honorable Judge Selna, who presided over the case, referenced
Ninth Circuit Court of Appeals decisions that discount point-of-
sale notices and advertising as insufficient to meet labeling
requirements under the law.
Exactly which chemicals are included in different brands of
e-cigarettes is unknown but an FDA study found "detectable levels
of toxic cancer-causing chemicals, including an ingredient used in
anti-freeze, in two leading brands of e-cigarettes and 18 various
cartridges." Formaldehyde has also been discovered. In addition,
the flavorings used in vaping devices contain dangerous chemicals
such as Diacetyl which may cause lung damage when smoked.
The judge elaborated on the surviving cause of action by stating
that "state labeling requirements . . . that are 'different from,
or in addition to,' the FDA's requirement are preempted" from the
Federal supercedence rule.
Despite the dismissal of seven counts in this class action suit,
the remaining cause of action is likely to result in discovery of
previously unknown chemicals in the e-cigarette fumes and liquids
-- perhaps resulting in additional lawsuits.
E-cigarette companies remain under a microscope as more and more
dangers are revealed to consumers. Since introduction to the
market, there have been a series of explosions causing
catastrophic injuries to innocent e-cigarette users. And although
the chemical dangers and health risks are relatively unknown, more
and more cases are likely to arise -- especially if the companies
continue to hide chemical composition and known dangers to users
of the products.
LOS ANGELES, CA: Overcharged Customers $67.5MM, Monitor Finds
-------------------------------------------------------------
Brian Frank, writing for KPCC, reports that the Los Angeles
Department of Water and Power overcharged customers $67.5 million
following the rollout of a flawed billing system in 2013, an
independent monitor has found.
The new figure updates earlier estimates of $44 million and is
included in a revised settlement agreement that could be approved
as early as of Nov. 11, according to the LADWP and an attorney
representing the utility's customers.
The new settlement "provides for the return of every penny owed to
our customers," LADWP General Manager David Wright said in a
written statement on Nov. 15.
Under the revised settlement, current customers would get a credit
for the full amount they were overcharged. Anyone who is no
longer a customer would get a refund, according to
Tom Merriman, an attorney representing customers. Mr. Wright said
customers should start receiving those payments by next summer.
The utility's troubles began in September 2013, when it first
introduced the new billing system, which it says it paid
PricewaterhouseCoopers $70 million to design and implement. Four
separate class-action lawsuits followed when customers began
complaining they were getting enormous bills based on bogus
charges.
The four lawsuits were eventually rolled into one. Plaintiffs
were represented by Mr. Merriman's firm, Landskroner Grieco
Merriman LLC, in the settlement negotiations.
When the initial settlement was reached in August 2015, it drew
protests from some of the attorneys who had been excluded from
negotiations, along with criticism from consumer advocates.
Jamie Court with Consumer Watchdog argued the preliminary
settlement was flawed because it wrongly accepted DWP's decisions
about how much customers were overbilled, forced consumers to
agree to refunds without knowing how much they would get and
voided important consumer rights like having claims heard by a
neutral third party.
But Mr. Merriman said the revised settlement proved critics wrong.
"Basically, what this proves is the system we put in place, the
process we put in place, of having a court-appointed monitor
verify every computer query being used to identify people who were
overbilled and the amounts they were due, is working and has
worked," Mr. Merriman told KPCC.
He also said the attorneys would all be paid as part of the
settlement agreement -- even those who were left out of the
negotiations.
Mr. Merriman couldn't say exactly how much those attorney fees
would be, but he did say DWP agreed to an upper limit of $19
million as part of the settlement. That money would be divvied up
among the lawyers and would be in addition to the $67.5 million
which goes to repay customers.
Judge Elihu Berle, who's been overseeing the case, could decide as
early as Nov. 11 whether to approve the new settlement.
What the settlement means for customers
Mr. Merriman said customers will get an announcement in the mail
within 90 days of the settlement's approval.
That announcement will inform customers of their rights and how
much they are owed.
Customers can dispute the amount in their notice if they feel it
is inaccurate. They can also file for additional damages related
to the case.
"You may have had late fees at the bank because you got overbilled
at the department. Well, you can make a claim for that," Mr.
Merriman said. "And there's a whole slew of claims you can make,
and the process will be laid out on how you file to recover those
additional funds."
If customers are satisfied with the amount they're getting, they
don't have to do anything else.
What the settlement means for DWP
DWP is pursuing a class action suit of its own against
PricewaterhouseCoopers to recoup its costs and those incurred on
its customers.
Either way, DWP must repay all $67.5 million the independent
monitor found it had overcharged its customers.
In addition, the settlement calls for the utility to put in place
certain customer service performance metrics and submit to court
oversight even after the money is repaid.
"It's the concept that you have a court-appointed monitor and you
have specific metrics that have to be met, specific reforms that
have to be adopted, and the monitor will do ongoing reporting and
auditing for the court to confirm whether or not LADWP is
complying with the terms of the settlement," Mr. Merriman said.
DWP said it is in the process of adopting the required metrics.
MAGIC CASTLE: Faces Wage Class Action in California
---------------------------------------------------
Jonathan Handel, writing for The Hollywood Reporter, reports that
a class-action suit alleges deceptions and ruses deprived bar and
restaurant workers of wages and breaks.
A class-action lawsuit filed on Nov. 10 alleges that the
management of Los Angeles' famed palace of prestidigitation, the
Magic Castle, made at least one hundred hospitality workers' wages
disappear.
That unwelcome trick was accomplished, the suit says, by failing
to pay overtime to bar and restaurant staff, provide them with
meal and rest breaks and via various other means that, if true,
seem no more fair to plaintiff William J. Peters and class members
than a round of three-card monte.
And while loaded dice and blinkered card decks are fair game at
the Castle, a private club housed in a maze-like mansion,
falsified time sheets -- which are alleged by the suit -- would
dismay both Hoyle and a civil judge.
The Los Angeles Superior Court action doesn't specify when or for
how long the alleged ploys were employed.
This isn't the first time the law has cast its evil eye on the
Academy of Magical Arts, the corporation that owns the Castle,
which was built as a private home in 1908 in what apparently was
then pretty much the middle of nowhere.
Last year, 83-year-old co-founder Milt Larsen was locked in
profit-share litigation with the organization's board, whose
president, awkwardly enough, was his niece Erika Larsen. The case
settled, allowing the parties to end their visits to dreary
courtrooms devoid of magic, meal service or bar tabs.
Almost 10 years ago, the Castle was involved in a dispute with its
landlord, but that must have been a dull show compared to a 1998
suit alleging that a tiger, on premises for a photo shoot, was
inadequately restrained and knocked down a guest.
"The tiger took a whack at my client," said the lawyer in that
action as if describing a barroom fight. The suit sought just
$25,000 in damages, which sounds like a bargain under the
circumstances. A roar alone would probably be good for that much
today.
The Magic Castle did not respond to a request for comment, but
this reporter did find a quarter lodged inexplicably behind his
ear after leaving a voicemail.
MDL 2521: Judge to Certify 2 Classes in Lidoderm Antitrust Suit
---------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported
that despite opposition from drugmakers, a federal judge said in
San Francisco, November 29, he will likely certify two classes in
a multidistrict price-fixing suit over the pain patch Lidoderm.
The lead plaintiff, a health fund for United Food and Commercial
Workers Local 1776, sued drugmakers Endo, Watson, Teikoku Pharma
and others in April 2014. The UFCW claims the drugmakers struck
an anticompetitive deal to settle a patent dispute in 2012 that
blocked generic versions of the pain patch from entering the
market for nearly two years.
During a hearing on November 29, U.S. District Judge William H.
Orrick III said he was inclined to certify two classes: direct
buyers and end-payor plaintiffs. Orrick found the plaintiffs' two
economics experts identified common pieces of evidence, such as
estimated overcharges, that could be presented to a jury at trial.
He said the defendants offered little to rebut the relevance of
those expert findings on a classwide scale.
"The primary attack revolves not around class-wide evidence but
rather the difference in damages for each plaintiff," Orrick said.
"Apportionment may be complex, but it's no reason to deny class
certification."
Defense attorney Karen Lent implored Orrick to reconsider his
tentative ruling, saying recent Supreme Court decisions, including
Wal-Mart v. Dukes in 2011, set a more rigorous standard for class
certification.
The Dukes ruling held that 1.6 million female Wal-Mart employees
lacked commonality to sue for gender discrimination.
"Before Wal-Mart, many courts were hesitant to get into the merits
of the case [at the class certification stage]," Lent told Orrick.
"We ask that you do that here."
Lent said the direct buyers' economics expert, Jeffery Leitzinger,
used "generic proof" to establish common impact and calculate
aggregate damages. The expert based his findings on economic
literature and internal forecasts, rather than real-life,
individual experiences, she argued.
"These are general predications. They don't show what happened,
and there's no individual experiences," Lent said.
Class attorney Peter Kohn countered that the plaintiffs' expert
did not limit his analysis to mere generalities and forecasts but
examined the real-world effect generics hitting the market had on
the price of brand-name Lidoderm.
"Dr. Leitzinger conceded that all of the brand prices were higher
when there were no generics," Kohn said. "The starkness of the
effect when there was generic competition was so stark, and the
before-and-after evidence is strong."
Turning to the end-payor plaintiffs' motion for class
certification, defense attorney Daniel Asimow argued that because
patients have different insurance plans and copayments, it would
be impossible to calculate how much each class member allegedly
overpaid.
"We'll have to roll up our sleeves and look at contracts and look
at copayments," Asimow said.
He accused the plaintiffs of concocting a "really complicated"
class definition that includes three groups of indirect buyers:
those who bought brand-name Lidoderm in the early period, those
who bought generics during a later period of limited competition,
and insurers that also paid for the patches.
Asinow said the plaintiffs lack the records needed to identify
which consumers purchased which brand of the patch under which
insurance plan.
But class attorney Josh Davis said his clients can easily obtain
those records, and that that, combined with a plan to identify
class members, meets and exceeds the administrative feasibility
requirement for class certification.
"Courts have consistently found ascertainability when there are
records or a feasible plan," Davis said. "Here we have both."
Several entities, including pharmacies and insurers, maintain
duplicate records on prescription drug purchases, Davis said, and
those records can be used to identify all class members.
"If not here, where are you going to find an ascertainable class?"
Davis asked. "Defendants argue we don't have the records yet, but
we have a plan, and the records are there."
After nearly three hours of debate, Orrick thanked both sides for
presenting "excellent" arguments and said he would issue a ruling
soon.
Orrick indicated early in the hearing that he would likely deny
the drug-makers' motions to disqualify plaintiffs' expert reports.
The motions for class certification, motions to exclude expert
opinions, and expert reports were all filed under seal.
Orrick denied motions to dismiss antitrust claims against the
drug-makers in November 2014 and again in July 2015.
In November 2015, Orrick refused Teikoku Pharma's request to
disqualify opposing counsel for allegedly misusing an
inadvertently disclosed privileged email.
The Lidoderm patch is a topical antiseptic used to treat painful
skin conditions, such as shingles. It was developed by Hind Health
Care, which granted Endo exclusive rights to sell the patch in the
United States. The FDA approved Lidoderm for sale in the U.S. on
March 19, 1999.
METROPOLITAN MUSEUM: Class Settlement Granted Preliminary OK
------------------------------------------------------------
Justice Shirley Werner Kornreich of the Supreme Court, New York
County, granted preliminary approval of the amended settlement
agreement in the case FILIP SASKA, TOMA NADRCHAL, and STEPHEN
MICHELMAN, Plaintiffs, v. THE METROPOLITAN MUSEUM OF ART,
Defendant. THEODORE GRUNEWALD and PATRICIA NICHOLSON, Plaintiffs,
v. THE METROPOLITAN MUSEUM OF ART, THOMAS P. CAMPBELL (DIRECTOR
AND CHIEF EXECUTIVE OFFICER), EMILY RAFFERTY (PRESIDENT), and
DANIEL BRODSKY (CHAIRMAN OF THE BOARD OF TRUSTEES, OF THE
METROPOLITAN MUSEUM OF ART), Defendants, 650775/2013 (N.Y.)
The Court also dismissed certain causes of action in the Grunewald
amended complaint.
The Saska and Grunewald actions concern the Museum's 'pay what you
wish' admissions policy. At the heart of these cases is whether
this policy and the manner in which it is enforced runs afoul of
General Business Law (GBL) Sec. 349, a 19th century statute -- the
1893 Statute -- which provided funding to the Museum, and the
lease between the Museum and the City of New York (the City),
executed in 1878 (the Lease)."
In the original Saska complaint -- Saska v Metro. Museum of Art,
42 Misc.3d 548, 549 (Sup Ct, NY County 2013) (Saska I) -- by order
dated October 29, 2013, the court granted the Museum's motion to
dismiss plaintiffs' causes of action based on the 1893 Statute and
the Lease. Specifically, the court held that plaintiffs have no
private right of action under the 1893 Statute and cannot sue for
breach of the Lease as third party beneficiaries. On February 5,
2015, in Saska II, the Appellate Division affirmed.
On January 19, 2016, the Grunewald plaintiffs filed their amended
complaint, asserting breach of the Lease under a third-party
beneficiary theory for charging admission to the Museum; violation
of the 1893 Statute for charging admission to the Museum;
violation of GBL Section 349 for having a deceptive admission
policy; fraud, for having a deceptive admission policy; violation
of the public trust doctrine because the Museum, which is located
in Central Park, is not being used for a proper park purpose given
its refusal to create a Central Park entrance; violation of the
public trust doctrine on the ground that the Museum is not being
used for a proper park purpose due to its admission policy; and a
claim for injunctive relief under State Environmental Quality
Review Act (SEQRA) Section 617(b) compelling the Museum to conduct
an environmental assessment in connection with the construction of
a Central Park entrance.
The Museum and three of its directors, Thomas P. Campbell, Emily
Rafferty, and Daniel Brodsky, moved to dismiss the fifth, sixth,
and seventh causes of action in the Grunewald plaintiffs' amended
complaint. The Grunewald plaintiffs opposed dismissal of the
fifth and sixth causes of action and have withdrawn the seventh
cause of action.
While the motion to dismiss was being briefed, on February 26,
2016, the Saska plaintiffs and the Museum executed the original
settlement agreement. On February 29, 2016, the Saska plaintiffs
and the Museum jointly moved for preliminary approval of the
original settlement agreement.
On March 9, 2016, the Grunewald plaintiffs filed opposition to the
motion for preliminary approval of the original settlement
agreement. They argue that two of the requirements for class
certification, adequacy of representation by the class
representatives and superiority of the action being resolved on a
class basis are not present. They also object to the settlement
resolving only claims for injunctive relief, not claims for
monetary relief. They further complain that the Saska plaintiffs
and their counsel have underestimated the strength of their claims
and contend that the original settlement agreement insufficiently
benefits the class because, in their view, it inadequately
remedies the alleged deceptive practices.
On June 30, 2016, the Saska plaintiffs and the Museum entered into
the amended settlement agreement. The basic structure of the
amended settlement agreement is the same, with the primary
difference being the emphasis, by way of larger text, on the "The
amount you pay is up to you" and "Please be as generous as you
can" language in the proposed signage. That same day, the Saska
plaintiffs and the Museum jointly moved for preliminary approval
of the amended settlement agreement.
On July 8, 2016, the Grunewald plaintiffs filed opposition
because, according to them, the amended settlement agreement was
merely a modest improvement over the original settlement agreement
and suffered from the same flaws set forth in their original
opposition.
Justice Kornreich granted preliminary approval of the amended
settlement agreement and ordered that the motion by the Museum and
the Directors to dismiss the fifth and sixth causes of action in
the Grunewald amended complaint is granted. The judge said those
causes of action, along with the first and second causes of
action, which were previously dismissed by the court but repleaded
in the Grunewald amended complaint, are dismissed with prejudice
and the seventh cause of action in the Grunewald AC is permitted
to be withdrawn and is dismissed without prejudice.
The motion by the Saska plaintiffs and the Museum for preliminary
approval of the amended settlement agreement is granted, and the
motion for preliminary approval of the original settlement
agreement is denied as moot. The parties are to contact the court
to discuss the scheduling of a hearing on final approval and the
submission of a new proposed implementing order regarding
preliminary approval and notice to the class.
A copy of Justice Kornreich's order dated November 10, 2016, is
available at https://goo.gl/Ed89RB from Leagle.com.
For the Saska Plaintiffs:
Emery Celli Brinckerhoff & Abady LLP
600 Fifth Avenue at Rockefeller Center, 10th Floor
New York, NY 10020
Telephone: 212-763-5000
For the Grunewald Plaintiffs:
Hiller, PC
600 Madison Ave.
New York, NY 10022
Telephone: 877-784-7876
Facsimile: 212-753-4530
For defendants:
Arnold & Porter LLP
399 Park Avenue
New York, NY 1022-4690
Telephone: 212-715-1000
Facsimile: 323-715-1399
MICHIGAN SUGAR: Faces Class Action Over Bay City Plant Smells
-------------------------------------------------------------
Andrew Dodson, writing for MLive.com, reports that for the second
time in 12 years, a growing number of residents near Michigan
Sugar Co. are signing onto a class action lawsuit against the
company, arguing recent smells from the Bay City plant have
interfered with their ability to use or enjoy their property.
The lawsuit, filed by Detroit law firm Liddle & Dubin P.C. in Bay
County Circuit Court, seeks compensation "for the nuisance created
by the odors and for any negative impact the odors have had on
property values."
The same law firm filed a similar class action lawsuit in 2004,
which saw Michigan Sugar settle for $1.75 million.
A statement that was issued Wednesday, Nov. 15, encourages
residents to report the presence of odors to the Michigan
Department of Environmental Quality and to the law firm.
"It is not unreasonable to expect Michigan Sugar to be a good
neighbor," said Laura Sheets, one of the attorneys who filed the
case. "The company should be able to operate in a way that
doesn't blanket the area with a horrible stench."
A Michigan Sugar Co. spokesman said the grower-owned cooperative
hadn't received notice of the lawsuit as of Thursday, Nov. 16.
"At Michigan Sugar, we have a proven commitment to being a good
neighbor and a strong community partner, and we have invested
millions of dollars in cutting-edge technology to minimize our
impact on the community we serve, while providing hundreds of
good-paying jobs for local families and pumping millions of
dollars into the local economy," the spokesperson said in a
prepared statement to MLive.com.
Since 2015, more than 800 complaints have been filed with the
Michigan DEQ. The number of complaints sparked interest from the
state attorney general's office. Additionally, the DEQ has issued
10 violation notices to the company.
"I don't know who started the lawsuit, but it's something I plan
on being involved with," said Tim Wenglikowski, who has personally
filed hundreds of complaints with the DEQ.
Mr. Wenglikowski said he can't stand the stench when the wind is
blowing in the direction toward his home on West Side Saginaw
Road.
"It's still early in the season," he said. "The smell is going to
get worse."
Jim Easterly, who lives at Cortland Farms, near the plant, said he
also plans to get involved with the lawsuit.
"I'm not a big fan at all of class action legal firms, but
something needs to be done," he said.
Mr. Easterly's bigger complaint is with the regulatory agencies
that, he says, have failed to deal with the odor issue at Michigan
Sugar.
"Why haven't they come in and forced them to do something about
it?" he said.
There are two smells residents describe. The first is the smell
of beets cooking, which has been described as sort of a burnt-
sugar, or caramel smell.
The other, more pungent smell, typically appears in the spring and
summer when sugar beet processing is complete and Michigan Sugar
drains wastewater ponds and dredges sediment that has settled in
those ponds.
Michigan Sugar officials this year launched a new pilot program
that they hope can lessen the stench. The program involves
installing a centrifuge that removes sediment before water goes
into the ponds. The technology separates the water from the
topsoil that comes off the beets.
In the first suit the Detroit law firm filed against Michigan
Sugar, 1,616 people were paid amounts ranging from $350 to $3,500,
depending on how involved they were in the action taken against
the sugar company.
Steven Liddle, the lead lawyer on the case, called the $1.75
million settlement a good thing. "More than 1,600 people are
getting paid for suffering years of abuse," he said.
Months after residents received their settlement checks, residents
continued to complain about smells from the plant.
Ryan Carley, chief executive of the Bay Area Chamber of Commerce,
said Michigan Sugar is the "type of company we want in the
community."
"They are just a huge job creator," Mr. Carley said. "They've
been a great partner with the community. This community would be
at a loss without them here."
Mr. Easterly said he hopes the lawsuit motivates Michigan Sugar to
eliminate smells from the plant. This past winter, he ran a
portable air purifier through his home to try and dampen the
stench.
"It has been bad," he said. "Very, very bad. I don't like to
settle it out this way, but what else are we going to do?"
MIDLAND CREDIT: "Lopera" Complaint Survives Dismissal Bid
---------------------------------------------------------
District Judge Virginia M. Hernandez Covington of the Middle
District of Florida, Tampa Division, denied defendant's motion to
dismiss, in the case FERNANDO LOPERA, on behalf of himself and all
others similarly situated, Plaintiff, v. MIDLAND CREDIT
MANAGEMENT, INC., Defendant, Case No. 8:16-cv-1448-T-33JSS (M.D.
Fla.)
Fernando Lopera allegedly incurred a debt with FIA Card Services,
N.A., on which he defaulted. Subsequently, Midland Funding, LLC,
acquired ownership of the debt and referred it to the debt
collector Midland. On June 3, 2015, Midland sent a letter to
Lopera attempting to collect on the debt. The letter stated that
Lopera owed a current balance of $6,205.96. Additionally the
letter gave Lopera three options on how he can settle his debt.
However, the letter did not advise Lopera that the three year
statute of limitations had expired for the debt, meaning that
Midland could not sue him to collect payment. Additionally, the
letter did not explain that if Lopera were to select an option 2,
and make a partial payment on the debt, the statute of limitations
might reset. Lopera further states that Midland regularly sends
similar letters attempting to collect time-barred debts, in which
Midland does not disclose that the statute of limitations has
expired and offers payment plans that would cause the statute of
limitations to reset when the debtor makes a partial payment or
enters into an agreement to pay.
Lopera filed a putative class action complaint, alleging that
Midland violated three provisions of the Fair Debt Collection
Practices Act, 15 U.S.C. Section 1692 et seq.(FDCPA).
Midland filed a motion to dismiss.
Judge Hernandez Covington held that the language and payment plans
offered in the Midland letter could lead the least sophisticated
consumer to believe that the debt was legally enforceable and that
making a partial payment on the debt would be better than making
no payment at all. Midland's motion to dismiss is denied.
A copy of Judge Hernandez Covington's order dated November 10,
2016, is available at https://goo.gl/c8fbks from Leagle.com.
Fernando Lopera, Plaintiff, represented by:
Alex A. Stern, Esq.
Little Guy Law Firm
1300 Washington Ave, #191625
Miami Beach, FL, 33119
Telephone: 305-900-5489
- and -
Joseph Karl Jones, Esq.
Jones Wolf and Kapasi, LLC
555 5th Avenue, Suite 1700
New York, NY 10017
Telephone: 646-459-7971
Facsimile: 646-459-7973
Midland Credit Management, Inc., Defendant, represented by Cory W.
Eichhorn -- cory.eichhorn@hklaw.com -- Erica S. Gooden --
erica.bartimmo@hklaw.com -- at Holland & Knight, LLP
Peter J. Grilli, Mediator, represented by Peter John Grilli, Peter
J. Grilli, PA
MONT-SACRE-COEUR: Parent to Assume Liability in Sexual Abuse Case
-----------------------------------------------------------------
Antoni Nerestant, writing for CBC News, reports that
administrators at Mont-Sacre-Coeur College in Granby say the
school won't be left on the hook for any legal fees related to a
request to proceed with a class-action suit, alleging students
were sexually abused on school premises over the span of five
decades, from the 1940s until the 1980s.
The congregation that owns the boarding school, Les Freres du
Sacre-Coeur, has told the current administration that it will
assume all financial responsibilities, including victims'
compensation, if a settlement is reached.
Both the congregation and the school are targeted by the class-
action request, which was filed in November by a 56-year-old man
who is not named in court documents.
That man alleges that he was sexually assaulted more than 300
times by a religious brother at the school, Brother Claude Lebeau,
between 1973 and 1975.
Mont-Sacre-Coeur College has been secular since 2004. The
allegations left the school's head, Claude Lacroix, shaken.
However, he says, the school's staff, students and parents can now
breathe a collective sigh of relief, following the assurance from
Les Freres du Sacre-Coeur that they will shoulder the financial
burden for all legal proceedings.
"Their commitment guarantees the long-term financial security of
the school," Lebeau said. "It also ensures that tuition fees
won't be affected by ongoing events."
List of alleged victims grows
Since the class-action request was filed, the number of both
plaintiffs and alleged sexual abusers has grown.
There are now some 50 plaintiffs alleging sexual abuse by at least
a dozen religious brothers.
One of the lawyers for the plaintiffs, Robert Kugler, has
estimated there could be as many as 100 victims.
With that list of plaintiffs still growing, the amount of damages
the proposed lawsuit would seek hasn't yet been established.
The religious congregation has commented sparingly on the legal
proceedings, saying only that it would not oppose the request for
the class-action suit.
Those bringing the suit forward haven't yet determined what
damages they'll seek, due to the potential of more alleged victims
coming forward.
MOTION PICTURE: Movie Studios Successful in Anti-SLAPP Motion
-------------------------------------------------------------
District Judge Richard Seeborg of the Northern District of
California, granted defendants' motion to strike and in the
alternative dismiss, the case TIMOTHY FORSYTH, Plaintiff, v.
MOTION PICTURE ASSOCIATION OF AMERICA, INC., et al., Defendants,
Case No. 16-cv-00935-RS (N.D. Cal.)
Defendants are major movie studios, the National Association of
Theater Owners (NATO), and the Motion Picture Association of
America (MPAA). Defendants control the Classification and Rating
Administration (CARA), which was established by NATO and the MPAA,
and operated as a division of the MPAA. CARA is responsible for
determining movie ratings.
Timothy Forsyth, father of two children, ages 12 and 13, and has
bought them tickets to PG-13-rated movies that featured tobacco
imagery. According to Forsyth, defendants have known since 2003
that tobacco imagery in films is not appropriate for children and
adolescents because it can promote tobacco use, which in turn
causes disease and death. Forsyth alleges defendants have failed
to respond appropriately to such fact, and have wrongly applied
ratings less stringent than "R" to movies containing tobacco
imagery.
On behalf of a putative class, Forsyth brought claims for
negligence, negligence in a voluntary undertaking, breach of
fiduciary duty, fraudulent misrepresentation, unfair competition,
false advertising, negligent misrepresentation, and private and
public nuisance. Forsyth's prayer for relief seeks class
certification, over $20 million in damages, and various forms of
declaratory and injunctive relief. Primarily, Forsyth seeks an
injunction requiring defendants to assign an "R" rating to all
movies depicting tobacco, unless the presentation of tobacco
clearly and unambiguously reflects the dangers and consequences of
tobacco use or is necessary to represent the smoking of a real
historical figure who actually used tobacco.
Defendants move to strike Forsyth's complaint pursuant to
California's anti-SLAPP statute, Cal. Civ. Pro. Code Section
425.16, et seq. In the alternative, they move to dismiss the
complaint for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6).
Judge Seeborg granted defendants' motion to strike and motion to
dismiss. Judge Seeborg held that the certification statements
filed with the PTO when each of the marks was registered plainly
explain that CARA is merely certifying that in its opinion the
particular film warrants a particular level of parental caution.
Furthermore, the underlying product films are not mere commercial
products, but are expressive works implicating anti-SLAPP concerns
and plainly entitled to full First Amendment protection.
A copy of Judge Seeborg's order dated November 10, 2016, is
available at https://goo.gl/WKKdlv from Leagle.com.
Timothy Forsyth, Plaintiff, represented by David Schachman -- at
David Schachman & Associates, P.C.; Jeffrey Farley Keller --
jfkeller@kellergrover.com -- Carey Gavin Been --
cbeen@kellergrover.com -- Sarah R. Holloway --
sholloway@kellergrover.com -- at Keller Grover LLP; Bryan G.
Kolton -- John G. Jacobs -- at Jacobs Kolton, Chtd.
Motion Picture Association of America, Inc., The Walt Disney
Company,Paramount Pictures Corporation, Sony Pictures
Entertainment Inc., Twentieth Century Fox Film Corporation,
Universal City Studios LLC, and Warner Bros. Entertainment Inc.,
Defendant, represented by Kelly Max Klaus -- Kelly.Klaus@mto.com -
- Achyut Jayant Phadke -- Achyut.Phadke@mto.com -- Adam Isaac
Kaplan -- Adam.Kaplan@mto.com -- Glenn D. Pomerantz --
Glenn.Pomerantz@mto.com -- at Munger Tolles & Olson LLP
National Association of Theatre Owners, Defendant, represented by
Alexandra Whitworth -- alex.whitworth@bryancave.com -- Kenneth Lee
Marshall -- klmarshall@bryancave.com -- Roger Rex Myers --
roger.myers@bryancave.com -- at Bryan Cave LLP
MYLAN: Faces Another Class Action Over EpiPen Price Gouging
-----------------------------------------------------------
Tracy Seipel, writing for The Mercury News, reports that already
under investigation by two federal agencies, the pharmaceutical
company at the center of the EpiPen controversy is facing another
Northern California-based class-action lawsuit over allegations of
price gouging.
The complaint against Mylan, filed in U.S. District Court in
San Francisco on behalf of San Francisco resident Robin Kozelka
and others affected, said the case arises out of "one of the most
shocking and cruelest examples of corporate greed in recent
memory."
The EpiPen is an auto-injector that delivers a lifesaving dose of
adrenaline to treat serious allergic reactions to everything from
bee stings to food.
To extract maximum profits from its monopoly in the market, the
lawsuit alleges, Mylan raised the price it charges for its EpiPen
to levels "far beyond what is reasonable or fair to consumers
relying on this life-saving device."
Today, Mylan charges $609 for a two-pack of EpiPens that many
critics maintain costs no more than $20 to make. In 2007, when
Mylan first acquired the EpiPen, it was priced at about $57 per
pen. Since late 2009, the lawsuit said, Mylan has raised the
price 15 times. It's been sold only as a two-pack for six years.
Mylan, whose global headquarters are in Canonsburg, Pennsylvania,
did not respond to a request for comment.
The lawsuit alleges that Mylan's "unfair and oppressive pricing"
leaves thousands of California children and adults in danger of
dying from a food allergy or bee sting simply because they or
their families cannot afford to pay for the devices. And those
families who can pay, the complaint says, "have been overcharged
by thousands."
The complaint seeks to prohibit Mylan from continuing the unfair
business conduct and practices alleged in the complaint. The
plaintiffs are represented by the Burlingame law firm of Cotchett,
Pitre & McCarthy.
A similar class-action lawsuit against Mylan was filed in U.S.
District Court by Bay Area resident Kimberly Corcoran and Todd
Beaulieu, of Massachusetts, both of whom are represented by the
Keller Rohrback law firm.
The Associated Press reported that in a recent Securities and
Exchange Commission filing Mylan revealed that two federal
agencies -- the Security and Exchange Commission and the U.S.
Department of Justice -- are investigating the company and that
its premises had been searched.
Mylan reported a third-quarter loss, stemming mainly from a $465
million settlement for overcharging the federal government for
years for the EpiPen.
The AP said the SEC filing also noted that Mylan has been hit this
year with about 20 potential class-action lawsuits filed by either
shareholders or companies that paid for Mylan's products. The
suits allege that Mylan conspired to fix and raise prices for
various generic medicines it sells.
NOODLES & CO: Agrees to Settle Class Suit by Former Employees
-------------------------------------------------------------
Noodles & Company entered into an agreement to settle a class
action lawsuit brought by former employees, according to the
Company's Form 10-Q filing with the Securities and Exchange
Commission on November 7, 2016, for the quarterly period ended
September 27, 2016.
Carrie Castillo, Anastassia Letourneau and Jacquelyn Myhre, former
employees of the Company, filed a purported collective and class
action lawsuit against the Company on March 10, 2016, alleging
violations of the Fair Labor Standards Act and Illinois and
Minnesota wage laws (the "Labor Laws") in the United States
District Court for the Northern District of Illinois. The
plaintiffs filed the case on their behalf and on behalf of all
assistant general managers employed by the Company since Jan. 5,
2013 whom the Company classified as exempt employees, and they
allege that the Company violated the Labor Laws by not paying
overtime compensation to its assistant general managers. The
plaintiffs were seeking, on behalf of themselves and members of
the putative class, unpaid overtime compensation, liquidated
damages and available penalties under applicable state laws, a
declaratory judgment, an injunction and attorneys' fees and costs.
In the third quarter of 2016, the Company and the plaintiffs in
the litigation agreed in principle to settle the litigation. To
cover the estimated costs of the settlement, including estimated
payments to any opt-in members and class attorneys, as well as
related settlement administration costs, the Company recorded a
charge of $3.0 million in the third quarter of 2016. The charge
was recorded in general and administrative expenses in the
Company's unaudited condensed consolidated statements of
operations and in accrued expenses and other current liabilities
in the Company's unaudited condensed consolidated balance sheets.
The settlement is subject to approval of the United States
District Court for the Northern District of Illinois.
Noodles & Company, a Delaware corporation, develops and operates
fast casual restaurants that serve globally inspired noodle and
pasta dishes, soups and salads.
NOODLES & CO: Faces 3 Class Suits Over Data Security Incident
-------------------------------------------------------------
Noodles & Company is facing three putative class action lawsuits
arising from a data security incident, according to the Company's
Form 10-Q filing with the Securities and Exchange Commission on
November 7, 2016, for the quarterly period ended September 27,
2016.
On June 28, 2016, the Company announced that a data security
incident compromised the security of the payment information of
some customers who used debit or credit cards at certain Noodles &
Company locations between January 31, 2016 and June 2, 2016.
Credit and debit cards used at the affected locations are no
longer at risk from the malware involved in this incident, and the
Company has been implementing additional security procedures to
further secure customers' debit and credit card information.
In addition to claims by payment card companies with respect to
the data security incident, Selco Community Credit Union filed a
purported class action lawsuit against the Company in the U.S.
District Court for the District of Colorado on September 6, 2016
alleging that the Company negligently failed to provide adequate
security to protect the personal and financial information of
customers of Selco and other similarly situated credit unions,
banks and other financial institutions alleged to be part of the
putative class (the "Selco Litigation"). The complaint in the
Selco Litigation also claims the Company violated Section 5 of the
Federal Trade Commission Act, which prohibits unfair practices in
or affecting commerce, and it seeks monetary damages, injunctive
relief and attorneys' fees.
Midwest America Federal Credit Union and Veridian Credit Union
also filed a purported class action lawsuit against the Company in
the United States District Court for the District of Colorado on
October 6, 2016 on behalf of itself and similarly situated credit
unions, banks and other financial institutions containing the same
allegations and seeking the same remedies as the Complaint in the
Selco Litigation (the "Midwest America Litigation").
Kemba Financial Credit Union also filed a purported class action
lawsuit against the Company in the United States District Court
for the District of Colorado on October 24, 2016 on behalf of
itself and similarly situated credit unions, banks and other
financial institutions containing the same allegations and seeking
the same remedies as the complaints in the Selco Litigation and
the Midwest America Litigation (the "Kemba Financial Litigation").
The Company says it intends to seek to consolidate the Selco
Litigation, the Midwest America Litigation and the Kemba Financial
Litigation, and it intends to vigorously defend these actions. The
Company cannot reasonably estimate the range of potential losses
that will be associated with these actions because each is at an
early stage. Although the Company maintains data security
liability insurance, it currently believes that it is possible
that the ultimate amount paid by the Company with respect to this
matter will be in excess of the limits of the Company's data
security liability insurance coverage applicable to claims of this
nature. The Company says it is possible that losses associated
with the data privacy incident, including losses associated with
these actions, could have a material impact on the Company's
results of operations in future periods. The Company will continue
to evaluate information as it becomes known and will record an
estimate for losses at the time or times when it is probable that
a loss will be incurred and the amount of the loss is reasonably
estimable.
Noodles & Company, a Delaware corporation, develops and operates
fast casual restaurants that serve globally inspired noodle and
pasta dishes, soups and salads.
NORTHROP GRUMMAN: Oyster Bay Added as Defendant in Class Action
---------------------------------------------------------------
Emily C. Dooley, writing for Newday, reports that a $500 million
class-action lawsuit filed by Bethpage residents against Northrop
Grumman Corp. over air, soil and groundwater contamination has
been amended to include the Town of Oyster Bay as a defendant.
The lawsuit originally was filed in September but was changed
earlier in November adding Oyster Bay because the town owns
Bethpage Community Park.
NORTHWESTERN UNIVERSITY: Ex-Basketball Player Files Class Action
----------------------------------------------------------------
Max Gelman, writing for The Daily Northwestern, reports that
former men's basketball player Johnnie Vassar filed a class-action
lawsuit on Nov. 14 against Northwestern and the NCAA, alleging the
University used tactics to "run him off" the team so his athletic
scholarship could be freed up for another player.
The complaint said Northwestern put Mr. Vassar on an "internship,"
during which he worked as a janitor, and "berated" Vassar,
alleging coach Chris Collins told the player he had no future with
the team.
At a post-game press conference on Nov. 14, Mr. Collins said he
had no comment on the suit.
"We'll let those things be handled behind closed doors,"
Mr. Collins said.
The class-action suit argues that an NCAA rule requiring student-
athletes to sit out a year after transferring to another program
violates antitrust law. The complaint said Mr. Vassar, who is a
current Northwestern student, reached out to multiple Division I
basketball programs in hopes of transferring, but the programs
said they would only accept Mr. Vassar if he could play
immediately. Mr. Vassar's complaint was filed in the U.S.
District Court for the Northern District of Illinois, Eastern
Division.
Northwestern announced Mr. Vassar's intention to transfer in March
2015, but the complaint states that Vassar had not signed
documents to transfer at that time. Mr. Vassar arrived in 2014
and was part of Collins' first recruiting class as Northwestern's
coach.
University spokesman Al Cubbage told The Daily in an email that
the University believes the claim has no "legal merit."
"We will defend the University vigorously," Cubbage told The Daily
in an email.
The complaint states the program attempted to free up Vassar's
scholarship to give to another player and stay under the NCAA-
imposed 13-player scholarship limit.
The complaint alleges Vassar was placed in an "internship," to
"get him to give up his athletic scholarship," that required him
to report at 7 a.m. multiple days per week and work for two to
three hours.
"Johnnie picked up trash and leaves, operated a leaf blower, put
salt on sidewalks and under cars, wiped down the outside tennis
court bleachers, swept the baseball diamonds, and lift heavy metal
planks near the football field (hurting his shoulder)," the
complaint states.
The complaint also alleges that Northwestern attempted to falsify
"internship" timecards in order to feign misconduct on
Mr. Vassar's part.
Mr. Vassar was allegedly "informally" asked in March 2016 if he
would take a cash payment equal to the remaining value of his
athletic scholarship. The complaint said that after Vassar
voiced his concern over violating NCAA rules, he was asked if he
would be willing to move to a "merit based scholarship."
The complaint claims that in April, Vassar was notified that
Northwestern would be revoking his scholarship as Vassar indicated
his desire to transfer but had not yet done so.
During the 2014-15 season, Mr. Vassar played 18 games for the
Wildcats, averaging just under four minutes per game.
PLY GEM: $1.4-Mil. Liability Still Outstanding in Vinyl Clad Deal
-----------------------------------------------------------------
As of October 1, 2016, approximately $1.4 million of liability is
outstanding in connection with the settlement to resolve two cases
arising from alleged defective vinyl clad windows, Ply Gem
Holdings, Inc., said in its Form 10-Q filed with the Securities
and Exchange Commission on November 7, 2016, for the quarterly
period ended October 1, 2016.
In John Gulbankian v. MW Manufacturers, Inc. ("Gulbankian"), a
purported class action filed in March 2010 in the United States
District Court for the District of Massachusetts, plaintiffs, on
behalf of themselves and all others similarly situated, alleged
damages as a result of the defective design and manufacture of
certain MW vinyl clad windows. In Eric Hartshorn and Bethany Perry
v. MW Manufacturers, Inc. ("Hartshorn"), a purported class action
filed in July 2012 in the District Court, plaintiffs, on behalf of
themselves and all others similarly situated, alleged damages as a
result of the defective design and manufacture of certain MW vinyl
clad windows. On April 22, 2014, plaintiffs in both the Gulbankian
and Hartshorn cases filed a Consolidated Amended Class Action
Complaint, making similar claims against all MW vinyl clad
windows.
MW entered into a settlement agreement with plaintiffs as of April
18, 2014 to settle both the Gulbankian and Hartshorn cases on a
nationwide basis (the "Vinyl Clad Settlement Agreement"). The
Vinyl Clad Settlement Agreement provides that this settlement
applies to any and all MW vinyl clad windows manufactured from
January 1, 1987 through May 23, 2014, and provides for a cash
payment for eligible consumers submitting qualified claims
showing, among other requirements, certain damage to their MW
vinyl clad windows. The period for submitting qualified claims is
the later of: (i) May 28, 2016, or (ii) the last day of the
warranty period for the applicable window. On December 29, 2014,
the District Court granted final approval of this settlement, as
well as MW's payment of attorneys' fees and costs to plaintiffs'
counsel in the amount of $2.5 million, issuing a Final Approval
Order, Final Judgment, and Order of Dismissal with Prejudice (the
"Final Approval Order"). A notice of appeal of the Final Approval
Order (the "Appeal") was given by certain objectors to the
settlement, and on May 6, 2015, MW entered into a settlement
agreement with, among others, the objectors to fully and finally
resolve their claims, including the dismissal of Karl Memari v.
Ply Gem Prime Holdings, Inc. et al., another lawsuit seeking class
certification with respect to MW's vinyl clad windows, making the
Vinyl Clad Settlement Agreement final and binding on the parties.
The Company and MW deny all liability in the settlements with
respect to the facts and claims alleged. The Company, however, is
aware of the substantial burden, expense, inconvenience and
distraction of continued litigation, and therefore agreed to
settle these matters.
As a result of the Vinyl Clad Settlement Agreement, the Company
recognized a $5.0 million expense during the year ended Dec. 31,
2014 within selling, general, and administrative expenses in the
Company's consolidated statement of operations and comprehensive
income (loss) in the Company's Windows and Doors segment. It is
possible that the Company may incur costs in excess of the
recorded amounts; however, the Company currently expects that the
total net cost will not exceed $5.0 million.
As of October 1, 2016, approximately $1.4 million of this
liability is currently outstanding with $0.7 million as a current
liability within accrued expenses and $0.7 million as a noncurrent
liability within other long-term liabilities in the Company's
condensed consolidated balance sheet.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
PLY GEM: "Carrillo-Hueso" Suit Remains Pending in California
------------------------------------------------------------
Ply Gem Holdings, Inc., said in its Form 10-Q filed with the
Securities and Exchange Commission on November 7, 2016, for the
quarterly period ended October 1, 2016, that the putative class
action lawsuit initiated by Raul Carrillo-Hueso and Chec Xiong in
California remains pending.
In Raul Carrillo-Hueso and Chec Xiong v. Ply Gem Industries, Inc.
and Ply Gem Pacific Windows Corporation, a purported class action
filed on November 25, 2015 in the Superior Court of the State of
California, County of Alameda, plaintiffs, on behalf of themselves
and all others similarly situated, allege damages as a result of,
among other things, the defendants' failure to provide (i)
statutorily required meal breaks at the Sacramento, California
facility, (ii) accurate wage statements to employees in
California, and (iii) all wages due on termination in California.
The plaintiffs seek a variety of relief, including (i) economic
and compensatory damages, (ii) statutory damages, (iii) penalties,
(iv) pre- and post-judgment interest, and (v) attorneys' fees and
costs of litigation.
The Company says the damages sought in this action have not yet
been quantified.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
PLY GEM: Defends Against "Morgan" Suit Over Overtime Pay
--------------------------------------------------------
Ply Gem Holdings, Inc., said in its Form 10-Q filed with the
Securities and Exchange Commission on November 7, 2016, for the
quarterly period ended October 1, 2016, that the Company continues
to defend a putative class action lawsuit initiated by Tina Morgan
in California.
In Tina Morgan v. Ply Gem Industries, Inc. and Simonton
Industries, Inc., a purported class action filed on December 11,
2015 in the Superior Court of the State of California, County of
Solano, plaintiff, on behalf of herself and all others similarly
situated, alleges damages as a result of, among other things, the
defendants' failure at the Vacaville, California facility to (i)
pay overtime wages, (ii) provide statutorily required meal breaks,
(iii) provide accurate wage statements, and (iv) pay all wages
owed upon termination. The plaintiff seeks a variety of relief,
including (i) economic and compensatory damages, (ii) statutory
damages, (iii) penalties, (iv) pre- and post-judgment interest,
and (v) attorneys' fees and costs of litigation.
The Company says the damages sought in this action have not yet
been quantified.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
PLY GEM: Faces "Kiefer" Suit Alleging Defective Simonton Windows
----------------------------------------------------------------
A purported class action lawsuit was filed in Minnesota arising
from alleged defective design and manufacture of certain Simonton
windows, according to Ply Gem Holdings, Inc.'s Form 10-Q filing
with the Securities and Exchange Commission on November 7, 2016,
for the quarterly period ended October 1, 2016.
In Kiefer, et al. v. Simonton Building Products, LLC et al., a
purported class action filed on October 17, 2016 in the United
States District Court for the District of Minnesota, plaintiffs,
on behalf of themselves and all others similarly situated, allege
damages as a result of, among other things, the defective design
and manufacture of certain Simonton windows containing two-pane
insulating glass units. The plaintiffs seek a variety of relief,
including (i) economic and compensatory damages, (ii) punitive or
other exemplary damages, (iii) pre- and post-judgment interest,
and (iv) attorneys' fees and costs of litigation.
The Company says the damages sought in this action have not yet
been quantified.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
PLY GEM: "Pagliaroni" Class Suit Remains Pending in Massachusetts
-----------------------------------------------------------------
The purported class action lawsuit filed by Anthony Pagliaroni, et
al., in Massachusetts remains pending, Ply Gem Holdings, Inc.,
said in its Form 10-Q filed with the Securities and Exchange
Commission on November 7, 2016, for the quarterly period ended
October 1, 2016, that
In Anthony Pagliaroni, et al. v. Mastic Home Exteriors, Inc. and
Deceuninck North America, LLC, a purported class action filed in
January 2012 in the United States District Court for the District
of Massachusetts, plaintiffs, on behalf of themselves and all
others similarly situated, allege damages as a result of the
defective design and manufacture of Oasis composite deck and
railing, which was manufactured by Deceuninck North America, LLC
("Deceuninck") and sold by Mastic Home Exteriors, Inc. ("MHE").
The plaintiffs seek a variety of relief, including (i) economic
and compensatory damages, (ii) treble damages, (iii) punitive
damages, and (iv) attorneys' fees and costs of litigation. The
damages sought in this action have not yet been quantified. The
hearing regarding plaintiffs' motion for class certification was
held on March 10, 2015, and the District Court denied plaintiffs'
motion for class certification on September 22, 2015.
On October, 6, 2015, plaintiffs filed a petition for interlocutory
appeal of the denial of class certification to the U.S. Court of
Appeals for the First Circuit, and on April 12, 2016, the Court of
Appeals denied this petition for appeal.
Deceuninck, as the manufacturer of Oasis deck and railing, has
agreed to indemnify MHE for certain liabilities related to this
claim pursuant to the sales and distribution agreement, as
amended, between Deceuninck and MHE. MHE's ability to seek
indemnification from Deceuninck is, however, limited by the terms
and limits of the indemnity as well as the strength of
Deceuninck's financial condition, which could change in the
future.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
PLY GEM: S.D.N.Y. Judge Narrows Claims in Securities Suit
---------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted in part and denied in part the Defendants' motion to
dismiss the lawsuit styled In re Ply Gem Holdings, Inc. Securities
Litigation, according to the Company's Form 10-Q filing with the
Securities and Exchange Commission on November 7, 2016, for the
quarterly period ended October 1, 2016.
In re Ply Gem Holdings, Inc. Securities Litigation is a purported
federal securities class action filed on May 19, 2014 in the
United States District Court for the Southern District of New York
against Ply Gem Holdings, Inc., several of its directors and
officers, and the underwriters associated with the Company's
initial public offering ("IPO"). It is filed on behalf of all
persons or entities, other than the defendants, who purchased the
common shares of the Company pursuant and/or traceable to the
Company's IPO and seeks remedies under Sections 11 and 15 of the
Securities Act of 1933, alleging that the Company's Form S-1
registration statement was negligently prepared and materially
inaccurate, containing untrue statements of material fact and
omitting material information which was required to be disclosed.
The plaintiffs seek a variety of relief, including (i) damages
together with interest thereon and (ii) attorneys' fees and costs
of litigation. On October 14, 2014, Strathclyde Pension Fund was
certified as lead plaintiff, and class counsel was appointed. On
February 13, 2015, the defendants filed their motion to dismiss
the complaint. On September 29, 2015, the District Court granted
defendants' motion to dismiss, but ruled that plaintiff could file
an amended complaint.
On November 6, 2015, plaintiff filed an amended complaint, and on
January 13, 2016, the defendants filed their motion to dismiss
this amended complaint. On September 23, 2016, the District Court
granted in part and denied in part this motion to dismiss.
The Company says the damages sought in this action have not yet
been quantified. Pursuant to the Underwriting Agreement, dated May
22, 2013, entered into in connection with the IPO, the Company has
agreed to reimburse the underwriters for the legal fees and other
expenses reasonably incurred by the underwriters' law firm in its
representation of the underwriters in connection with this matter.
Pursuant to Indemnification Agreements, dated as of May 22, 2013,
between the Company and each of the directors and officers named
in this action, the Company has agreed to assume the defense of
such directors and officers. The Company believes the purported
federal securities class action is without merit and will
vigorously defend the lawsuit.
Ply Gem Holdings, Inc., is a diversified manufacturer of
residential and commercial building products, which are sold
primarily in the United States and Canada, and include a wide
variety of products for the residential and commercial
construction, the do-it-yourself and the professional remodeling
and renovation markets.
POWAY ACADEMY: Must Face Wage-and-Hour Class Action, Judge Rules
----------------------------------------------------------------
Lyle Adriano, writing for Insurance Business, reports that a US
District Judge ruled on Nov. 15 that an insurer is obligated to
protect its clients -- the operators of three California beauty
schools -- in a proposed class action suit that alleges the
operators failed to reimburse students for supplies or pay them
for providing cosmetology services.
The judge pointed out that a wage-and-hour exclusion does not
apply to one of the underlying claims.
Chief US District Judge Barry Ted Moskowitz found most of the
claims in the underlying suit against Poway Academy of Hair Design
Inc. and Beauty Boutique Inc. (BBI) fell within a policy exclusion
for allegations of wage-and-hour violations, save for one -- the
students' claim for reimbursement of supply costs.
Judge Moskowitz ruled that under this, Hanover Insurance Co. must
defend its clients against the class action complaint. He also
said that Hanover may be able to seek reimbursement for any sum
that the beauty schools spent, if only to defend the uncovered
wage-and-hour claims.
Poway Academy operates the "Bellus Academy" in Poway, California,
while BBI operates two schools bearing its namesake in National
City and El Cajon, California. Both companies held employment
practices liability insurance with Hanover from 2014 and 2015.
Court documents noted that although the two policies covered
claims of wrongful acts by the insured, they excluded coverage for
claims of violations of federal, state and local wage-and-hour
laws. Notably, Poway Academy's policy had a special endorsement
allowing for defense coverage of wage-and-hour claims up to
$25,000.
In 2014, a former Bellus Academy student filed a putative class
action complaint against the beauty schools in California state
court. Hanover agreed to defend the companies under a reservation
of rights to later challenge coverage. The insurer then sued the
schools in 2015, seeking a declaration regulating its defense
payments at $25,000.
PPJMA CONTRACTING: Villa et al. Allege Violation of Overtime Laws
----------------------------------------------------------------
FRANCISCO SEGUNDO BUNAY VILLA, SEGUNDO GARCIA TENESELA, IVAN JAIME
PADILLA SISLEMA, JUAN MARCELO PACA, SEGUNDO ROBERTO BUNAY VILLA,
VICTOR PABLO GUARACA PUCULPALA, and SEGUNDO PABLO BUNAY VILLA,
individually and on behalf of all others similarly situated,
Plaintiff, v. PPJMA CONTRACTING LTD., and JORGE OUVINA and JOSE
OUVINA, as individuals, Defendants, cv-16-6266 (E.D.N.Y., October
7, 2016), seeks to recover damages for alleged egregious
violations of federal and state overtime laws.
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
69-12 Austin Street
Forest Hills, NY 11375
Phone: 718-263-5591
PURITAN'S PRIDE: "Sharpe" Suit Moved from Super. Ct. to N.D. Cal.
-----------------------------------------------------------------
The class action lawsuit captioned Darcey L. Sharpe, Mary Ludolph-
Aliaga, Jay D. Werner, and Eva Krueger, Individually and on Behalf
of All Others Similarly Situated, the Plaintiff, v. Puritan's
Pride, Inc., a New York Corporation and Nature's Bounty Co.,
formerly known as NBTY, Inc., a Delaware Corporation, the
Defendants, Case No. SCUK-CVG-16-68251, was removed from the
Superior Court of the County of Mendicino to the U.S. District
Court for the Northern District of California. The Northern
District Court Clerk assigned Case No. 1:16-cv-06717-NJV to the
proceeding. The case is assigned to Magistrate Judge Nandor J.
Vadas.
Puritan's Pride manufactures vitamins, minerals, herbs, and other
nutritional supplements.
The Plaintiffs are represented by:
Tina Mehr, Esq.
VISION LEGAL, INC.
4712 E. 2nd St., Ste 840
Long Beach, CA 90803
Telephone: (877) 870 9953
Facsimile: (877) 348 8509
E-mail: tmehr@visionlegalinc.com
- and -
Travis Eugene Hodgkins, Esq.
CIVIL JUSTICE LAW PC
12100 Wilshire Blvd. Suite 800
Los Angeles, CA 90025
Telephone: (213) 529 0003
Facsimile: (310) 496 0533
E-mail: travis@civiljustice.com
The Defendants are represented by:
James Frederic Speyer, Esq.
Eskandar Alex Beroukhim, Esq.
Ryan W Light, Esq.
ARNOLD & PORTER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017-5844
Telephone: (213) 243 4141
Facsimile: (213) 243 4199
E-mail: james.speyer@aporter.com
Alex.Beroukhim@aporter.com
Ryan.Light@aporter.com
RED LOBSTER: Faces "Marett" Suit in Southern Dist. of New York
--------------------------------------------------------------
A class action lawsuit has been filed against Red Lobster
Hospitality LLC. The case is titled Lucia Marett, on behalf of
herself and all others similarly situated, the Plaintiff, v. Red
Lobster Hospitality LLC, the Defendant, Case No. 1:16-cv-09052
(S.D.N.Y., Nov. 21, 2016).
Red Lobster Hospitality LLC was founded in 2014. The company's
line of business includes the retail sale of prepared foods and
drinks for on-premise consumption.
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465 1188
Facsimile: (212) 465 1181
E-mail: cklee@leelitigation.com
REMINGTON: Families of Sandy Hook Victims Appeal Case Dismissal
---------------------------------------------------------------
Dave Altimari, writing for Hartford Courant, reports that the
families of some of the Sandy Hook Elementary School shooting
victims on Nov. 13 appealed a Superior Court judge's ruling
dismissing their lawsuit against the manufacturer of the gun used
in shooting.
The appeal was filed in Appellate Court, but the plaintiffs are
requesting the case to be heard by the state Supreme Court. The
families of 10 victims filed the lawsuit in January 2015 seeking
to hold the Remington Outdoor Co. liable for the massacre because
it marketed a gun to the public it knew was made for military use.
"We feel strongly that the critical issues raised in this case
belong before our state's Supreme Court and we hope the Court
agrees," said the families' attorney, Josh Koskoff of Koskoff,
Koskoff & Bieder. "The Supreme Court not only sets precedent but
also reviews the applicability and relevance of prior decisions,
and works to ensure that the common law is up-to-date with the
realities and dangers of a changing world."
Adam Lanza shot his way into the Newtown school on Dec. 14, 2012,
and fired 154 bullets in about five minutes from a Bushmaster
AR-15 killing 26 people, including 20 first-graders.
The lawsuit also named Camfour Holding LLP, the gun's distributor,
and Riverview Gun Sales, Inc., the East Windsor gun shop where
Nancy Lanza, Adam's mother, bought the AR-15. Superior Court
Judge Barbara Bellis dismissed the lawsuit against Camfour but
left it pending against Riverview Sales, which has since been
closed by federal authorities for other violations.
In a 54-page written ruling on the widely watched case, Judge
Barbara Bellis agreed with attorneys for Remington Outdoor Co.
that the lawsuit "falls squarely within the broad immunity"
provided to gun manufacturers and dealers by federal law,
specifically the Protection of Lawful Commerce in Arms Act.
The judge made it clear the families' claims that the gun company
should be held liable for Adam Lanza's actions did not meet the
narrow exceptions the federal law allows.
"Although PLCAA provides a narrow exception under which plaintiffs
may maintain an action for negligent entrustment of a firearm, the
allegations in the present case do not fit within the common-law
tort of negligent entrustment under well-established Connecticut
law, nor do they come within PLCAA's definition of negligent
entrustment," Judge Bellis wrote.
Ian Hockley, whose son Dylan was killed at Sandy Hook, said of the
PLCAA, "My son never got to exercise his right to life, liberty
and the pursuit of happiness because back then Congress, the NRA
and the gun industry put profits before humanity."
The judge also ruled that the plaintiffs could not win under the
Connecticut Unfair Trade Practices Act (CUTPA).
"A plaintiff under CUTPA must allege some kind of consumer,
competitor, or other commercial relationship with a defendant, and
the plaintiffs here have alleged no such relationship," the judge
wrote.
The families' appeal, Mr. Koskoff said, "asks the Supreme Court to
consider the scope of the common law of negligent entrustment in
Connecticut and its application to circumstances and technology
that could not have been contemplated when the cause of action was
first recognized."
The families argue that the meaning of certain language in CUTPA
must be determined by the Supreme Court, Mr. Koskoff said.
"As a father who lost a bright and shining child, all we ask is
for our day in court to address the negligence of these
companies," said David Wheeler, whose son, Benjamin, was also
killed in the Sandy Hook shooting.
REMINGTON: Rifle Owners Can Examine Internal Company Documents
--------------------------------------------------------------
Scott Cohn, writing for CNBC, reports that owners of Remington's
popular Model 700 rifle can now examine for themselves literally
millions of pages of internal company documents that have led
critics to conclude that the guns are unsafe.
The documents -- more than 130,000 files in all -- have been
assembled in a searchable online database by the advocacy group
Public Justice. The organization, which battles against secrecy
in the courts, fought successfully last year to make the documents
public.
"These documents show the extreme danger of court secrecy," said
Public Justice Chairman Arthur Bryant. "They prove that court
secrecy kills. Literally."
With millions sold since the design first went on the market in
the 1940s, Remington claims its Model 700 is the best-selling
bolt-action rifle ever made. But lawsuits have alleged that for
decades the company covered up a deadly design flaw that allows
the guns to fire without the trigger being pulled, resulting in
dozens of deaths and hundreds of injuries. The company has denied
the allegations.
The documents show Remington engineers wrestling with what they
called a "very dangerous" situation as early as 1947 -- before the
guns went on sale. Company officials eventually decided that a
design change was not worth the added cost, a conclusion they
would reach again and again.
By 1995, with complaints "constantly increasing," the company
drafted a warning notice to customers.
"The gun may accidentally fire when you move the safety from the
'safe' position to the 'fire' position, or when you close the
bolt," the proposed notice read. Company officials ultimately
rejected the warning as "too strong," and never sent it out. The
company also decided against multiple internal proposals over the
years to recall the guns.
In public statements, Remington has steadfastly maintained that
the guns are safe and free of defects. But in 2014, while still
maintaining the guns are safe, the company agreed in a nationwide
class action settlement to replace the triggers in some 7 million
guns -- including the Model 700 and a dozen other firearms with
similar designs -- in hopes of putting the matter behind itself
once and for all. A federal judge in Kansas City had set Nov. 18
as the deadline for objections to the settlement, with a hearing
on final approval scheduled for Feb. 14.
Remington attorneys did not immediately respond to a request for
comment about the new database.
The vast majority of the documents were compiled by Richard
Barber, a Montana man whose 9-year-old son was killed when he says
a Remington 700 rifle fired unexpectedly during a family hunting
trip in 2000. The Barber family settled a wrongful death suit
against the company in 2002.
"This information is a living memorial to my son, Gus," Barber
said in an interview. "I hope these educational resources will
break the cycle of injury and death."
Many of the documents have been featured in CNBC's reporting on
the issue, including a 2010 documentary and a follow-up
investigation last year. Most were turned over by the company
during the discovery phase of various lawsuits going back decades.
For years, Mr. Barber was unable to release most of the documents
because of court-imposed protective orders -- a common feature in
product liability cases meant to allow companies to enter into
legal settlements without revealing trade secrets and other
proprietary information.
"This information has been buried while people profit from the
pain and suffering of families like mine," Mr. Barber said.
Critics, including Public Justice, say companies routinely abuse
protective orders in order to hide information about dangerous
products from the public.
But the judge in the Remington class action case denied a routine
joint motion by the company and plaintiffs for a protective order
that would have kept the documents under wraps.
"There is a strong public interest in not allowing the Court's
orders to be used as a shield that precludes disclosure of this
danger," wrote U.S. District Judge Ortrie Smith on Dec. 3, 2014.
The surprise ruling created an opening for Public Justice to
persuade Remington to relinquish every protective order in every
bolt-action rifle case ever filed, rather than risk blowing up the
class action settlement.
The organization hopes this case will make parties in other cases
less likely to agree to keep important information secret in the
future.
"Hopefully," Mr.Bryant said, "it will make plaintiffs, their
lawyers, and judges understand why they cannot and should not
agree to unjustified court secrecy in the future."
Mr. Barber says turning the documents over to the public is a
fitting end to his 16-year quest for the truth about the rifles.
"This is how I intend to get my life back," he said.
ROKA BIOSCIENCE: Settlement in Yedlowski Suit Wins Final Approval
-----------------------------------------------------------------
District Judge Freda L. Wolfson of the District of New Jersey
granted plaintiff's motions for final approval of a settlement and
an award of attorneys' fees and reimbursement of expenses, in the
case STANLEY YEDLOWSKI, etc., Plaintiffs, v. ROKA BIOSCIENCE,
INC., et al., Defendants, Case No. 14-CV-8020-FLW-TJB (D.N.J.)
Defendant Roka Bioscience, Inc. sells tests to detect foodborne
pathogens to large-scale food testers such as food manufacturers
and commercial testing labs. Roka's tests can only be run on its
standalone, single purpose platform.
Plaintiffs alleges that (a) Roka's solution to the problem of
false positives for Listeria had failed, and (b) Roka had begun to
lose customers because of the Listeria false positives. The
complaint alleges that in the run up to the Company's initial
public offering, Roka received daily complaints of Listeria false
positives and that five of Roka's testing platforms had been
returned by dissatisfied customers. The complaint also alleges
that Roka received regular complaints from its customer Silliker,
a testing lab which ran Roka's tests for food producer Hillshire
Farm. The complaint alleges that Hillshire Farm stopped using
Roka's tests altogether before the IPO because it could not trust
the Listeria test results.
The court appointed Mr. Stanley Yedlowski as lead plaintiff and
The Rosen Law Firm, P.A. as lead counsel. In September 2015,
defendants filed a motion to dismiss the amended complaint. A
month later, plaintiffs filed their opposition. The court then
stayed further briefing on defendants' motion to dismiss while the
parties explored settlement discussions. To facilitate settlement
discussions, the settling parties retained a mediator, the Hon.
Faith S. Hochberg, U.S.D.J. (Ret.). The settling parties then held
an all-day mediation before Judge Hochberg on December 15, 2015,
were the parties signed a settlement term sheet, whose principal
term was that the action would be dismissed for a cash payment of
$3.275 million.
On May 17, 2016, the parties' counsel executed a stipulation
setting forth the terms of the settlement. The proposed settlement
agreement provides for a payment of $3.275 million in cash into a
settlement fund to resolve all claims. The stipulation also states
that notice and administrative costs, as well as lead counsel's
fees and expenses, will be paid from the settlement fund. The
remainder of the fund will be distributed to eligible class
members. The stipulation does not specify an allocation between
plaintiff's counsel and the class.
Plaintiffs filed for preliminary approval on May 20, 2016, and, on
June 28, 2016, the court granted plaintiffs' motion, preliminarily
approved the proposed settlement, certified the putative class for
settlement purposes, approved the form and content of the proposed
individual notice, claim form, and summary notice, authorized the
mailing and publication of the notice materials and scheduled a
Fairness Hearing for November 9, 2016.
Lead plaintiff Yedlowski, through counsel the Rosen Law Firm, PA,
filed motions for final approval of the proposed settlement and
award of attorney's fees and reimbursement of expenses. Lead
counsel seeks an award of attorneys' fees of one-third of the
$3.275 million Settlement Amount, or $1,091,666.
Lead counsel requests that the court reimburse the $20,972.82 of
litigation expenses that counsel advanced in connection with the
suitr Lastly, Lead counsel requests an award of $3,000 to lead
plaintiff Stanley Yedlowski for his time committed to this
litigation.
Judge Wolfson is persuaded by lead counsel's submissions that a
significant fee is warranted in the case, but finds that an award
of 30% of the recovery, or $982,500, better protects the interests
of the class members, while still adequately compensating class
counsel. Judge Wolfson awarded lead counsel $982,500 in attorney's
fees and $20,972.82 in costs. Lead plaintiff is awarded the
nominal sum of $3,000. All attorney's fees, costs, and nominal
awards are payable from the settlement fund.
A copy of Judge Wolfson's order dated November 10, 2016, is
available at https://goo.gl/J2S16F from Leagle.com.
Carole Kosla, Movant, represented by EDUARD KORSINSKY --
ek@zlk.com -- at LEVI & KORSINSKY LLP
STANLEY YEDLOWSKI, Lead Plaintiff, represented by LAURENCE M.
ROSEN -- lrosen@rosenlegal.com -- at THE ROSEN LAW FIRM, PA
WEI DING and Pratik Pitroda, Plaintiffs, represented by LAURENCE
M. ROSEN -- lrosen@rosenlegal.com -- at THE ROSEN LAW FIRM, PA
Defendants, represented by ALYCHIA LYNN BUCHAN --
abuchan@proskauer.com -- EDNA DORIS GUERRASIO --
eguerrasio@proskauer.com -- at PROSKAUER ROSE LLP
SANTANDER CONSUMER: Court Denies Motion to Certify Class Action
---------------------------------------------------------------
Robert Lawson, writing for Legal Newsline, reports that the U.S.
District Court for the Northern District of Illinois has denied a
motion to certify Levins v. Santander Consumer USA Inc. as a class
action.
James M. Morsch -- jmorsch@butlerrubin.com -- an attorney for
Butler Rubin Saltarelli & Boyd LLP in Chicago, said Faye Levins'
Telephone Consumer Protection Act claim was "weak," as she had
consented to be contacted by the defendant.
Mr. Morsch said it was likely the plaintiff recognized the
weakness of the case and sought to join other claimants. He also
said it remains unclear why the lawsuit was consolidated in
Chicago.
"Levins' claim was very weak but, if Levins managed to secure
class certification, she would be in a position to represent
thousands of claimants and to use that leverage to extract a
settlement out of Santander," Mr. Morsch told Legal Newsline.
"I am not sure why the case was consolidated in Chicago since it
was filed elsewhere, other than the fact that class counsel is
located here."
The court found that Levins failed to meet the prerequisites for
class certification, drawing from Levins' own testimony about
"lack of clarity" in the origination of one of her phones' contact
information, which was contained in activity notes from the
company, Mr. Morsch said.
The court also partly granted motion for summary judgment to
Santander because one of the cell phone numbers collected was done
so with consent on the credit application completed by Levins.
Summary judgment was not granted in dealing with consent for the
phone number collected in the activity notes.
"For Levins, it meant she was not an ideal class representative
since she had consented to contact from Santander, at least to one
of her phone numbers," Mr. Morsch said.
"For Santander, it means it has to go to trial, assuming Levins
prosecutes her claim despite denial of class certification, albeit
on an individual claim that is dubious on the merits and
represents $500 in exposure."
There is a chance that Levins will appeal.
"But she faces a very difficult road ahead obtaining reversal of
the denial of class certification from an appeals court that is
generally hostile to TCPA class actions," Mr. Morsch said.
Mr. Morsch said Levins attempted to bolster her certification
argument by emphasizing she could use Santander's records as
class-wide proof.
"The trouble for her is that those records, according to her, were
ambiguous, meaning a court would need to review each Santander
record to determine whether each class member has a viable claim,"
he said.
"That does not make a class action since the whole benefit of
class actions is to avoid the need for individualized proof."
Mr. Morsch said he found two things interesting and surprising
about the case. He offered lessons to be learned from it.
"One, the use of a fail-safe class definition which is self-
defeating and, two, the unsuccessful creativity of class counsel
in trying to make a class action out of a very weak individual
case," he said.
SCHIFF NUTRITION: False Advertising Class Action Withdrawn
----------------------------------------------------------
Louie Torres, writing for Legal Newsline, reports that a
California woman quickly dismissed her class action lawsuit
against the makers of digestive health products that alleged false
advertising.
Marilyn Cochoit filed a class action complaint, individually and
on behalf of all others similarly situated and the general public,
in July in U.S. District Court for the Central District of
California against Schiff Nutrition International Inc., Schiff
Nutrition Group Inc., Ganeden Biotech Inc., and Reckitt Benckiser
LLC, alleging violation of the Unfair Competition Law and other
counts.
Facing a motion to dismiss from the defendants, Ms. Cochoit and
her attorneys chose to dismiss her complaint without prejudice on
Oct. 31.
A hearing on the motion had been scheduled for Dec. 5.
According to the complaint, the defendants manufacture
over-the-counter digestive advantage products with an ingredient
known as GanadenBC, which they advertise as having bacteria with a
"100 times better survivability."
Cochoit alleged the defendants' survivability claims are false.
She was represented by attorney Ronald A. Marron of The Law
Offices of Ronald A. Marron in San Diego.
U.S. District Court for the Central District of California Case
number 8:16-cv-01371-CJC-KES
SCOUT INDUSTRIES: Faces TCPA Class Action in California
-------------------------------------------------------
Jenie Mallari-Torres, writing for Northern California Record,
reports that an Orange resident alleges a marketing services
business solicited him with phone calls without his permission.
Brock Meintel filed a complaint individually and on behalf of all
others similarly situated on Nov. 2 in the U.S. District Court for
the Central District of California against Scout Industries LLC
and Does 1-10 alleging violation of the Telephone Consumer
Protection Act.
According to the complaint, the plaintiffs allege that beginning
in August, he started receiving calls from the defendant in an
attempt to solicit him to purchase its services. The plaintiff
alleges his number has always been registered with the National
Do-Not-Call Registry and that he did not give defendant prior
express written consent or provided any contact information to
defendant.
The plaintiff holds Scout Industries LLC and Does 1-10 responsible
because the defendant allegedly called class members with contact
numbers that were actively enrolled in the Do-Not-Call Registry,
contacted plaintiff without express consent and invaded
plaintiff's rights to privacy and seclusion.
The plaintiffs request a trial by jury and seek judgment against
defendant, damages and all other relief that the court deems just.
He is represented by Todd M. Friedman, Adrian R. Bacon and Meghan
E. George of Law Offices of Todd M. Friedman in Woodland Hills.
U.S. District Court for the Central District of California Case
number 8:16-cv-01990
SHELBY COUNTY, TN: Faces Class Action Over Jail Computer Problems
-----------------------------------------------------------------
Localmemphis.com reports that a federal class action lawsuit has
been filed against Shelby County Sheriff Bill Oldham.
It has to do with the trouble the Local I-Team first reported at
the Shelby County Jail. Inmates were literally getting lost in
the system due to a computer software upgrade.
Senior investigator Jeni Diprizio broke this story and was the
first to get a copy of the lawsuit.
According to the lawsuit, Sheriff Bill Oldham was sued because he
is the elected sheriff, the one who has the final decision making
and policy making authority at the jail.
The lawsuit claims unreasonable practices, procedures and policies
of inmates happened during a computer software upgrade at the
Shelby County Jail. The complainant, Issacca Powell, says the
jail office held inmates longer than legally authorized.
Mr. Powell was lost in the system and spent 11 days in jail
without being given a bond, taken to a courtroom or told his
charges. Only after his family hired an attorney was that
attorney able to get Mr. Powell in front of a judge to find out
what was going on. Even after posting bond it took two additional
days for Mr. Powell to get released.
The lawsuit claims Mr. Powell's detention was illegal, excessive
and unconstitutional.
One Shelby County commissioner, isn't surprised by the lawsuit.
"First thing that comes to mind is the old cliche of I told you
so. You know, I have been hollering about this since we went in
there the other day to get folks out of there before something
like this happened, and unfortunately we have to deal with this
now," said Commissioner Terry Roland.
Powell isn't the only inmate this happened to. Judges report
inmates showing up in the wrong courtrooms, remaining in jail for
days on end without bond or court dates. Judge Bill Anderson
called what's happened a debacle.
The software problem didn't just cause problems at the jail.
Virtually every department at the criminal justice center is
experiencing problems.
The IT department can't give anyone an answer when it will all be
fixed. We reached out to the SCSO spokesperson about the lawsuit
and have not heard back.
SIRIUS XM: Settles The Turtles Copyright Class Action
-----------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that Sirius XM Radio Inc. has agreed to settle a closely watched
copyright infringement case brought by two members of the 1960s
band The Turtles that was set to go to trial in California.
Terms of the settlement, including the amount, were undisclosed,
but in a notice filed on Nov. 14, lawyers wrote that they planned
to file a motion for preliminary approval on Dec. 5. Both sides
were due in court on Nov. 15 to schedule a hearing for the
settlement's approval. Last year, Sirius paid $210 million to
settle claims by several major record labels, some of whom were
members of the class in the California case.
Plaintiffs' attorneys Henry Gradstein -- hgradstein@gradstein.com
-- a partner at Gradstein & Marzano in Los Angeles and Kalpana
Srinivasan, a partner at Susman Godfrey in Los Angeles, did not
respond to a request for comment. Both represent Mark Volman and
Howard Kaylan, two band members of The Turtles, whose hit songs
include "Happy Together." They brought the case under the
corporate name Flo & Eddie Inc. Sirius attorney Daniel Petrocelli,
chairman of the trial practice committee at O'Melveny & Myers,
also did not respond to a request for comment.
The planned trial revolved around how much Sirius should pay to a
class of thousands of owners of sound recordings made prior to
1972. Those recordings are not covered under the U.S. Copyright
Act, but Volman and Kaylan have been suing under state laws in
California, Florida and New York.
So far, they've had mixed results: A federal judge in Florida
granted Sirius's summary judgment, prompting the band members to
appeal to the U.S. Court of Appeals for the Eleventh Circuit,
while the New York Court of Appeals is weighing the state's law in
a case in which Sirius has sought reversal of a federal judge's
denial of summary judgment. In California, The Turtles band
members sued in 2013, claiming conversion, misappropriation
violations of California's unfair competition law and a California
law governing "exclusive ownership" of sound recordings.
In 2014, U.S. District Judge Philip Gutierrez granted summary
judgment to the band members on liability after finding that the
California law protected their public performance rights for songs
recorded prior to 1972. Last year, Sirius appealed Gutierrez's
subsequent order certifying a nationwide class, but the U.S. Court
of Appeals for the Ninth Circuit refused to take up the petition.
In September, Judge Gutierrez granted partial summary judgment to
Sirius, striking punitive damages and the unfair competition
claims from the case. The plaintiffs, who initially sued for more
than $100 million, hadn't sought a specific damages request for
trial. But in briefs filed, both sides appeared at odds over how
to calculate potential damages.
In September, Judge Gutierrez also denied a request from
Petrocelli to move the November trial to January given that he
represents President-elect Donald Trump in another class action
brought by former Trump University students that was set to go to
trial on Nov. 28. Mr. Petrocelli has filed a motion to delay that
trial until after Mr. Trump is inaugurated on Jan. 20. 2017.
SP AUSNET: Maurice Blackburn Blamed for $20MM Bushfire Tax Bill
---------------------------------------------------------------
Call Wahlquist, writing for Guardian Australia, reports that the
Australian Taxation Office has blamed Maurice Blackburn for a $20m
tax bill that could deprive survivors of the Black Saturday
bushfires some of their compensation, saying the law firm could
have avoided the charges.
The law firm ran two class actions, which secured a combined $794m
settlement for about 5,000 survivors of the deadly 2009 fires, but
the money has been unpaid for more than two years.
A case management hearing at the supreme court in Melbourne heard
that the tax on the interest accrued for the settlement fund could
be $20m.
Maurice Blackburn principal lawyer Andrew Watson said the ATO's
assessment was unfair and had come as a "shock" to the firm, which
draws its substantial costs from the interest on the account.
"While it won't affect the timing of payments starting to be
distributed to our clients this year, and the net effect is a few
cents in the dollar on recoveries, we believe the tax office's
decision is wrong, and if our expert legal advice reaffirms that,
we will fight to recover that money for clients," he said in a
statement.
The tax assessment did not deduct legal costs, meaning those costs
will eat into the final amounts paid out.
Administration fees on the settlement scheme are already reported
to be close to $50m and are being reviewed by a court-appointed
cost law specialist. The court has previously upheld the costs as
reasonable.
In a statement to Guardian Australia, the ATO said tax on class
action settlements could ordinarily be avoided.
"In other instances of compensation payments, representatives for
injured parties involved have either worked with the ATO upfront,
or otherwise established arrangements in a manner which ensures
the compensation fund would avoid any adverse tax outcomes such as
tax payable on interest etc," they said. "We are not aware of why
this was not undertaken in this case."
The ATO said it was working with the law firm to "achieve an
alternative tax outcome".
"We acknowledge this is a difficult situation for all involved,"
they said. "Unfortunately, the law prevents us from changing the
tax outcome, due to the way the arrangements in this case were
established."
Mr. Watson said that response was disingenuous.
"We have been engaged with the ATO since June 2015, awaiting its
decision regarding the taxation treatment, so it is disingenuous
at best for the tax office to now be backpedalling from its
decision and trying to redirect blame for a problem of its own
making," he said.
Maurice Blackburn is managing the settlement scheme, which is
expected to start paying out about 2,100 personal injury claims
-- about a fifth of the 10,000 claims that make up the class
action, paying to 44% of everyone in the class action -- by the
end of the year.
The rest are expected to be paid out in 2017.
Survivors have criticised the process for taking too long after it
was delayed in the middle of the year. They initially expected
payments within 12 months.
The $494m Kilmore East/Kinglake claim, which was the largest ever
class settlement in Australia and covered an area where 119 people
died and 1,242 homes were destroyed, was finalised in 2014.
The Murrindindi/Marysville claim, covering an area with 40 deaths
and 500 homes destroyed, was settled for $300m in February 2015.
The claims cover areas hardest hit by fires which killed 173
people across Victoria and destroyed more than 2,000 homes in one
deadly day -- February 7, 2009.
Some survivors have criticised Maurice Blackburn for its high
administrative costs, which come to about $1m a month.
"I'm not happy with the percentages because basically what they're
saying to people is that, you're only going to get a fraction of
what your life is worth, but we're quite happy to take dividends
out of this money," survivor Anthony McMahon told the ABC.
Mr. McMahon lost his sawmill business at Kinglake in the fires.
"We're still waiting," he said. "I mean it now looks like it's
going to be another six months before we see any of this money. It
may be legal but it's morally bankrupt as far as I'm concerned."
Mr. Watson told Guardian Australia the law firm had done
"everything possible" to ensure survivors got the maximum payout.
"That includes not using a litigation funder that would have
eroded recoveries by 20-40% and that includes applying to the
court for $17m less in fees than an independent assessor said the
firm was entitled to," he said.
SPEEDWAY LLC: Faces Class Suit Over $125 Debit Card Hold
--------------------------------------------------------
Courthouse News Service reported that a class of consumers claims
in a federal lawsuit in Tampa, Fla., that Speedway wrongfully puts
a $125 hold on any debit card used for gasoline purchases, without
prior notification.
The case is captioned, Kara Teggerdine, individually and on behalf
of all others similarly situated, Plaintiff, v. Speedway LLC,
Defendant, (M.D. Fla.).
Attorneys for Plaintiff:
JOHN A. YANCHUNIS, Esq.
MARCIO W. VALLADARES, Esq.
PATRICK A. BARTHLE II, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, Florida 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jyanchunis@ForThePeople.com
mvalladares@ForThePeople.com
pbarthle@ForThePeople.com
- and -
JEAN SUTTON MARTIN, Esq.
LAW OFFICE OF JEAN SUTTON MARTIN PLLC
2018 Eastwood Road Suite 225
Wilmington, NC 28403
Telephone: (910) 292-6676
Facsimile: (888) 316-3489
Email: jean@jsmlawoffice.com
ST. CLAIR COUNTY, IL: Judge Reschedules Trial in Suarez Case
------------------------------------------------------------
Heather Isringhausen Gvillo, writing for Madison-St. Clair Record,
reports that Magistrate Judge Reona Daly sustained several tax
buyers' objections to discovery requests seeking criminal
sentencing documents in a bid-rigging class action against St.
Clair County Treasurer Charles Suarez and several tax buyers.
Judge Daly also rescheduled a jury trial that had been set in
April 3 until Aug. 17, 2017, at 9 a.m. at the Benton courthouse
before District Judge Staci Yandle.
Two couples sued Suarez and tax buyers in the U.S. District Court
for the Southern District of Illinois on Oct. 17, 2014, alleging a
conspiracy similar to one that sent former Madison County
treasurer Fred Bathon to prison.
John Bloyer Jr., Adrianne Bloyer, Kevin Dvorak and Kathleen
Dvorak, all of O'Fallon, claim the alleged conspirators
artificially inflated interest rates at tax sales in 2007 and
2008. They claim Mr. Suarez illegally rigged bids at sales of
delinquent taxes to enrich Democratic campaign contributors.
The plaintiffs sought access to the defendants' sealed criminal
sentencing documents in their discovery requests. The defendants
objected.
In an Oct. 7 response, Joseph Vassen, John Vassen and VI Inc.,
filed a memorandum in opposition through attorney Paul Slocomb of
Hoffman & Slocomb LLC in St. Louis. They argue that the requested
documents are barred from discovery.
They cited the Northern District of Illinois' decision that
pre-sentencing reports are confidential documents.
"'We judges would break faith with defendants, whom we uniformly
urge to cooperate with and make full disclosure to the Probation
Office to assist us in our sentencing decisions, if we opened the
reports up to public scrutiny,'" the opposition states.
In an Oct. 17 order, Judge Daly sustained the defendants'
objections.
Judge Daly wrote that pre-sentence reports consist of a criminal
defendant's detailed personal information and may reveal the
government's confidential sources.
Therefore, the party seeking disclosure of the reports "must
demonstrate 'a particularized purpose sufficient to establish a
compelling need.'"
Judge Daly held that the plaintiffs failed to identify a
compelling, particular need for obtaining pre-sentence reports.
"Although the reports may be generally relevant to the instant
action, Plaintiffs did not articulate any specific factual
proposition they seek to support or any statement they seek to
impeach.
"Plaintiffs further did not show that the information in the
pre-sentence reports was unavailable from other sources," she
wrote.
As a result, she sustained the defendants' objections.
STAR CAREER: Shuts Down Operations After Class Action Defeat
------------------------------------------------------------
Jim Walsh, writing for Courier-Post, reports that Star Career
Academy, a for-profit school that last year lost a costly class-
action lawsuit brought by students, announced its closing on
Nov. 15.
The Cherry Hill firm cited the "negative financial impact of a
continued declining student population" at its campuses, which
offered post-secondary training. The firm asserted it had done
"everything in its power to prevent closure after operating for 37
years."
But attorneys who brought the lawsuit noted the firm faced a $9.2
million verdict after a trial in Superior Court, Camden. A jury
in that case ruled in favor of more than 1,000 current and former
students in October 2015.
The jury found Star had committed consumer fraud by
misrepresenting the accreditation status of its Surgical
Technology Program, according to Tom Marrone, a lawyer for the
students.
"We will continue to pursue the case in order to obtain just
compensation," Mr. Marrone and two other attorneys --
Ronald Greenblatt and Patricia Pierce -- said in a letter to the
students on Nov. 15.
"There is a possibility that Star's insurance will not be enough
to cover the judgment, and that Star will not have sufficient
assets to pay it," the lawyers added. "Also, it is possible that
Star will file for bankruptcy or that its creditors will place
Star into bankruptcy."
Star Career Academy has New Jersey campuses in Brick, Clifton, Egg
Harbor and Newark. The company also operates ServeFast Computers
in Toms River.
The business also has campuses in Pennsylvania and New York,
including the Culinary Academy of Long Island.
It said on Nov. 15 previously had been scheduled as a staff-
training day, so classes were not in session.
SUMITOMO: Settles Wireless Harness System Class Action
------------------------------------------------------
Did you purchase or lease an automotive vehicle in Canada and/or
for import into Canada between January 1999 and 2016?
And/or did you purchase any of the following parts for
installation in an automotive vehicle: automotive wire harness
system, electronic control unit, or heater control panel?
If so, you might be affected by settlements with the Sumitomo and
G.S. Electech defendants in the related class actions. The
settlements are not an admission of liability, wrongdoing or
fault. The settlements require court approval in Ontario, British
Columbia and Quebec.
For more information about the settlements and your options in
relation to the settlements, please review the long-form notice
available online at www.classaciton.ca/autoparts.
For more information visit www.classaction.ca/autoparts, e-mail
autopartsclassaction@siskinds.com or call 1-800-461-6166 x 1315
SUNSHINE ISA: Settlement in "Yang" Wage & Hour Suit Approved
------------------------------------------------------------
Magistrate Judge Henry Pitman of the United States District Court
for the Southern District of New York approved the settlement in
the case captioned, YANHUA YANG, on behalf of herself and others
similarly situated, Plaintiffs, v. SUNSHINE ISA, INC., d/b/a "Wu
Liang Ye," RU QIU LI and LIANG ZHANG, Defendants, Case No. 15 Civ.
5031 (HBP) (S.D.N.Y.).
The case is an action brought by an individual who formerly worked
as a "packer" at a Chinese restaurant located in mid-town
Manhattan for allegedly unpaid wages, overtime premium pay and
spread-of-hours pay. The action is brought under the Fair Labor
Standards Act (FLSA), 29 U.S.C. Sections 201 et seq., and the New
York Labor Law. Plaintiffs also assert claims alleging violations
of other provisions of the Labor Law.
Plaintiff alleges that she worked as a packer for defendants from
November 23, 2013 through April 10, 2015. Plaintiff claims that
she worked from 11:00 a.m. to past 9:00 p.m. five days per week
for a weekly total in excess of 50 hours. She was not given a
fixed time for lunch or dinner. Plaintiff claims her unpaid wages
total $15,695.48. Plaintiff claims that if she is awarded the sum
as unpaid wages, she is also entitled to $11,211.06 as liquidated
damages under the FLSA, $15,695.48 as liquidated damages under the
Labor Law and $10,000.00 for record-keeping and wage notice
violations and $2,543.83 as prejudgment interest. Thus,
plaintiff's total claimed damages are $55,145.85, exclusive of
attorney's fees and costs.
Although the action was commenced as a collective action with
respect to the FLSA claim and a putative class action with respect
to the Labor Law claims, the parties reached a proposed settlement
prior to any motion for conditional certification or class
certification.
The parties have agreed to a total settlement of $35,000.00. The
total settlement amount represents 136% of plaintiffs' unpaid
wages and statutory penalties. The parties also seek approval of
an award for fees and costs totaling $12,262.50; this figure is
comprised of $893.75 for counsel's out-of-pocket costs plus one-
third of the amount of the settlement fund after the deduction of
those costs.
In his Opinion and Order dated November 14, 2016 available at
https://is.gd/bPYIfX from Leagle.com, Judge Pitman found that the
settlement avoids the expense and burden of depositions and that
it is a product of arm's-length bargaining between experienced
counsel.
Yanhua Zhang is represented by John Troy, Esq. --
TroyLaw@TroyPllc.com -- TROY LAW, PLLC
Sunshine USA, Inc., et al. are represented by Thomas Drew Gearon,
Esq. -- Gearonlaw@aol.com -- BLOCK & O'TOOLE
SYSCO SAN FRANCISCO: Faces Employee Class Action
------------------------------------------------
Barbara Leonard, writing for Courthouse News Service, reported
that a class led by Albert Moreno in Oakland, Calif., claims Sysco
San Francisco made nonexempt employees work without legally
compliant meal periods, or compensation in lieu thereof, among
other violations of California labor law.
The case is captioned, Albert Moreno, on behalf of himself and
all. Others similarly situated, and on behalf Of the general
public, Plaintiff, v. SYSCO SAN FRANCISCO, INC, a California
corporation, and DOES 1 through 10, inclusive, Defendants,
RG16840192 (Cal. Super., Alameda County, November 28, 2016).
Attorneys for Plaintiff:
KENNETH S. GAMES, ESQ.
DANIEL F. GAINES, ESQ.
ALEX P. KATOFSKY, ESQ.
GAINES & GAINES, APLC
27200 Agoura Road, Suite 101
Calabasas, CA 91301
Telephone: (818) 703-8985
Facsimile: (818) 703-8984
E-mail: ken@gaineslawfirm.com
daniel@gaineslawfirm.com
alex@gaineslawfirm.com
TERRAVIA HOLDINGS: Rosen Law Firm Files Securities Class Action
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Nov. 17
disclosed that it has filed a class action lawsuit on behalf of
purchasers of TerraVia Holdings, Inc. securities (TVIA) from
August 8, 2016 through November 7, 2016, both dates inclusive (the
"Class Period"). The lawsuit seeks to recover damages for
TerraVia investors under the federal securities laws.
To join the TerraVia class action, go to
http://www.rosenlegal.com/cases-989.htmlor call Phillip Kim, Esq.
or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) TerraVia's products caused gastrointestinal distress,
such as nausea and vomiting; and (2) as a result, Defendants'
statements about TerraVia's business, operations, and prospects
were false and misleading and/or lacked a reasonable basis at all
relevant times. On November 7, 2016, Bloomberg reported that
TerraVia sent a letter to a distributor in July warning that
TerraVia had received reports showing that algal protein can cause
gastrointestinal distress. On this news, shares of TerraVia fell
$0.15 per share or over 8% to close at $1.70 per share on November
7, 2016, damaging investors.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
January 17, 2017. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-989.htmlor to discuss your rights
or interests regarding this class action, please contact Phillip
Kim or Kevin Chan of Rosen Law Firm toll free at
866-767-3653 or via email at pkim@rosenlegal.com or
kchan@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
TOKAI PHARMA: Faces Class Action, Dec. 13 Lead Plaintiff Deadline
-----------------------------------------------------------------
WeissLaw LLP on Nov. 16 disclosed that it has filed a class action
in the United States District Court for the District of
Massachusetts against Tokai Pharmaceuticals, Inc. ("Tokai" or the
"Company") (TKAI) and certain Company officers, for among other
things, violation of sections 11, 12(a)(2), and 15 of the
Securities Act of 1933 (the "Securities Act"), and violation of
sections 10(b) and 20(a) of the Securities and Exchange Act of
1934 (the "Exchange Act"). The class action seeks to pursue
remedies on behalf of all person or entities who purchased or
otherwise acquired shares of Tokai between September 17, 2014 and
July 25, 2016, inclusive (the "Class Period").
On July 26, 2016, Tokai announced that it will discontinue the
Phase 3 trial of the Company's highly anticipated Galeterone drug.
The decision was based upon the recommendation of the trial's
independent Data Monitoring Committee, which determined that the
trial "[would] likely not succeed." On that news, Tokai shares
nose-dived to a low of $1.10.
The complaint alleges that Defendants made materially false and/or
misleading statements, as well as failed to disclose information
with regard to Tokai's operations and compliance policies by: (i)
failing to inform and/or misrepresent the structural problems of
phase 3 of the Galeterone trial to shareholders, which
subsequently resulted in the failure of the trial; and (ii) filing
materially false and/or misleading financial statements.
NOTE: If you wish to serve as lead plaintiff, you must move the
Court no later than December 13, 2016. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact Joshua Rubin of WeissLaw LLP
at 888.593.4771, or by e-mail at stockinfo@weisslawllp.com. Any
member of the Class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent Class member.
WeissLaw LLP -- http://www.weisslawllp.com-- has litigated
hundreds of stockholder class and derivative actions for
violations of corporate and fiduciary duties.
TRANSAMERICA LIFE: Court Certifies Can-Am Fund Class Action
-----------------------------------------------------------
Andrew Rickard, writing for Insurance Journal, reports that the
Ontario Court of Appeal has just certified a class action lawsuit
against Transamerica Life Canada. It springs from a claim which
might have been resolved for less than $6,000.
The case dates back to 2002 when Michael Millman, a chartered
accountant in Vancouver, complained to Transamerica that that the
Can-Am Fund he owned had not tracked the results of the S&P 500
Total Return Index as promised in the insurance contract. He also
argued that he had been overcharged management fees, and claimed a
total loss of between $3,200 to $5,600.
Unsatisfied with Transamerica's response, Mr. Millman retained
legal counsel. Time passed, a claim that had begun as a breach of
contract became a class action, and Joseph Fantl became the
representative plaintiff when Mr. Millman was not prepared to
serve in that role. There was also some wrangling as law firms
fought over who should have carriage of the case. The issue of
excess fees was eventually settled in the summer of 2009, when
Transamerica agreed to pay an estimated $52 million plus legal and
administration costs.
The Can-Am matter, however, remained unresolved and wound its way
to the Ontario Court of Appeal, which approved the class action on
August 22. In his reasons, Chief Justice George Strathy said that
a class action lawsuit was appropriate in this instance because it
would allow costs to be distributed over thousands of class
members and resolve claims that could not be efficiently litigated
through individual proceedings.
"Although class actions have been with us in Ontario for almost 25
years, there have, at most recent report, been less than 20 common
issues trials," he concluded. "Few of these have resulted in
individual issues trials. If class actions are to deliver on
their promise of access to justice, it is perhaps time to test
some of the assumptions made about the 'manageability' of the
individual issues stage of a class action. This appears to be an
ideal case in which to do so."
Central to the case will be the interpretation of the information
folders that Transamerica provided to investors, which stated that
the goal of the Can-Am Fund was to replicate, on a "best efforts"
basis, the performance of the S&P 500 Total Return Index. The
plaintiff claims that the "best efforts" statement in the
information folder was untrue, and that Can-Am was "a clone fund
that did not clone."
Transamerica offered the Can-Am Fund between October 1992 and
March 2001. The insurer denies the allegations in the claim and
they have not been proved in court.
Last year, Transamerica Life Canada changed its brand name to
ivari.
TURANO BAKING: Faces Wage Class Action in Chicago
-------------------------------------------------
Scott Holland and Jonathan Bilyk, writing for Cook County Record,
reports that should getting dressed in company clothes be done on
company time? That question is the foundation of a class-action
complaint against Turano Baking Co.
Former Turano employee Francisco Miranda, of Joliet, filed the
complaint Nov. 11 in federal court in Chicago, alleging the bakery
violated the Illinois Minimum Wage Law and federal Fair Labor
Standards Act. He said it took him 15 minutes to dress in his
work uniform -- obtained from the company at his workplace -- but
was not allowed to punch in until the start of his assigned shift.
Mr. Miranda worked as a mixer in Turano's Berwyn production
facility from March 11, 2014, through Oct. 21, 2016, and said he
worked between 48-60 hours a week, five or six days each week,
from Tuesday through Saturday or Monday through Saturday. In his
first year, he worked both second- and third-shift rotations; in
the second year he settled into the third shift, which ran from 9
p.m. through 5:30 a.m. When Miranda was required to work overtime,
the shift began at 5 p.m.
The uniform "included white pants, white shirt, slip resistant
shoes and a hairnet," all donned in a company locker room.
Mr. Miranda said all production floor employees had to follow the
same policy, and had to remove certain work clothes at the end of
each shift after punching out, another 15-minute process.
Yet, he said the company refused to pay him for the time spent
dressing for the shift.
Mr. Miranda said the class could include between 200 and 500
current and former Turano employees, and noted current employees
"may be reluctant to raise individual claims for fear of
retaliation."
The FLSA count said Mr. Turano, in failing to pay for the half
hour each work day -- time that would have qualified for overtime
pay -- "either (knew) that its conduct violated the FLSA or showed
reckless disregard for whether its actions complied."
Mr. Miranda seeks back pay for the prior three years, liquidated
damages equal to the amount of unpaid overtime, interest and legal
fees, as well as an injunction precluding Turano from future FLSA
violations.
The state minimum wage law claim is functionally identical, along
with a request for statutory damages. In addition to class
certification, Miranda also requests a jury trial.
Representing Mr. Miranda, and putative class attorneys, is the
Chicago firm of Caffarelli & Associates.
The lawsuit vs Turano marks the second potentially large federal
action brought against one of the Chicago area's major bakers in
recent weeks.
In October, a group of African American laborers sued Northbrook-
based Highland Baking Co. and a staffing agency the company uses,
identified as Quality Labor Services LLC, of Gurnee, saying the
bakery and staffing agency discriminated against African American
bakery workers by preferring to hire Hispanic workers.
The named plaintiffs in that case, identified as Derell Pruitt and
Plaz Hall Murdock-Alexander Jr., and represented by attorneys
Christopher J. Williams and Alvar Ayala, of the Workers' Law
Office, of Chicago, alleged the bakery's hiring preferences
produced a negative disparate impact on the employment prospects
of low- to moderately-skilled African American laborers in the
region.
They requested the court allow the case to proceed as a class
action, to include any eligible and qualified African American
laborers who had sought work through QLS since October 2012.
TWITTER INC: Faces String of Securities Fraud Class Actions
-----------------------------------------------------------
Ben Hancock, writing for The Recorder, reports that Twitter Inc.
is gaining a lot of followers it probably doesn't want.
The company was hit with the latest in a string of lawsuits
alleging that the social media company misled investors about the
growth of its user base, and that senior executives raked in
hundreds of millions of dollars by selling their stock before the
market learned about it.
The derivative shareholder complaint brought on Nov. 8 against
Twitter's board of directors is at least the third such suit to be
filed in the span of a month in the U.S. District Court for the
Northern District of California over statements about how quickly
Twitter's "monthly active users" would grow.
That case, filed by Brodsky Smith in Beverly Hills, also levels
insider trading claims against former Twitter CEO Richard Costolo,
current CEO Jack Dorsey and company director
Evan Williams. Attorneys at Johnson & Weaver make the same claim
in a suit they filed a week before. A separate derivative suit
filed by Robbins Arroyo does not make that allegation.
"Defendant Williams illicitly sold shares of Twitter stock for
proceeds of approximately $274.5 million while in possession of
material, adverse, non-public information, during a time in which
Twitter stock was artificially inflated due to defendants' false
and misleading statements," the new suit alleges.
"As a result of these illicit sales, defendant Mr. Williams
received direct financial benefits not shared with Twitter
shareholders," it adds.
The complaints come on the heels of two similar securities fraud
class actions filed in September by Robbins Geller Rudman & Dowd
and Pomerantz. Twitter has turned to Simpson Thacher & Bartlett
to defend against those suits, but has not yet named counsel in
the more recently filed derivative cases.
Simpson Thacher attorney Simona Strauss -- sstrauss@stblaw.com --
did not respond to an email seeking comment.
The suits allege that Twitter puffed up its stock by projecting in
late 2014 and early 2015 that its monthly active users would
roughly double to over 550 million in the intermediate term. In
April 2015, its stock dipped when it revealed its user base had
inched up only 5 percent from the previous quarter.
So far, there's been no move by the plaintiffs firms to coordinate
their actions, and none has explicitly sought a leadership role.
Attorneys for the various plaintiffs' firms could not be reached
on Nov. 10 or declined to comment.
TYSON FOODS: Faces Investor Suit Over Stock Price Drop
------------------------------------------------------
Courthouse News Service reported that investors claim in a federal
class action in Fayetteville, Ark., that Tyson Foods stock dropped
23% when it was revealed that the company made false and
misleading statements about its business and operations.
The lead plaintiff is Harold M. Voellinger and the defendants are
Tyson Foods Inc., Donald J. Smith and Dennis Leatherby.
The case is captioned, HAROLD M. VOELLINGER, Individually and on
Behalf of All Others Similarly Situated, vs. TYSON FOODS, INC.,
DONALD J. SMITH and DENNIS LEATHERBY, Defendants, Case 5:16-cv-
05340-TLB (W.D. Ark., November 28, 2016).
Attorneys for Plaintiff:
Allen Carney, Esq.
CARNEY BATES & PULLIAM, PLLC
519 West 7th Street
Little Rock, AR 72201
Tel: 501/312-8500
Fax: 501/312-8505
- and -
CHRISTOPHER M. WOOD, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: 61 5/244-2203
Fax: 615/252-3798
- and -
COREY D. HOLZER, Esq.
MARSHALL P. DEES, Esq
HOLZER & HOLZER, LLC
1200 Ashwood Parkway, Suite 410
Atlanta, GA 30338
Telephone: 770/392-0090
Fax: 770/392-0029
UNITED COLLECTION: Court Allows Limited Discovery in TCPA Suit
--------------------------------------------------------------
District Judge Patricia A. Gaughan of the Northern District of
Ohio, Eastern Division, granted in part and denied in part
plaintiff's motion to compel discovery in the case Deborah
Meredith, Plaintiff, v. United Collection Bureau, Inc. Defendant,
Case No. 1:16 CV 1102 (N.D. Ohio)
Plaintiff Deborah Meredith filed a putative class action lawsuit
on May 9, 2016, alleging that defendant United Collection Bureau
violated the Telephone Consumer Protection Act, 47 U.S.C. Section
227 et seq. Plaintiff alleges that defendant, a debt collection
service, initiated multiple calls to plaintiff's cellular
telephone in an attempt to collect a debt. She alleges that she
was unable to answer the calls and that defendant left multiple
voicemail messages for her. In her complaint, she alleges that
defendant has a policy, practice, or procedure of placing calls to
cell phones regarding the collection of an alleged debt without
the prior consent of the called parties.
Plaintiff seeks to certify the following class:
All persons in the United States who: (a) Defendant and/or someone
on Defendant's behalf called at least twice on their cellular
phone; (b) and played the same or similarly created message to the
voicemail left for plaintiff; (c) where the phone number was not
obtained from the recipient of the call, as to the alleged debt
being collected; (d) where at least one call was made in the
period that begins four years before the date of filing this
Complaint.
She claims that she and the putative class members have been
damaged by the calls by having their privacy invaded, being
charged for the calls, and being annoyed.
On July 7, 2016, plaintiff served discovery requests on defendant,
which defendant responded to on August 22. Plaintiff was not
satisfied with defendant's responses. The parties agreed on a
confidentiality order then met and conferred telephonically on
September 22. Since then, defendant has produced some additional
documents and provided supplemental responses.
Finding defendant's responses to be deficient, plaintiff filed a
motion to compel discovery.
Judge Gaughan granted in part and denied in part plaintiff's
motion to compel discovery.
In interrogatory 1 and document request 2, plaintiff seeks
information about the persons in the class she seeks to represent.
Judge Gaughan denied plaintiff's motion to compel with respect to
interrogatory 1 and discovery request 2 written as is.
Next, plaintiff seeks to compel responses to its discovery
requests relating to defendant's databases. Plaintiff issued
requests to learn what kind of database defendant maintains, and
how the database works. Judge Gaughan denied plaintiff's motion to
compel with respect to document request 4 and interrogatories 6
and 7 to the extent they seek information for calls unrelated to
plaintiff.
Plaintiffs also seek information about defendant's calling and
consent practices and procedures in interrogatory 8 and document
request 6. Judge Gaughan gives defendants 14 days to comply from
date of order. In document requests 5, 9, and 11, plaintiff seeks
any information that defendants have that pertains to the TCPA as
well as documents that relate to the calling of non-debtors.
Plaintiff's motion is denied with respect to such requests. None
of the requests are tailored to the class period, and document
request 11 is not tailored in any way. Moreover, defendant has
shown that complying with the requests beyond what it already has
done would be unduly burdensome.
In Interrogatories 3 and 9, plaintiff asks for the identities of
defendant's personnel. Judge Gaughan held that defendant's
objections are not well-taken. The fact that defendant does not
maintain a database that can be queried for information responsive
to interrogatory 1 does not mean that it cannot identify
individuals who were involved in deciding call campaign
strategies, who loaded numbers into dialers, or who drafted the
marketing scripts, or persons to whom calls may have been routed.
The persons who were involved in defendant's day-to-day calling
and compliance practices are likely to have relevant information
about this case. Plaintiff's motion is granted with respect to
Interrogatories 3 and 9. Defendant is ordered to produce a
complete copy of its policy.
In interrogatory 4, plaintiff seeks information about complaints
concerning calls to person who did not consent to receive them.
Plaintiff's motion to compel is granted as to interrogatory 4.
Document request 3 asks defendant to produce all deposition
transcripts, declarations, interrogatory responses, or any other
sworn or unsworn materials relating to any TCPA matter, or any
other case that concerns use of dialers or prerecorded messages
during collection calls. The court agrees with defendant that this
request is overbroad because the request asks for documents
regardless of whether the underlying action involved the TCPA,
whether the information relates to plaintiff or the putative
class, and whether the information relates to defendant.
Plaintiff's motion is denied with respect to document request 3.
The parties are in the process of scheduling depositions, but
defendant has not told plaintiff its proposed location. Within
three days of the date of the order, defendant must provide five
available dates before December 31, 2016, and identify a proposed
location within three days of the date of the order.
A copy of Judge Gaughan's memorandum opinion and order dated
November 10, 2016, is available at https://goo.gl/VDalZ0 from
Leagle.com.
Deborah Meredith, Plaintiff, represented by Alexander H. Burke --
ABurke@BurkeLawLLC.com -- at Burke Law Offices, LLC; David M.
Marco -- dmarco@smithlaw.us -- Larry P. Smith --
lsmith@smithmarco.com -- at Smith Marco; Mitchel E. Luxenburg --
mitch@mluxlaw.com -- at Luxenburg & Levin
United Collection Bureau, Inc., Defendant, represented by Ethan G.
Ostroff -- ethan.ostroff@troutmansanders.com -- Lindsey B. Mann --
lindsey.mann@troutmansanders.com -- at Troutman Sanders; Jason P.
Ferrante -- JPFerrante@mdwcg.com -- at Marshall, Dennehey, Warner,
Coleman & Goggin
UNITEDHEALTH: Keller Rohrback Files Class Action Over "Clawbacks"
-----------------------------------------------------------------
The attorneys at Keller Rohrback L.L.P. filed a class action
complaint against UnitedHealth and OptumRx, as well as several of
their affiliates. The lawsuit, filed on November 15, 2016, seeks
to recover monetary damages and other relief on behalf of
consumers who overpaid and continue to overpay for their
prescription medications at the pharmacy counter.
The complaint alleges that instead of reducing consumer costs,
UnitedHealthcare and OptumRx -- which runs pharmacy benefits
coverage for thousands of health insurance plans across the
country -- actually increase prescription costs through a billing
scheme known as a "clawback." A clawback occurs when the drug's
retail cost, or the price you would pay without insurance, is less
than the stated price in the health plan or insurance policy. For
example, without health coverage, a drug may retail for $5.00 at a
local pharmacy, but with insurance, the patient may be forced to
pay a $20.00 "copayment" or "coinsurance" for the same drug.
OptumRx then "claws back" the $15.00 difference from the pharmacy.
Patients generally have no idea this unfair practice is going on.
UnitedHealth and OptumRx have hidden their "clawbacks" from
consumers by drafting contracts that specifically prohibit
pharmacists from disclosing the true cost of the drugs, even if
the consumer asks. In some cases the overcharges are so egregious
that consumers may be affected regardless of whether they pay a
copay or coinsurance, or even the full cost of the medication.
Please visit our resource center for more information.
Keller Rohrback L.L.P. is seeking to stop the unlawful and
deceptive practice of overcharging consumers for life-saving
medications. If you have a Cigna or UnitedHealth plan through
your employer, the ACA exchange, or Medicare, your pharmacy
benefits are probably handled by OptumRx. Please contact an
attorney to learn more about whether you too have been subject to
unlawful "clawbacks." Call 800.776.6044 or email
info@kellerrohrback.com.
Keller Rohrback L.L.P. has decades of experience helping consumers
and insureds fight back against fraud and abuse. Keller Rohrback
L.L.P. serves as lead and co-lead counsel in class action lawsuits
throughout the country. With offices in New York, Seattle,
Phoenix, Ronan, Oakland, and Santa Barbara, our Complex Litigation
Group is proud to offer its expertise to clients nationwide.
UTAH: Judge Dismisses "Webb" Third Amended Complaint
----------------------------------------------------
District Judge David Nuffer of the District of Utah, Central
Division, adopted with modification the Magistrate Judge's report
and recommendation, in the case DAVID WEBB, Plaintiff, v. HEATHER
S. WHITE et al., Defendants. Case No. 2:15-CV-512-DN-PMW (D. Utah)
Plaintiff's third amended complaint alleges that plaintiff, and
others similarly situated, have initiated lawsuits against various
unspecified governmental entities in Ogden City and Weber County
for civil rights violations arising from a traffic stop, arrest,
detention, strip search, and no prompt determination of probable
cause following his warrantless arrest.
Private attorneys and law firms that represented the governmental
entities were also named as defendants. The Third Amended
Complaint identifies seven Defendants:
-- Attorney Heather S. White;
-- Attorney Frank D. Mylar;
-- Snow, Christensen & Martineau And Mylar Law P.C.;
-- R. Blake Hamilton;
-- Ashley M. Gregson; and
-- Durham, Jones & Pinegar.
Defendants successfully raised defenses of sovereign immunity
under the Governmental Immunity Act of Utah and the qualified
immunity doctrine on behalf of their clients, resulting in the
dismissal of claims asserted in the lawsuits.
The report and recommendation issued by United States Magistrate
Judge Paul M. Warner on September 16, 2016, recommended that
plaintiff's third amended complaint be dismissed for failure to
allege facts supporting the existence of subject matter
jurisdiction and failure to state a claim upon which relief may be
granted. The report and recommendation also recommended that
plaintiff be granted leave to amend the third amended complaint.
Plaintiff objected to the report and recommendation on September
28, 2016. Plaintiff objects to the Magistrate Judge's statement
that:
Plaintiff's complaint is exceptionally difficult to follow,
includes limited factual allegations, and is largely devoid of a
comprehensible narrative. Most of the complaint is repetition of
legal conclusion and copy-and-paste legal discussion.
Plaintiff next objects to the Magistrate Judge's statement that
Named Defendants are two private lawyers and law firms.
Plaintiff further objects to the Magistrate Judge's screening of
the case as an individual case, rather than as a class action, and
the Magistrate Judge's denial of his motion for status conference.
Plaintiff next objects to the Magistrate Judge's denial of his
motion to consolidate the case with another proposed class action
case he filed, Webb v. State of Utah, 1:16-CV-17-JNP-PMW, and the
denial of his motion for protective order.
Plaintiff also objects to the Magistrate Judge's analysis and
conclusion that the third amended complaint fails to allege facts
supporting the existence of subject matter jurisdiction.
Judge Nuffer ordered that the analysis and conclusions of the
Magistrate Judge are accepted with modification and the report and
recommendation is adopted with modification that named defendants
are four private lawyers and three law firms. Granting plaintiff
leave to amend the third amended complaint would be futile and
that the third amended complaint is dismissed with prejudice, the
judge said.
A copy of Judge Nuffer's memorandum decision and order dated
November 10, 2016, is available at https://goo.gl/a70OQw from
Leagle.com.
David Webb, Plaintiff, Pro Se
VALEANT PHARMACEUTICALS: COLD-FX Class Action Dismissed
-------------------------------------------------------
Valeant Canada, manufacturer of COLD-FX, on Nov. 16 disclosed that
Madame Justice Dillon of the British Columbia Supreme Court has
dismissed the application for certification in the proposed B.C.
class action proceeding relating to COLD-FX thereby dismissing a
class action against Valeant with respect to the effectiveness of
COLD-FX. Valeant is pleased to see this matter dismissed and
looks forward to returning focus to our mission of improving
people's lives with our healthcare products.
At Valeant, product safety is paramount. COLD-FX has been
thoroughly evaluated, researched and clinically assessed and has
been proven to help reduce the frequency, severity and duration of
cold and flu symptoms by boosting the immune system.[i] For over
a decade, more than $20 million has been invested in clinical
research and development of COLD-FX. For the past eleven years,
COLD-FX has been the #1 Pharmacist and Doctor Recommended Natural
Cold Remedy brand in Canada .[ii]
About Valeant Canada and COLD-FX
COLD-FX -- http://www.cold-fx.ca-- is produced by Valeant Canada,
a subsidiary of Valeant Pharmaceuticals International, Inc. --
http://www.valeantcanada.com-- a multinational specialty
pharmaceutical company that develops, manufactures and markets a
broad range of pharmaceutical products primarily in the areas of
dermatology, eye health, neurology and branded generics.
VIRGINIA: Justice Department Files Brief in DMV Class Action
------------------------------------------------------------
Robert Zullo, writing for Richmond Times-Dispatch, reports that
the U.S. Justice Department has filed a brief in a lawsuit raising
constitutional concerns about Virginia's policy of automatically
suspending driver's licenses when people can't afford court costs
and fines.
The Justice Department filed a statement of interest in a class-
action case against the Virginia Department of Motor Vehicles,
brought this summer by the Legal Aid Justice Center, a Virginia
nonprofit, on behalf of four people whose licenses were suspended
because of a failure to pay costs, fines and fees assessed by
courts. One is from Charlottesville and another lives in Fluvanna
County.
"The statement of interest advances the United States' position
that suspending a driver's license is unconstitutional if it is
done without providing due process and without assessing whether
the individual's failure to pay was willful or the result of an
inability to pay," the Justice Department said in a statement. "As
the Supreme Court has affirmed, the constitution prohibits
punishing a person because of his or her poverty."
The suit alleges that the state relies upon suspension to "coerce
payment of money owed to the courts."
While those who can afford to pay generally do, for those who
cannot, "suspension of their driver's licenses is automatic and
mandatory upon default, without inquiry into the reasons for
nonpayment or consideration of the debtor's financial
circumstances."
The Legal Aid Justice Center says that more than 900,000
Virginians had suspended driver's licenses because of unpaid costs
or fines last year, according to information obtained through a
Freedom of Information Act request.
In the same year, the DMV issued 366,773 suspension orders for
those reasons, with about 40 percent of the underlying offenses
"wholly unrelated to driving," the center said.
"For many, this means giving up their only mode of transportation
to work, forcing them to choose between losing their jobs and
risking incarceration for driving illegally," the center says.
There are about 5.7 million regular driver's licenses issued by
the state, the DMV says, not including nearly 209,000 commercial
driver's licenses and about 167,000 active learner's permits.
The federal brief maintains that a driver's license is "a
constitutionally protected interest under clear Supreme Court
precedent" that cannot be suspended without adequate notice and a
"meaningful opportunity to be heard first."
The Virginia Attorney General's Office had no comment on the
brief, said Michael Kelly, a spokesman.
However, in a memorandum in support of a motion to dismiss the
suit, filed last month, the state argued that the plaintiffs are
making a policy argument, not a legal one, since it is Virginia
state courts and court clerks who issue suspension orders in
accordance with state code, not the DMV commissioner.
State law says that "any person, whether licensed by Virginia or
not, who drives a motor vehicle on the highways in the
commonwealth shall thereby, as a condition of such driving,
consent to pay all lawful fines, court costs, forfeitures,
restitution and penalties assessed against him for violations of
the laws of the commonwealth; of any county, city, or town, or of
the United States."
At the time of conviction, courts are directed to order people who
can't fully pay fines and costs within 30 days to pay in
installments in individual arrangements with the clerk of court.
Failure to do so results in an automatic suspension, though
drivers can pay a fee to have their license reinstated and enter
into a payment program with the court.
Drivers can also petition for restricted licenses that allow them
to get to work.
Clerks are required to send drivers written notice of the
suspension of the license, effective 30 days from the date of the
conviction, if fines and costs are not paid. The notice can be
provided at the time of trial or sent by mail. Courts also have
discretion to give defendants more time to pay their costs, the
state argues.
"Although plaintiffs have set forth what could be described as a
persuasive argument that courts should give indigent criminal
defendants greater latitude with respect to the imposition or
repayment of fines and costs, what they have presented is, at its
heart, a policy argument -- and this is not a policy-making
forum," the filing says.
"It is a court of law, and it is legal standards that govern
whether this case must rise or fall. And by every legal standard
that could conceivably be applied, their suit fails."
A new rule from the Supreme Court of Virginia that takes effect
Feb. 1 is intended to "ensure that all courts approve deferred and
installment payment plans" in accordance with state law and "to
further the legal values of predictability, fairness and
similarity in the collection of fines, court costs, penalties and
restitution throughout the courts of the commonwealth."
It sets out definitions for fines and costs and installment
payment plans and requires courts to offer defendants who are
unable to pay to be offered some type of deferred or installment
payment plan.
Courts cannot deny payment plans because of past defaults or a
referral to collections, among other criteria, and must provide
written notice of all available payment alternatives and community
service programs.
The rule also sets limits on down payments, allows payments made
within 10 days of the due date to be considered timely, and
requires courts to take into account "the defendant's financial
resources in light of the defendant's financial obligations,
including defendant's indigence, as well as the fines and costs
the defendant owes in other courts," among other provisions.
Though Angela Ciolfi, an attorney with the Legal Aid Justice
Center, called the rule "a very positive step forward," she said
it won't affect the merits of the suit, which is scheduled for
trial on Dec. 11, 2017.
"The Justice Department brief signals that this is a civil rights
issue with national implications," she said.
VISA INC: Loses Appeal in Antitrust Class Actions
-------------------------------------------------
Tony Mauro, writing for The National Law Journal, reports that in
a rare rebuff, the U.S. Supreme Court on Nov. 17 yanked two
antitrust cases from its docket for December because recent
briefing by lawyers for major credit card companies "chose to rely
on a different argument" than the one that persuaded the justices
to take up the case in the first place.
The consolidated cases were Visa v. Osborn and Visa v. Stoumbos,
which involve the antitrust implications of cooperative activities
by banks and credit card companies. They were set for argument on
Dec. 7. The court's order dismissing the cases as "improvidently
granted" was issued even though the justices did not meet in
conference.
Neal Katyal -- neal.katyal@hoganlovells.com -- of Hogan Lovells,
who represents Visa and is counsel of record on the brief that
apparently irked the justices, did not respond to a request for
comment.
The high court granted review in the two cases on June 28 based on
a cert petition filed by Arnold & Porter, on behalf of Visa Inc.
and MasterCard Inc. The petition asked the justices to overturn
an adverse ruling by the U.S. Court of Appeals for the D.C.
Circuit that had revived a class action against the credit card
companies. The effect of the Supreme Court's action is to allow
the class actions to go forward.
Consumers as well as independent ATM machine owners had sued the
credit card companies, claiming that Visa and MasterCard
conspired, in violation of the Sherman Act, to prevent independent
ATM operators from charging lower fees than ATM networks
affiliated with Visa and MasterCard.
The D.C. Circuit said the plaintiffs had met the pleading
standards necessary to mount the suit by merely stating that bank
executives had sat on the boards that approved the ATM rules.
There was no showing at that stage that the banks orchestrated a
conspiracy.
The cert petition asked the court to decide whether the mere claim
of membership in business associations was sufficient to plead the
element of conspiracy, asserting that three other circuit courts
had found it was not.
After the cases were granted, Mr. Katyal took over as counsel of
record on the brief on the merits filed on Sept. 1. When new
lawyers join a case at the merits stage, they often reframe or
refocus the arguments made in the cert petition.
But Mr. Katyal's brief was greeted with criticism by the
plaintiffs who claimed he had raised a new argument that was not
fully briefed and probably would not have been taken up by the
court.
"Petitioners brought their petition for certiorari on the theory
that the complaints allege essentially nothing more than mere
membership in the business associations," wrote Steve Berman of
Hagens Berman Sobol Shapiro in a brief representing consumers in
the class action. "But petitioners have largely abandoned that
theory in their merits brief. Instead, they now argue that
regardless of whether the banks actually agreed to the Access Fee
Rules, this would not qualify as concerted action under [the
Sherman Act] because the business associations are single
entities."
That shift was enough for card-company adversaries to urge the
court to dismiss the case.
"This court should not decide whether respondents' complaints
plead that petitioners engaged in concerted action. That argument
was not presented by the petitions," wrote Thomas Goldstein --
tgoldstein@goldsteinrussell.com -- of Goldstein & Russell, who
represented nonconsumer parties suing the card companies. "It is
not the subject of any conflicts in the lower courts that this
court would have agreed to resolve if asked."
VITAL SUPPORT: Settles Pennsylvania Home Health Aid Class Action
----------------------------------------------------------------
Community Legal Services of Philadelphia ("CLS") and Berger &
Montague, P.C. jointly announce a $586,000 settlement of a claim
brought by Plaintiff Jeniffer Santiago Rivera on behalf of a class
of 268 home health aides who alleged that they were denied
overtime pay by their employer, Vital Support Home Health Care
Agency, Inc. ("VSHHA").
The lawsuit alleged that VSHHA did not pay its home health aides
overtime premiums for hours when they worked more than forty hours
in a workweek, as required by Pennsylvania state law. On November
1, 2016, Magistrate Judge Timothy R. Rice of the United States
District Court for the Eastern District of Pennsylvania issued an
order granting final approval of the settlement agreement. Class
members will receive close to 100% of their unpaid overtime
premiums as a result of the settlement.
"We are very pleased with the settlement," said Michael Hollander
of CLS, Co-Lead Counsel for the plaintiffs. "The home care
support that VSHHA aides provide to their elderly and disabled
clients is extremely meaningful, and they need to be fairly
compensated for their work. We appreciate that VSHHA worked with
us to help reach a successful resolution of the case at an early
stage."
Founded in 1966 by the Philadelphia Bar Association, CLS has
provided free civil legal assistance to more than one million low-
income Philadelphians and is nationally recognized as a model
legal services program. CLS's Employment Unit represents clients
with employment-related problems, including tackling barriers to
employment, seeking unpaid wages, and preserving jobs. The unit
advocates at the national and state levels on low-income workers'
rights issues.
"It was a privilege to work with CLS on this case," said
Sarah Schalman-Bergen -- sschalman-bergen@bm.net -- of Berger &
Montague, P.C., also Co-Lead Counsel for plaintiffs. "Their
commitment to assisting community members who have been wronged
and upholding federal and state employment laws is inspiring. We
are fortunate to be involved with such an organization."
The national class action law firm Berger & Montague, P.C. has
offices in Philadelphia and Minneapolis and consists of more than
60 attorneys who represent plaintiffs in complex and class action
litigation. The firm's attorneys have a long history of
successfully prosecuting employment law and unpaid wages cases.
"I am pleased with the outcome of the case," said Ms. Rivera. "I
am happy not only for me, I am happy that they helped hundreds of
people that were going through the same thing. The attorneys
fight for the good of the community. They went above and beyond.
They have impressed me."
VIVA LABS INC: Faces Coconut Oil False Advertising Class Action
---------------------------------------------------------------
Wadi Reformado, writing for Legal Newsline, reports that a
San Diego consumer is suing a food company, alleging breach of
implied warranty and negligent misrepresentation.
Syndi Tracton filed a class action complaint, individually and on
behalf of all others similarly situated and the general public,
Nov. 10 in U.S. District Court for the Southern District of
California against Viva Labs Inc., alleging false and misleading
claims to the defendant's products.
According to the complaint, Tracton suffered monetary damages from
being misled into purchasing a falsely advertised product. The
plaintiff alleges Viva Labs advertises its Organic Extra Virgin
Coconut Oil as a healthy alternative to butter and other cooking
oils when it is inherently an unhealthy and less healthy
alternative.
Tracton seeks trial by jury, ordering the defendant to engage in a
corrective advertising, destroy all misleading advertising
materials, restitution, statutory, compensatory and punitive
damages, interest, all legal fees and all other relief the court
deems just.
She is represented by attorneys Jack Fitzgerald, Trevor M. Flynn
and Melanie Persinger of The Law Office of Jack Fitzgerald PC in
San Diego and by Paul K. Joseph of The Law Office of Paul K.
Joseph PC in San Diego.
U.S. District Court for the Southern District of California Case
number 3:16-cv-02772-BTM-KSC
VOLKSWAGEN AG: May Face Higher Costs to Resolve Emissions Scandal
-----------------------------------------------------------------
William Boston and Sara Randazzo, writing for The Wall Street
Journal, report that Volkswagen AG and its Audi luxury-car unit
face the prospect of significantly higher costs to resolve
emissions-cheating litigation in the U.S. following a recent
disclosure about Audi that unleashed new consumer lawsuits.
At least two consumer lawsuits seeking class-action status against
Audi recently were filed in U.S. federal courts in Illinois and in
Minnesota. They allege Audi defrauded customers by understating
carbon-dioxide emissions and fuel consumption in several of its
most popular sedans and sport-utility vehicles.
The new cases were filed in response to a fresh allegation of
emissions-cheating at Audi that was reported in The Wall Street
Journal and confirmed by Volkswagen and Audi, adding another
dimension to Volkswagen's yearlong diesel scandal. Volkswagen and
Audi declined to comment.
The companies haven't yet filed motions in response to the new
suits, which are separate from ongoing litigation related to
cheating on diesel emissions to which Volkswagen has admitted.
Volkswagen hopes to have any new cases combined and transferred to
Federal Judge Charles Breyer in San Francisco, who is handling the
diesel lawsuit, according to a person familiar with the situation.
Volkswagen admitted last year to installing software on nearly 11
million diesel-powered cars world-wide that allowed the vehicles
to pass emissions tests on the treadmill, but emit as much as 40
times the legal limit of smog-producing nitrogen oxides during
normal road driving.
In June, Volkswagen agreed to settle hundreds of thousands of
consumer lawsuits concerning vehicles with two-liter diesel
engines, reaching a historic $14.7 billion settlement. The
company also agreed to pay dealers more than $1 billion and
contribute to an environmental remediation fund.
Volkswagen still aims to reach a similar settlement with lawyers
for 80,000 owners of tainted 3-liter diesel engines in a separate
lawsuit. The 3-liter engines were built by Audi and used by
Volkswagen and its Porsche unit.
Wrapping up the 3-liter settlement has proved more difficult than
closing the deal on the 2-liter cars. The U.S. Justice Department
and Environmental Protection Agency are at odds with lawyers for
consumers and the Federal Trade Commission over the 3-liter deal,
according to people familiar with the matter.
The EPA is focused on lowering vehicle emissions to reduce further
environmental damage, but Elizabeth Cabraser, the lead lawyer for
consumers, said in a statement that any deal must "hold the
company accountable for the harm caused to consumers." Without a
higher cash offer for owners of these cars, lawyers for the
consumers could soon press for a trial, the people familiar with
the matter said.
Volkswagen said on Nov. 15 it continues to work closely with the
EPA and California Air Resources Board on a resolution for the
affected 3-liter vehicles and will go before a judge Nov. 30 to
discuss it further.
The new emissions issue could pile on more costs. It affects Audi
gasoline and diesel models that use the AL 551 automatic
transmission, which employs different driving modes, such as an
efficient mode for better gas mileage and a performance mode for
more aggressive driving.
"In the testing situation," Audi said in a statement, "dynamic
shift programs can lead to incorrect readings and results that
cannot be reproduced."
The software installed on these cars prevents the transmission
from shifting into the higher RPM performance mode when being
tested, only shifting into the more aggressive mode if the
steering wheel is turned at least 15 degrees, according to people
familiar with the situation.
U.S. environmental regulators discovered the issue several months
ago and are examining the Audi systems and questioning Audi
engineers to see if they programmed the vehicles to identify when
it is being tested to cheat on emissions tests, Volkswagen and
Audi confirmed.
WINDSTREAM HOLDINGS: "Doppelt" Stockholder Suit Remains Pending
---------------------------------------------------------------
The class action lawsuit initiated in Delaware by a stockholder
remains pending, according to the Windstream Holdings, Inc. 's
Form 10-Q filing with the Securities and Exchange Commission on
November 7, 2016, for the quarterly period ended September 30,
2016.
On February 9, 2015, a putative stockholder filed a Shareholder
Class Action Complaint in the Delaware Court of Chancery (the
"Court"), captioned Doppelt v. Windstream Holdings, Inc., et al.,
C.A. No. 10629-VCN, against the Company and its Board of
Directors. This complaint was accompanied by a motion for a
preliminary injunction seeking to enjoin the spin-off. The Court,
ruling from the bench on February 19, 2015 -- the day before a
special meeting of stockholders was scheduled to vote on a reverse
stock split and amended governing documents (the "Proposals") --
denied plaintiff's motion for a preliminary injunction, reasoning
that much of the information sought by plaintiff had been
disclosed in public filings available on the United States
Securities and Exchange Commission's website, the Windstream
Holdings' board of directors was in no way conflicted, and while
approval of the Proposals would facilitate the spin-off, approval
was not necessary to effect the spin-off.
On March 16, 2015, plaintiff, joined by a second putative
Windstream stockholder, filed an Amended Shareholder Class Action
Complaint alleging breaches of fiduciary duty by the Company and
its Board concerning Windstream's disclosures and seeking to
rescind the spin-off and unspecified monetary damages. On February
5, 2016, the Court granted in part and denied in part defendants'
motion to dismiss the amended complaint. The Court dismissed
Windstream, and plaintiffs' demand to rescind the spin-off, but
otherwise denied the motion.
Windstream Holdings, Inc., is a publicly traded holding company
and the parent of Windstream Services, LLC. Windstream Holdings
owns a 100% interest in Windstream Services. The Company provides
advanced network communications and technology solutions for
consumers, businesses, enterprise organizations and wholesale
customers across the United States. The Company offers bundled
services, including broadband, security solutions, voice and
digital television to consumers. The Company also provides data,
cloud solutions, unified communications and managed services to
business and enterprise clients. The Company supplies core
transport solutions on a local and long-haul fiber-optic network
spanning approximately 129,000 miles.
WORLD WRESTLING: Judge Admonishes Attorney in Concussion Suits
--------------------------------------------------------------
Robert Storace, writing for The Connecticut Law Tribune, reports
that a federal judge admonished an attorney on Nov. 10 as she
threw out claims filed by the families of two former professional
wrestlers whose deaths were allegedly linked to traumatic brain
injuries suffered in the ring.
In her ruling, Hartford-based U.S. District Judge Vanessa L.
Bryant said there was insufficient evidence to support claims that
World Wrestling Entertainment was negligent in the deaths of
Nelson Frazier and Matthew Osborne. The judge dismissed the
lawsuits, which were part of a class action suit, and also denied
a motion by the WWE for sanctions related to the filing of the
Osborne suit.
In her 28-page ruling, Judge Bryant was critical of all three
attorneys representing the families, but left her harshest
criticism for Konstantine Kyros of the Massachusetts-based Kyros
Law Office.
The judge said Mr. Kyros presented "false and misleading
statements" and wrote that the attorney's "unprovable claim that
the deceased and, in at least one case, cremated former wrestlers
had CTE (Chronic Traumatic Encephalopathy) 'upon information and
belief' . . . are highly unprofessional. These misleading,
deceptive, and baseless allegations are precisely the types of
statements that many state bar associations have targeted in
promulgating rules of professional conduct which demand that
admitted attorneys speak with candor to the trier of fact."
Bryant continued: "The court admonishes Kyros and his co-counsel
to adhere to the standards of professional conduct and to
applicable rules and court orders lest they risk future sanction
or referral to the Disciplinary Committee of this court."
The WWE accused Mr. Kyros of cribbing almost blindly from a 2012
complaint filed by former football players against the NFL. The
copying was so obvious, according to the WWE, that Mr. Kyros left
references to the NFL, including the name of former Pittsburgh
Steeler Mike Webster, in the WWE suit.
In addition to Mr. Kyros, the two other attorneys representing
Messrs. Frazier and Osborne's families were Erica Mirabella of
Boston-based Mirabella Law, and R. Christopher Gilreath of
Tennessee-based Gilreath & Associates.
In an email to the Connecticut Law Tribune on Nov. 11, Mr. Kyros
didn't directly respond to the judge's critique of him, but did
blast the Stamford-based WWE.
Mr. Kyros, who said there "may" be an appeal at a later date,
wrote, "The ruling ignores that the deaths of Nelson Frazier and
Matthew Osborne were consequences of an abusive and exploitative
culture within the WWE that showed, and is still showing, no
regard for its wrestler's health. The decision [by Bryant] comes
only a day after two other families of deceased wrestlers brought
wrongful death claims; each having a confirmed diagnosis of signs
of CTE by Dr. Bennett Omalu. . . . This ruling is obviously a
painful and disappointing decision for the families involved, but
it is not the end of the road."
Repeated attempts to reach Ms. Mirabella and Mr. Gilreath were not
successful. The WWE declined to comment.
In her ruling as it relates to Frazier, Judge Bryant said his
fatal heart attack was "the sole allegation raised by [the]
plaintiff linking Frazier's heart attack with any wrongful act by
WWE."
Mr. Frazier performed in nearly 300 WWE matches from 1993 through
2008. Judge Bryant wrote that Cassandra Frazier, the wrestler's
widow, "vaguely alleges that he sustained countless head injuries
while wrestling due to numerous other physical injuries." The
complaint noted that Frazier "had large knots on his head, as the
scar tissue on his skull formed into permanent lumps" and there
was allegedly "evidenced indentations in his skull." But, Judge
Bryant wrote, the complaint did not "describe how Frazier acquired
those injuries or their medical significance."
Frazier died in February 2014.
With regard to Osborne, Judge Bryant wrote the wrestler's family
"failed to allege facts that would indicate on what information
[the family] relied to determine that Osborne had CTE, or that
Osborne's death from a drug overdose was caused by CTE."
Mr. Osborne died in June 2013.
In past rulings, Judge Bryant dismissed class action allegations
by four wrestlers, but ruled that two other stated plausible
individual claims that WWE might have known about the dangers and
concealed them.
There are other cases pending by numerous former wrestlers against
the WWE related to similar health concerns.
National Labor Relations Board (NLRB) has attempted to eradicate
the use of class action waiver provisions in these agreements.
* Arbitration Agreement May Be Beneficial for Consumers
-------------------------------------------------------
Laura M. Reich, writing for Daily Business Review, reports that
in 2011, the U.S. Supreme Court rendered a historic and sweeping
pro-arbitration decision in AT&T Mobility v. Concepcion, holding
that state-law contract defenses targeting arbitration agreements
are in conflict with the Federal Arbitration Act. Although
governing case law pre-Concepcion already trended in that
direction, the Supreme Court's decision definitively established
that consumer arbitration agreements -- including those with a
waiver of the right to pursue class actions -- are valid and
enforceable.
A subsequent Supreme Court case, American Express v. Italian
Colors, further held that courts may not invalidate arbitration
agreements simply because the cost of individually arbitrating a
federal statutory claim may exceed the plaintiff's potential
recovery.
Although the law is now mostly settled, the debate about whether
pre-dispute mandatory arbitration agreements are beneficial or
harmful to consumers rages on. Understandably, most observers
focus on the Supreme Court's holding that class action waivers do
not preclude enforcement of consumer arbitration clauses.
Personal and professional biases often color the debate, with
consumer advocates decrying their use while businesses argue that
they are a legitimate and necessary way to manage litigation risk
and resolve disputes with consumers.
Both sides pay much less attention to the Supreme Court's
discussion of the arbitration agreement under review in
Concepcion, specifically those provisions in the agreement that
were favorable to the consumer. In fact, courts have even noted
that some arbitration agreements are so favorable to plaintiffs
that those plaintiffs would probably be better off in arbitration
than in a class action.
Since pre-dispute mandatory arbitration agreements, often
including class action waivers, have become standard practice in
many industries, consumers and their advocates should learn to
recognize and utilize these contractual provisions that work in
their favor.
For example, businesses may agree to provide some of the following
consumer benefits:
-- Pay or advance some or all costs and expenses of
arbitration, likely including the filing fee and any
administrative charges.
-- Arbitration located where the consumer lives or receives
services, or at another location convenient to the consumer. This
may be of significant benefit to consumers residing outside of
major urban centers or in rural areas, and may be a significant
disadvantage to national companies operating from a central
location.
-- Exempt individual claims within the exclusive jurisdiction
of a small claims court from arbitration.
-- Payment of the attorneys' fees of a successful plaintiff, or
an agreement not to seek reimbursement of the business' own
attorneys' fees, either in full or above a certain threshold.
-- Pay a "recovery fee" or other windfall to a successful
plaintiff either in a set amount or a multiple of the actual
recovery.
-- Proceed on an expedited basis or in person by phone or via
written submissions at the consumer's discretion.
-- Allow the consumer to opt out of arbitration entirely by
giving reasonable notice as required by the agreement. These opt-
out provisions often explicitly state that the consumer's services
or relationship with the business will not be adversely affected
by a decision to opt out of arbitration.
Better Option?
As courts have noted, these types of provisions may make
arbitration a better option for consumers -- even potential class
action plaintiffs -- than expensive and drawn-out litigation in
court. Accordingly, consumers need to read the fine print to
determine if their standardized contracts include these types of
provisions and whether they can benefit from them.
* Class Actions to Experience Major Growth in Coming Years
----------------------------------------------------------
Olivia Covington, writing for The Indiana Lawyer reports that
In its 2017 Practice Outlook Guide, BTI Consulting Group projected
that five practice areas would experience significant growth in
the coming year: regulatory matters, mergers and acquisitions,
cybersecurity/data privacy, bet-the-company litigation and class-
action lawsuits. Here is a look at the reasons top lawyers in
these practice areas are predicting steady growth.
Regulatory matters
In years past, companies often thought of regulatory compliance
laws as barriers to successful business, but now the pendulum of
thought has swung the other way as industry leaders begin to
recognize strong compliance plans can support profitable business
practices, said Tabitha Meier, co-chair of Barnes & Thornburg
LLP's compliance practice group.
That shift in mindset is buoying the growth of compliance practice
as companies begin to take a proactive approach to ensuring they
fall in line with the rules regulating their industries, rather
than being reactive and facing consequences when a rule is broken,
Ms. Meier said.
Regulatory compliance is a broad-reaching practice area,
Ms. Meier said, so her work with Barnes & Thornburg's compliance
practice group has been focused on helping her clients understand
the regulatory nuances that govern their industries.
The health care industry, in particular, is subject to very strict
regulations, so industry leaders are beginning to take more steps
to ensure that hospitals and other similar businesses fall in line
with regulatory mandates, Ms. Meier said. Additionally, the
United States Department of Justice's Fraud Section has been
increasing its resources to ensure that large corporations adhere
to anti-corruption rules, she said.
M & A
Economic factors are the driving force behind the mergers and
acquisitions market, and Bob Hicks, partner-in-charge at Taft
Stettinius & Hollister LLP's Indianapolis office, said there are
two key factors in play that are contributing to the current
growth of the market.
First, interest rates are historically low, which is beneficial to
borrowers who leverage mergers and acquisitions with debt, Hicks
said. Additionally, there is an overabundance of capital sitting
on the sidelines that is available for investment, he said, which
has created a seller's market in private industries.
Further, the public M&A market has been flat for the last three
years, which has driven equity and capital to the private market,
he said.
But conversely, recessions begin, on average, every nine years,
and the United States is approaching the nine-year anniversary of
the beginning of the Great Recession. That could lead to a
possible slowdown in the M&A market if the next recession begins
soon, but it's difficult to accurately predict how a recession
might affect the market until it actually hits, Hicks said.
Cybersecurity/data privacy
With the internet and related technologies rapidly evolving, the
growth of cybersecurity/data privacy litigation is closely keeping
pace.
Much of that litigation is centered on data breaches and
enforcement of required cybersecurity policies and practices, said
Kathleen Rice, co-lead of the data security and privacy practice
group at Faegre Baker Daniels LLP.
Often, parties that have suffered at the hands of a mass data
breach attempt to bring class-action suits, alleging that the
compromised companies did not take the necessary steps to ensure
the safety of their clients' information. However, such lawsuits
do not always succeed because it is difficult to prove actual
injury, she said.
As the cybersecurity industry continues to evolve, Rice said the
judicial branch is working to find ways to apply data privacy
issues within the traditional concept of the law. Similarly, Rice
encourages her corporate clients to develop cybersecurity plans to
defend themselves against attacks and related litigation.
Bet-the-company
Bet-the-company litigation involves lawsuits that, if lost, could
lead to the downfall of a company or, if survived, could
constitute a significant financial loss.
Generally, such litigation is born from high-stakes transactions,
such as mergers and acquisitions that involve indemnification
provisions, or from lawsuits stemming from regulatory matters,
said Judy Woods, partner at Benesch Friedlander Coplan & Aronoff
LLP.
Regulatory bet-the-company litigation is the most common, she
said, with companies in the financial, pharmaceutical and food
industries facing increasing scrutiny as regulations in those
industries get stricter. She pointed to the recent Wells Fargo
controversy as an example of the high-stakes litigation that can
ensue when companies are not in compliance with industry
regulations. Often, bet-the-company cases begin with government
entities seeking enforcement action, Ms. Woods said.
Although more "bet-the-company" cases are being filed, Ms. Woods
said there has also been a trend of settlements before high-stakes
cases get to trial. Settlements are preferable in cases where
companies are facing significant losses because they bring closure
and eliminate the risk of further litigation that could put
financial strain on an already-threatened company, she said.
Class-action lawsuits
In his work as a partner at Cohen & Malad LLP, Richard Shevitz --
rmalad@cohenandmalad.com -- handles dozens of class-action
lawsuits year after year.
Part of the reason for the popularity of a class-action complaint
is the economic advantage both to the litigant and the attorney,
Mr. Shevitz said. Attorneys may not be willing to take on
individual cases against companies in which damages will be small,
but if several members of a class are seeking action, an attorney
is likelier to argue the case because it proves to be a more
economically viable option for all parties involved, he said.
Class sizes can be as small as 100 people or as large as a
million, Mr. Shevitz said, and can focus on local issues or take
on international crime. Recently, there has been an upward trend
in filing class-action suits in response to widespread data
security breaches, he said, echoing Rice.
The success of a class action is not dependent on its size, but
instead on its merits, Mr. Shevitz said, and the merits of a case
play as significant a role in an attorney's decision to take a
case as the size of the complaint.
* GCs Go-to-Person for Handing Data Breach Compliance Issues
------------------------------------------------------------
Jan Wolfe, writing for Corporate Counsel, reports that an
increasing number of companies view the general counsel as the go-
to person for handling compliance issues arising from a data
breach, according to a recently released survey from insurance
analytics company Advisen and insurer Zurich North America.
For the report, Advisen and Zurich posed the following question to
more than 300 risk management officers: "In the event of a data
breach, which department in your organization is primarily
responsible for assuring compliance with all applicable federal,
state or local privacy laws, including breach notification laws?"
The most common response was office of the general counsel (24
percent), followed by IT (23 percent) and chief privacy
officer/chief information security officer (17 percent).
Advisen and Zurich have done this survey every year since 2010, so
it is possible to gauge long-term trends in how companies approach
post-breach compliance. One trend is that companies seem to be
taking post-breach compliance duties out of the hands of IT
professionals. In the 2015 edition of the survey, when Advisen
and Zurich posed the same exact question, IT was by far the top
response, registering 31 percent of the vote. The office of the GC
got just 21 percent of the vote.
The survey also found that:
-- Eighty-seven percent of respondents said that a technology
interruption due a cyberthreat would have a "moderate-to-
significant impact" on their business.
-- The market for cybersecurity insurance is maturing. The
survey found that about 65 percent of companies have purchased
security and privacy insurance. While that's a 7 percent increase
over the results of the 2015 survey, growth appears to be slowing
compared to past years.
-- Costs related to a breach of customer information was cited
as the top reason for purchasing a security and privacy policy.
Companies in industries that handle personal data, such as health
care and retail, were particularly likely to have bought policies,
Advisen and Zurich found.
* Lawyers Uncertain on Donald Trump's Stance on Tort Reform
-----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that the election of Donald Trump as president made it all but
certain that conservatives will be joining the U.S. Supreme Court,
but there is far greater uncertainty among tort reform groups and
the defense bar when it comes to legislative and regulatory
efforts aimed at curbing class actions and widening the use of
arbitration.
"There is cautious optimism," said John Beisner --
john.beisner@skadden.com -- leader of the mass torts, insurance
and consumer litigation at Skadden, Arps, Slate, Meagher & Flom in
Washington. "It's hard to know what position the new
administration will take because a lot of these things haven't
been directly addressed in the campaign and there's the question
of priority levels in the initial days. There's a limit to the
number of things the administration can address, and matters in
the tort reform area remain to be seen."
For its part, the U.S. Chamber of Commerce, looking forward to a
Republican Congress, plans to seek the reintroduction of bills
that would force more disclosures by plaintiffs lawyers in
asbestos claims and prevent plaintiffs from certifying class
actions when they can't demonstrate similar injuries, said
Lisa Rickard, president of the group's Institute for Legal Reform.
"It's a whole new day," she said. "You'll see, unlike in previous
years, more activity and more actions in the Congress by the
business community to try to advance much-needed reforms where
you've got the plaintiffs lawyers really abusing the civil justice
process, especially with regard to asbestos litigation and class
actions."
The latter bill, introduced last year as the Fairness in Class
Action Litigation Act, would wipe out about 95 percent of all
class actions, said F. Paul Bland, executive director of public
interest firm Public Justice in Washington.
"It would be open season for securities fraud. Antitrust laws
would mostly disappear, pay equity suits on behalf of women paid
less than men, predatory lending cases -- everything would
completely go away," he said.
But is that something that the president-elect would support?
Mr. Bland said he's not so sure. Mr. Trump, who self-financed
much of his own presidential campaign, has clashed with the
Chamber of Commerce on issues like trade policy.
"It's not clear to me that Donald Trump wants people who are
essentially reliable hacks for the Chamber of Commerce,"
Mr. Bland said. Contrast that with President George W. Bush,
whose first bill introduced after he was reelected in 2004 was the
Class Action Fairness Act, a top legislative priority for the
Chamber of Commerce. "I don't hear Trump saying anything about
how his first legislative priority is helping corporations be
immune from lawsuits," Mr. Bland said.
But Thomas Girardi, president of The National Trial Lawyers,
doubted that Mr. Trump would put up much of a fight if a
Republican Congress pushed through tort reform measures. He said
he's aware of additional proposals in the pipeline that involve
damages caps and court approval of legal fees, he said.
"I think this is a very tough time for the plaintiffs bar," said
Mr. Girardi, of Girardi Keese in Los Angeles. "And the list is
endless."
On the Chamber of Commerce's list: Require plaintiffs attorneys to
disclose litigation financing contracts, create a federal law on
data breaches, and reform what Ms. Rickard called a "ton of abuse"
in the Telephone Consumer Protection Act, used to file class
actions over unwarranted solicitations. Mr. Beisner, at Skadden,
said there's also discussion about legislation that would address
"increasingly troubling issues" in California and Missouri, where
the defense bar has struggled to remove mass torts to federal
courts.
In the regulatory space, there could be efforts to slow or reverse
new or proposed rules from a half-dozen federal agencies
restricting arbitration clauses, including the Federal
Communications Commission and the U.S. Department of Health and
Human Services, Ms. Rickard said. But she doubted that those
rules would "come to a screeching halt."
"It's imperative that we make a stronger and better case on the
benefit of arbitration to not only policy-makers but to the
American electorate as a whole," she said. "We've got to do a
little more spade work in this space."
Mr. Trump hasn't spoken on whether he would repeal such rules, Mr.
Bland said. In fact, many of his supporters and Republicans on
the Hill have been at odds with the Chamber of Commerce when it
comes to limiting access to the courts.
* NAD Plays Role in Resolving Product Marketing Issues
------------------------------------------------------
Nancy J. Felsten, writing for Law.com, reports that the National
Advertising Division of the Council of Better Business Bureaus
(NAD) has long been establishing claim substantiation and
disclosure standards for marketers of all types of products and
services. With thousands of decisions spanning 45 years, this
industry self-regulatory body has produced jurisprudence regarding
everything from the size, content and placement of disclosures to
the adequacy of consumer and product-performance test protocols to
the definition of national advertising itself. Participation is
voluntary. NAD cannot award damages and has no injunctive or
enforcement power. Nonetheless, working closely with the Federal
Trade Commission (which provides the teeth necessary to encourage
a more than 93 percent compliance record), NAD has routinely
resolved competitive challenges, interpreted FTC Guidance, and
acted in advance of FTC enforcement.
Endorsement, testimonial and social media marketing disclosures,
advertising for cosmetics and dietary supplements and native
advertising are just a few areas where NAD has been industry's
primary source for formulating legally compliant marketing
programs.
Against this backdrop, there is a lesser-known arena where NAD has
been establishing standards which are arguably less clear: When is
the name of a product or service also an advertising claim within
NAD's jurisdiction, such that NAD can "recommend" a name change
despite the absence of the full evidentiary record that would be
the mainstay of a federal court action. Although NAD decisions do
not have the force of law, an NAD decision requiring a name change
has far-reaching consequences for an advertiser. Nonetheless, it
can be difficult to predict when and whether NAD will consider a
name hyperbolic puffery, an implied claim requiring extrinsic
evidence of consumer deception, or an express claim requiring
substantiation without which NAD will ask the advertiser to change
its name -- even in the absence of evidence that consumers may be
misled.
In evaluating advertising, and where the parties have failed to
submit reliable consumer perception surveys (which is invariably
the case), NAD will step into the shoes of the consumer to
determine for itself all reasonable consumer take-aways -- meaning
all claims reasonably communicated by the advertising both express
and implied. An advertising claim is only misleading if an
advertiser is unable to support all reasonable interpretations.
One limited exception to NAD's willingness to substitute its
perceptions for those of the consumer has been with respect to
product names. There, NAD has for decades noted that "[a]bsent
extrinsic evidence that consumers have been confused or misled,
NAD is reluctant to require an advertiser to change the name of a
product simply because the challenger speculates that it might be
misleading." See Kraft Foods Global (All-Out Squeeze Kraft
Products), NAD Case Report No. 4994 (April 2009). NAD's level of
reluctance, however, has diminished over time.
Cases where a challenger asks NAD to recommend a name change are
relatively unusual, about 20 decisions in the last decade and
perhaps another 20 in the decades prior, but they demonstrate
NAD's increasing willingness to make decisions which result in
upending every aspect of a brand's marketing strategy, affecting
not only all advertising, but product packaging and the company's
very trademarks. NAD's earlier decisions uphold the "no change
without extrinsic evidence rule" quite uniformly, even when
finding arguably related advertising claims unsupported. See
Saint-Gobain Abrasives (Sandpaper, Sanding Sponge Blocks & Pads),
NAD Case Report No. 4113 (October 2003) (express claims that 3X
line of products worked 3X better unsubstantiated, but NAD
declined to address the "hypothetical" question of whether the 3X
name standing alone would be misleading); IGIA (Never Snore), NAD
Case Report No. 3968 (November 2002) (although NAD found the
advertiser's clinical studies could not support claims that its
product stopped snoring, "[w]ith respect to the product name,
'NeverSnore,' NAD determined that in the absence of any extrinsic
evidence of customers being confused or misled, it would not
require the advertiser to change the name of its product").
Over time, NAD has refined its "exception" to the extrinsic
evidence rule, ostensibly in the case of product names which state
an unsupported express claim. See Irwin Naturals (Green Tea Fat
Burner), NAD Case Report No. 4725 (September 2007) (NAD found name
"Green Tea Fat Burner" conveyed unsupported message the product
will "burn fat" and recommended name change); Bayer Healthcare
(One-A-Day All Day Energy), NAD Case Report No. 4684, (June 2007),
aff'd, NARB Panel 145 (November 2007) (NAD concluded "All-Day
Energy" in the name necessarily constituted an express -- and
unsupported -- durational (performance) claim); Vogue
International (OGX Shampoos and Conditioners), NAD Case Report No.
5844 (May 2015) (name change recommended for ingredient-based
product names which contained virtually none of the named extract,
noting: "When a product name makes an express claim which conveys
a message that is not supported, extrinsic evidence of consumer
confusion is not required to recommend a product name change");
Rust-Oleum (Painter's Touch Ultra Cover 2x Spray Paint), NAD Case
No. 5934 (February 2016), aff'd NARB September 2016 (product name
constituted express and unsupported performance claim that
Painter's Touch Ultra Cover 2X delivered twice the coverage of
competing brands). Extrinsic evidence of consumer deception was
absent in each of these cases.
NAD's explicit/implicit distinction mirrors Lanham Act practice,
where courts grant injunctive relief without consumer perception
surveys only for claims which are expressly false on their face.
NAD does not, however, share a court's general hesitance to
interpret what implied claims flow from advertising; it hesitates
only when the allegedly implied claim arguably flows from the
product name. Although on its face a seemingly bright line, in
practice advertisers and challengers often disagree as to whether
a claim is express or implied. For name "claims" this is a
particularly difficult divide and NAD's decisions difficult to
predict.
In Cumberland Packing (Stevia in the Raw), NAD Case Report No.
5525 (November 2012), NAD found the name did not make an express
claim to contain a single ingredient, Stevia. "Rather, 'Stevia in
the Raw' is a registered trademark open to multiple
interpretations including, most prominently, that the product is
made with unprocessed stevia and is natural." Hence, no name
change. Similarly, but perhaps more surprisingly, in GreenPan
(Thermolo11 Ceramic Coated Cookware), NAD Case No. 5519 (Oct.
2012), NAD found the advertiser's "bold and pervasive 'eco-
friendly' claims" for its cookware line unsupported and
recommended discontinuance. Nevertheless, NAD concluded that, in
the absence of evidence demonstrating the name "GreenPan"
overstates the products' environmental benefits, the advertiser
could continue to use the GreenPan name. NAD came to a contrary
conclusion in The Colgate Palmolive Company (Tom's of Maine
"Naturally Dry" Antiperspirant), NAD Case No. 6001 (September
2016) (Colgate has appealed NAD's jurisdiction to NARB). There,
NAD found the product name communicated an express and
unsubstantiated claim that natural ingredients drove the product's
effectiveness. NAD noted that "while some product names are
fanciful and contain hyperbole such that consumers understand the
name itself is not a claim about product performance, other
product names expressly tell consumers what to expect from the
product."
Many an advertiser has sought cover behind NAD's consistent
statement that it appreciates "the hyperbolic nature of product
names," but just what constitutes non-actionable hyperbole can be
as elusive as the dividing line between express and implied
claims. Unlike in Naturally Dry, NAD did not recommend a product
name change for "OdorBlock" garbage bags, where product testing
demonstrated the bags did not "block" all odors but demonstrated a
statistically significant reduction in odors. Pactive Corp. (Hefty
OdorBlock Trash Bags), NAD Case Report No. 5105 (November 2009).
Similarly, NAD disagreed with the challenger's view that Crest's
Sensi-Stop Strips made an absolute claim to stop sensitivity.
Procter & Gamble Company (Crest Sensi-Stop Strips), NAD Case No.
5828 (April 2015). Nor did NAD require Maybelline to change its
cosmetic product's name, noting: "In the absence of extrinsic
evidence demonstrating the name 'Instant Age Rewind -- The Eraser
Treatment Makeup' confuses consumers, NAD did not find a basis to
require a name change." Maybelline New York (Instant Age Rewind
Eraser Treatment Makeup), NAD Case No. 5241 (November 2010). The
advertiser fell on the wrong side of hyperbole, however, in
Hornell Brewing Company (Arizona Rx Memory Mind Elixir), NAD
Report No. 3736 (March 2001). There, NAD concluded that "Rx Memory
Mind Elixir" and "Rx Memory Herbal Tonic" did create an impression
the beverage could improve or enhance memory and recommended these
product names be discontinued.
In its most recent name-change decision, Epson America (Epson
EcoTank Supertank Printers), NAD Case No. XXX (October 2015), the
challenger argued the name "EcoTank" for the advertiser's printer
line communicated an express claim that the product provided a
general environmental benefit. NAD did not agree, finding use of
the prefix "eco" at most created an implied claim; this despite
noting that consumers associated "eco" with environmental benefit
claims. Significantly, NAD found the advertising as a whole (as
distinct from the name standing alone), conveyed a limited waste
reduction claim which it found the advertiser adequately
supported. Would NAD's recommendation have differed if it found
the advertiser unable to support a limited environmental claim?
Theoretically no, at least in the absence of reliable consumer
perception evidence. But consider NeverSnore. It is hard to
believe if NAD reviewed the facts today, it wouldn't recommend a
name change -- be the "NeverSnore" claim express, implied or
hyperbole.
* NLRB Fights Class Action Waiver in Arbitration Agreements
-----------------------------------------------------------
Ronda K. O'Donnell and Lee C. Durivage, writing for The Legal
Intelligencer, reports that employers throughout Pennsylvania and
the country routinely utilize arbitration agreements in the
management of employees to minimize potential expense and exposure
of litigation in courts. When used properly, these arbitration
agreements can streamline employment disputes in a cost-effective
and confidential manner. In fact, many arbitration agreements
require that disputes be pursued individually, with employees
waiving their ability to bring class and collective action claims.
While these types of agreements have been enforced by courts
throughout the country for many years, more recently the National
Labor Relations Board (NLRB) has attempted to eradicate the use of
class action waiver provisions in these agreements.
To date, the U.S. Court of Appeals for the Third Circuit and
federal district courts in Pennsylvania have not addressed the
specific issue of whether or not class action waivers violate the
"concerted activities" provision of Section 7 of the National
Labor Relations Act (NLRA). However, based upon arguments held on
Oct. 5, in the case of Rose Group d/b/a Applebee's v. National
Labor Relations Board, the Third Circuit is poised to weigh in on
this important issue. On review before the Third Circuit is a
split panel (2-1) decision of the NLRB wherein the NLRB held that
arbitration agreements that employees executed at the time of hire
at Applebee's violated the NLRA because they precluded class and
collective actions. In its decision, the NLRB specifically relied
upon its reasoning from a prior NLRB decision in D.R. Horton. Rose
Group d/b/a Applebee's Restaurant, 2015 NLRB Lexis 932, *2-3
(2015).
Specifically, in D.R. Horton, 357 N.L.R.B. 2277, 2278 (2012), the
NLRB determined that arbitration agreements with class and
collective action waiver language violate Section 7 of the NLRA
which provides employees with the right "to engage in . . .
concerted activities for the purpose of collective bargaining or
other mutual aid or protection." In so finding, the NLRB
determined that the ability to file class and collective actions
against employers is a substantive right -- as opposed to a
procedural right -- which cannot be infringed upon through the use
of waivers, see also Murphy Oil USA, 2014 N.L.R.B. LEXIS 820
(2014) (affirming the board's decision in D.R. Horton). Subsequent
to the NLRB's decision in D.R. Horton, the NLRB continues to file
unfair labor practice charges against employers throughout the
country, asserting that class action waivers unlawfully prohibit
employees from engaging in "concerted activity" under the NLRA,
even in situations where an employer has not attempted to enforce
the arbitration provision.
Prior to 2016, the Fifth, Second and Eighth circuits expressly
rejected the NLRB's challenges to class and collective action
waivers contained in arbitration agreements, see generally, D.R.
Horton v. National Labor Relations Board, 737 F.3d 344 (5th Cir.
2013); Murphy Oil USA v. National Labor Relations Board, 808 F.3d
1013 (5th Cir. 2015); Sutherland v. Ernst & Young, 726 F.3d 290
(2d. Cir. 2013); and Owens v. Bristol Care, 702 F.3d 1050 (8th
Cir. 2013). The highest state courts in California and Nevada
have, likewise, held that arbitration agreements that contain
class and collective action waivers are enforceable, as in
Iskanian v. CLS Transportation Los Angeles, 327 P.3d 129 (Cal.
2014), cert. denied 135 S.Ct. 1155 (2015); and Tallman v. Eighth
Judicial District Court, 359 P.3d 113 (Nev. 2015). In fact,
circuit courts that have upheld these types of arbitration
agreements have explicitly relied on prior U.S. Supreme Court
precedent which has held that arbitration agreements with class
action waivers are valid in a variety of areas.
Notably, the Fifth Circuit's opinion in D.R. Horton v. National
Labor Relations Board expressly rejected the NLRB's seminal
decision on this issue. In its holding, the Fifth Circuit found
that the NLRA did not contain a substantive right to class or
collective action arbitration and confirmed the ability for
arbitration agreements to legally contain those waivers. Despite
a clear message from the Fifth Circuit, the NLRB has persisted in
its pursuit of employers who utilize these types of arbitration
agreements, including in circuits where class waivers have been
determined to be legal. Indeed, the Fifth Circuit's decision in
Murphy Oil USA expressly noted the NLRB's unrelenting disregard of
"this court's contrary D.R. Horton ruling that such arbitration
agreements are enforceable and are not unlawful," as in Murphy Oil
USA; Cellular Sales of Missouri v. National Labor Relations Board,
824 F.3d 772, 776 (8th Cir. June 2) (noting that the NLRB
"concedes that our holding in Owen is fatal to its argument 'that
a mandatory agreement requiring individual arbitration of work-
related claims' violates the NLRA"). In fact, the NLRB has
publicly and consistently asserted that it intends to champion its
position with respect to class action waivers until it is
overturned by the U.S. Supreme Court. See Murphy Oil USA (noting
that the "board is not required to acquiesce in adverse decisions
of the federal courts in subsequent proceedings not involving the
same parties" and "because only the Supreme Court is authorized to
interpret the act with 'binding effect throughout the whole
country,' the board is 'not obliged to accept the interpretation'
of any court of appeals").
This year, the NLRB received some support in its position, most
notably from the Seventh and Ninth circuits. In Lewis v. Epic-
Systems, 823 F. 3d 1147 (7th Cir. May 26, 2016), the Seventh
Circuit determined that an employer's arbitration agreement
"insofar as it prohibits collective action . . . violates . . .
the NLRA." In so holding, the Seventh Circuit noted that the
"NLRA's legislative history and purpose confirm that the phrase
'concerted activities' in Section 7 should be read broadly to
include resort to representative, joint, collective or class legal
remedies." In addition, the court noted that the NLRB has
"interpreted the NLRA to prohibit employers from making agreements
with individual employees barring access to class or collective
remedies" and that the NLRB's interpretations "are entitled to
judicial deference." Like Lewis, the Ninth Circuit also
determined that the employer's arbitration agreement interfered
with "a substantive right protected by the NLRA" and "irrespective
of the forum in which disputes are resolved, employees must be
able to act in the forum together."
In the pending appeal of Rose Group d/b/a Applebee's the Third
Circuit is asked to reverse the NLRB's "anti-arbitration stance"
and follow multiple circuit courts who have expressly rejected the
NLRB's rationale for invalidating arbitration agreements,
reasoning that the "use of class and collective action mechanisms
is not a substantive right under the NLRA." As the employer in
Rose Group noted, "despite any protestations to the contrary, the
NLRB has one goal in mind . . . the invalidation of class and
collective action waivers in arbitration agreements" and that the
"board presents a steadfast commitment to NLRA exceptionalism,
trivializing the import of the Federal Arbitration Act and
maintaining an unrealistic view that the NLRA predominates over
other statutes." Remarkably, this view is consistent with the
lone NLRB dissenter's opinion in the NLRB's decision in Rose Group
d/b/a Applebee's Restaurant which expressly noted that the Fifth
Circuit had "twice denied enforcement of board orders invalidating
a mandatory arbitration agreement that waived class-type treatment
of non-NLRA claims" and "the overwhelming majority of courts
considering the board's position have likewise rejected it."
Unfortunately, without a quick and clear resolution of this issue
by the Third Circuit or the U.S. Supreme Court, employees in
Pennsylvania are left vulnerable to challenges by employees and
the NLRB as to whether their arbitration agreements which contain
class action waivers are legal. Of course, despite the current
uncertainty of the law in the Third Circuit, the benefits of these
types of arbitration agreements may still be worth the risk for
many employers. Scores of courts across the country still favor
these types of provisions, even though a few recent circuit court
decisions have provided the NLRB with some late inning momentum.
As it now stands, given the obvious split among the circuit courts
on this issue to date, it is becoming increasingly more likely
that the U.S. Supreme Court will have an opportunity to decide
whether or not class and collective action waivers are valid,
legal, and acceptable for use by employers in Pennsylvania and
across the country. In fact, petitions for writ of certiorari
have already been filed from recent decisions rendered by the
Second, Fifth, Seventh, and Ninth circuits. Further clarity on
this issue, therefore, is expected in the near future.
* Qld. New Legislation May Spur More Class Action Activity
----------------------------------------------------------
Sol Dolor, writing for Australasian Lawyer, reports that parties
will take advantage of the newly-enacted class action regime in
Queensland, several law firms predict.
The State passed legislation that instituted a class action
procedure into the Queensland Supreme Court by amending the Civil
Proceedings Act of 2011.
Representative proceedings are now allowed in the State if seven
or more people have claims against the same person; the claims of
all the people arise in respect of or from the same, similar or
related circumstances; and the claims of all the people give rise
to a substantial issue of law or fact.
Herbert Smith Freehills says that the past introduction of class
action mechanisms in other States could become bellwethers,
particularly in the rise of class action activity in Queensland.
"If the experience in New South Wales is any indication, there is
a 'build it and they will come' aspect to class action regimes.
The mere fact of the introduction of a class action procedure in
Queensland will see an initial period of rapid growth in these
claims," said HSF in a briefing.
"Notably, coincident with the introduction of the regime in New
South Wales, there has been a doubling of Supreme Court class
actions in the last 6 years compared to a more steady growth in
Federal Court class actions," the firm added.
Furthermore, HSF said that Queensland-based firms will be more
confident developing class action practices knowing that when
opportunities for class action proceedings are identified, they
can be litigated locally. This reduces complexity and cost of
commencement, the firm added.
Other law firms, like Landers & Rogers, see strong activity in
class action because litigants can now try class action cases
locally rather than in other States.
"In the past, Queensland-related class actions have been commenced
in other jurisdictions," said Landers Brisbane-based insurance
partner Matt Dudakov. "This legislation is likely to take effect
in early 2017, and we expect that Queensland will certainly start
to see considerable activity in the class actions space, as
plaintiff law firms look to take advantage of the ability to bring
these types of claims locally,"
The Australian Lawyers Alliance (ALA) also welcomed the new class
action mechanism as it brings Queensland in line with similar
legislation in Victoria and New South Wales.
* Rule 68 Subject of Four Split U.S. Supreme Court Decisions
------------------------------------------------------------
Alexander Pilmer, writing for Law.com, reports that Federal Rule
of Civil Procedure 68, which governs offers of judgment, has never
been substantively amended in the almost 80 years since it was
enacted. Yet the meaning of Rule 68 has been the subject of four
split U.S. Supreme Court decisions since 1985, with the most
recent, Campbell-Ewald v. Gomez, 136 U.S. 663 (2015) being decided
just last term. These decisions have not settled if or how an
offer of judgment may be used by a defendant to end a case. Given
practitioners' and courts' interests in obtaining clarity about
how offers of judgment may be used to end cases -- and to further
Rule 68's purpose of encouraging settlements -- Rule 68 should be
amended.
Rule 68 and the U.S. Supreme Court's 'Genesis' and 'Campbell-
Ewald' Opinions
Under Rule 68, a defendant may make an offer of judgment "on
specified terms, with the costs then accrued," and a plaintiff
that refuses such an offer and obtains a judgment "not more
favorable than the unaccepted offer . . . must pay the costs
incurred after the offer was made." Fed. R. Civ. P. 68(a), (d).
But what if the defendant makes an offer of full relief to the
plaintiff? Would such a full-relief offer moot plaintiff's case?
In Genesis Healthcare v. Symczyk, 133 S. Ct. 1523, 1529 (2013),
the majority opinion "assumed, without deciding" that an offer of
full relief could moot an individual plaintiff's claim. But
Justice Elena Kagan's dissent cautioned that this assumption was
"wrong, wrong, and wrong again," and that "Rule 68 precludes a
court from imposing judgment for a plaintiff . . . based on an
unaccepted settlement offer made pursuant to its terms." 133 S.
Ct. at 1533, 1536 (Kagan, J., dissenting). After Genesis, the
Courts of Appeals almost uniformly adopted Justice Kagan's
dissent, and in Campbell-Ewald, five Justices voted to adopt the
dissent as the correct statement of the law.
The Genesis dissent and the Campbell-Ewald majority reveal that
many Justices are willing to entertain the possibility that a
defendant may end a case through some type of offer of judgment.
The Genesis dissent specifically noted that "[t]o be sure, a court
has discretion to halt a lawsuit by entering judgment for the
plaintiff when the defendant unconditionally surrenders and only
the plaintiff's obstinacy or madness prevents her from accepting
total victory." 133 S. Ct. at 1536 (Kagan, J., dissenting). The
Campbell-Ewald majority similarly left for another day whether
"the result would be different if a defendant deposits the full
amount of the plaintiff's individual claim in an account payable
to the plaintiff, and the court then enters judgment for the
plaintiff in that amount," a result that Chief Justice John
Roberts' dissent labeled "good news" because "[f]or aught that
appears, the majority's analysis may have come out differently if
Campbell had deposited the offered funds with the District Court."
136 S. Ct. at 672 (majority opinion); id. at 682 (Roberts, C.J.,
dissenting).
How to Clarify Rule 68
The post-Campbell-Ewald lower courts have been divided regarding
defendants' attempts to use offers of judgment (or checks
deposited with the court) to end cases. See Brodsky v.
Humanadental Ins. Co., 2016 WL 5476233, at *4 (N.D. Ill. Sept. 29,
2016) (gathering cases). Nor can we predict whether or when the
Supreme Court will take up the question reserved by Campbell-Ewald
-- just exactly how can a defendant end a case through an offer of
judgment. But regardless of how the Supreme Court may (or should)
rule under the existing framework, greater clarity and certainty
could be achieved from substantive amendments to Rule 68.
First, Rule 68 should be modified to clarify that an offer for
full relief will end a case. Such an amendment would recognize
the efficiency gains from terminating a case where a plaintiff has
been offered (but refuses) full relief. Any amendment should also
make explicit how requests for attorney fees or declaratory or
injunctive relief -- issues that have frequently required judicial
interpretation under the current Rule 68 -- should be treated.
Second, Rule 68 should be modified to provide an explicit
procedural mechanism for a court to assess whether an offer truly
provides full relief, and to enter judgment if the offer provides
such relief. Before Campbell-Ewald, defendants and lower courts
diverged with respect to the exact mechanism for entering judgment
pursuant to an offer of judgment. The Campbell-Ewald majority and
Chief Justice Roberts' dissent both pointed to depositing a check
with the court as a possible means to end a plaintiff's case, but
the text of the only Federal Rule of Civil Procedure concerning
such deposits -- Rule 67 -- says nothing about entering a judgment
based on such a deposit. The rule should be amended to provide a
clear procedural mechanism for entering judgment based on an offer
of full relief. Any unresolved damages issues could be decided on
an expedited basis, either under the summary judgment standard or
as a matter of course (rather than discretion) via bifurcated
trial proceedings.
Third, Rule 68 should be clarified regarding class actions and
collective or mass actions. Amendments on this point might be
contentious, given the significant interests of both the class-
action plaintiff and defense bars in any changes. Those changes
could also be given the possible interactions amendments might
have on Rule 23 or the Class Action Fairness Act. And even if
amending Rule 68 with respect to such multi-plaintiff cases is
ultimately not feasible, the first two proposed amendments could
be beneficial even in cases involving only a single plaintiff.
Defendants in such cases could benefit from such amendments where
they wish to avoid adverse judicial opinions, remove themselves
from what they perceive as an unfavorable venue, or simply avoid
the expenses of litigating and appealing a case for other business
or tactical reasons.
Given the recent flurry of litigation over Rule 68, repeated
statements from the Justices that plaintiffs should not be able to
litigate simply because they want to, and the benefits to the
judicial system from eliminating cases that defendants are willing
to pay to end, Rule 68 is ripe for amendment.
Asbestos Litigation
ASBESTOS UPDATE: Denial of Bid to Dismiss "Turner" Affirmed
-----------------------------------------------------------
The Court of Appeals of Ohio, Eighth District, Cuyahoga County,
affirmed a trial court's order denying Union Carbide Corporation's
renewed motion for administrative dismissal of the complaint filed
by Bobby Turner who alleged that his lung cancer was caused by his
occupational exposure to asbestos as a drywall finisher from
approximately 1962 until 1978.
The trial court found that the parties submitted conflicting
evidence, which included inconsistent references that Turner was
an occasional smoker. However, the trial court concluded that the
overwhelming majority of notations in Turner's medical records
support his claim of no recent smoking history. Accordingly, the
trial court held that Union Carbide "failed to prove that Mr.
Turner is a smoker, as defined in R.C. 2307.91(DD).
The appeals court pointed out that Union Carbide does not
challenge the trial court's ultimate decision that Turner is not a
smoker; rather, only maintains that the trial court applied the
wrong standard and should not have weighed the evidence that make
that determination.
The appeals court held that the record demonstrates that the trial
court considered all the evidence submitted by both parties on the
issue. During its review, the trial court attempted to reconcile
an apparent contradiction with Turner's history of smoking.
Additionally, the appeals court's review revealed that even within
the same medical documents, contradictions appeared concerning
Turner's smoking history. The court noted that an "overwhelming
majority of notations in Mr. Turner's medical records support his
claim of no recent smoking history." The trial court concluded
that based on Turner's medical records, deposition testimony by
Turner and Drs. Kumar and Nunag, and affidavits of friends and
relatives, it was more likely that mistakes were made in the
notations in Turner's medical records indicating that he was a
smoker; or that he was, at best, an occasional cigar smoker.
The appeals case is BOBBY TURNER, ET AL., Plaintiffs-Appellees, v.
CERTAINTEED CORPORATION, ET AL., Defendants-Appellants, No. 103475
(Ohio App.).
A full-text copy of the Opinion dated November 17, 2016, is
available at https://is.gd/ka9aw1 from Leagle.com.
Richard D. Schuster, Esq. -- rdschuster@vorys.com -- Perry W.
Doran, II, Esq. -- pdoran@vorys.com -- Stephen C. Musilli, Esq. --
scmusilli@vorys.com -- Daniel E. Shuey, Esq. -- deshuey@vorys.com
-- Vorys, Sater, Seymour & Pease, L.L.P., P.O. Box 1008, 52 East
Gay Street, Columbus, Ohio 43216, Attorneys for Appellants.
Christopher J. Hickey, Kevin E. McDermott, McDermott & Hickey,
L.L.C., 20525 Center Ridge Road, Suite 200, Rocky River, Ohio
44116;
Keith W. Binder, Jerome H. Block, Donald Blydenburgh, Levy
Konigsberg, L.L.P., 800 Third Avenue, 11th Floor, New York, New
York 10022, Attorneys for Appellees.
ASBESTOS UPDATE: La. District Court Refuses to Remand "Sheppard"
----------------------------------------------------------------
Judge Sarah S. Vance of the United States District Court for the
Eastern District of Louisiana denied the motion to remand to the
Civil District Court for the Parish of Orleans the asbestos-
related personal injury lawsuit captioned JESSE FRANK SHEPPARD v.
LIBERTY MUTUAL INSURANCE COMPANY, ET AL. SECTION "R" (3), Civil
Action No. 16-2401 (E.D. La.), finding that Sheppard's allegations
that he suffered daily exposure to asbestos while working at
Freeport Sulphur Company's Caminada Facility, and that this
exposure led to his illness, is sufficient to invoke federal
jurisdiction under the Outer Continental Shelf Lands Act (OCSLA).
A full-text copy of the Order and Reasons dated November 17, 2016,
is available at https://is.gd/vlZ4EY from Leagle.com.
Jesse Frank Sheppard, Plaintiff, represented by Gerolyn Petit
Roussel, Roussel & Clement.
Jesse Frank Sheppard, Plaintiff, represented by Benjamin Peter
Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel &
Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph
Roussel, Jr., Roussel & Clement.
Liberty Mutual Insurance Company, Defendant, represented by Leigh
Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC,
Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC,
Lori Allen Waters, Kuchler Polk Schell Weiner & Richeson, LLC,
Magali Ann Puente-Martin, Kuchler Polk Schell Weiner & Richeson,
LLC & Thomas A. Porteous, Kuchler Polk Schell Weiner & Richeson,
LLC.
Louisiana Insurance Guaranty Association, Defendant, represented
by:
Edwin Scott Hackenberg, Esq.
HENCHY, VERBOIS & HACKENBERG LLC
7904 Wrenwood Boulevard Suite C
Baton Rouge, LA 70809
Phone: 225-928-4444
Fax: 225-923-1234
McCarty Corporation, Defendant, represented by Susan Beth Kohn,
Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar,
Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon,
Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon,
Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon,
Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon,
Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine,
Smith & Redfearn, LLP.
Reilly-Benton Company, Inc., Defendant, represented by Thomas L.
Cougill, Willingham Fultz & Cougill, Jamie M. Zanovec, Willingham
Fultz & Cougill, Jeanette Seraile-Riggins, Manion Gaynor Manning
LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill & Jennifer
D. Zajac, Willingham Fultz & Cougill.
Taylor-Seidenbach, Inc., Defendant, represented by Christopher
Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Edward
J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard
J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale.
Bayer CropScience, Inc., Defendant, represented by Deborah DeRoche
Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G.
Foundas, Kuchler Polk Schell Weiner & Richeson, LLC, Francis
Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC,
McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson,
LLC, Melissa M. Desormeaux, Kuchler Polk Schell Weiner & Richeson,
LLC, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson,
LLC, Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson,
LLC & Perrey S. Lee, Kuchler Polk Schell Weiner & Richeson, LLC.
Union Carbide Coporation, Defendant, represented by Deborah
DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC,
Ernest G. Foundas, Kuchler Polk Schell Weiner & Richeson, LLC,
Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner &
Richeson, LLC, McGready Lewis Richeson, Kuchler Polk Schell Weiner
& Richeson, LLC, Melissa M. Desormeaux, Kuchler Polk Schell Weiner
& Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner &
Richeson, LLC, Milele N. St. Julien, Kuchler Polk Schell Weiner &
Richeson, LLC, Perrey S. Lee, Kuchler Polk Schell Weiner &
Richeson, LLC & Trevor Matthew Cutaiar, Mouledoux, Bland, Legrand
& Brackett, LLC.
Montello, Inc., Defendant, represented by Ernest G. Foundas,
Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis
Richeson, Kuchler Polk Schell Weiner & Richeson, LLC & Perrey S.
Lee, Kuchler Polk Schell Weiner & Richeson, LLC.
OneBeacon America Insurance Company, Defendant, represented by
Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC, Angela
J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC, Samuel Milton
Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC & Susan Beth
Kohn, Simon, Peragine, Smith & Redfearn, LLP.
Pennsylvania General Insurance Company, Defendant, represented by
Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC, Angela
J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC, Samuel Milton
Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC & Susan Beth
Kohn, Simon, Peragine, Smith & Redfearn, LLP.
Riley Power, Inc., Defendant, represented by Jennifer E. Adams,
Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan
LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Marc John
Bitner, Deutsch Kerrigan LLP & William Claudy Harrison, Jr.,
Deutsch Kerrigan LLP.
General Electric Company, Defendant, represented by John Joseph
Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C.,
James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot
L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro,
Frilot L.L.C..
Uniroyal Holding, Inc., Defendant, represented by Mary Reeves
Arthur, Forman, Perry, Watkins, Krutz, LLP, Jason K. Elam, Forman,
Watkins & Kurtz LLP & Katherine Weatherly Emma Trotter, Forman,
Watkins & Krutz LLP.
Chevron Phillips Chemical Company, LP, Defendant, represented by
Diana Cole Surprenant, Adams & Reese, LLP, Kathleen F. Drew, Adams
& Reese, LLP & Alex E. Cosculluela, Adams & Reese, LLP.
Liberty Mutual Insurance Company, Defendant, represented by H.
Minor Pipes, III, Esq. -- mpipes@barrassousdin.com -- Barrasso,
Usdin, Kupperman, Freeman & Sarver, LLC, Joseph Henry Hart, IV,
Kuchler Polk Schell Weiner & Richeson, LLC, Kimberly R. Silas,
Esq., Barrasso,Usdin, Kupperman, Freeman & Sarver, LLC & Susan
Muller Rogge, Esq. -- srogge@barrassousdin.com -- Barrasso,Usdin,
Kupperman, Freeman & Sarver, LLC.
ASBESTOS UPDATE: Bid for Leave to Appeal in "North" Denied
----------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, in a decision dated November 22, 2016, denied the
leave to appeal to the Court of Appeal and the motion for
reargument or other relief in the case captioned IN RE NEW YORK
CITY ASBESTOS LITIGATION: NORTH, v. AIR & LIQUID SYSTEMS
CORPORATION -- ESTATE OF NORTH -- NATIONAL GRID GENERATION, LLC --
O'CONNOR CONSTRUCTORS, INC., Motion Nos. M-3321, M-3754, M-4000,
M-4439 (N.Y. App. Div.). A full-text copy of the Decision is
available at https://is.gd/dBFzpG from Leagle.com.
ASBESTOS UPDATE: Berkshire's Suit vs. City of Phoenix Dismissed
---------------------------------------------------------------
Judge James A. Teilborg of the United States District Court for
the District of Arizona dismissed, without prejudice as unripe,
the case captioned Berkshire Hathaway Specialty Insurance Company,
Plaintiff, v. City of Phoenix, et al., Defendants, No. CV-16-
01083-PHX-JAT (D. Ariz.).
Berkshire Hathaway, formerly known as Stonewall Insurance Company,
issued two insurance policies to the City, both effective from
July 1, 1976, through July 1, 1977. Policy 13556 is an umbrella
policy providing $300,000 of coverage for net losses exceeding a
self-insured retention of $300,000. Policy 13710 is an excess
policy providing $2,750,000 of coverage for net losses exceeding a
self-insured retention of $1,000,000. Under the terms of both
policies, the City is required to exhaust all applicable
underlying insurance coverage before coverage may be triggered
under Plaintiff's policies.
In 2013, the City was named as a defendant in a lawsuit filed by
Carlos Tarazon and his wife, Soledad Tarazon, alleging the City
was liable for injuries Mr. Tarazon developed through exposure to
asbestos while he was employed by the City. The City ultimately
settled the Tarazon action for $500,000 without the Plaintiff's
knowledge or consent.
During the course of the Tarazon action, the City demanded
coverage from the Plaintiff under both Policy 13556 and Policy
13710. After a settlement, the City filed suit in state court
demanding coverage from four of its insurance carriers, not
including the Plaintiff: First State Insurance Company, Twin City
Fire Insurance Company, New England Reinsurance Company, and the
Nutmeg Insurance Company. The case was removed to federal court
wherein the Honorable Judge Neil V. Wake entered judgment against
the City. City of Phoenix v. First State Ins. Co., et al., No. CV-
15-00511, 2016 WL 4591906 (D. Ariz. Sept. 2, 2016). The Court
held that, under the terms of the excess and umbrella policies,
the Hartford insurers had no duty to indemnify the City because
the settlement amount was less than the City's self-insured
retention limits. Although the City is appealing the ruling in
the Hartford case, it has not filed suit against Plaintiff seeking
coverage for its liability in the Tarazon action.
The City, in May 2015, was named as a defendant in a second
asbestos injury suit filed against it in state court. This action
is still pending in Maricopa County Superior Court as Francisco
Herrera, et al. v. Certainteed Corp., et al., Cause No. CV2014-
009632 ("the Herrera action"). After it learned of the Herrera
action, the City again demanded coverage from the Plaintiff under
Policy 13556 and 13710. The Plaintiff responded with a formal
request for additional information from the City. The City did not
respond to Plaintiff's request, and has taken no further action in
seeking coverage from Plaintiff relating to the Herrera action.
The Plaintiff filed the Complaint naming the City and several of
the City's insurers as defendants, alleging six claims for relief
seeking declaratory judgments that: (1) the City breached its duty
to cooperate with the Plaintiff so that the Plaintiff has no duty
to indemnify, (2) the City breached its duty to inform the
Plaintiff of ongoing settlement negotiations so that the Plaintiff
has no duty to indemnify, (3) the Tarazon and Herrera actions
constitute "separate occurrences" requiring the exhaustion of two
self-insured retentions before the City's policies are triggered,
(4) the City's decision to seek coverage from the Hartford
precludes it from seeking coverage under its Berkshire policies
until its Hartford coverage is exhausted, (5) any coverage
available to the City under its Berkshire policies should be
allocated pro rata among all relevant insurers, and (6) Berkshire
is entitled to reimbursement of any excess payments it may make in
excess of its pro rata share of liability.
Judge Teilborg found no practical likelihood of the occurrence of
a coverage-triggering contingency, pointing out that in the
Hartford case, the court held that the City was not entitled to
coverage from its Hartford insurers because the Tarazon action's
$500,000 settlement did not exceed the City's self-insured
retention limits. Because the amount is well below the $300,000
self-insured retention limit, it is unlikely that the City will
choose to file suit seeking coverage from the Plaintiff, Judge
Teilborg held.
With respect to the Herrera action, Judge Teilborg pointed out
that it is still pending decision from the Arizona Superior Court,
and no other potential claimant has yet filed suit against the
City. Judge Teilborg recognizes that an anticipatory declaration
of rights may be helpful to the insurers for the purpose of
settlement negotiations in the Herrera action and other potential
cases. But even without a declaratory judgment from the Court,
the Plaintiff and other insurers are still capable of determining
an amount representing their aggregate potential settlement.
A full-text copy of the Order dated November 8, 2016, is available
at https://is.gd/2s7UgB from Leagle.com.
Berkshire Hathaway Specialty Insurance Company, Plaintiff,
represented by Cassandra R. Malone, Esq. -- crm@keleher-law.com --
Keleher & McLeod PA.
Berkshire Hathaway Specialty Insurance Company, Plaintiff,
represented by Deron Bradley Knoner, Esq. -- dbk@keleher-law.com -
- Keleher & McLeod PA & Kurt Wihl, Keleher & McLeod PA.
City of Phoenix, Defendant, represented by Emil John Kotalik, Jr.,
Peshkin & Kotalik PC & Tracy R. Nadzieja, Peshkin & Kotalik PC.
First State Insurance Company, Defendant, represented by James Pio
Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman &
Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
Twin City Fire Insurance Company, Defendant, represented by James
Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman
& Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
New England Reinsurance Corporation, Defendant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Nutmeg Insurance Company, Defendant, represented by James Pio
Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman &
Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
Pacific Indemnity Company, Defendant, represented by Deborah A.
Aiwasian, Aiwasian & Associaties & John C. Conway, Aiwasian &
Associaties.
Century Indemnity Company, Defendant, represented by Deborah A.
Aiwasian, Aiwasian & Associaties & John C. Conway, Aiwasian &
Associaties.
TIG Insurance Company, Defendant, represented by Karen Christine
Stafford, Cavanagh Law Firm PA & Scott A. Salmon, Cavanagh Law
Firm PA.
North River Insurance Company, Defendant, represented by Karen
Christine Stafford, Cavanagh Law Firm PA & Scott A. Salmon,
Cavanagh Law Firm PA.
Travelers Casualty and Surety Company, Defendant, represented by
Alexander Robert Mennie, Steptoe & Johnson LLP & Jon T. Neumann,
Steptoe & Johnson LLP.
Travelers Casualty and Surety Company, Cross Claimant, represented
by Alexander Robert Mennie, Steptoe & Johnson LLP & Jon T.
Neumann, Steptoe & Johnson LLP.
Twin City Fire Insurance Company, Cross Defendant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
New England Reinsurance Corporation, Cross Defendant, represented
by James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Pacific Indemnity Company, Cross Defendant, represented by Deborah
A. Aiwasian, Aiwasian & Associaties & John C. Conway, Aiwasian &
Associaties.
TIG Insurance Company, Cross Defendant, represented by Karen
Christine Stafford, Cavanagh Law Firm PA & Scott A. Salmon,
Cavanagh Law Firm PA.
North River Insurance Company, Cross Defendant, represented by
Karen Christine Stafford, Cavanagh Law Firm PA & Scott A. Salmon,
Cavanagh Law Firm PA.
Nutmeg Insurance Company, Cross Defendant, represented by James
Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman
& Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
City of Phoenix, Cross Defendant, represented by Emil John
Kotalik, Jr., Peshkin & Kotalik PC & Tracy R. Nadzieja, Peshkin &
Kotalik PC.
Century Indemnity Company, Cross Defendant, represented by Deborah
A. Aiwasian, Aiwasian & Associaties & John C. Conway, Aiwasian &
Associaties.
First State Insurance Company, Cross Defendant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Travelers Casualty and Surety Company, Counter Claimant,
represented by Alexander Robert Mennie, Steptoe & Johnson LLP &
Jon T. Neumann, Steptoe & Johnson LLP.
Berkshire Hathaway Specialty Insurance Company, Counter Defendant,
represented by Cassandra R. Malone, Keleher & McLeod PA, Deron
Bradley Knoner, Keleher & McLeod PA & Kurt Wihl, Keleher & McLeod
PA.
New England Reinsurance Corporation, Cross Claimant, represented
by James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Twin City Fire Insurance Company, Cross Claimant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Nutmeg Insurance Company, Cross Claimant, represented by James Pio
Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman &
Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
First State Insurance Company, Cross Claimant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
New England Reinsurance Corporation, Cross Defendant, represented
by James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Twin City Fire Insurance Company, Cross Defendant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
Nutmeg Insurance Company, Cross Defendant, represented by James
Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer, Shipman
& Goodwin LLP & Robert Anthony Justman, Meagher & Geer PLLP.
First State Insurance Company, Cross Defendant, represented by
James Pio Ruggeri, Shipman & Goodwin LLP, Joshua Phillip Mayer,
Shipman & Goodwin LLP & Robert Anthony Justman, Meagher & Geer
PLLP.
ASBESTOS UPDATE: Noble Corp. Faces 42 Asbestos Suits at Sept. 30
----------------------------------------------------------------
Noble Corporation plc faces 42 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 quarterly
period ended September 30, 2016.
The Company states: "We are from time to time a party to various
lawsuits that are incidental to our operations in which the
claimants seek an unspecified amount of monetary damages for
personal injury, including injuries purportedly resulting from
exposure to asbestos on drilling rigs and associated facilities.
"At September 30, 2016, there were 42 asbestos related lawsuits in
which we are one of many defendants. These lawsuits have been
filed in the United States in the states of Louisiana and
Mississippi. We intend to vigorously defend against the
litigation. We do not believe the ultimate resolution of these
matters will have a material adverse effect on our financial
position, results of operations or cash flows."
Noble Corporation plc is an offshore drilling contractor for the
oil and gas industry.
ASBESTOS UPDATE: BNS Sub Faces 1,367 Asbestos Claims at Sept. 30
----------------------------------------------------------------
BNS Sub, a subsidiary of BNS LLC, has been named as a defendant in
1,367 alleged asbestos-related toxic-tort claims as of September
30, 2016, according to Steel Partners Holdings L.P.'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 claims were filed over a period beginning
in 1994 through September 30, 2016. In many cases, these claims
involved more than 100 defendants. Of the claims filed, 1,260 were
dismissed, settled or granted summary judgment and closed as of
September 30, 2016. Of the claims settled, the average settlement
was less than $3,000. There remained 107 pending asbestos claims
as of September 30, 2016. There can be no assurance that the
number of future claims and the related costs of defense,
settlements or judgments will be consistent with the experience to
date of existing claims.
"BNS Sub has insurance policies covering asbestos-related claims
for years beginning 1974 through 1988 with estimated aggregate
coverage limits of $183,000,000 with $1,543,000 at September 30,
2016 and December 31, 2015 in estimated remaining self-insurance
retention (deductible). There is secondary evidence of coverage
from 1970 to 1973, although there is no assurance that the
insurers will recognize that the coverage was in place. Policies
issued for BNS Sub beginning in 1989 contained exclusions related
to asbestos. Under certain circumstances, some of the settled
claims may be reopened. Also, there may be a significant delay in
receipt of notification by BNS Sub of the entry of a dismissal or
settlement of a claim or the filing of a new claim. BNS Sub
believes it has significant defenses to any liability for toxic-
tort claims on the merits. None of these toxic-tort claims has
gone to trial and, therefore, there can be no assurance that these
defenses will prevail.
"BNS Sub annually receives retroactive billings or credits from
its insurance carriers for any increase or decrease in claims
accruals as claims are filed, settled or dismissed, or as
estimates of the ultimate settlement and defense costs for the
then-existing claims are revised. As of both September 30, 2016
and December 31, 2015, BNS Sub has accrued $1,422,000 relating to
the open and active claims against BNS Sub. This accrual
represents the Company's best estimate of the likely costs to
defend against or settle these claims by BNS Sub beyond the
amounts accrued by the insurance carriers and previously funded,
through the retroactive billings by BNS Sub.
"There can be no assurance that the number of future claims and
the related costs of defense, settlements or judgments will be
consistent with the experience to date of existing claims, and
that BNS Sub will not need to increase significantly its estimated
liability for the costs to settle these claims to an amount that
could have a material effect on the consolidated financial
statements."
Steel Partners Holdings L.P. (SPLP) is a diversified holding
company that engages in multiple businesses through consolidated
subsidiaries, associated companies and other interests.
SP Corporate has management services agreements with, among
others, BNS. In June 2012, BNS Holding Inc. (BNS) formed a
liquidating trust, the BNS Liquidating Trust. BNS assigned its
assets and liabilities to the BNS Liquidating Trust and initiated
its dissolution. The BNS Liquidating Trust is owned by the BNS
former shareholders in the same proportion as their former
ownership in BNS.
BNS LLC is a wholly-owned subsidiary of the BNS Liquidating Trust.
ASBESTOS UPDATE: Dupont Faces 1,982 Asbestos Claims at Sept. 30
---------------------------------------------------------------
E. I. du Pont de Nemours and Company faces 1,982 lawsuits alleging
personal injury from exposure to asbestos at September 30, 2016,
according to The Chemours Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2016.
The Company states, "At September 30, 2016 and December 31, 2015,
there were approximately 1,982 lawsuits and 2,212 lawsuits,
respectively, pending against DuPont alleging personal injury from
exposure to asbestos.
"These cases are pending in state and federal court in numerous
jurisdictions in the U.S. and are individually set for trial. A
small number of cases are pending outside the U.S. Most of the
actions were brought by contractors who worked at sites between
1950 and the 1990s. A small number of cases involve similar
allegations by DuPont employees. A limited number of the cases
were brought by household members of contractors or DuPont
employees. Finally, certain lawsuits allege personal injury as a
result of exposure to DuPont products.
"At September 30, 2016 and December 31, 2015, Chemours had an
accrual of $44 related to this matter. Chemours reviews this
estimate and related assumptions quarterly and annually updates
the results of an approximate 20-year projection. Management
believes that the likelihood is remote that Chemours would incur
losses in excess of the amounts accrued in connection with this
matter."
The Chemours Company Mexico, S. de R.L. de C.V. provides a wide
range of products for the residents of Mexico. Its product lines
include agrochemicals, health products, and polymers, as well as
coolants, construction materials, and graphic arts and painting
products. DuPont Mexico is a subsidiary of E. I du Pont de
Nemours, which has operations in some 80 countries around the
globe.
Effective prior to the opening of trading on the New York Stock
Exchange on July 1, 2015, E. I. du Pont de Nemours and Company
completed the previously announced separation of the businesses
comprising DuPont's Performance Chemicals reporting segment, and
certain other assets and liabilities, into Chemours, a separate
and distinct public company.
ASBESTOS UPDATE: NL Industries Faces 103 Suits at Sept. 30
----------------------------------------------------------
NL Industries, Inc., faces 103 cases alleging personal injuries as
a result of occupational exposure primarily to products
manufactured by our former operations containing asbestos, silica
and/or mixed dust, 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 named as a defendant in various
lawsuits in several jurisdictions, alleging personal injuries as a
result of occupational exposure primarily to products manufactured
by our former operations containing asbestos, silica and/or mixed
dust. In addition, some plaintiffs allege exposure to asbestos
from working in various facilities previously owned and/or
operated by us. There are 103 of these types of cases pending,
involving a total of approximately 588 plaintiffs. In addition,
the claims of approximately 8,692 plaintiffs have been
administratively dismissed or placed on the inactive docket in
Ohio state court. We do not expect these claims will be re-opened
unless the plaintiffs meet the courts' medical criteria for
asbestos-related claims. We have not accrued any amounts for this
litigation because of the uncertainty of liability and inability
to reasonably estimate the liability, if any. To date, we have
not been adjudicated liable in any of these matters.
"Based on information available to us, including: facts concerning
historical operations, the rate of new claims, the number of
claims from which we have been dismissed, and our prior experience
in the defense of these matters, we believe that the range of
reasonably possible outcomes of these matters will be consistent
with our historical costs (which are not material). Furthermore,
we do not expect any reasonably possible outcome would involve
amounts material to our consolidated financial position, results
of operations or liquidity. We have sought and will continue to
vigorously seek, dismissal and/or a finding of no liability from
each claim. In addition, from time to time, we have received
notices regarding asbestos or silica claims purporting to be
brought against former subsidiaries, including notices provided to
insurers with which we have entered into settlements extinguishing
certain insurance policies. These insurers may seek
indemnification from us. For a discussion of other legal
proceedings to which we are a party, refer to our 2015 Annual
Report.
Insurance Coverage Claims
"We are involved in certain legal proceedings with a number of our
former insurance carriers regarding the nature and extent of the
carriers' obligations to us under insurance policies with respect
to certain lead pigment and asbestos lawsuits.
"The issue of whether insurance coverage for defense costs or
indemnity or both will be found to exist for our lead pigment and
asbestos litigation depends upon a variety of factors and we
cannot assure you that such insurance coverage will be available.
"We have agreements with certain of our former insurance carriers
pursuant to which the carriers reimburse us for a portion of our
future lead pigment litigation defense costs, and one such carrier
reimburses us for a portion of our future asbestos litigation
defense costs. We are not able to determine how much we will
ultimately recover from these carriers for defense costs incurred
by us because of certain issues that arise regarding which defense
costs qualify for reimbursement. While we continue to seek
additional insurance recoveries, we do not know if we will be
successful in obtaining reimbursement for either defense costs or
indemnity. Accordingly, we recognize insurance recoveries in
income only when receipt of the recovery is probable and we are
able to reasonably estimate the amount of the recovery."
NL Industries, Inc. is a holding company. The Company operates in
the component products industry and in the chemicals industry.
ASBESTOS UPDATE: Met-Pro Continues to Defend Suits at Sept. 30
--------------------------------------------------------------
Met-Pro Technologies LLC continues to face asbestos-related
lawsuits, according to Ceco Environmental Corp.'s Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2016.
The Company states: "Our subsidiary, Met-Pro Technologies LLC,
beginning in 2002, began to be named in asbestos-related lawsuits
filed against a large number of industrial companies including, in
particular, those in the pump and fluid handling industries. In
management's opinion, the complaints typically have been vague,
general and speculative, alleging that Met-Pro, along with the
numerous other defendants, sold unidentified asbestos-containing
products and engaged in other related actions which caused
injuries (including death) and loss to the plaintiffs. Counsel has
advised that more recent cases typically allege more serious
claims of mesothelioma. The Company's insurers have hired
attorneys who, together with the Company, are vigorously defending
these cases. Many cases have been dismissed after the plaintiff
fails to produce evidence of exposure to Met-Pro's products. In
those cases where evidence has been produced, the Company's
experience has been that the exposure levels are low and the
Company's position has been that its products were not a cause of
death, injury or loss. The Company has been dismissed from or
settled a large number of these cases. Cumulative settlement
payments from 2002 through September 30, 2016 for cases involving
asbestos-related claims were $1.1 million, of which together with
all legal fees other than corporate counsel expenses; $1.0 million
have been paid by the Company's insurers. The average cost per
settled claim, excluding legal fees, was approximately $30,000."
CECO Environmental Corp. is a provider of engineered technologies
to the environmental, energy, and fluid handling and filtration
industrial segments.
ASBESTOS UPDATE: Ceco Faces 217 Asbestos Suits at Sept. 30
----------------------------------------------------------
Ceco Environmental Corp. faces 217 asbestos-related lawsuits 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, "Based upon the most recent information
available to the Company regarding such claims, there were a total
of 217 cases pending against the Company as of September 30, 2016
(with Connecticut, New York, Pennsylvania and West Virginia having
the largest number of cases), as compared with 221 cases that were
pending as of December 31, 2015. During the nine months ended
September 30, 2016, 55 new cases were filed against the Company,
and the Company was dismissed from 56 cases and settled 3 cases.
Most of the pending cases have not advanced beyond the early
stages of discovery, although a number of cases are on schedules
leading to, or are scheduled for trial. The Company believes that
its insurance coverage is adequate for the cases currently pending
against the Company and for the foreseeable future, assuming a
continuation of the current volume, nature of cases and settlement
amounts. However, the Company has no control over the number and
nature of cases that are filed against it, nor as to the financial
health of its insurers or their position as to coverage. The
Company also presently believes that none of the pending cases
will have a material adverse impact upon the Company's results of
operations, liquidity or financial condition."
CECO Environmental Corp. is a provider of engineered technologies
to the environmental, energy, and fluid handling and filtration
industrial segments.
ASBESTOS UPDATE: Watts Water Faces 325 Suits at Sept. 30
--------------------------------------------------------
Watts Water Technologies, Inc., is defending approximately 325
lawsuits in different jurisdictions, alleging injury or death as a
result of exposure to asbestos, according to Duke Energy
Corporation'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 complaints in these cases typically name
a large number of defendants and do not identify any particular
Company products as a source of asbestos exposure. To date,
discovery has failed to yield evidence of substantial exposure to
any Company products and no judgments have been entered against
the Company."
Watts Water Technologies, Inc. is a supplier of products and
solutions that manage and conserve the flow of fluids and energy
into, through and out of buildings in the residential and
commercial markets.
ASBESTOS UPDATE: American Optical Faces 56,000 Claims at Sept. 30
-----------------------------------------------------------------
American Optical Corporation faces approximately 56,000 claims for
alleged personal injury from exposure to asbestos and other
allegedly hazardous materials, according to Pfizer Inc.'s Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended October 2, 2016.
The Company states, "Between 1967 and 1982, Warner-Lambert owned
American Optical Corporation, which manufactured and sold
respiratory protective devices and asbestos safety clothing. In
connection with the sale of American Optical in 1982, Warner-
Lambert agreed to indemnify the purchaser for certain liabilities,
including certain asbestos-related and other claims. As of October
2, 2016, approximately 56,000 claims naming American Optical and
numerous other defendants were pending in various federal and
state courts seeking damages for alleged personal injury from
exposure to asbestos and other allegedly hazardous materials.
Warner-Lambert was acquired by Pfizer in 2000 and is a wholly-
owned subsidiary of Pfizer. Warner-Lambert is actively engaged in
the defense of, and will continue to explore various means of
resolving, these claims.
"Numerous lawsuits are pending against Pfizer in various federal
and state courts seeking damages for alleged personal injury from
exposure to products containing asbestos and other allegedly
hazardous materials sold by Gibsonburg Lime Products Company
(Gibsonburg). Gibsonburg was acquired by Pfizer in the 1960s and
sold products containing small amounts of asbestos until the early
1970s.
"There also are a small number of lawsuits pending in various
federal and state courts seeking damages for alleged exposure to
asbestos in facilities owned or formerly owned by Pfizer or its
subsidiaries."
Pfizer Inc. is a research-based global biopharmaceutical company.
ASBESTOS UPDATE: Everest Had $275.4MM Loss Reserves at Sept. 30
---------------------------------------------------------------
Everest Re Group, Ltd. had net asbestos loss reserves of $275.4
million, or 95.2%, of total net Asbestos & Environmental (A&E)
reserves, all of which was for assumed business at September 30,
2016, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states: "On July 13, 2015, we sold Mt. McKinley to
Clearwater Insurance Company. Concurrently with the closing, we
entered into a retrocession treaty with an affiliate of
Clearwater. Per the retrocession treaty, we retroceded 100% of
the liabilities associated with certain Mt. McKinley policies,
which had been reinsured by Bermuda Re. As consideration for
entering into the retrocession treaty, Bermuda Re transferred cash
of $140.3 million, an amount equal to the net loss reserves as of
the closing date. Of the $140.3 million of net loss reserves
retroceded, $100.5 million were related to A&E business. The
maximum liability retroceded under the retrocession treaty will be
$440.3 million, equal to the retrocession payment plus $300.0
million. We will retain liability for any amounts exceeding the
maximum liability retroceded under the retrocession treaty.
"Ultimate loss projections for A&E liabilities cannot be
accomplished using standard actuarial techniques. We believe that
our A&E reserves represent management's best estimate of the
ultimate liability; however, there can be no assurance that
ultimate loss payments will not exceed such reserves, perhaps by a
significant amount.
"Industry analysts use the "survival ratio" to compare the A&E
reserves among companies with such liabilities. The survival
ratio is typically calculated by dividing a company's current net
reserves by the three year average of annual paid losses. Hence,
the survival ratio equals the number of years that it would take
to exhaust the current reserves if future loss payments were to
continue at historical levels. Using this measurement, our net
three year asbestos survival ratio was 5.1 years at September 30,
2016. These metrics can be skewed by individual large settlements
occurring in the prior three years and therefore, may not be
indicative of the timing of future payments."
Everest Re Group, Ltd., through its subsidiaries, is engaged in
the underwriting of reinsurance and insurance.
ASBESTOS UPDATE: Manitex Continues to Defend Suits at March 31
--------------------------------------------------------------
Manitex International, Inc., continues to defend itself against
asbestos-related product liability lawsuits, according to Duke
Energy Corporation's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2016.
The Company states, "In certain instances, the Company is
indemnified by a former owner of the product line in question. In
the remaining cases the plaintiff has, to date, not been able to
establish any exposure by the plaintiff to the Company's products.
The Company is uninsured with respect to these claims but believes
that it will not incur any material liability with respect to
these claims."
Manitex International, Inc. is a provider of engineered specialty
lifting and loading products.
ASBESTOS UPDATE: Liggett Continues To Defend Cases at Sept. 30
--------------------------------------------------------------
Liggett Group LLC continues to defend itself against asbestos-
related personal injury actions, according to Vector Group Ltd.'s
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended September 30, 2016.
The Company states, "Liggett is currently a defendant in 13 multi-
defendant personal injury cases in Maryland that allege claims
arising from asbestos and tobacco exposure. The tobacco
defendants, including Liggett, moved (or are in the process of
moving) to dismiss the cases. In the past, motions to dismiss
have generally been successful, typically resulting in the
dismissal without prejudice of the tobacco company defendants,
including Liggett. Recently, however, a Maryland intermediate
appellate court ruled, in Stidham, et al. v. R. J. Reynolds
Tobacco Company, et al., that dismissal of tobacco company
defendants may not be appropriate where the asserted injury is
based on both asbestos and tobacco exposure (synergy cases). On
May 9, 2016, the Court of Appeals for Maryland (Maryland's highest
court) heard oral argument on the appeal of the intermediate
appellate court's decision. On July 5, 2016, the Court of Appeals
ruled that joinder of tobacco and asbestos cases may be possible
in certain circumstances, but plaintiffs must demonstrate at the
trial court level how such cases may be joined while providing
appropriate safeguards to prevent embarrassment, delay, expense or
prejudice to defendants and "the extent to which, if at all, the
special procedures applicable to asbestos cases should extend to
tobacco companies." Other than providing guidance, the Court of
Appeals remanded these issues to be determined at the trial court
level. It is possible that Liggett and other tobacco company
defendants will not be dismissed from pending synergy cases, and
may be named as defendants in asbestos-related personal injury
actions in Maryland going forward, including approximately 20
additional synergy cases currently pending in Maryland state
court."
Vector Group Ltd. is a holding company. The Company is engaged in
the manufacture and sale of cigarettes in the United States
through its Liggett Group LLC and Vector Tobacco Inc.
subsidiaries.
ASBESTOS UPDATE: Suit vs. AC&S Remains Stayed at Sept. 30
---------------------------------------------------------
The purported class action Parsons v. AC&S Inc. remains stayed
pending the bankruptcy of three defendants, according to Vector
Group Ltd.'s Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended September 30,
2016.
In February 1998, in Parsons v. AC&S Inc., a purported class
action was commenced on behalf of all West Virginia residents who
allegedly have personal injury claims arising from exposure to
cigarette smoke and asbestos fibers. The complaint seeks to
recover $1,000,000 in compensatory and punitive damages
individually and unspecified compensatory and punitive damages for
the class. The case is stayed due to the December 2000 bankruptcy
of three of the defendants.
Vector Group Ltd. is a holding company. The Company is engaged in
the manufacture and sale of cigarettes in the United States
through its Liggett Group LLC and Vector Tobacco Inc.
subsidiaries.
ASBESTOS UPDATE: AMPCO-Pittsburgh Has 6,465 Claims at Sept. 30
--------------------------------------------------------------
AMPCO-Pittsburgh Corporation has 6,465 asbestos claims pending at
nine months ended 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, "Claims have been asserted alleging personal
injury from exposure to asbestos-containing components
historically used in some products of predecessors of Air & Liquid
Systems Corporation, a subsidiary of the Corporation. Air & Liquid
and, in some cases, the Corporation are defendants (among numerous
defendants, often in excess of 50) in cases filed in various state
and federal courts."
"The following table reflects approximate information about the
claims for Asbestos Liability against Air & Liquid and the
Corporation for the nine months ended September 30, 2016:
Total claims pending
at the beginning of the period 6,212
New claims served 1,105
Claims dismissed (649)
Claims settled (203)
-----
Total claims pending
at the end of the period 6,465
The Company's gross settlement and defense costs for the nine
months ended September 30, 2016, was $13,762,000.
A full-text copy of the Form 10-Q is available at
https://is.gd/nyxCvW
AMPCO-Pittsburgh Corporation is engaged in manufacturing and
selling specialty metal products and customized equipment utilized
by industry throughout the world.
ASBESTOS UPDATE: AMPCO Insurance Appeals Are Pending at Sept. 30
----------------------------------------------------------------
Appeals are pending against an order granting in part and denying
in part cross motions for summary judgment filed AMPCO-Pittsburgh
Corporation and Air & Liquid Systems Corporation in a suit against
insurers, according to AMPCO'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 Corporation and Air & Liquid are parties
to a series of settlement agreements with insurers that have
coverage obligations for Asbestos Liability. Under the Settlement
Agreements, the Settling Insurers accept financial responsibility,
subject to the terms and conditions of the respective agreements,
including overall coverage limits, for pending and future claims
for Asbestos Liability. The Settlement Agreements encompass the
substantial majority of insurance policies that provide coverage
for claims for Asbestos Liability.
The Settlement Agreements include acknowledgements that Howden
North America, Inc. is entitled to coverage under policies
covering Asbestos Liability for claims arising out of the
historical products manufactured or distributed by Buffalo Forge
Company, a former subsidiary of the Corporation. The Settlement
Agreements do not provide for any prioritization on access to the
applicable policies or any sublimits of liability as to Howden or
the Corporation and Air & Liquid, and, accordingly, Howden may
access the coverage afforded by the Settling Insurers for any
covered claim arising out of a Product. In general, access by
Howden to the coverage afforded by the Settling Insurers for the
Products will erode coverage under the Settlement Agreements
available to the Corporation and Air & Liquid for Asbestos
Liability.
"On February 24, 2011, the Corporation and Air & Liquid filed a
lawsuit in the United States District Court for the Western
District of Pennsylvania against thirteen domestic insurance
companies, certain underwriters at Lloyd's, London and certain
London market insurance companies, and Howden. The lawsuit seeks a
declaratory judgment regarding the respective rights and
obligations of the parties under excess insurance policies that
were issued to the Corporation from 1981 through 1984 as respects
claims against the Corporation and its subsidiary for Asbestos
Liability and as respects asbestos bodily-injury claims against
Howden arising from the Products. The Corporation and Air & Liquid
have reached Settlement Agreements with all but two of the
defendant insurers in the coverage action. Those Settlement
Agreements specify the terms and conditions upon which the insurer
parties are to contribute to defense and indemnity costs for
claims for Asbestos Liability. One of the Settlement Agreements
entered into by the Corporation and Air & Liquid also provided for
the dismissal of claims, without prejudice, regarding two upper-
level excess policies issued by one of the insurers. The Court has
entered Orders dismissing all claims in the action filed against
each other by the Corporation and Air & Liquid, on the one hand,
and by the settling insurers, on the other. Howden also reached an
agreement with eight domestic insurers addressing asbestos-related
bodily injury claims arising from the Products, and claims as to
those insurers and Howden have been dismissed. Various
counterclaims, cross claims and third party claims have been filed
in the litigation and remain pending although only two domestic
insurers and Howden remain in the litigation as to the Corporation
and Air & Liquid. On September 27, 2013, the Court issued a
memorandum opinion and order granting in part and denying in part
cross motions for summary judgment filed by the Corporation and
Air & Liquid, Howden, and the insurer parties still in the
litigation. On February 26, 2015, the Court issued final judgment.
One insurer filed a notice of appeal from the judgment to the U.S.
Court of Appeals to the Third Circuit; as a result, several other
insurers, Howden, the Corporation, and Air & Liquid filed notices
of case appeal. The appeals are presently pending, and the parties
have been involved in a mediation through the Third Circuit's
mediator's office."
AMPCO-Pittsburgh Corporation is engaged in manufacturing and
selling specialty metal products and customized equipment utilized
by industry throughout the world.
ASBESTOS UPDATE: AMPCO-Pittsburgh Had $114MM Insurance Receivable
-----------------------------------------------------------------
AMPCO-Pittsburgh Corporation had $114,945,000 in insurance
receivable at the nine month period ended 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, "In 2006, the Corporation retained Hamilton,
Rabinovitz & Associates, Inc. (HR&A), a nationally recognized
expert in the valuation of asbestos liabilities, to assist the
Corporation in estimating the potential liability for pending and
unasserted future claims for Asbestos Liability. HR&A was not
requested to estimate asbestos claims against the inactive
subsidiary in dissolution, which the Corporation believes are
immaterial. Based on this analysis, the Corporation recorded a
reserve for Asbestos Liability claims pending or projected to be
asserted through 2013 as of December 31, 2006. HR&A's analysis has
been periodically updated since that time. Most recently, the HR&A
analysis was updated in 2014, and additional reserves were
established by the Corporation as of December 31, 2014 for
Asbestos Liability claims pending or projected to be asserted
through 2024. The methodology used by HR&A in its projection in
2014 of the operating subsidiaries' liability for pending and
unasserted potential future claims for Asbestos Liability, which
is substantially the same as the methodology employed by HR&A in
prior estimates, relied upon and included the following factors:
-- HR&A's interpretation of a widely accepted forecast of the
population likely to have been exposed to asbestos;
-- epidemiological studies estimating the number of people
likely to develop asbestos-related diseases;
-- HR&A's analysis of the number of people likely to file an
asbestos-related injury claim against the subsidiaries and the
Corporation based on such epidemiological data and relevant claims
history from January 1, 2012 to December 8, 2014;
-- an analysis of pending cases, by type of injury claimed and
jurisdiction where the claim is filed;
-- an analysis of claims resolution history from January 1,
2012 to December 8, 2014 to determine the average settlement value
of claims, by type of injury claimed and jurisdiction of filing;
and
-- an adjustment for inflation in the future average settlement
value of claims, at an annual inflation rate based on the
Congressional Budget Office's ten year forecast of inflation.
Using this information, HR&A estimated in 2014 the number of
future claims for Asbestos Liability that would be filed through
the year 2024, as well as the settlement or indemnity costs that
would be incurred to resolve both pending and future unasserted
claims through 2024. This methodology has been accepted by
numerous courts.
"In conjunction with developing the aggregate liability estimate,
the Corporation also developed an estimate of probable insurance
recoveries for its Asbestos Liabilities. In developing the
estimate, the Corporation considered HR&A's projection for
settlement or indemnity costs for Asbestos Liability and
management's projection of associated defense costs (based on the
current defense to indemnity cost ratio), as well as a number of
additional factors. These additional factors included the
Settlement Agreements then in effect, policy exclusions, policy
limits, policy provisions regarding coverage for defense costs,
attachment points, prior impairment of policies and gaps in the
coverage, policy exhaustions, insolvencies among certain of the
insurance carriers, and the nature of the underlying claims for
Asbestos Liability asserted against the subsidiaries and the
Corporation as reflected in the Corporation's asbestos claims
database, as well as estimated erosion of insurance limits on
account of claims against Howden arising out of the Products. In
addition to consulting with the Corporation's outside legal
counsel on these insurance matters, the Corporation consulted with
a nationally-recognized insurance consulting firm it retained to
assist the Corporation with certain policy allocation matters that
also are among the several factors considered by the Corporation
when analyzing potential recoveries from relevant historical
insurance for Asbestos Liabilities. Based upon all of the factors
considered by the Corporation, and taking into account the
Corporation's analysis of publicly available information regarding
the credit-worthiness of various insurers, the Corporation
estimated the probable insurance recoveries for Asbestos Liability
and defense costs through 2024. Although the Corporation believes
that the assumptions employed in the insurance valuation were
reasonable and previously consulted with its outside legal counsel
and insurance consultant regarding those assumptions, there are
other assumptions that could have been employed that would have
resulted in materially lower insurance recovery projections.
"Based on the analyses, the Corporation's reserve at December 31,
2014 for the total costs, including defense costs, for Asbestos
Liability claims pending or projected to be asserted through 2024
was $189,048,000 of which approximately 64% was attributable to
settlement costs for unasserted claims projected to be filed
through 2024 and future defense costs. The reserve at September
30, 2016 was $156,087,000. While it is reasonably possible that
the Corporation will incur additional charges for Asbestos
Liability and defense costs in excess of the amounts currently
reserved, the Corporation believes that there is too much
uncertainty to provide for reasonable estimation of the number of
future claims, the nature of such claims and the cost to resolve
them beyond 2024. Accordingly, no reserve has been recorded for
any costs that may be incurred after 2024.
"The Corporation's receivable at December 31, 2014 for insurance
recoveries attributable to the claims for which the Corporation's
Asbestos Liability reserve has been established, including the
portion of incurred defense costs covered by the Settlement
Agreements in effect through December 31, 2014, and the probable
payments and reimbursements relating to the estimated indemnity
and defense costs for pending and unasserted future Asbestos
Liability claims, was $140,651,000 ($114,945,000 at September 30,
2016).
The following table summarizes activity relating to insurance
recoveries for the nine months ended September 30, 2016:
Insurance receivable -- asbestos,
beginning of the year $125,423,000
Settlement and defense costs paid
by insurance carriers (10,478,000)
------------
Insurance receivable -- asbestos,
end of the period $114,945,000
"The insurance receivable recorded by the Corporation does not
assume any recovery from insolvent carriers and a substantial
majority of the insurance recoveries deemed probable was from
insurance companies rated A -- (excellent) or better by A.M. Best
Corporation. There can be no assurance, however, that there will
not be further insolvencies among the relevant insurance carriers,
or that the assumed percentage recoveries for certain carriers
will prove correct. The difference between insurance recoveries
and projected costs is not due to exhaustion of all insurance
coverage for Asbestos Liability. The Corporation and the
subsidiaries have substantial additional insurance coverage which
the Corporation expects to be available for Asbestos Liability
claims and defense costs that the subsidiaries and it may incur
after 2024. However, this insurance coverage also can be expected
to have gaps creating significant shortfalls of insurance
recoveries as against claims expense, which could be material in
future years.
"The amounts recorded by the Corporation for Asbestos Liabilities
and insurance receivables rely on assumptions that are based on
currently known facts and strategy. The Corporation's actual
expenses or insurance recoveries could be significantly higher or
lower than those recorded if assumptions used in the Corporation's
or HR&A's calculations vary significantly from actual results. Key
variables in these assumptions are identified above and include
the number and type of new claims to be filed each year, the
average cost of disposing of each such new claim, average annual
defense costs, compliance by relevant parties with the terms of
the Settlement Agreements, the resolution of remaining coverage
issues with insurance carriers, and the solvency risk with respect
to the relevant insurance carriers. Other factors that may affect
the Corporation's Asbestos Liability and ability to recover under
its insurance policies include uncertainties surrounding the
litigation process from jurisdiction to jurisdiction and from case
to case, reforms that may be made by state and federal courts, and
the passage of state or federal tort reform legislation.
"The Corporation intends to evaluate its estimated Asbestos
Liability and related insurance receivables as well as the
underlying assumptions on a regular basis to determine whether any
adjustments to the estimates are required. Due to the
uncertainties surrounding asbestos litigation and insurance, these
regular reviews may result in the Corporation incurring future
charges; however, the Corporation is currently unable to estimate
such future charges. Adjustments, if any, to the Corporation's
estimate of its recorded Asbestos Liability and/or insurance
receivables could be material to operating results for the periods
in which the adjustments to the liability or receivable are
recorded, and to the Corporation's liquidity and consolidated
financial position."
A full-text copy of the Form 10-Q is available at
https://is.gd/nyxCvW
AMPCO-Pittsburgh Corporation is engaged in manufacturing and
selling specialty metal products and customized equipment utilized
by industry throughout the world.
ASBESTOS UPDATE: Park-Ohio Faces 101 Cases at Sept. 30
------------------------------------------------------
Park-Ohio Holdings Corp. is a party to 101 lawsuits and legal
proceedings alleging personal injury as a result of exposure to
asbestos, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended Septeember 30, 2016.
The Company states: "We were a co-defendant in approximately 101
cases asserting claims on behalf of approximately 198 plaintiffs
alleging personal injury as a result of exposure to asbestos.
These asbestos cases generally relate to production and sale of
asbestos-containing products and allege various theories of
liability, including negligence, gross negligence and strict
liability, and seek compensatory and, in some cases, punitive
damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
$25,000 to $75,000), or do not specify the monetary damages
sought. To the extent that any specific amount of damages is
sought, the amount applies to claims against all named defendants.
"There are five asbestos cases, involving 22 plaintiffs, that
plead specified damages against named defendants. In each of the
five cases, the plaintiff is seeking compensatory and punitive
damages based on a variety of potentially alternative causes of
action. In three cases, the plaintiff has alleged compensatory and
punitive damages in the amount of $3.0 million and $10.0 million,
respectively, for four separate causes of action, $1.0 million for
a fifth cause of action and $3 million for a sixth cause of
action. In the fourth case, the plaintiff has alleged compensatory
and punitive damages, each in the amount of $20.0 million, for
three separate causes of action and $5.0 million compensatory for
a fifth cause of action. In the fifth case, the plaintiff has
alleged compensatory and punitive damages each in the amount of
$10.0 million for five separate causes of action and $5.0 million
for the sixth cause of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-
containing product manufactured or sold by us or our subsidiaries.
We intend to vigorously defend these asbestos cases, and believe
we will continue to be successful in being dismissed from such
cases. However, it is not possible to predict the ultimate outcome
of asbestos-related lawsuits, claims and proceedings due to the
unpredictable nature of personal injury litigation. Despite this
uncertainty, and although our results of operations and cash flows
for a particular period could be adversely affected by asbestos-
related lawsuits, claims and proceedings, management believes that
the ultimate resolution of these matters will not have a material
adverse effect on our financial condition, liquidity or results of
operations. Among the factors management considered in reaching
this conclusion were: (a) our historical success in being
dismissed from these types of lawsuits on the bases mentioned
above; (b) many cases have been improperly filed against one of
our subsidiaries; (c) in many cases the plaintiffs have been
unable to establish any causal relationship to us or our products
or premises; (d) in many cases, the plaintiffs have been unable to
demonstrate that they have suffered any identifiable injury or
compensable loss at all or that any injuries that they have
incurred did in fact result from alleged exposure to asbestos; and
(e) the complaints assert claims against multiple defendants and,
in most cases, the damages alleged are not attributed to
individual defendants. Additionally, we do not believe that the
amounts claimed in any of the asbestos cases are meaningful
indicators of our potential exposure because the amounts claimed
typically bear no relation to the extent of the plaintiff's
injury, if any.
"Our cost of defending these lawsuits has not been material to
date and, based upon available information, our management does
not expect its future costs for asbestos-related lawsuits to have
a material adverse effect on our results of operations, liquidity
or financial position."
Park-Ohio Holdings Corp. operates through the subsidiaries owned
by its direct subsidiary, Park-Ohio Industries, Inc.
ASBESTOS UPDATE: Intricon Continues to Defend Suits at Sept. 30
---------------------------------------------------------------
Intricon Corporation continues to defend itself against asbestos
lawsuits relating to its discontinued heat technologies segment,
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 along with a
number of other parties in lawsuits alleging that plaintiffs have
or may have contracted asbestos-related diseases as a result of
exposure to asbestos products or equipment containing asbestos
sold by one or more named defendants. These lawsuits relate to the
discontinued heat technologies segment which was sold in March
2005. Due to the non-informative nature of the complaints, the
Company does not know whether any of the complaints state valid
claims against the Company. Certain insurance carriers have
informed the Company that the primary policies for the period
August 1, 1970-1978 have been exhausted and that the carriers will
no longer provide defense and insurance coverage under those
policies. However, the Company has other primary and excess
insurance policies that the Company believes afford coverage for
later years. Some of these other primary insurers have accepted
defense and insurance coverage for these suits, and some of them
have either ignored the Company's tender of defense of these
cases, or have denied coverage, or have accepted the tenders but
asserted a reservation of rights and/or advised the Company that
they need to investigate further. Because settlement payments are
applied to all years a litigant was deemed to have been exposed to
asbestos, the Company believes that it will have funds available
for defense and insurance coverage under the non-exhausted primary
and excess insurance policies. However, unlike the older policies,
the more recent policies have deductible amounts for defense and
settlements costs that the Company will be required to pay;
accordingly, the Company expects that its litigation costs will
increase in the future. Further, many of the policies covering
later years (approximately 1984 and thereafter) have exclusions
for any asbestos products or operations, and thus do not provide
insurance coverage for asbestos-related lawsuits. The Company does
not believe that the asserted exhaustion of some of the primary
insurance coverage for the 1970-1978 period will have a material
adverse effect on its financial condition, liquidity, or results
of operations. Management believes that the number of insurance
carriers involved in the defense of the suits, and the significant
number of policy years and policy limits under which these
insurance carriers are insuring the Company, make the ultimate
disposition of these lawsuits not material to the Company's
consolidated financial position or results of operations."
IntriCon Corporation is engaged in designing, developing,
engineering, manufacturing and distributing body-worn devices.
ASBESTOS UPDATE: Haynes Int'l. Faces Three Suits at Sept. 30
------------------------------------------------------------
Haynes International, Inc., faces three actions alleging that
workers at the company were harmed due to exposure to asbestos,
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 currently, and has in the past
been, subject to claims involving personal injuries allegedly
relating to its products or processes. For example, the Company is
presently involved in two actions involving welding rod-related
injuries, which were filed in California state court against
numerous manufacturers, including the Company, in May 2006 and
February 2007, respectively, alleging that the welding-related
products of the defendant manufacturers harmed the users of such
products through the inhalation of welding fumes containing
manganese. The Company is also involved in three actions alleging
that asbestos at the facilities of the defendant manufactures
harmed the plaintiffs who worked in the facilities. The Company
believes that it has defenses to these allegations and that, if
the Company were found liable, the cases would not have a material
effect on its financial position, results of operations or
liquidity."
ASBESTOS UPDATE: Rockwell Had $20MM Reserves at Sept. 30
--------------------------------------------------------
Rockwell Automation, Inc., has reserve for product liability
claims, including asbestos costs, of $20.1 million as of September
30, 2016, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
September 30, 2016.
The Company states: "One of our principal self-insurance programs
covers product liability where we self-insure up to a specified
dollar amount. Claims exceeding this amount up to specified limits
are covered by insurance policies issued by commercial insurers.
We estimate the reserve for product liability claims using our
claims experience for the periods being valued. Adjustments to the
product liability reserves may be required to reflect emerging
claims experience and other factors such as inflationary trends or
the outcome of claims. The reserve for product liability claims,
including asbestos costs, was $20.1 million, net of $11.1 million
of related receivables, and $17.8 million, net of $10.4 million of
related receivables, as of September 30, 2016 and 2015,
respectively.
"Various lawsuits, claims and proceedings have been or may be
instituted or asserted against us relating to the conduct of our
business.
"We accrue for costs related to the legal obligation associated
with the retirement of a tangible long-lived asset that results
from the acquisition, construction, development or the normal
operation of the long-lived asset. The obligation to perform the
asset retirement activity is not conditional even though the
timing or method may be conditional. Identified conditional asset
retirement obligations include asbestos abatement and remediation
of soil contamination beneath current and previously divested
facilities. We estimate conditional asset retirement obligations
using site-specific knowledge and historical industry expertise. A
significant change in the costs or timing could have a significant
effect on our estimates. We recorded these liabilities in the
Consolidated Balance Sheet, which totaled $0.7 million and $0.4
million in other current liabilities at September 30, 2016 and
2015, respectively, and $19.9 million and $19.8 million in other
liabilities at September 30, 2016 and 2015, respectively."
Rockwell Automation, Inc. -- http://www.rockwellautomation.com/--
is in the business of industrial automation.
ASBESTOS UPDATE: Rockwell Continues to Defend Suits at Sept. 30
---------------------------------------------------------------
Rockwell Automation, Inc., continues to defend itself against
asbestos-related lawsuits, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended September 30, 2016.
The Company states, "We (including our subsidiaries) have been
named as a defendant in lawsuits alleging personal injury as a
result of exposure to asbestos that was used in certain components
of our products many years ago. Currently there are a few thousand
claimants in lawsuits that name us as defendants, together with
hundreds of other companies. In some cases, the claims involve
products from divested businesses, and we are indemnified for most
of the costs. However, we have agreed to defend and indemnify
asbestos claims associated with products manufactured or sold by
our former Dodge mechanical and Reliance Electric motors and motor
repair services businesses prior to their divestiture by us, which
occurred on January 31, 2007. We are also responsible for half of
the costs and liabilities associated with asbestos cases against
our former Rockwell International Corporation's divested
measurement and flow control business. But in all cases, for those
claimants who do show that they worked with our products or
products of divested businesses for which we are responsible, we
nevertheless believe we have meritorious defenses, in substantial
part due to the integrity of the products, the encapsulated nature
of any asbestos-containing components, and the lack of any
impairing medical condition on the part of many claimants. We
defend those cases vigorously. Historically, we have been
dismissed from the vast majority of these claims with no payment
to claimants.
"We have maintained insurance coverage that we believe covers
indemnity and defense costs, over and above self-insured
retentions, for claims arising from our former Allen-Bradley
subsidiary. Following litigation against Nationwide Indemnity
Company (Nationwide) and Kemper Insurance (Kemper), the insurance
carriers that provided liability insurance coverage to Allen-
Bradley, we entered into separate agreements on April 1, 2008 with
both insurance carriers to further resolve responsibility for
ongoing and future coverage of Allen-Bradley asbestos claims. In
exchange for a lump sum payment, Kemper bought out its remaining
liability and has been released from further insurance obligations
to Allen-Bradley. Nationwide entered into a cost share agreement
with us to pay the substantial majority of future defense and
indemnity costs for Allen-Bradley asbestos claims. We believe that
this arrangement with Nationwide will continue to provide coverage
for Allen-Bradley asbestos claims throughout the remaining life of
the asbestos liability.
"We also have rights to historic insurance policies that provide
indemnity and defense costs, over and above self-insured
retentions, for claims arising out of certain asbestos liabilities
relating to the divested measurement and flow control business. We
initiated litigation against several insurers to pursue coverage
for these claims, subject to each carrier's policy limits, and the
case is now pending in Los Angeles County Superior Court. In
September 2016, we entered into settlement agreements with certain
insurance company defendants. In exchange for a lump sum payment,
Lamorak Insurance Company bought out its remaining liability and
has been released from further insurance obligations relating to
the measurement and flow control business. Certain Underwriters at
Lloyd's, London and certain London Market Insurance Companies
entered into a cost share agreement to pay a portion of future
defense and indemnity costs for measurement and flow control
asbestos claims. We believe this arrangement will continue to
provide partial coverage for these asbestos claims throughout the
remaining life of asbestos liability.
"The uncertainties of asbestos claim litigation make it difficult
to predict accurately the ultimate outcome of asbestos claims.
That uncertainty is increased by the possibility of adverse
rulings or new legislation affecting asbestos claim litigation or
the settlement process. Subject to these uncertainties and based
on our experience defending asbestos claims, we do not believe
these lawsuits will have a material effect on our business,
financial condition or results of operations.
We have, from time to time, divested certain of our businesses. In
connection with these divestitures, certain lawsuits, claims and
proceedings may be instituted or asserted against us related to
the period that we owned the businesses, either because we agreed
to retain certain liabilities related to these periods or because
such liabilities fall upon us by operation of law. In some
instances the divested business has assumed the liabilities;
however, it is possible that we might be responsible to satisfy
those liabilities if the divested business is unable to do so.
In connection with the spin-offs of our former automotive
business, semiconductor systems business and Rockwell Collins
avionics and communications business, the spun-off companies have
agreed to indemnify us for substantially all contingent
liabilities related to the respective businesses, including
environmental and intellectual property matters.
"In conjunction with the sale of our Dodge mechanical and Reliance
Electric motors and motor repair services businesses, we agreed to
indemnify Baldor Electric Company for costs and damages related to
certain legal, legacy environmental and asbestos matters of these
businesses arising before January 31, 2007, for which the maximum
exposure would be capped at the amount received for the sale."
ASBESTOS UPDATE: Insurers Face Extra $15-Bil. Asbestos Bill
-----------------------------------------------------------
Alistair Gray, writing for Financial Times, reported that more
than 25 years after asbestos-related claims contributed to the
near collapse of the Lloyd's of London market, insurers face an
additional $15bn of losses related to the cancer-causing
substance.
A new study by insurance credit rating agency AM Best finds that
claims linked to asbestos on historic policies "show no sign of
abating". The latest increase brings the total forecast bill for
companies including Berkshire Hathaway, Swiss Re and Munich Re to
about $100bn.
The industry has paid out about $64bn for asbestos exposure,
making it easily among the most costly causes of insurance losses
in history, and set aside $21bn in reserve for future claims.
But costlier treatment, rising life expectancy and creeping
litigation bills are still pushing up expenses more than expected
-- prompting AM Best, which raised its estimate in 2012, to do so
again.
A new generation of claimants is also emerging, said Brian
O'Larte, an analyst with AM Best. The offspring of workers who had
in their childhoods been exposed to asbestos through their parents
are ageing.
The Insurance Journal also reported that other findings in the
A.M. Best report:
* No change has been made to the estimated net ultimate
environmental loss of $42 billion.
* A.M. Best sees ultimate industry losses for asbestos and
environmental (A&E) as hitting $142 billion.
* The P/C industry paid out more losses than it has incurred
since 2006. This means it paid out $16.7 billion for asbestos and
environmental claims over the past 5 years, but incurred $13.5
billion in losses.
* Annual incurred A&E losses have fluctuated in recent years.
For example, they jumped 10 percent in 2015 but decreased more
than 20 percent in 2014.
* Incurred losses for asbestos ticked up 3.6 percent in 2015,
and environmental losses soared 33 percent over the same period.
* At current payout levels, asbestos and environmental reserves
will be gone within 8 years and 7 years, respectively, assuming
there is no additional reserve strengthening.
* A&E loss payouts jumped 14 percent in 2015, driven by
Travelers ($824 million), Chubb/INA ($311 million) and Liberty
Mutual ($280 million) payouts.
Once extolled for its strength, versatility and heat resistance,
asbestos was widely used in construction before the mid-1970s. If
inhaled, however, its particles can cause diseases including
mesothelioma, a cancer, and asbestosis, a scarring of lung
tissues.
Today the toxic properties of asbestos are well known. But the
conditions it triggers can take decades to manifest and new
victims are still emerging. Insurers are paying out about $2.5bn a
year on historic policies, sometimes on legacy books of companies
they acquired.
In absolute terms, the additional forecast expenses are comparable
to the most costly recent US catastrophes. Hurricane Sandy caused
less than $20bn in insured property damage when it devastated
chunks of the east coast four years ago.
The asbestos payouts are to be made over several years, however,
and should be easily absorbed by the well-capitalised and
diversified global insurance industry, analysts said.
AM Best says asbestos and environmental claims have added an
average of only 0.6 basis points over the past five years to the
industry's "combined ratio" of claims paid and expenses incurred
as a proportion of premium income.
ASBESTOS UPDATE: EPA To Consider Banning Asbestos
-------------------------------------------------
Timothy Cama, writing for The Hill, reported that the
Environmental Protection Agency has prioritized 10 chemicals,
including asbestos, that could be banned under a new chemical
safety law.
The EPA released the list of chemicals, the first set of
substances that it is reviewing under the Frank R. Lautenberg
Chemical Safety for the 21st Century Act, signed into law earlier
this year.
Along with asbestos, the list includes the solvent methylene
chloride, dry cleaning substance tetrachloroethylene, solvent 1-
Bromopropane and others.
The release kicks off a three-year period during which the EPA
must study whether the chemicals present unreasonable risks to
human health or the environment. That could lead to restrictions
or bans on their use.
"Under the new law, we now have the power to require safety
reviews of all chemicals in the marketplace" Jim Jones, the EPA's
assistant administrator for chemical safety, said in a statement.
"We can ensure the public that we will deliver on the promise to
better protect public health and the environment."
Asbestos was a poster child in recent years for efforts to reform
the Toxic Substances Control Act of 1976.
While the substance is widely known as a carcinogen, a federal
court blocked the EPA from restricting its use in 1991.
Advocates framed that decision as evidence that the original law
was ineffective and toothless. All in all, the EPA was only able
to ban a small handful of chemicals under the 1976 act.
Supporters welcomed the EPA's progress in implementing the new
law.
"The potentially dangerous chemicals on this list are long overdue
for attention from EPA," the Environmental Defense Fund said in a
statement. "This action is a sign that the reformed law, passed
with overwhelming bipartisan support, is on the right track."
ASBESTOS UPDATE: Asbestos Imports Continue Despite Canadian Ban
---------------------------------------------------------------
Doug Schmidt, writing for Windsor Star, reported that five years
after Canada ended more than a century of asbestos mining due to
health concerns, the country's No. 1 workplace killer continues to
be imported.
"Why would you import this horrific material when people are dying
of it?" Jo-Anne MacMillan asked at a news conference at the Unifor
Local 200-444 union hall.
Asbestos imports nearly doubled in value between 2011 and 2015, to
$8.2 million last year. Meanwhile, the numbers and cases of deaths
attributed to mesothelioma -- an aggressive form of cancer caused
primarily by workplace asbestos exposure -- has been on the rise,
according to figures released this year by Statistics Canada.
It's estimated the disease will kill more than 2,000 Canadians
this year.
Few probably know better the horror of asbestos exposure leading
to mesothelioma and death than MacMillan, who lost three family
members to the disease. Her Windsor-born brother Tom Dunn, a
Bendix worker, died in 1981 at age 35, leaving behind a wife and
two daughters.
The day after the 2005 funeral of her other brother Paul Dunn --
the "loving and fun" Kelsey-Hayes worker, 58, left behind a wife
and son -- her sister Rose-Marie Seagull was also diagnosed. Dead
at age 70 in 2005, Seagull left behind three children and six
grandchildren.
Shannon Bellaire, one of Tom Dunn's daughters, remembers the "god-
awful wrenching noise . . . of my father crying in severe pain"
when she was a child. She called it a "tragedy" that Canada still
permits asbestos imports (these include brake pads, pipes, pipe
fittings, tiles, paper products, clothing and footwear).
"My concern is we're still going to see a lot of cases of people
who worked with asbestos many years ago -- do we really have to
bring more asbestos into the country?" said Dr. Deborah Hellyer, a
Windsor-based occupational health physician and lung disease
specialist.
The Canadian Labour Congress has launched a national campaign
calling for a comprehensive ban on asbestos. Earlier this year,
Prime Minister Justin Trudeau pledged his government was "moving
to ban asbestos," but critics said they've seen little movement.
Canada "hit it out of the park" when it ended the mining of
asbestos, said Windsor & District Labour Council president Brian
Hogan. "Now we're importing it. Why? Because it's cheaper," he
said, adding there are safer, made-in-Canada alternative products.
Essex County council in August voted to support the CLC's campaign
for a comprehensive asbestos ban. LaSalle Mayor Ken Antaya said at
the time he was "shocked to hear its use is still so prevalent."
Hogan said campaigners are hoping to soon address Windsor city
council. MP Sheri Benson (NDP -- Saskatoon West) introduced a
private member's bill calling for an end to asbestos use in
Canada.
Windsor's Lois Comartin said she and her children wonder whether
they, too, will eventually be killed by the mesothelioma that
claimed her husband Don in 1996. From 1960 to 1990, the skilled
tradesman installed and removed furnaces and "handled asbestos on
every job" without a mask.
"I did his laundry, we slept together and we kissed . . . we never
thought of danger," said Comartin.
Hellyer said asbestos was used in vehicles, infrastructure, homes,
hospitals, libraries, factories and schools. Especially when
disturbed -- for example when it's removed or cut -- even minute
amounts, once inhaled, can lead to potentially fatal disease years
or even decades later.
In addition to those with mesothelioma, Hellyer said she sees
patients suffering asbestosis and lung cancer due to asbestos
exposure. It's also been associated with larynx, stomach and
colorectal cancers, she said.
Asbestos was "improperly handled for many years -- and continues
to be," said Jon Arnold, regional representative with Ontario's
Workers Health & Safety Centre. A former Dow Chemical worker,
Arnold recalls a large stripping operation in the 1980s where "it
was snowing asbestos."
Arnold said there's still a need to have all sources of asbestos
identified so that proper precautions can be taken.
ASBESTOS UPDATE: Asbestos Risk Assessed at 5,000 Irish Homes
------------------------------------------------------------
Newsletter.co.uk reported that hundreds of homes in Northern
Ireland have areas effectively placed out of bounds due to
asbestos contamination with almost 5,000 more under review, the NI
Housing Executive has said.
In response to an Assembly question from Andy Allen MLA, the NIHE
said it was "in the process of arranging for this asbestos to be
removed".
The Ulster Unionist representative said he was shocked to learn
the scale of the problem.
"This means that effectively, tenants living in 326 properties are
barred from going into parts of their homes, like their lofts, on
health and safety grounds," he said.
Asbestos was widely used in roofing, flooring and insulation
before it was banned in the UK, with many buildings, constructed
before 2000, potentially affected.
Many of those who have become ill with lung problems as a result
of exposure to the microscopic fibres worked as joiners, pipe
laggers, plumbers and electricians.
Mr Allen said: "The asbestos present in these properties not only
causes the tenants ongoing disruption by having restrictions
placed upon their household but, if disturbed, can cause severe
health repercussions for people exposed to this hazardous
material. In answer to my question, the minister for communities
has told me that the Housing Executive is in the process of
arranging for this asbestos to be removed."
He added: "We need a lot more detail on what the plan is, what the
timetable is, and what it will cost. What the department and the
Housing Executive needs to show is that they have a policy of not
only reviewing their housing stock, but safely removing asbestos
where it is discovered."
The four main diseases directly related to asbestos are
mesothelioma (cancer mainly affecting the lining of the lungs),
asbestos-related cancer, asbestosis (non-malignant scarring of
lung tissue) and non-malignant pleural disease -- with symptoms
often not appearing for decades after exposure.
In response to the written Assembly question, the NIHE said it
"continually reviews its stock in relation to asbestos where
planned works are proposed," and added: "There are 326 properties
which currently have restrictions in place. With regards to these
properties the Housing Executive is in the process of arranging
for this asbestos to be removed."
ASBESTOS UPDATE: AM Best Ups Asbestos Losses Estimate to $100MM
---------------------------------------------------------------
A.M. Best has increased its estimate for losses that U.S.
property/casualty insurers can ultimately expect from third-party
liability asbestos claims by approximately 18% to $100 billion.
The $15 billion increase to the net ultimate asbestos loss
estimate comes as insurers are incurring approximately $2.1
billion in new losses each year while paying out nearly $2.5
billion on existing claims. The updated figures are contained in a
new Best's Special Report, titled "A.M. Best Increases Estimate
for Net Ultimate Asbestos Losses to $100 Billion." The report also
states that A.M. Best is not making any change to its $42 billion
estimate on net ultimate environmental losses; therefore, A.M.
Best's view of ultimate industry losses for asbestos and
environmental (A&E) is now $142 billion.
According to the report, industry funding of the $142 billion in
net A&E exposures has reached approximately $124 billion, broken
out by $98.1 billion in cumulative paid-to-date losses and $26.3
billion in reserves set aside for future payments. This translates
into a funding rate of 88% of ultimate A&E exposures, or
approximately $85 billion of asbestos funding (85% funded) and $40
billion of environmental funding (94% funded).
A.M. Best utilizes a combination of three approaches when
evaluating an insurer's A&E reserve adequacy: historic premium
market share, post-1990 paid loss share (1991-2015) and three-year
survival ratios. Consistent with historical trends, the industry
has continued to pay out more losses than it has incurred (funded)
since 2006, paying out $16.7 billion for asbestos and
environmental claims over the past five years, while incurring
$13.5 billion in losses. The industry has incurred $10.5 billion
in asbestos losses over the past five years, while paying out
$12.7 billion. A&E reserves have not declined by a significant
amount, but they have decreased in nine of the past 10 years,
including a 2.9% fall in 2015, with the only exception being a
slight uptick in 2010.
A.M. Best believes the property/casualty industry's asbestos
losses will continue to be an issue given an unstable environment
faced with evolving litigation, increasing secondary exposure
cases and an increase in life expectancy. Asbestos losses continue
to dominant the discussion around the industry's A&E exposures,
comprising more than 80% of total A&E liabilities. However, it is
extremely difficult to quantify the industry's ultimate loss
exposure, given the evolving nature of asbestos litigation, tort
reform and the growing incidence of lung cancer being linked to
asbestos exposure. A.M. Best will continue to monitor asbestos
litigation and losses and will periodically revisit its benchmarks
as needed.
To access a copy of this report, please visit
http://www3.ambest.com/bestweek/purchase.asp?record_code=256155.
A.M. Best Company is the world's oldest and most authoritative
insurance rating and information source. For more information,
visit www.ambest.com.
Contacts:
A.M. Best
Brian O'Larte
Associate Director
+1 908 439 2200, ext. 5138
brian.o'larte@ambest.com
or
Christopher Sharkey
Manager, Public Relations
+1 908 439 2200, ext. 5159
christopher.sharkey@ambest.com
or
Jim Peavy
Director, Public Relations
+1 908 439 2200, ext. 5644
james.peavy@ambest.com
ASBESTOS UPDATE: Israeli Fires Raise Concerns Over Exposure
-----------------------------------------------------------
Mesothelioma.net reported that the fires that have been raging in
Israel's Haifa and Beit Meir regions have been a national
catastrophe, but now that they have been successfully
extinguished, they are raising new concerns about the risk of
mesothelioma caused by exposure to asbestos.
In Israel as throughout the rest of the world, many buildings were
originally constructed using asbestos. The material was prized for
its many positive characteristics, including the ability to add
strength and flame and heat resistance. It is a highly effective
form of insulation that does not conduct electricity, and that
means that it is used in infrastructure, in wiring, in plumbing
and many other construction applications.
Unfortunately, in the mid-1970s it became widely known that the
material is also highly carcinogenic. Exposure to asbestos fibers
has been linked with the development of a number of serious
illnesses, including malignant mesothelioma, asbestosis, and
asbestos-related lung cancer. Though Israel has banned the use of
the material for years, it has remained in place in structures
where it was initially used, and now that those buildings have
been subjected to fire and destruction, there is a very real fear
that the damaged materials will become airborne and expose
residents to inhaling or ingesting the fibers.
People who live in the vicinity or who are traveling in the area
where the arson fires took place have been urged to use protective
gear over their face in order to avoid inhaling these tiny
particles, and those who live in the area have been instructed to
close their windows and to keep car windows shut when driving
nearby. The country's Environmental Protection Ministry has issued
a warning that civilians should not come within 50 meters of those
buildings that have been burned, particularly because the high
heat of the fires may have added to the material's dangers.
According to a spokesman, "During the fire, the cement locked in
the burned boards. The boards made of asbestos began to come
apart, and asbestos fibers were released into the air. Asbestos
fibers change their shape only when the temperature reaches above
700 degrees Celsius. It is therefore imperative to work as quickly
as possible in order to remove the asbestos from all affected
sites."
Asbestos exposure has created a problem worldwide. Inhaling or
ingesting the fibers of this powerful carcinogen can lead to
asbestosis, mesothelioma and other serious and deadly illnesses.
In the United States, many were exposed as a result of negligence
on the part of asbestos manufacturers. These victims are now
eligible to file mesothelioma lawsuits to provide compensation for
the damages that they have suffered. If you have been diagnosed
with an asbestos-related illness, you may qualify to file one of
these suits to provide for yourself and your family. For more
information, contact Danziger & De Llano Legal Advocates today at
1-800-692-8608 or visit our website at
http://mesothelioma.net/mesothelioma-attorneys/.We are here to
help.
ASBESTOS UPDATE: Leeds Man Killed by Asbestos Disease
-----------------------------------------------------
Charles Edwin Harrison, writing for Yorkshire Evening Post,
reported that the family of a man who died from the asbestos-
related cancer mesothelioma is appealing for information about his
time working as a tailor in Leeds.
Charles Edwin Harrison, known as Eddie, was employed from 1948 to
1974 at Benjamin Simon and Sons Limited, where large presses were
used to make clothing.
Mr Harrison, from Garforth, died last December aged 88, just three
days after being diagnosed with mesothelioma.
Now his family has asked Thompsons Solicitors to investigate the
working conditions at his old firm.
Mr Harrison's daughter, Christine, said: "My dad was always
active, he enjoyed watching rugby with his friends and walking the
dog.
"When he suddenly stopped eating we knew something was wrong and
we were obviously distraught when we found out he was terminally
ill.
"Mesothelioma is such an aggressive disease and dad died just
three days after we found out what was wrong with him.
"He spent the majority of his career working for Benjamin Simon
and Sons Limited, so we're hopeful that one of his colleagues, or
anyone who worked for the company during the same time period,
will share whatever information they have with Thompsons."
Benjamin Simon and Sons was part of Leeds's booming clothing
industry when the city was the world's centre of tailoring.
The firm had a factory in Kirkstall Road and its name ranked
alongside contemporaries such as Alexandre and Burton.
ASBESTOS UPDATE: Labour Dept. Closes Rustenburg Court
-----------------------------------------------------
Sifiso Zulu, writing for Eyewitness News, reported that the South
African Justice Department in the North West has confirmed the
Rustenburg Magistrates Court has been closed, because of health
concerns.
The Department of Labour closed the court following an inspection.
Officials are concerned about asbestos in the building's roof.
Court cases are now being heard in other locations in the city.
The department's Tsietsie Malema says it anticipates the court
will reopen next year.
"The Department of Public Works, which is responsible for the
maintenance, appointed an approved service provider who is
qualified to handle and remove asbestos. They will finish the work
next year January."
ASBESTOS UPDATE: Peterborough Council Urges Ban on Asbestos
-----------------------------------------------------------
Jason Bain, writing for The Peterborough Examiner, reported that
Jim Dufresne says he retired at age 58 because he was tired of his
co-workers dying.
The 70-year-old Warsaw man, a cancer survivor who remembers
throwing snowballs made of asbestos early on during his 42 years
of working at General Electric (GE) in Peterborough, said eight
former colleagues have died in the past year alone.
"I'm sick and tired of going to funerals," he said as the
Peterborough and District Labour Council hosted a press conference
at its Romaine St. office, as part of a nation-wide campaign,
asking the federal government to commit to a comprehensive ban on
asbestos.
Organizers first played a short video about the dangers of
asbestos that included statistics, such as how asbestosis,
mesothelioma and lung cancer kills more than 2,000 Canadians
annually and is the leading cause of work-related deaths.
Councils across the country are asking for a ban on importing and
exporting asbestos, a ban on products containing it as well as a
national registry to help inform people about the risks of being
exposed to the silicate mineral.
"We need to make sure we don't let another generation of workers
die because of something that is completely preventable,"
president Marion Burton said.
There has been some progress to indicate government agrees with
the call, she said. For example, banning asbestos in the
construction of federal buildings.
A private member's bill introduced Nov. 16 by Saskatoon West MP
Sheri Benson calls to ban products that cause significant danger
to the environment or to human life or health.
While Canada's last asbestos-producing mine closed in 2012, the
country's imports of the product are growing, from $4.7 million in
2011 to $8.2 million in 2015. Some 56 other countries have banned
the product, labour councils stated.
Nothing short of a complete ban will eliminate the danger, Burton
said. "It just digs in and it kills ... we need immediate action
... so that everyone is protected."
Dufresne, one of three guest speakers to share their story
Wednesday, pointed out that it only takes one particle in your
body to cause cancer.
He and co-workers used to clean out a building on the roof of GE
where the material was collected, a task referred to as "plucking
the goose." They used aprons and gloves made of asbestos that,
when in need of repair, were patched with the known carcinogen.
Dufresne said he also used to load asbestos when consumers could
buy it at the Monaghan Rd. Facility in order to insulate their
homes. He recalled removing 32 leaf bags of the known cancer-
causing material from the attic of his own home in Warsaw.
Sue James, a former GE worker and chairwoman of the Gary Lane
Project -- a coalition helping GE workers with asbestos illnesses
-- lost her father, Gord Rath, to lung cancer in 1996 and her
mother, Dagny Rath, to pleural fibrosis, in 2013.
Her dad's lung cancer was linked to being exposed to asbestos for
36 years and she believes her mother was also a victim, that the
scarring of the non-smoker's lungs was a result of washing her
husbands clothes while he worked at the factory.
"So, we're all at risk," she said. "For me, it's a personal
endeavour."
In the four decades she worked at GE, James said she saw
"hundreds" of co-workers die, many at a young age, as a result of
exposure to asbestos.
The statistics are clear, she said, asking the government to "take
their hands out of their pocket" and speak for those who no longer
can.
"We need a ban ... to protect everybody going forward," James
said. "I can't understand why we haven't stopped it, because it is
an epidemic."
Heather Brooks-Hill, the co-chairwoman of the Occupational and
Environmental Health Coalition- Peterborough, also spoke
Wednesday.
The group works to ensure fair compensation for workers with
occupational disease and their families and for the community
right to know of potential toxins in the environment from
industrial workplaces in the city and area, she said.
CAREX Canada, a surveillance project that estimates the number of
Canadians exposed to substances associated with cancer in
workplace and community environments, estimates that 150,000
Canadians are exposed to asbestos at work.
It often takes decades for the illnesses to come to light. In
Canada, the number of new mesothelioma cases reported annually has
doubled in the last two decades, from 275 in 1992 to 560 in 2012,
labour council officials stated.
Burton pointed out several local newspaper stories published over
the years clearly illustrate just how dangerous asbestos is.
"This community is well aware. It's time for our government to
take a stand ... if they don't ban it (the epidemic) is going to
continue."
ASBESTOS UPDATE: Rainham Man Dies From Asbestos Exposure
--------------------------------------------------------
Ann-Marie Abbasah, writing for Romford Recorder, reported that a
grieving family are appealing to former colleagues of a much-loved
man to help with an investigation into asbestos exposure.
Bill Wyatt, of Ingrebourne Road, Rainham, worked at the Tate &
Lyle factory in Silvertown, North Woolwich, between 1957 and 1993.
Following a fall at his home, the former yard gang member,
boilerman and tinsmith was admitted to hospital on Saturday, March
19.
Describing the ordeal, his son Malcolm said: "It was only when he
was in hospital that I found out from the doctor that dad had a
form of cancer caused by asbestos.
"They told me it was in his lungs and had spread. Two weeks later
he was gone."
After an inquest into his death, Walthamstow coroner Nadia Persaud
ruled that Mr Wyatt died as a result of industrial disease.
The family are now seeking compensation from Tate & Lyle.
"We were married for 62 years," said widow Dorothy.
"Bill used to deal with all aspects of paperwork and our finances
because of my poor vision. He maintained our house and garden
beautifully.
"Even though he was so ill, he never complained and he did not
want me to be worried about his health."
During his career Mr Wyatt had to remove asbestos lagging from
heated pipes, boilers and air ducts, causing asbestos dust to
become airborne.
He also worked as a mechanic replacing the asbestos brake linings
on company vehicles before succumbing to asbestosis and malignant
mesothelioma, an aggressive form of cancer.
Isobel Lovett, industrial disease specialist at personal injury
solicitors Hodge Jones and Allen, said: "Through no fault of his
own, Mr Wyatt died of a terminal condition, which could have been
prevented.
The family hope former colleagues can provide information about
working conditions.
Tate & Lyle declined to comment.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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