/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161209.mbx C L A S S A C T I O N R E P O R T E R Friday, December 9, 2016, Vol. 18, No. 246 Headlines ALABAMA: Inmates' Mental Health Suit Gains Class Action Status ALBANY ADVOCACY: Williams Wants OT Payment for Healthcare Workers ALPHA AIR: "Quinonez" Suit Alleges Failure to Pay for OT Work ALTEGRA HEALTH: Waterfront Terrace's Placeholder Motion Tossed AMERICAN MOTOR: Certification of Class Sought in "Mohamed" Suit APPLE METRO: Certification of Subclasses Sought in "Marin" Suit APPLE METRO: Certification of Subclasses Sought in "Dove" Suit ARCELORMITTAL SA: February 16 Settlement Fairness Hearing Set ASHLEY FURNITURE: Dugan's Class Certification Bid Denied ASSOS INC: Accused by Roussodimou of Withholding Earned Wages ASTRAZENECA PLC: Obtains Favorable Ruling in Nexium Class Action AUBURN ARMATURE: New United Suit Seeks Certification of Class AUDI AG: Faces "Alvarez" Suit in Northern Dist. of California AUTO CLUB: Neibarger, et al. Seek Certification of FLSA Class AUTONATION INC: "Reed" Suit Seeks to Recoup Pay Under Cal. Law AUTOZONE INC: Court Refuses to Reconsider Decertification Order AZ COMPASSIONATE: Faces "Llewellyn" Suit in District of Arizona B/E AEROSPACE: Trust Seeks to Enjoin Rockwell Collins Merger BANK OF AMERICA: RICO Claims Tossed in Mortgage Reinsurance Case BARCLAYS BANK: July 18 BARX Settlement Fairness Hearing Set CEMEX CONSTRUCTION: Court Denied Class Certification in "Deere" CHINA FINANCE: March 21 Settlement Fairness Hearing Set CHUNG CHOU CITY: "Lao" Seeks to Recover Unpaid Wages Under FLSA COMCAST CABLE: Fails to Give Meal/Rest Periods, "Scott" Suit Says COVENTRY HEALTH: Social Workers Class Certified in Williams Suit CPN MECHANICAL: Faces "Dolmo" Suit in Eastern Dist. of New York DICK'S SPORTING: Court Denied Class Certification Bid in "Ngiem" DOMINO'S PIZZA: Pennington Seeks to Certify Delivery Driver Class DT HOSPITALITY: Faces "Lee" Suit in Southern Dist. of New York DW SANDERS: "Rogers" Suit Seeks to Recover Overtime and Damages DYNAMIC INTEGRATED: Fails to Pay Overtime, "Pierre" Suit Claims EL CASTILLO: Fails to Pay OT and Minimum Wages, "Porro" Suit Says ELECTRICITY MAINE: Faces Fraud Class Action in Portland FIFTH STREET: February 16 Settlement Fairness Hearing Set FLOWER FOODS: Court Certifies Class Under FLSA in "Richard" Suit FOGLE ENTERPRISES: Court Issues Prelim. Class Certification Writ FOREMOST INSURANCE: "Braden" Suit Seeks Certification of Class INDIANA: Faces Class Action Over Civil Forfeiture Law JACKSON NATIONAL: Tredinnick Sues Over Improper Surrender Charges LIFE INSURANCE: Faces "Bogner" Suit Alleging ERISA Violations M + M COMMUNICATIONS: Sigui Moves to Certify Two FLSA Classes MANUFACTURERS FINANCIAL: Faces Compressor Suit in E.D.N.Y. MRS BPO: Faces "Schwaner" Suit in Eastern Dist. of New York MYLAN NV: Faces "Muchin" Suit in Calif. Over Overpriced EpiPens NAVAJO EXPRESS: "Dianne" Suit Moved from Super. Ct. to C.D. Cal. NEWMAN'S OWN: Faces "Wong" Suit in Eastern Dist. of New York NOVA SCOTIA: Africville Residents' Suit Heads to Supreme Court PMF STEEL: Violates Wage and Hour Laws, "Culajay" Suit Alleges POMONA, CA: Lockers for Homeless Opened Following Class Action PROGRESSIVE CASUALTY: Faces "Jones" Suit in N.D. of California PRUDENTIAL SECURITY: Court Certifies Class in "Kritcher" Suit RENOVATE AMERICA: "Ramos" Suit Moved from Super. Ct. to C.D. Cal. RENOVATE AMERICA: "Richardson" Suit Moved to C.D. of California RENUE SYSTEMS: Gorss Motels Suit Seeks Certification of Class RENZENBERGER INC: Court Certified Waiting Time Class in "Wright" SAN BERNARDINO, CA: Turner et, al. Seeks Certification of Class SHK MANAGEMENT: "Tan" Suit Claims FLSA, NY Labor Law Violations SHUTTERFLY INC: Sued by Monroy for Storing Biometric Identifiers STATE FARM: In-House Counsel Plays Key Role in Court Ruling SUNDAY RILEY: Faces "Armstrong" Suit in S.D. of New York SUNRISE FAMILY: Ellis Moves Certification of Two FLSA Subclasses TRANSNATIONAL FOODS: Faces "Lejbman" Suit in S.D. of Florida TWO JINNS INC: Parties Seek Approval of "Shelby" Class Settlement UNITEDHEALTH GROUP: K. Fellgren Sues Over Prescription Bogus Fees VOLVO: Suit Over Sunroof Leak Still Trying to Get Certification WALLACE RUSH: Thomas Seeks Certification of Class Under FLSA WAL-MART STORES: Appeal Filed in Pennsylvania Superior Court WCI COMMUNITIES: Bushansky Questions Efforts to Sell to Lennar WELLS FARGO: "Stanton" Suit Moved from Cir. Ct. to M.D. Fla. WESTERN RECYCLERS: "Poullard" Lawsuit Seeks OT Pay Under FLSA WEX INC: Court Denies Swinter Group's Bid for Class Certification WHOLESOME GOURMET: Faces "Valentin" Suit Under FLSA, NY Labor Law * Class Actions Over Unpaid Overtime Gain Traction in Canada * Options for Challenging Class Action Authorization Reduced * Securities Class Actions on the Rise in U.S., AGCS Says Asbestos Litigation ASBESTOS UPDATE: GE Dropped as Defendant in "Perez" ASBESTOS UPDATE: Calif. Inmates' Civil Rights Suits Dismissed ASBESTOS UPDATE: Kaanapali Continues Talk with FFIC on Insurance ASBESTOS UPDATE: D/C Continues to Defend A&F Suit at Sept. 30 ASBESTOS UPDATE: D/C Lift Stay Issue Remains Pending at Sept. 30 ASBESTOS UPDATE: Westrock Co. Faces 693 Suits at Sept. 30 ASBESTOS UPDATE: Cabot Ups Respirator Liabilities Reserve to $21M ASBESTOS UPDATE: JCI Has $116MM Asbestos Liability at Sept.30 ASBESTOS UPDATE: Johnson Controls Has $148M Liability at Sept. 30 ASBESTOS UPDATE: Scotts Miracle-Gro Still Faces Suits at Sept. 30 ASBESTOS UPDATE: Telecom Italia Directed to Pay Asbestos Damages ASBESTOS UPDATE: Mallinckrodt Faces 11,700 Cases at Sept. 30 ASBESTOS UPDATE: Maremont Faces 5,800 Asbestos Claims at Sept. 30 ASBESTOS UPDATE: Maremont Has $72MM Liabilities at Oct. 2 ASBESTOS UPDATE: Maremont May Face Up to $83MM Injury Claims ASBESTOS UPDATE: Rockwell Faces 3,200 AM Claims at Oct. 2 ASBESTOS UPDATE: Rockwell Had $61-Mil. Liabilities at Oct. 2 ASBESTOS UPDATE: Rockwell May Face Up to $75MM PI Claims ASBESTOS UPDATE: Calif. Court Allows Inmates to Amend Suit ASBESTOS UPDATE: Cal. App. Affirms Ruling in "Evans" ASBESTOS UPDATE: Court Denies Bid to Remand Action "French" ASBESTOS UPDATE: Cal. App. Affirms Summary Judgment in "Kase" ASBESTOS UPDATE: Cal. App. Flips Dismissal Order in "Kordestani" ASBESTOS UPDATE: Court Grants IDC's Bid to Dismiss "Lindsay" ASBESTOS UPDATE: NY Police Allowed To Pursue Sec. 205-e Claim ASBESTOS UPDATE: 3rd Circ. Reverses Remand Ruling in "Papp" ASBESTOS UPDATE: "Loupe" Remanded to Louisiana State Court ASBESTOS UPDATE: Pa. High Court Affirms Ruling in "Rost" ASBESTOS UPDATE: Newport News Cases Example of Broken System ASBESTOS UPDATE: Fight for State-Funded Treatment Continues ASBESTOS UPDATE: Patterson Schools Improperly Handled Asbestos ASBESTOS UPDATE: Councils Pay Out More Than GBP37,000 in Claims ASBESTOS UPDATE: Rules for Transfer Stations Customers Changing ASBESTOS UPDATE: Teacher Dies From Asbestos Exposure ASBESTOS UPDATE: Salvage Owner Jailed for Asbestos Violations ASBESTOS UPDATE: Woman Injured Through Secondary Exposure ASBESTOS UPDATE: Employers, Land Owners Have Duty to Protect ASBESTOS UPDATE: Ban Little Impact on Sweden Mesothelioma Rates ASBESTOS UPDATE: Pupils, Staff Get GBP10MM Pay for Illness ASBESTOS UPDATE: Lansing Inmate's Asbestos Suit Can Move Ahead ASBESTOS UPDATE: High Court Grants Woman Right to Sue Pipe-Maker ASBESTOS UPDATE: EPA Confirms Priority Action for Asbestos ********* ALABAMA: Inmates' Mental Health Suit Gains Class Action Status -------------------------------------------------------------- The Associated Press reports that a federal judge granted class- action status to a lawsuit filed by Alabama inmates who say the state is failing to provide constitutionally adequate mental health treatment. The decision by U.S. District Judge Myron Thompson clears the way for the case to go to trial next month. Lawyers for the inmates allege that Alabama has failed to identify, protect and treat mentally ill prisoners, leading to suicides and complications from untreated conditions that spiral out of control. "This ruling is very important for all of the people languishing within Alabama's prisons without the mental health care they need," said Maria Morris, an attorney with the Southern Poverty Law Center. "They need help, but many are incapable of standing up for their rights." Alabama Department of Corrections spokesman Bob Horton said the department is reviewing the decision. ALBANY ADVOCACY: Williams Wants OT Payment for Healthcare Workers ----------------------------------------------------------------- SHALEGRA WILLIAMS, individually and on behalf of all others similarly situated v. ALBANY ADVOCACY RESOURCE CENTER, INC., Case No. 1:16-cv-00216-LJA (M.D. Ga., November 29, 2016), is brought to recover alleged unpaid overtime compensation on behalf of all current or former home healthcare workers employed by the Defendant from January 1, 2015, to the present. Albany Advocacy Resource Center, Inc., is a Georgia corporation with its principal place of business located in Albany, Georgia. The Organization operates as a non-profit organization that supports people with disabilities by providing care and services for people of all ages with physical and mental disabilities. The Plaintiff is represented by: Justin T. Holcombe, Esq. Kris Skaar, Esq. SKAAR & FEAGLE LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Telephone: (770) 427-5600 Facsimile: (404) 601-1855 E-mail: jholcombe@skaarandfeagle.com kskaar@skaarandfeagle.com - and - James M. Feagle, Esq. SKAAR & FEAGLE, LLP 2374 Main Street, Suite B Tucker, GA 30084 Telephone: (404) 373-1970 Facsimile: (404) 601-1855 E-mail: jfeagle@skaarandfeagle.com - and - Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com ALPHA AIR: "Quinonez" Suit Alleges Failure to Pay for OT Work ------------------------------------------------------------- DANNY QUINONEZ on behalf of himself and others similarly situated, Plaintiffs, v. ALPHA AIR CONDITIONING, HEATING & ELECTRICAL LLC, Defendant, Case No. 4:16-cv-01092-O (N.D. Tex., December 1, 2016), alleges that Defendant is violating the Fair Labor Standards Act by forcing its employees to work a substantial amount of hours without paying all compensation due, thus depriving them of rightful compensation for their work that Alpha Air is legally obligated to pay. Alpha Air Conditioning Heating & Electrical LLC is an air conditioning and heating service provider. The Plaintiff is represented by: Robert W. Cowan, Esq. BAILEY PEAVY BAILEY COWAN HECKAMAN PLLC 440 Louisiana Street, Suite 2100 Houston, TX 77002 Phone: (713) 425-7100 Fax: (713) 425-7101 rcowan@bpblaw.com ALTEGRA HEALTH: Waterfront Terrace's Placeholder Motion Tossed -------------------------------------------------------------- In the lawsuit styled Waterfront Terrace, Inc., the Plaintiff, v. Altegra Health, Inc., et al., the Defendant, the Hon. Virginia M. Kendall entered an order dismissing Plaintiff's motion to certify a class. According to the docket entry made by the Clerk December 1, 2016, the motion hearing set for December 12, 2016 is stricken. In light of Chapman v. First Index Inc., 796 F. 3d 783 (7th Cir. 2015) and Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), as revised (Feb. 9, 2016), Plaintiff's placeholder class certification motion is dismissed as moot. Plaintiff filed the premature class action certification motion pursuant to Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) to protect the putative class from attempts by the Defendant to buy off the named plaintiff. Chapman overruled Damasco to the extent that it held that Defendant's offer of full compensation moots a litigation or otherwise ends a case or controversy. See Chapman, 796. F.3d at 787. Accordingly, because such premature motions are no longer necessary and are disfavored, see, e.g., Richardson v. Bledsoe, No. 15-2876, 2016 WL 3854216, at *8 (3d Cir. July 15, 2016), the placeholder class certification motion is dismissed as moot. Class discovery may continue and Plaintiff must file a substantive motion for class certification by Feb. 1, 2017. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=x1GsgiP9 AMERICAN MOTOR: Certification of Class Sought in "Mohamed" Suit --------------------------------------------------------------- The Plaintiff in the lawsuit styled RAY MOHAMED, individually and, on behalf of others similarly situated v. AMERICAN MOTOR COMPANY, LLC, et al., Case No. 1:15-cv-23352-MGC (S.D. Fla.), seeks certification of this class: All persons in the United States (i) who received a text message (ii) on his or her cellular telephone (iii) from Off Lease Only, Inc. or an agent of the same (iv) sent using an automatic telephone dialing system (v) from a period of four (4) years prior to the filing of the initial Complaint, September 4, 2011, to the date of class certification. The case is brought over alleged violation of the Telephone Consumer Protection Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=BTxy5O5X The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Suite 235 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com APPLE METRO: Certification of Subclasses Sought in "Marin" Suit ---------------------------------------------------------------- In the lawsuit captioned CARLOS MARIN, KENNY LEBRON, and MARTINA HANISCH, on behalf of themselves and all others similarly situated, the Plaintiffs, v. APPLE METRO, INC., et al., the Defendants, Case No. 1:12-cv-05274-ENV-CLP (E.D.N.Y.), the Plaintiffs ask the Court for an Order: (1) granting Plaintiffs' motion for partial summary judgment with respect to the Moving Plaintiffs; and (2) granting Plaintiffs' motion for Rule 23 Certification as to the proposed subclasses. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=l8hIxRxy The Plaintiffs are represented by: Ariel Y. Graff, Esq. Robert W. Ottinger, Esq. THE OTTINGER FIRM 401 Park Avenue South New York, New York 10016 Telephone: (212) 571 2000 E-mail: ari@ottingerlaw.com robert@ottingerlaw.com - and - Michael R. Minkoff, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. P.C. BORRELLI & ASSOCIATES, PLLC 655 Third Avenue, Suite 1821 New York, New York 10017 Telephone: (212) 867 5000 E-mail: mrm@employmentlawyernewyork.com atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com APPLE METRO: Certification of Subclasses Sought in "Dove" Suit -------------------------------------------------------------- In the lawsuit titled SHAUNTA DOVE, on behalf of herself and all others similarly situated, the Plaintiff, v. APPLE METRO, INC., et al., the Defendants, Case No. 1:13-cv-01417-ENV-CLP (E.D.N.Y.), the Plaintiffs ask the Court for an Order: (1) granting Plaintiffs' motion for partial summary judgment with respect to the Moving Plaintiffs; and (2) granting Plaintiffs' motion for Rule 23 Certification as to the proposed subclasses. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=MAfAQu1q The Plaintiffs are represented by: Ariel Y. Graff, Esq. Robert W. Ottinger, Esq. THE OTTINGER FIRM 401 Park Avenue South New York, New York 10016 Telephone: (212) 571 2000 E-mail: ari@ottingerlaw.com robert@ottingerlaw.com - and - Michael R. Minkoff, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. P.C. BORRELLI & ASSOCIATES, PLLC 655 Third Avenue, Suite 1821 New York, New York 10017 Telephone: (212) 867 5000 E-mail: mrm@employmentlawyernewyork.com atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com ARCELORMITTAL SA: February 16 Settlement Fairness Hearing Set ------------------------------------------------------------- If you bought Steel Products from one or more Defendants between April 1, 2005 and December 31, 2007, you may be affected by a Class Action Settlement. What is the Settlement about? Eight steel manufacturers, ArcelorMittal S.A. and ArcelorMittal USA, LLC (together "ArcelorMittal"), Nucor Corporation ("Nucor"), United States Steel Corporation ("U.S. Steel"), Gerdau Ameristeel Corporation ("Gerdau"), AK Steel Holding Corporation ("AK Steel"), Steel Dynamics, Inc. ("Steel Dynamics"), SSAB Swedish Steel Corporation ("SSAB") and Commercial Metals Company ("CMC") (collectively, "Defendants") were sued by several businesses ("Plaintiffs") who allege that the Defendants violated the U.S. antitrust laws by conspiring to slow down their furnace production, thus restricting their output of raw steel and causing artificially higher prices for certain Steel Products sold for delivery in the United States between April 1, 2005 and December 31, 2007. There has not yet been any determination of the merits of the case. Settlements have been reached with Nucor ($23.4 million), Steel Dynamics ($4.6 million) and SSAB ($2 million), which have agreed to pay a total of $30 million into a Settlement Fund. This is in addition to $163.9 million in settlements that were achieved with CMC, AK Steel, Gerdau, ArcelorMittal and U.S. Steel, which were approved by the Court in 2014. Settlements in the case now total $193.9 million. Nucor, Steel Dynamics and SSAB deny the allegations against them, deny that they have done anything wrong, and have asserted a number of defenses. Plaintiffs and Settling Defendants have agreed to settle to avoid the costs, distraction, and uncertainty of continued litigation. Who is a Class Member? You are a Class Member if you Purchased certain Steel Products directly from any of the Defendants or their subsidiaries or controlled affiliates at any time between April 1, 2005 and December 31, 2007 for delivery in the United States. In general, "Steel Products" include carbon steel slabs, plates, sheet and coil products, galvanized and other coated sheet products; billets, blooms, rebar, merchant bar, beams and other structural shapes; and other steel products derived from raw carbon steel and sold by Defendants. The terms "Steel Products" and "Purchased" are more specifically defined in the full Notice and the Settlement Agreements. Will I get a payment? If you are a Class Member and do not opt out, you will be eligible to file a claim at a later date to receive money from the Settlements. What are my rights? If you are a class Member and do not opt out, you will release certain legal rights against Nucor, Steel Dynamics and SSAB, as set forth in the full Notice and in the Settlement Agreements. If you do not want to take part in one or more of the Nucor, Steel Dynamics and/or SSAB Settlements, you have the right to opt out. To opt out, you must do so by January 12, 2017. Class Members have the right to object to the Settlements. If you want to object, you must do so by January 12, 2017. Information on how to opt out or object is contained in the full Notice and at www.SteelAntitrustSettlement.com. You may speak to your own attorney at your expense for help. When is the Approval Hearing? A Final Approval Hearing to consider approval of the Nucor, Steel Dynamics and SSAB Settlements is scheduled to be held in Courtroom 1719, Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604, on February 16, 2017, at 12:30 p.m. At that time, the Court will also consider Plaintiffs' Counsel's request for attorneys' fees reimbursement of litigation expenses, and incentive awards to Class Representatives, as well as a proposed Plan of Allocation and Distribution. You may appear at the hearing, but your attendance is not required. The date and location for this hearing may be changed on further Order of the Court. This is a Summary, where can I get more information? You can get complete settlement information, including a copy of the full Notice and the Settlement Agreements, by visiting www.SteelAntitrustSettlement.com ASHLEY FURNITURE: Dugan's Class Certification Bid Denied -------------------------------------------------------- In the lawsuit captioned Charissa Dugan, the Plaintiff, v. Ashley Furniture Industries, Inc., et al., the Defendant, Case No. 8:16- cv-01125-PA-FFM (C.D. Cal.), the Hon. Percy Anderson denied Plaintiff's Motion for class certification of: "all current and former hourly, non-exempt sales consultants who were employed by Defendant in the State of California during the period of May 11, 2012 through resolution of this action, and who were not reimbursed for personal cellular telephone expenses and losses incurred in the discharge of their duties". The Court said, "Given that Plaintiff has failed to meet her burden to demonstrate that a common question of law or fact exists, the Court concludes that the commonality requirement is not met. In light of the lack of commonality, Plaintiff has not satisfied Rule 23(a)". In reaching its decision, the Court did not rely on any evidence that was objected to; therefore, Plaintiff's and Defendant's evidentiary objections are denied as moot. In addition, Defendant's Request for Judicial Notice and Ex Parte Application for Leave to File a Sur Reply are denied as moot. A copy of the Court's Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=yq157n7m ASSOS INC: Accused by Roussodimou of Withholding Earned Wages ------------------------------------------------------------- Artemis Roussodimou, on behalf of herself and others similarly situated v. Assos, Inc. d/b/a Aegean Cafe, Stavros Kokkosis a/k/a "Steve", and Themis Konstantatos a/k/a "Timmy", jointly and severally, Case No. 2:16-cv-06609 (E.D.N.Y., November 30, 2016), alleges that the Defendants wrongfully withheld the Plaintiff's lawfully earned wages and overtime compensation, and misappropriated tips. Assos, Inc., doing business as Aegean Cafe, is a New York domestic corporation with a principal place of business located in Sayville, New York. The Individual Defendants are owners, principals, authorized operators, managers, shareholders or agents of the Company. The Company owns and operates the restaurant "Aegean Cafe" in Sayville. The Plaintiff is represented by: Yesy Sanchez, Esq. PARDALIS & NOHAVICKA, LLP 35-10 Broadway, Suite 201 Astoria, NY 11106 Telephone: (718) 777-0400 Facsimile: (718) 777-0599 E-mail: yesy@pnlawyers.com ASTRAZENECA PLC: Obtains Favorable Ruling in Nexium Class Action ---------------------------------------------------------------- Benchmark Monitor reports that a U.S. appeals court upheld the win for AstraZeneca PLC and Ranbaxy Laboratories in a lawsuit where drug wholesalers and health plans had accused them of striking an illegal deal to delay the launch of a generic version of AstraZeneca's heartburn drug, Nexium. The 2012 class action lawsuit accused AstraZeneca of paying Ranbaxy $700 million to delay launching a generic version of Nexium, and to abandon its challenges to AstraZeneca patents, which had expired in 2014. AUBURN ARMATURE: New United Suit Seeks Certification of Class ------------------------------------------------------------- In the lawsuit titled NEW UNITED, INC., an Illinois corporation, individually and as the representative of a class of similarly- situated persons, the Plaintiff, v. AUBURN ARMATURE, INC., a New York corporation, and JOHN DOES 1-5, the Defendants, Case No. 1:16-cv-10983 (N.D. Ill.), the Plaintiff asks the Court to certify a class of: "all persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice". To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. The Plaintiff further asks the Court to appoint Plaintiff as the class representative, and appoint Plaintiff's attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kXsYGHkG The Plaintiff is represented by: Brian J. Wanca, Esq. Anderson + Wanca 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 E-mail: bwanca@andersonwanca.com AUDI AG: Faces "Alvarez" Suit in Northern Dist. of California ------------------------------------------------------------- A class action lawsuit has been filed against Audi AG. The case is captioned Ernest Alvarez Individually, and On Behalf of a Class of Similarly Situated Individuals, the Plaintiff, v. Audi AG and Audi of America, LLC, the Defendants, Case No. 3:16-cv-06951-SK (N.D. Cal., Dec. 2, 2016). The case is assigned to Hon. Magistrate Judge Sallie Kim. Audi is a German automobile manufacturer that designs, engineers, produces, markets and distributes luxury vehicles. Audi oversees worldwide operations from its headquarters in Ingolstadt, Bavaria, Germany. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Marc Lawrence Godino, Esq. Kara M Wolke, Esq. Mark Samuel Greenstone, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067-2722 Telephone: (310) 201 9150 Facsimile: (310) 201 9160 E-mail: info@glancylaw.com mgodino@glancylaw.com kwolke@glancylaw.com mgreenstone@glancylaw.com - and - Rosemary M. Rivas, Esq. FINKELSTEIN THOMPSON LLP One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 398 8700 Facsimile: (415) 398 8704 E-mail: rrivas@finkelsteinthompson.com AUTO CLUB: Neibarger, et al. Seek Certification of FLSA Class ------------------------------------------------------------- In the lawsuit entitled JENNIFER NEIBARGER, and MELINDA KONDRACKI, individually and behalf of others Hon. Paul L. Maloney similarly situated, the Plaintiffs, v. THE AUTO CLUB GROUP, A Michigan Corporation, and AUTO CLUB SERVICES, INC., A Michigan Corporation, the Defendants, Case No. 1:16-cv-01196-PLM-RSK (W.D. Mich.), the Plaintiffs ask the Court for an order: a. conditionally certifying a collective action for unpaid overtime wages defined as: "all current or former Call Receivers, Product Specialists, Call Managers, Customer Service Representatives and Quality Assurance Specialists who worked for Defendants at any time in the three years prior to the filing of this action"; b. compelling Defendants to provide Plaintiffs with the names, all known addresses, e-mail addresses, cell phone numbers, as well as dates and location(s) of employment of the potential Collective members; c. authorizing a notice to the Collective members with a 90-day opt-in period; and d. appointing Sommers Schwartz, P.C. and Avanti Law Group, PLLC as interim class counsel. The Plaintiffs filed the lawsuit on behalf of themselves and all similarly situated current and former employees of Defendant to recover damages for Defendants' willful violation of the Fair Labor Standards Act (FLSA). The Plaintiffs, and those similarly situated, were subjected to Defendants' policy and practice of failing to pay overtime at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=bi7M197u The Plaintiffs are represented by: Matthew L. Turner, Esq. Neil B. Pioch, Esq. Sommers Schwartz, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355 0300 Facsimile: (248) 746 4001 E-mail: mturner@sommerspc.com npioch@sommerspc.com - and - Robert A. Alvarez, Esq. Victoria L. Smalley, Esq. Avanti Law Group, PLLC 600 28th Street SW Grand Rapids, Michigan 49509 Telephone: (616) 257 6808 Facsimile: (616) 257 8501 E-mail: ralvarez@avantilaw.com vsmalley@avantilaw.com AUTONATION INC: "Reed" Suit Seeks to Recoup Pay Under Cal. Law -------------------------------------------------------------- SPENCER LEON REED, individually and on behalf of all others similarly situated, Plaintiff, vs. AUTONATION, INC., a Delaware Corporation; and DOES 1 through 50, inclus1ve, Defendants, Case No. 2:16-cv-08916 (C.D. Cal., December 1, 2016), seeks to recover, among other things, unpaid compensation arising from DEFENDANTS' alleged failure to provide employees meal and rest periods as required under California law, and unpaid overtime compensation, unpaid minimum wage, and unreimbursed business expenses. AUTONATION, INC. -- https://www.autonation.com/ -- is an automotive retailer in the United States. The Plaintiff is represented by: Matthew J. Matern, Esq. Launa AdOlph, Esq. Kayvon Sabourian, Esq. MATERN LAW GROUP, PC 1230 Rosecrans A venue, Smte 200 Manhattan Beach, CA 90266 Phone: (310) 531-1900 Fax: (310) 531-1901 E-mail: mmatem@maternlawgroup.com ladolph@maternlawgroup.com ksabourian@matemlawgroup.com AUTOZONE INC: Court Refuses to Reconsider Decertification Order --------------------------------------------------------------- The Hon. Charles R. Breyer denied the Plaintiffs' motion for reconsideration of the order granting decertification in the multidistrict litigation titled In re: AutoZone, Inc., Wage and Hour Employment Practices Litigation, MDL No. 3:10-md-02159-CRB (N.D. Cal.). The litigation is a wage and hour case involving California AutoZone stores. On December 21, 2012, the Court certified a rest break class defined as: "All non-exempt or hourly paid employees who have been employed at Defendant's retail stores in the State of California at any time on or after July 29, 2005 until the date of certification." On August 10, 2016, the Court decertified the rest break class, holding in light of the evidence that came to light since certification that "Plaintiffs have failed to demonstrate predominance or manageability/superiority." A copy of the order denying the motion for reconsideration is available at no charge at https://goo.gl/lj3jPj Plaintiff Jimmy Ellison is represented by: Bevin Elaine Allen Pike, Esq. Robert Joseph Drexler, Jr., Esq. Daniela Saspe, Esq. Jonathan Sing Lee, Esq. Katherine Ward Kehr, Esq. Matthew Thomas Theriault, Esq. Raul Perez, Esq. Rebecca Labat, Esq. Robert Kenneth Friedl, Esq. Stan Karas, Esq. CAPSTONE LAW APC 1875 Century Park E, Suite 1000 Los Angeles, CA 90067-2533 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Bevin.Pike@CapstoneLawyers.com Robert.Drexler@CapstoneLawyers.com daniela.saspe@capstonelawyers.com Jonathan.Lee@CapstoneLawyers.com Katherine.Kehr@CapstoneLawyers.com Matthew.Theriault@CapstoneLawyers.com Raul.Perez@CapstoneLawyers.com Rebecca.Labat@CapstoneLawyers.com Robert.Friedl@CapstoneLawyers.com Stan.Karas@CapstoneLawyers.com - and - Marc Primo, Esq. Monica Balderrama, Esq. INITIATIVE LEGAL GROUP APC 1801 Century Park East, Suite 2500 Los Angeles, CA 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 E-mail: MarcPrimo@InitiativeLegal.com MBalderrama@InitiativeLegal.com - and - Mark R. Thierman, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: mark@thiermanbuck.com Plaintiffs Jimmy Ellison, Silvia Escobar, Haydee Escalante, Lynnetta Ellison, Mark Sanchez, Drake Price and Marsha Doland are represented by: Andrew Joseph Sokolowski, Esq. CAPSTONE LAW APC 1875 Century Park E, Suite 1000 Los Angeles, CA 90067-2533 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: andrew.sokolowski@capstonelawyers.com Plaintiff Silvia Escobar is represented by: Aldon Louis Bolanos, Esq. BOLANOS FIRM 700 E St., Suite 1000 Sacramento, CA 95814-1209 Telephone: (916) 446-2800 Facsimile: (916) 446-2828 E-mail: aldon@aldonlaw.com - and - Mark R. Thierman, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: mark@thiermanbuck.com Plaintiff Haydee Escalante is represented by: Gregg Lander, Esq. Kevin T. Barnes, Esq. LAW OFFICES OF KEVIN T. BARNES 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 Telephone: (323) 549-9100 Facsimile: (323) 549-0101 E-mail: lander@kbarnes.com Barnes@kbarnes.com - and - Giuseppe Joseph Antonelli, Esq. Janelle Christine Carney, Esq. LAW OFFICE OF JOSEPH ANTONELLI 14758 Pipeline Ave., Suite E Chino Hills, CA 91709 Telephone: (909) 393-0223 Facsimile: (909) 393-0471 E-mail: jantonelli@antonellilaw.com jcarney@antonellilaw.com Plaintiff Mark Sanchez is represented by: Mark Yablonovich, Esq. Christopher Richard Pantel, Esq. Joseph Steven Hoff, Esq. Patrick Joseph Clifford, Esq. LAW OFFICES OF MARK YABLONOVICH 1875 Century Park East, Suite 700 Los Angeles, CA 90067-2508 Telephone: (310) 286-0246 Facsimile: (310) 407-5391 E-mail: mark@yablonovichlaw.com Christopher@yablonovichlaw.com joseph@yablonovichlaw.com Patrick@Yablonovichlaw.com Plaintiff Drake Price is represented by: Alan Harris, Esq. Christina Marie Nordsten, Esq. David Covington Garrett, Esq. Priya Mohan, Esq. HARRIS & RUBLE 655 North Central Avenue, 17th Floor Glendale, CA 91203 Telephone: (323) 962-3777 Facsimile: (323) 962-3004 E-mail: HarrisA@harrisandruble.com cnordsten@harrisandruble.com dgarrett@harrisandruble.com pmohan@harrisandruble.com Plaintiff Jesus Lozacruz is represented by: Christopher Richard Pantel, Esq. Mark Yablonovich, Esq. Patrick Joseph Clifford, Esq. LAW OFFICES OF MARK YABLONOVICH 1875 Century Park East, Suite 700 Los Angeles, CA 90067-2508 Telephone: (310) 286-0246 Facsimile: (310) 407-5391 E-mail: Christopher@yablonovichlaw.com mark@yablonovichlaw.com joseph@yablonovichlaw.com Patrick@Yablonovichlaw.com Defendant AutoZone, Inc., is represented by: Michael E. Brewer, Esq. Alison Jacquelyn Cubre, Esq. Gregory G. Iskander, Esq. Jeffrey J. Mann, Esq. LITTLER MENDELSON, P.C. Treat Towers 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: (925) 932-2468 E-mail: mbrewer@littler.com acubre@littler.com giskander@littler.com jmann@littler.com - and - Amy C. Hirsh, Esq. Michael A. Hoffman, III, Esq. Ronald D. Arena, Esq. ARENA HOFFMAN LLP 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 Telephone: (415) 433-1414 Facsimile: (415) 520-0446 E-mail: ahirsh@arenahoffman.com mhoffman@arenahoffman.com rarena@arenahoffman.com Defendant AutoZoners LLC is represented by: Amy C. Hirsh, Esq. Kathryn M. Weeks, Esq. Michael A. Hoffman, III, Esq. ARENA HOFFMAN LLP 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 Telephone: (415) 433-1414 Facsimile: (415) 520-0446 E-mail: ahirsh@arenahoffman.com kweeks@arenahoffman.com mhoffman@arenahoffman.com AZ COMPASSIONATE: Faces "Llewellyn" Suit in District of Arizona --------------------------------------------------------------- A class action lawsuit has been filed against AZ Compassionate Care Incorporated. The case is styled Jason Llewellyn on behalf of himself and all others similarly situated, the Plaintiff, v. AZ Compassionate Care Incorporated doing business as TruMed; and Unknown Parties named as Does 1-100, inclusive, the Defendants, Case No. 2:16-cv-04181-DGC (D. Ariz., Dec. 2, 2016). The case is assigned to Hon. Judge David G Campbell. TruMed offers high quality disposable medical exam gloves. The Plaintiff is represented by: Chant Yedalian, Esq. CHANT & COMPANY 1010 N Central Ave. Glendale, CA 91202 Telephone: (877) 574 7100 Facsimile: (877) 574 9411 E-mail: chant@chant.mobi - and - David Wendell Williams, Esq. DAVIS MILES MCGUIRE GARDNER PLLC 40 E Rio Salado Pkwy., Ste. 425 Tempe, AZ 85281 Telephone: (480) 733 6800 Facsimile: (480) 733 3748 E-mail: dwilliams@davismiles.com B/E AEROSPACE: Trust Seeks to Enjoin Rockwell Collins Merger ------------------------------------------------------------ THE VLADIMIR GUSINSKY LIVING TRUST, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. B/E AEROSPACE, INC., AMIN J. KHOURY, JAMES F. ALBAUGH, DAVID J. ANDERSON, RICHARD G. HAMERMESH, WERNER LIEBERHERR, JONATHAN M. SCHOFIELD, MARY M. VANDEWEGHE, JOHN T. WHATES, ROCKWELL COLLINS, INC., and QUARTERBACK MERGER SUB CORP., Defendants, Case No. 12957- (Del. Court of Chancery, December 1, 2016), alleges that the Registration Statement in the acquisition of B/E Aerospace, Inc. by Rockwell Collins, Inc. omits material information regarding, among other things, potential conflicts of interest of B/E Aerospace's officers and directors and the Company's financial projections. The suit thus, seeks to enjoin the merger. B/E AEROSPACE, INC. -- http://beaerospace.com/-- is a distributor of aerospace fasteners and consumables for the commercial business jet and military markets. The Plaintiff is represented by: Richard A. Maniskas, Esq. RYAN & MANISKAS, LLP 995 Old Eagle School Road, Suite 311 Wayne, PA 19087 Phone: (484) 588-5516 - and - Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Phone: (302) 295-5310 BANK OF AMERICA: RICO Claims Tossed in Mortgage Reinsurance Case ---------------------------------------------------------------- HarrisMartin reports that a Pennsylvania federal judge has awarded Bank of America Corp. and its captive reinsurer summary judgment on Racketeer Influenced and Corrupt Organizations Act claims in a mortgage reinsurance kickback action, ruling that the claims are time-barred. In a Nov. 22 order, Judge Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania concluded that the plaintiffs had sufficient information of possible wrongdoing to place them on "inquiry notice" or to excite "storm warnings" of culpable activity. William Weiss, Robert Lessman, Ann Harrell and Eddie Harrell asserted class action claims against Bank of America Corp. (BAC). BARCLAYS BANK: July 18 BARX Settlement Fairness Hearing Set ----------------------------------------------------------- The following statement is being issued by Scott+Scott, Attorneys at Law, LLP and Korein Tillery LLC regarding Axiom Investment Advisors, LLC, by and through its Trustee, Gildor Management LLC v. Barclays Bank PLC and Barclays Capital Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AXIOM INVESTMENT ADVISORS, LLC, by and through its Trustee, Gildor Management LLC, Plaintiff, v. BARCLAYS BANK PLC and BARCLAYS CAPITAL INC., Defendants. Case No. 15-CV-09323 (LGS) NOTICE OF CLASS ACTION SETTLEMENT SUMMARY NOTICE OF CLASS ACTION SETTLEMENT If you Submitted a Trade or Trade Instruction for an FX Instrument to Barclays over BARX Between June 1, 2008 and April 21, 2016, You May Be Affected by a Class Action Settlement. "FX Instrument" means FX transactions in any deliverable or non- deliverable currency, including but not limited to FX spot, outright forwards, futures, non-deliverable forwards, swaps, options, and strategies, and any other instrument the trading of which is related in any way to FX rates. This notice is to alert you to a proposed settlement reached with defendants Barclays Bank PLC and Barclays Capital Inc. (collectively, "Barclays") in a class action. The lawsuit alleges that Barclays used an automated function called "Last Look" that delayed Barclays' response to trades or trade instructions for FX Instruments submitted over BARX (whether submitted on BARX directly or via an electronic communications network ("ECN") or other connection to BARX). The lawsuit alleges that Barclays used the Last Look function to hold such trades or trade instructions for a programmed delay period during which Barclays determined whether to accept or reject such trade or trade instruction based on, among other things, whether the market price moved beyond a certain threshold during that delay period. The lawsuit alleges that Barclays' Last Look practices violated contract law, the implied covenant of good faith and fair dealing, and New York General Business Law Sections 349 and 350. The lawsuit was brought by, and on behalf of, persons who submitted trade or trade instructions for FX Instruments to Barclays over BARX. Barclays denies that the allegations of the complaint have merit. A proposed settlement has been reached with Barclays. Barclays has agreed to pay $50,000,000 ("Settlement Fund"). The United States District Court for the Southern District of New York ("Court") authorized this notice. Before any money is paid, the Court will hold a hearing to decide whether to approve the settlement. Approval of the settlement by the Court will resolve this lawsuit in its entirety. WHO IS A SETTLEMENT CLASS MEMBER? Subject to certain exceptions, the Settlement Class includes all persons who, between June 1, 2008 and April 21, 2016, submitted a trade or trade instruction for an FX Instrument to Barclays over BARX (whether submitted on BARX or via an ECN or any other connection to BARX) to which Barclays applied Last Look, or as to which Barclays engaged in any other conduct that is the subject of a Released Claim and who were either (i) domiciled in the United States, or (ii) (a) domiciled outside the United States and (b) had such trade or trade instruction routed over a Barclays server in the United States. The capitalized terms used in this paragraph are defined in the Settlement Agreement, which can be accessed at www.BarxLastLookSettlement.com. If you are not sure if you are included in the Settlement Class, you can get more information, including a detailed notice, at www.BarxLastLookSettlement.com by calling toll free (800) 231-1815 (if dialing from outside the United States or Canada, call (614) 553-1610). WILL I GET A PAYMENT? If you are a member of the Settlement Class and do not opt out of the Settlement Class, you will be eligible for a payment under the settlement if you file a proof of claim and release form. The amount of any payment will be determined by the Proposed Plan of Distribution. Details about the Proposed Plan of Distribution are available at www.BarxLastLookSettlement.com. A date for distribution of the Settlement Fund has not been set. Proof of claim and release forms must be postmarked by May 19, 2017, or sent in electronically through www.BarxLastLookSettlement.com on or before 11:59 p.m. Eastern Time on May 19, 2017. WHAT ARE MY RIGHTS AS A CLASS MEMBER? If you are a member of the Settlement Class and do not opt out, you will release certain legal rights against Barclays and the Released Parties, as explained in the detailed notice and settlement agreement, which are available at www.BarxLastLookSettlement.com. If you do not want to take part in the proposed settlement, you must opt out by March 30, 2017. You may, but do not have to, comment on or object to the proposed settlement, the Proposed Plan of Distribution, or class counsel's application to the Court for an award of attorneys' fees, expenses, and a service award to the plaintiff for representing the Settlement Class. To do so, you must submit your written comment or objection by March 30, 2017. Information on how to opt out or submit comments or objections is contained in the detailed notice and at www.BarxLastLookSettlement.com. WHEN IS THE FAIRNESS HEARING? The Court will hold a hearing on July 18, 2017, at 4:30 p.m., before the Hon. Lorna G. Schofield of the United States District Court for the Southern District of New York, Courtroom 1106, Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, NY 10007 to consider whether to approve the proposed settlement, the Proposed Plan of Distribution, and Class Counsel's application to the Court for an award of attorneys' fees, expenses, and a service award to Class Plaintiff. You or your lawyer may ask to appear and speak at the hearing at your own expense, but you do not have to. For more information, call (800) 231-1815 (if dialing from outside the United States or Canada, call (614) 553-1610) or visit www.BarxLastLookSettlement.com. Please do not call the Court or the Clerk of the Court for information about the Settlement CEMEX CONSTRUCTION: Court Denied Class Certification in "Deere" --------------------------------------------------------------- In the lawsuit styled DEERE CONSTRUCTION, LLC, the Plaintiff, v. CEMEX CONSTRUCTION MATERIALS FLORIDA, LLC, the Defendant, Case No. 1:15-cv-24375-CMA (S.D. Fla.), the Hon. Cecilia M. Altonaga entered an order denying the following two classes: FDUTPA Class: "all individuals and entities residing in Florida that paid an added on or separately listed "fuel surcharge" or "environmental charge" (or other similarly named fee) that was received by Defendant or its related entities at any time from November 25, 2011 through the date of class notice"; and Contract Class: "all individuals and entities residing in Florida that entered into a written contract with Defendant or its related entities, and that paid an added on or separately listed "fuel surcharge" or "environmental charge" (or other similarly named fee) that was received by Defendant or its related entities at any time from November 25, 2011 through the date of class notice". According to the Court, as a result of the materially different circumstances among different class members, Plaintiff's proposed classes are overly broad, and Plaintiff has failed to demonstrate common issues predominate over individual issues. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=c9lu0tRs CHINA FINANCE: March 21 Settlement Fairness Hearing Set ------------------------------------------------------- The Rosen Law Firm, P.A. on Dec. 5 disclosed that the United States District Court for the Southern District of New York has approved the following announcement of a proposed class action settlement that would benefit purchasers of American Depository Shares of China Finance Online Co. Limited (NASDAQ: JRJC): SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION REGARDING CHINA FINANCE ONLINE CO. LTD. SECURITY HOLDERS TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED AMERICAN DEPOSITARY SHARES OF CHINA FINANCE ONLINE CO. LIMITED DURING THE PERIOD FROM APRIL 29, 2013 THROUGH JUNE 3, 2015, INCLUSIVE. YOU ARE HEREBY NOTIFIED that the above-captioned action has been certified as a class action for settlement purposes and that the Lead Plaintiffs have reached a proposed settlement with China Finance Online to resolve all claims in the case for $3,000,000 in cash. The settlement Class consists of all persons and entities who purchased or otherwise acquired China Finance Online American Depositary Shares during the Class Period of April 29, 2013, through June 3, 2015, inclusive. A "fairness hearing" will be held on March 21, 2017, at 10:00 a.m., at the United States District Court for the Southern District of New York, located at 500 Pearl Street, Courtroom 17B, New York, New York 10007, to determine whether the Court should approve the proposed settlement as fair, reasonable and adequate and whether the Court should grant Lead Counsel's application for attorneys' fees of up to one-third of the Settlement Amount (or $1,000,000) and up to $70,000 in expenses, and claims administrator fees of up to $200,000. You are invited to attend this hearing if you wish. IF YOU ARE A CLASS MEMBER, YOUR RIGHTS WILL BE AFFECTED BY THIS SETTLEMENT, AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received the full Notice of the Proposed Settlement (the "Notice"), you may obtain it by contacting the Claims Administrator, Strategic Claims Services, Inc., by mail at China Finance Online Securities Litigation, c/o Strategic Claims Services, Inc., 600 N. Jackson St., Ste. 3, Media, PA 19063, by telephone, at 866-274-4004, or by email, at info@strategicclaims.net. You may also download a copy of the Notice from: www.strategicclaims.net. To participate in the settlement, you must submit a Claim Form. You may download the Claim Form from www.strategicclaims.net, or you may contact the Claims Administrator to request a Claim Form (and to be added to the mailing list). Completed Claim Forms must be postmarked or received by March 3, 2017, at the Claims Administrator's address, China Finance Online Securities Litigation, c/o Strategic Claims Services, 600 N. Jackson St., Ste. 3, Media, PA 19063. If you purchased or otherwise acquired American Depositary Shares during the Class Period, you will be deemed a Class Member unless you ask to opt out from the Class. Any requests to opt out of the Settlement must be mailed to the Claims Administrator's address, China Finance Online Securities Litigation, c/o Strategic Claims Services, Inc., 600 N. Jackson St., Ste. 3, Media, PA 19063 and postmarked or received by the Claim Administrator by March 3, 2017. Each request to opt out should (i) state the name, address, telephone number, and e-mail address (if available) of the person or entity requesting exclusion, (ii) state that such person or entity requests exclusion from the China Finance Online Settlement, (iii) be signed by the person or entity requesting exclusion, and (iv) provide the date(s) and number(s) of shares of all purchases and sales of American Depositary Shares during the Class Period. You will be bound by any judgment rendered in the class action unless you timely request exclusion from the Class as more fully explained in the Notice. If you submit a valid and timely request for exclusion, you cannot share in the settlement money and will not be bound by the Settlement. The Notice also describes how you may object to any aspect the Settlement, including the Plan of Allocation or the request for attorneys' fees and expenses. All objections must be in writing, postmarked or received by Counsel for the Class no later than March 3, 2017, at the following address: Laurence Rosen, Esq., The Rosen Law Firm, P.A., 275 Madison Avenue, 34th Floor, New York, NY 10016. Inquiries, other than requests for copies of the Notice or for inclusion in the mailing list for future notices, may also be directed to Counsel for the Class, The Rosen Law Firm, P.A., at the mailing address listed above, or by phone at (212) 686-1060 or email at lrosen@rosenlegal.com. CHUNG CHOU CITY: "Lao" Seeks to Recover Unpaid Wages Under FLSA --------------------------------------------------------------- Mei Na Lao and Wei Si Xiao, on behalf of themselves and all other persons similarly situated v. Chung Chou City I, Inc., N.Y., Chung Chou City, LLC, Sharon Feng, and John Does #1-10, Case No. 1:16- cv-09193 (S.D.N.Y., November 29, 2016), alleges that pursuant to the Fair Labor Standards Act, the Plaintiffs are entitled to: (i) unpaid wages from the Defendants for overtime work for which they did not receive overtime premium pay as required by law, and (ii) liquidated damages pursuant to the FLSA. Chung Chou City I, Inc. is a New York corporation with a principal place of business in New York City. N.Y. Chung Chou City, LLC is a New York company with a principal place of business in New York City. Sharon Feng is an owner or part owner and principal of the Chung Chou City Defendants. The Defendants own and operate two Asian grocery stores in Manhattan, as part of a chain of several stores. The Plaintiffs are represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Telephone: (212) 563-9884 E-mail: dstein@samuelandstein.com - and - Vincent S. Wong, Esq. LAW OFFICES OF VINCENT S. WONG 39 East Broadway, Suite 306 New York, NY 10002 Telephone: (212) 349-6099 E-mail: vswlaw@gmail.com COMCAST CABLE: Fails to Give Meal/Rest Periods, "Scott" Suit Says ----------------------------------------------------------------- ANDRE SCOTT, an individual; KEN FASSLER, an individual; ELIJAH MAXWELL-WILSON, an individual, on behalf of themselves, all others similarly situated v. COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, a Delaware corporation; and DOES 1-50, inclusive, Case No. 3:16-cv-06869-LB (N.D. Cal., November 30, 2016), accuses the Defendants of failure to, among other things, provide meal periods, provide rest periods and pay hourly wages. Comcast Cable Communications Management, LLC, is a Delaware corporation authorized to do business in California. Comcast Cable operates as a subsidiary of Comcast Corporation -- the largest cable operator in the United States. The Plaintiffs are ignorant of the true names and capacities of the Doe Defendants. The Plaintiffs are represented by: Shaun Setareh, Esq. Thomas Segal, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com COVENTRY HEALTH: Social Workers Class Certified in Williams Suit ---------------------------------------------------------------- After an independent de novo review of the record in the matter, and noting that no objections were timely filed, the Hon. Carlos E. Mendoza agrees entirely with the analysis in the Report and Recommendation issued by United States Magistrate Judge Thomas B. Smith in the lawsuit entitled MIA WILLIAMS v. COVENTRY HEALTH CARE OF FLORIDA, INC., Case No. 6:16-cv-00731-CEM-TBS (M.D. Fla.). Therefore, Judge Mendoza: -- adopted and confirmed the Report and Recommendation, and made a part of the order; -- granted the Stipulated Motion for Conditional Class Certification and Court-Authorized Notice; -- conditionally certified the case as a collective action for the following class: All Social Workers employed by Defendant in the State of Florida within the three-year period immediately preceding the filing of this case; -- approved the proposed Notice of Lawsuit Regarding Potential Overtime Wages and consent/opt-in form; -- granted the Plaintiff's Motion regarding service via e-mail; -- directed the Defendant to deliver on or before December 5, 2016, to the Plaintiff's counsel the list containing the full names and last known addresses of putative class members, consistent with the terms of the Stipulated Motion; -- directed the Plaintiff's counsel to give notice to the individuals in the conditionally certified class within 21 days of receiving the names and addresses from the Defendant; and -- ruled that individuals, who timely opt into the action will be deemed parties for all purposes under the Federal Rules of Civil Procedure pending further order of the Court and may be represented at any settlement or mediation by the named Plaintiff. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=KTqEw5QE CPN MECHANICAL: Faces "Dolmo" Suit in Eastern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against CPN Mechanical Inc. The case is titled Oscar Dolmo, Celso Nunez, Julio Nunez, Jose Geovanny Guity Arriola, Mario Dolmo, and Angel Socratez, Individually and on behalf of others similarly situated, the Plaintiffs v. CPN Mechanical Inc., doing business as CPN Mechanical; Dino Nikolis; Constantin Nikolis; Yvonne Nikolis; and Charly Ho, the Defendants, Case No. 1:16-cv-06691 (E.D.N.Y., Dec. 2, 2016). CPN Mechanical is a mechanical contractor specializing in all phases of HVAC work, including plan and specification and design/build. The Plaintiffs appear pro se. DICK'S SPORTING: Court Denied Class Certification Bid in "Ngiem" ---------------------------------------------------------------- In the lawsuit captioned PHILLIP NGHIEM, the Plaintiff, v. DICK'S SPORTING GOODS, INC., ZETA INTERACTIVE CORPORATION, and DOES 1-10, the Defendants, Case No. 8:16-cv-00097-CJC-DFM (C.D. Cal.), the Hon. Cormac J. Carney entered an order denying Plaintiff's motion for class certification of: "all persons who, after opting-out of Dick's Sporting Goods, Inc.'s mobile alerts program, received unconsented text message advertisements from Defendants via Dick's mobile alerts program". The Court said, "Defendants argue that Nghiem is not an adequate class representative because he is subject to defenses that do not apply to the rest of the class and has no credibility. While these arguments primarily relate to typicality, "a named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative". CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011). Additionally, "[t]he honesty and credibility of a class representative is a relevant consideration when performing the adequacy inquiry 'because an untrustworthy plaintiff could reduce the likelihood of prevailing on the class claims'." Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (quoting Searcy v. eFunds Corp., No. 08 C 985, 2010 WL 1337684, (N.D. Ill. Mar. 31, 2010). The Court is convinced that if Nghiem is the class representative, he and his counsel will have to devote most of their time and resources trying to refute Defendants' attacks on his character and his motivations for filing and litigating this lawsuit. This skewed focus and diversion of resources will come at the expense of Nghiem's ability to vigorously prosecute this case on behalf of the rest of the class and obtain monetary recovery for any members of the class who undisputedly had their privacy invaded when they received unwanted text messages from DSG. See Satterfield, 569 F.3d at 954 ("The purpose and history of the TCPA indicate that Congress was trying to prohibit the use of ATDSs to communicate with others by telephone in a manner that would be an invasion of privacy."). Simply stated, Nghiem cannot fairly and adequately protect the interests of the class as is required by Rule 23(a)". A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=xYl9yAWB DOMINO'S PIZZA: Pennington Seeks to Certify Delivery Driver Class ----------------------------------------------------------------- Doris Pennington asks the Court to conditionally certify the action styled DORIS PENNINGTON, Individually and On Behalf of All Others Similarly Situated v. DOMINO'S PIZZA, LLC; GDK GO, INC. & EL SADIG ABDELMOTAL, Case No. 4:16-cv-01759 (S.D. Tex.), for purposes of notice and discovery. Ms. Pennington asserts that she is similarly situated to the class of Pizza Delivery Drivers she seeks to represent. She contends that the Putative Class members all were paid a tipped rate of $6 per hour, were required to provide and maintain a vehicle to perform their job duties, and were not paid sufficient tips to meet the minimum wage requirement under the Fair Labor Standards Act. She adds that all of the Putative Class Members were required to perform duties inside the Domino's restaurant, which required more than 20% of their time and duties, which were classified as a "dual job." Ms. Pennington also asks the Court to order that a judicially approved notice be sent to all Putative Class Members by mail and e-mail, approve the form and content of Plaintiff's proposed judicial notice and reminder notice, order the Defendants to produce to her counsel the necessary information for each of the Putative Class Members, and authorize a 60-day notice period for the Putative Class Members to join the case. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=DZTwX5u5 The Plaintiff is represented by: Trang Q. Tran, Esq. Nichole Nech, Esq. TRAN LAW FIRM, L.L.P. 2537 South Gessner Road, Suite 104 Houston, TX 77063 Telephone: (713) 223-8855 Facsimile: (713) 623-6399 E-mail: ttran@tranlawllp.com nn@tranlawllp.com The Defendants are represented by: Ruth Ann Daniels, Esq. GRAY REED & MCGRAW, P.C. 1601 Elm Street, Suite 4600 Dallas, TX 75201 Facsimile: (469) 320-6839 E-mail: rdaniels@grayreed.com DT HOSPITALITY: Faces "Lee" Suit in Southern Dist. of New York -------------------------------------------------------------- A class action lawsuit has been filed against DT Hospitality Group Inc. The case is entitled Joh Kie Lee and James Arvay, on behalf of himself and all other persons similarly situated, the Plaintiff, v. DT Hospitality Group Inc. doing business as Co Ba Restaurant; Kien Truong; John Does Nos. 1-10, inclusive, the Defendants, Case No. 1:16-cv-09326 (S.D.N.Y., Dec. 2, 2016). DT Hospitality is in the hotel or motel management business. The Plaintiffs appear pro se. DW SANDERS: "Rogers" Suit Seeks to Recover Overtime and Damages --------------------------------------------------------------- SPENCER ROGERS, on behalf of himself and those similarly situated v. D.W. SANDERS CERAMIC TILE & STONE CONTRACTING, INC., a Domestic Profit Corporation, Case No. 1:16-cv-04421-CAP (N.D. Ga., November 30, 2016), is brought under the Fair Labor Standards Act to recover from the Defendant overtime compensation, liquidated damages, and reasonable attorneys' fees and costs. D.W. Sanders Ceramic Tile & Stone Contracting, Inc., is a Domestic Profit Corporation that operates and conducts business in Cobb County, Georgia. The Company provides cleaning, painting, and carpet drying to their customers, says the complaint. The Plaintiff is represented by: Adian R. Miller, Esq. Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street NE, Suite 4200 P.O. Box 57007 Atlanta, GA 30343-1007 Telephone: (404) 965-8811 Facsimile: (404) 965-8812 E-mail: ARMiller@forthepeople.com CLeach@forthepeople.com DYNAMIC INTEGRATED: Fails to Pay Overtime, "Pierre" Suit Claims --------------------------------------------------------------- MAX PIERRE v. DYNAMIC INTEGRATED SECURITY, INC. and ZEEV FRAGACHAN, Case No. 0:16-cv-62831-JAL (S.D. Fla., November 30, 2016), is brought as a collective action under the Fair Labor Standards Act alleging that the Defendants have employed several similarly situated employees, like the Plaintiff, who have not been paid overtime and minimum wages for work performed in excess of 40 hours weekly. Dynamic Integrated Security, Inc., is a corporation that regularly transacts business within Broward County, Florida. Zeev Fragachan is a corporate officer, owner or manager of the Company. The Company provides architectural and engineering resources necessary to develop programs needed for optimal protection. The Company's expertise includes: workplace violence prevention; electronic systems design; access entry control; closed circuit television; communications and control; organization, policy and procedures; guard force development; executive protection; expert witness testimony and consulting; disaster planning and emergency preparedness; and critical incident management. The Plaintiff is represented by: Paul K. Silverberg, Esq. SILVERBERG & WEISS, P.A. 1290 Weston Road, Suite 218 Weston, FL 33326 Telephone: (954) 384-0998 Facsimile: (954) 384-5390 E-mail: psilverberg@pkslegal.com EL CASTILLO: Fails to Pay OT and Minimum Wages, "Porro" Suit Says ----------------------------------------------------------------- LUIS MANUEL RODRIGUEZ PORRO and all others similarly situated under 29 U.S.C. 216(b) v. EL CASTILLO DE LAS FRUTAS II, CORP, RICARDO LARGO PEREZ, Case No. 1:16-cv-24962-RNS (S.D. Fla., November 29, 2016), alleges that similarly situated employees of the Defendants, like the Plaintiff, have not been paid overtime and minimum wages for work performed in excess of 40 hours weekly, in violation of the Fair Labor Standards Act. El Castillo de las Frutas II, Corp., is a corporation that regularly transacts business within Dade County. Ricardo Largo Perez is a corporate officer, owner or manager of the Defendant Corporation. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com ELECTRICITY MAINE: Faces Fraud Class Action in Portland ------------------------------------------------------- The Associated Press reports that a new class-action lawsuit claims that an electric company deceived Maine consumers and shorted them of $35 million. A lawsuit filed in U.S. District Court in Portland on Nov. 18 claims that Electricity Maine used fraud and deception to enroll 200,000 Maine households and small businesses with the promise of substantial cost savings. A representative for Spark Holdco LLC, which owns Electricity Maine, said the company doesn't comment on pending litigation. Maine residents Kathleen Veilleux and Jennifer Chon are seeking damages to recover the $35 million. Their attorney, Benjamin Donahue, said he's received calls from dozens more ratepayers since filing the lawsuit. The lawsuit claims that Electricity Maine enrolls customers at artificially low rates and then transfers them with little notice to long-term rates that exceed the standard-offer rate. FIFTH STREET: February 16 Settlement Fairness Hearing Set --------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE FIFTH STREET FINANCE CORP. SECURITIES LITIGATION This Matter Relates To: All Actions Case No. 15-cv-7759 (LAK) SUMMARY NOTICE OF: (1) PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION; (2) MOTION FOR ATTORNEYS' FEES AND EXPENSES; AND (3) HEARING ON PROPOSED SETTLEMENT TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED SHARES OF FIFTH STREET FINANCE CORP. ("FSC") COMMON STOCK DURING THE PERIOD FROM JULY 7, 2014 THROUGH FEBRUARY 6, 2015, INCLUSIVE (THE "CLASS PERIOD"): YOU ARE HEREBY NOTIFIED that the above-captioned action has been certified as a class action for settlement purposes and that the Lead Plaintiff has reached a proposed settlement to resolve all claims in the case for $14,050,000 in cash (the "Settlement"). The Settlement is independent of a separate settlement of a class action brought on behalf of shareholders of Fifth Street Asset Management Inc. ("FSAM"). A separate notice has been issued for the FSAM Settlement. The Class in the FSC class action consists of all persons and entities who purchased or otherwise acquired FSC common stock during the Class Period, with some exclusions described in the full notice of the proposed Settlement (the "Notice"). If you have not yet received the Notice, you may obtain it by contacting the Claims Administrator at FSC Securities Settlement, c/o A.B. Data, Ltd., P.O. Box 173025, Milwaukee, WI 53217; telephone: 866-217-4461; email: info@FSCSecuritiesSettlement.com. You may also download the Notice and other documents from: www.FSCSecuritiesSettlement.com. A hearing will be held on February 16, 2017, at 9:30 a.m., before United States District Judge Lewis A. Kaplan, at the United States District Court for the Southern District of New York, 500 Pearl Street, Courtroom 21B, New York, New York 10007, to determine whether the Court should (i) approve the proposed Settlement as fair, reasonable, and adequate, (ii) approve the proposed Plan of Allocation for distribution of the Settlement proceeds, and (iii) grant Lead Counsel's application for attorneys' fees and litigation expenses. The Court may change the date of the Fairness Hearing without further notice to the Class. If you intend to attend the hearing, you should confirm the date and time with Lead Counsel or by checking the Settlement website. IF YOU ARE A CLASS MEMBER, YOUR RIGHTS WILL BE AFFECTED BY THIS SETTLEMENT, AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT MONEY. To participate in the Settlement, you must submit a Claim Form. You may download the Claim Form from www.FSCSecuritiesSettlement.com, or you may ask the Claims Administrator to send you a Claim Form and add you to the mailing list. You may also obtain, complete, and file a Claim Form online at www.FSCSecuritiesSettlement.com by March 27, 2017. Completed Claim Forms must be postmarked or received by March 27, 2017, at the Claims Administrator's address (printed above). If you purchased or otherwise acquired FSC common stock during the Class Period, you will be deemed a Class Member unless you ask to be excluded from the Class. Any requests for exclusion must be received by January 26, 2017, at the Claims Administrator's address (printed above). Each request for exclusion must (i) state the name, address, telephone number, and e-mail address (if available) of the person or entity requesting exclusion, (ii) state that such person or entity requests exclusion from the FSC Settlement, (iii) be signed by the person or entity requesting exclusion, and (iv) provide the date(s), price(s), and number(s) of shares of all purchases and sales of FSC common stock during the Class Period. You will be bound by any judgment rendered in the class action unless you timely request exclusion from the Class as explained in the Notice, even if you have pending or later file another lawsuit, arbitration, or other proceeding relating to the claims covered by the Settlement. If you submit a valid and timely request for exclusion, you cannot share in the settlement money, cannot object to the Settlement, and will not be bound by the Settlement or the Court's rulings. The Notice also describes how to object to the proposed Settlement, the Plan of Allocation, the request for attorneys' fees and litigation expenses, and/or Lead Plaintiff's request for reimbursement of its expenses (including lost wages). All objections must be received by the Court (at the address above) and by the lawyers listed below no later than January 26, 2017: Lead Counsel for the Class Joel H. Bernstein, Esq. Labaton Sucharow LLP 140 Broadway New York, NY 10005 settlementquestions@labaton.com Defendants' Counsel Ralph C. Ferrara, Esq. Proskauer Rose LLP 1001 Pennsylvania Avenue, N.W. Suite 600 South Washington, DC 20004 rferrara@proskauer.com Inquiries, other than requests for copies of the Notice or for inclusion in the mailing list for future notices, may be directed to Lead Counsel for the Class. Please do not contact the Court or Defendants. Dated: December 7, 2016 BY ORDER OF THE COURT FLOWER FOODS: Court Certifies Class Under FLSA in "Richard" Suit ---------------------------------------------------------------- The Hon. Carol B. Whitehurst granted the Plaintiffs' motion for conditional class certification, including Court-approved notice to be issued to potential class participants in the lawsuit captioned Antoine Richard, et al. v. Flower Foods, Inc., et al., Case No. 6:15-cv-02557-SMH-CBW (W.D. La.). The collective action is brought for alleged violation of the Fair Labor Standards Act, and the Louisiana Wage Payment Act. The Plaintiffs allege they were improperly classified as independent contractors and seek to assert their claims on behalf of: all individuals who, through a contract with Defendants or otherwise, distribute or distributed for Defendants under agreements with [the subsidiary bakeries] or any other affiliates or subsidiaries of Flowers Foods, Inc. which employ distributors working within the State of Louisiana; and who were classified by Defendants as "independent contractors" . . . anywhere at any time in the United States from the date that is three years preceding the commencement of this action through the close of the Court-determined opt-in period and who file a consent to join this action pursuant to 29 U.S.C. Section 216(b). Judge Whitehurst opined that conditional class certification is proper with regard to any distributor working either for any of the fifteen warehouses associated with FBC-Baton Rouge or the four warehouses associated with FBC-Tyler. The Defendant will have 10 days from the entry of the Court's Order, or through and including December 8, 2016, to provide the Plaintiffs with an updated computer readable data file containing information necessary to facilitate notice, including the name, last known mailing address, last known telephone number, e-mail address, employment dates as a distributor, date of birth and the last four digits of the social security numbers of each current and former distributors of the Defendants, who have worked as a distributor during the three years prior to October 21, 2015. The Plaintiffs must submit a revised copy of the Proposed Notice for final Court review no later than 10 days from the entry of the Order, or through and including December 8. Once the revised Proposed Notice is approved, the Plaintiffs are authorized to: (1) disseminate the approved Notice to prospective class members; (2) post the Notice to prospective class members at each of the warehouses associated with FBC-Baton Rouge and FBC-Tyler in the same areas they are required to post FLSA notices. Prospective class members may opt in to the collective action if: (1) they have mailed, faxed, or e-mailed their consent form to counsel for the class within 60 days after the Notice and consent forms have been mailed out to the class and otherwise posted at each appropriate warehouse; or (2) they show good cause for any delay. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mXF0vDvX FOGLE ENTERPRISES: Court Issues Prelim. Class Certification Writ ---------------------------------------------------------------- Laura A. Bentele, Esq. -- lbentele@armstrongteasdale.com -- of Armstrong Teasdale LLP, in an article for The National Law Review, reports that Relators/Defendants Fogle Enterprises, Inc., and Nolan Fogle requested that the Court issue a writ prohibiting Respondent, the Honorable Laura J. Johnson, from continuing to conduct the litigation, styled Richard McMillin v. Fogle Enterprises, Inc., et al., Case No. 14AF-CC00154-01 (Christian County, Mo.), as a class action. Relators maintain that certification of the Underlying Litigation as a class action was a clear abuse of discretion, because (1) the class is not ascertainable, i.e., there is no administratively feasible method to identify the class, (2) the class definition is impermissibly overbroad, as it includes countless businesses and other customers that contributed to the CDF in connection with a transaction that was made for business purposes and who, therefore, may not maintain a private right of action under the MMPA, and (3) the lack of ascertainability and overbreadth of the class definition deprived Respondent of the ability to appropriately determine whether the requirements of Rule 52.08 and Fed. R. Civ. P. 23 were met, as required to maintain a class action under the MMPA Petition for writ of prohibition sustained by the Court. Preliminary writ of prohibition ordered to issue returnable to Court en Banc in thirty days. FOREMOST INSURANCE: "Braden" Suit Seeks Certification of Class -------------------------------------------------------------- In the lawsuit styled DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated, the Plaintiffs, v. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, the Defendant, Case No. 4:15-cv-04114-SOH (W.D. Ark.), the Plaintiffs ask the Court for class certification of: "all persons and entities that received "actual cash value" payments, directly or indirectly, from Foremost for loss or damage to a dwelling or other structure located in the State of Arkansas, such payments arising from events that occurred on or after November 21, 2008, where the cost of labor was depreciated". Excluded from the Class are: (1) all persons and entities that received payment from Foremost in the full amount of insurance shown on the declarations page; (2) Foremost and its affiliates, officers, and directors; (3) members of the judiciary and their staff to whom this action is assigned; (4) all persons who have a pending bankruptcy or whose claims were discharged in a bankruptcy proceeding; (5) all persons who executed a release of the claims set forth herein; and (6) Plaintiffs' counsel. The Plaintiffs further ask that David Braden and Dale Brown be named as class representatives for the class, and the undersigned counsel from the law firms of Kessler Topaz Meltzer Check LLP; Keil & Goodson, P.A.; Mattingly & Roselius, PLLC; Murphy, Thompson, Arnold, Skinner & Castleberry; Crowley Norman LLP; Taylor Law Partners; Law Office of George L. McWilliams; and James M. Pratt, Jr. P.A. be appointed as counsel for the Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fUywqWNi The Plaintiffs are represented by: John C. Goodson, Esq. Matt Keil, Esq. KEIL & GOODSON P.A. 406 Walnut Street Texarkana, AR 71854R Telephone: (870) 772 4113 Facsimile: (870) 773 2967 E-mail: jcgoodson@kglawfirm.com mkeil@kglawfirm.com - and - Richard E. Norman, Esq. R. Martin Weber, Jr., Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 Telephone: (713) 651 1771 Facsimile: (713) 651 1775 E-mail: norman@crowleynorman.com mweber@crowleynorman.com - and - Tom Thompson, Esq. Casey Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 555 East Main Street, Suite 200 Post Office Box 2595 Batesville, AR 72503 Telephone: (870) 793 3821 Facsimile: (870) 793 3815 E-mail: aftomt2001@yahoo.com caseycastleberry2003@yahoo.com - and - Jason E. Roselius, Esq. MATTINGLY & ROSELIUS, PLLC 13190 North MacArthur Blvd. Oklahoma City, OK 73142 Telephone: (405) 603 2222 Facsimile: (405) 603 2250 E-mail: jason@mroklaw.com - and - Matthew L. Mustokoff, Esq. Richard A. Russo, Jr., Esq. KESSLER TOPAZ MELTZER CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667 7706 Facsimile: (610) 667 7056 E-mail: mmustokoff@ktmc.com rrusso@ktmc.com - and - W. H. Taylor, Esq. Stevan E. Vowell, Esq. William B. Putman, Esq. Timothy J. Myers, Esq. TAYLOR LAW PARTNERS 303 East Millsap Road Post Office Box 8310 Fayetteville, AR 72703 Telephone: (479) 443 5222 Facsimile: (479) 443 7842 E-mail: whtaylor@taylorlawpartners.com svowell@taylorlawpartners.com wbputman@taylorlawpartners.com tmyers@taylorlawpartners.com INDIANA: Faces Class Action Over Civil Forfeiture Law ----------------------------------------------------- Fatima Hussein, writing for IndyStar, reports that criminal defense attorney Jeff Cardella wears his beliefs on his sleeve, in the form of a pair of large, pastel yellow "Don't Tread On Me" cuff links. In between explanations of his libertarian principles, the 34-year-old Cardella said his clients may not always be the most sympathetic individuals, but they deserve their rights, too. Mr. Cardella filed a federal class-action lawsuit this month, on behalf of Leroy Washington, whose vehicle was taken by police in September. Mr. Washington was arrested and charged with resisting law enforcement, dealing in marijuana and obstruction of justice. The suit argues that the Indiana law that allows police to seize property from alleged drug dealers and others, regardless of their guilt or innocence, violates criminal defendants' constitutional right to due process. It "allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure preforfeiture hearing to challenge the seizure," according to the complaint. It's an argument that could, if it prevails in court, have a sweeping effect on law enforcement. According to Justice Department data, Indiana State Police seized more than $2.2 million in personal property from Indiana residents in 2014. In Marion County, the Indianapolis Metropolitan Police Department seized roughly $48,022 in personal property that year, according to the data. The suit, limited specifically to vehicles in IMPD possession, does not seek monetary damages. Rather, Washington wants law enforcement to give back his vehicle, and the vehicles of countless individuals whose property was seized under Indiana's civil forfeiture laws. Mr. Cardella also seeks a reduction in the period of time law enforcement can hold property without stating a reason for seizing it. "It's a matter of protecting the constitutional rights of my clients," said Mr. Cardella, a professor at Indiana University's Robert H. McKinney School of Law, who is vehemently opposed to "unjust government taking." Marion County Prosecutor Terry Curry, Mayor Joe Hogsett and IMPD Police Chief Troy Riggs are named defendants in the complaint. Mr. Curry told IndyStar that there are a variety of reasons why the law, as it exists today, is reasonable and constitutional. "There are protections built in the law to protect innocent people," Mr. Curry said. "An aggrieved party could ask for an emergency hearing to get their property back." However, experts and civil libertarians such as Mr. Cardella argue that civil forfeiture laws may be due for U.S. Supreme Court review. Civil forfeiture around the country Today, all states allow for forfeiture and there are more than 400 federal forfeiture statutes. Legal opinions written on the matter show an inconsistency as to what is and is not a violation of an individual's property rights. On a federal level, writing for a six-justice majority in Kaley v. United States, U.S. Supreme Court Justice Elena Kagan stated that a criminal defendant indicted by a grand jury has essentially no right to challenge the forfeiture of her assets, even if the defendant needs those very assets to pay lawyers to defend her at trial. The dissenters in the case were strange bedfellows, ranging from traditionally conservative Chief Justice John Roberts and the more liberal Justices Stephen Breyer and Sonia Sotomayor. There is also room for interpretation at the state level. In Indiana, former Chief Justice Randall Shepard, who wrote the Supreme Court ruling in another civil forfeiture case, said criticisms of asset seizure may be legitimate in some places. But instances vary from one jurisdiction to another. "There are places where it's used more forcefully than most people would think is appropriate," Justice Shepard said. Because the process is characterized as "civil forfeiture" rather than "criminal forfeiture," he said, property can be taken regardless of the guilt or innocence of the accused party, which raises concerns. "The relative ease of effecting such forfeiture and the disposition of the assets have become a matter of public note," Justice Shepard wrote. Washington, through Mr. Cardella, argues that the length of time that police have to possess individuals' property unduly burdens property owners. Under Indiana law, the executive branch can hold a vehicle for up to six months. If the state decides to file a forfeiture claim against the vehicle within the first 180 days, the vehicle is held indefinitely until the case is concluded, which can often be several additional months, according to court documents. "I think there is a widespread misunderstanding (that civil forfeiture) is not a unilateral act," Mr. Curry told IndyStar. He explained that most of individuals whose property is seized are drug dealers and the like. However, case law throughout the country suggests that Indiana's laws -- when it comes to the length of time that law enforcement can hold onto a vehicle -- may be unconstitutional. In a 2002 U.S. Court of Appeals opinion authored by Ms. Sotomayor, the court held that the Constitution demanded a speedy process to determine whether the government was likely to win the forfeiture claim. In the case, Krimstock v. Kelly, three automobile owners challenged a New York City policy that allowed the city to seize motor vehicles from individuals accused of certain crimes involving motor vehicles and then to hold the vehicles -- sometimes for years -- in hopes of gaining title in civil forfeiture proceedings. The U.S. Supreme Court has passed on making a substantive ruling on civil forfeiture matters, specifically pertaining to vehicles. Challenges coming from all sides And Mr. Cardella's isn't the only suit challenging Indiana's statute. Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., filed a lawsuit in February (Jeana M. Horner, Dennis Jack Horner, et al. v. Terry R. Curry, Marion County Prosecutor's Office, et al.) in Marion Superior Court charging the IMPD and prosecutors with violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state's common school fund. Instead, the county is keeping 100 percent of the money in a "policing for profit" scheme, the institute said. The Marion County Prosecutor's Office and the Indianapolis Metropolitan Police Department divvy up all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit. The case has yet to be decided. Regarding Washington and Mr. Cardella's lawsuit, Mr. Gedge said, "There are two fundamental problems which make it a serious assault on property rights: It allows law enforcement to seize property, that's ripe for abuse. And what makes the process more pernicious, (is that law enforcement) is seizing a direct stake in property." Mr. Cardella, said while it's not likely that the case will go to the Supreme Court, "I hope it does." Mr. Cardella, who lives in a rural area outside of Indianapolis, said he prizes his privacy and freedoms as an American. Citing the Join, or Die political cartoon of a snake cut into pieces drawn by Benjamin Franklin in 1754, Mr. Cardella believes in the collective power of the people to unite against tyranny and unfairness. He sees current civil forfeiture laws as the government's way of trampling on citizens' rights. "This is the kind of case that made me want to go to law school." JACKSON NATIONAL: Tredinnick Sues Over Improper Surrender Charges ----------------------------------------------------------------- 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 v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Case No. 4:16-cv-00912-ALM (E.D. Tex., November 29, 2016), is brought on behalf of the Plaintiffs and other variable annuity contract holders, who purchased their contracts from Jackson National. The Plaintiffs assert that Jackson National has improperly charged all variable annuity contract holders with respect to what are called "surrender charges" in connection with administration of variable annuity contracts it issued. The Plaintiffs are individuals who each, either individually or together with their spouses, purchased a variable annuity from Jackson National. Jackson National is organized as an insurance company under the laws of the state of Michigan and maintains its principal place of business and headquarters in Lansing, Michigan. Jackson National is licensed to do business in the state of Texas. Jackson National is a stock life insurance company and is the company that issued the variable life annuity contracts to the Plaintiffs. The Plaintiffs are represented by: 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 - and - Samuel F. Baxter, Esq. MCKOOL SMITH, P.C. 104 East Houston, Suite 300 Marshall, TX 75670 Telephone: (903)923-9001 Telecopier: (903) 923-9099 E-mail: sbaxter@mckoolsmith.com - and - Gary D. Corley, Esq. CORLEY LAW FIRM 108 North Travis Street Sherman, TX 75090 Telephone: (903) 892-1048 Facsimile: (214) 260-4925 E-mail: garycorley@gcorleylaw.com LIFE INSURANCE: Faces "Bogner" Suit Alleging ERISA Violations ------------------------------------------------------------- MICHAEL BOGNER, on behalf of himself and all others similarly situated, Plaintiff, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant, Case No. 2:16-cv-08906 (C.D. Cal., December 1, 2016), seeks payment of life insurance benefits and disgorgement of all profits allegedly unjustly retained by LINA as the result of its wrongful denial or reduction of claims for life insurance benefits under the Employee Retirement Income Security Act. Life Insurance Company of North America offers group life, accident, and disability insurance coverage. The company was founded in 1956 and is based in Philadelphia, Pennsylvania. Life Insurance Company of North America operates as a subsidiary of Cigna Corp. The Plaintiff is represented by: Glenn R. Kantor, Esq. Andrew M. Kantor, Esq. KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA, 91324 Phone: (818) 886-2525 Fax: (818) 350-6272 E-Mail: gkantor@kantorlaw.net akantor@kantorlaw.net M + M COMMUNICATIONS: Sigui Moves to Certify Two FLSA Classes ------------------------------------------------------------- The Plaintiffs in the matter entitled JUAN SIGUI, JOSE SIGUI, JOSE CIPRIANO, JOSEPH MENDEZ, and JOSE L. SANTOS, individually and on behalf of other similarly situated individuals v. M + M COMMUNICATIONS, INC., alias, COX RHODE ISLAND TELECOM, LLC, d/b/a COX COMMUNICATIONS, alias, and COXCOM, LLC d/b/a COX COMMUNICATIONS NEW ENGLAND, alias, Case No. 1:14-cv-00442-S-LDA (D.R.I.), move the Court to conditionally certify two Fair Labor Standards Act collective action classes: (1) The First Class consists of all current and former individuals employed as Field Service Technicians (or other comparable positions) who were hired and paid by Defendants by and through Defendant M + M Communications, Inc. ("M + M") to perform installation and/or maintenance services on cable television, Internet, and/or telephone lines and/or equipment for customers of Defendants Rhode Island Telcom, LLC, alias, and Coxcom LLC, alias (hereinafter collectively "Cox") obtained by and through Defendant Cox and were subject to the following common practices or policies, at any time from three (3) years before the filing of this Complaint to the present: a) who were paid IRS Form 1099 compensation; and, b) were not paid wages for all hours worked; and/or, c) who worked more than forty (40) hours in a workweek, but were not paid at least one and one-half (1 1/2) times their regular rate of pay for all hours worked in excess of forty (40); and (2) The Second Class consists of current and former individuals employed as Field Service Technicians (or other comparable positions) who were hired and paid by Defendants by and through Defendant M + M to perform installation and/or maintenance services on cable television, Internet, and/or telephone lines and/or equipment for customers of Defendant Cox obtained by and through Defendant Cox and were subject to the following common practices or policies, at any time from three (3) years before the filing of this Complaint to the present: a) who were paid IRS Form W-2 wages; and, b) were not paid wages for all hours worked; and/or, c) who worked more than forty (40) hours in a workweek, but were not paid at least one and one-half (1 1/2) times their regular rate of pay for all hours worked in excess of forty (40). The Plaintiffs also move to authorize their counsel to mail or e- mail in both English and Spanish a Notice of Pendency of Lawsuit, to post the English and Spanish Notice and Consent forms, and to send follow up post cards or e-mails to any class members, who have not responded within 30 days after the initial notice. The Plaintiffs further move that M + M be ordered to post the English and Spanish Notices in conspicuous locations in all of its Rhode Island worksites, and that the Defendants be ordered to provide the names and last known addresses of all putative class members within 30 days. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZR0plbLB The Plaintiffs are represented by: Richard A. Sinapi, Esq. SINAPI LAW ASSOCIATES, LTD. 2374 Post Road, Suite 201 Warwick, RI 02886 Telephone: (401) 739-9690 Facsimile: (401) 739-9040 E-mail: ras@sinapilaw.com The Defendants are represented by: Michael D. Chittick, Esq. ADLER POLLOCK & SHEEHAN, P.C. One Citizens Plaza, 8th Floor Providence, RI 02903 Telephone: (401) 427-6113 Facsimile: (401) 751-0604 E-mail: Mchittick@apslaw.com - and - Dean J. Wagner, Esq. James G. Atchison, Esq. SHECHTMAN HALPERIN SAVAGE, LLP 1080 Main Street Pawtucket, RI 02860 Telephone: (401) 272-1400 Facsimile: (401) 272-1403 E-mail: dwagner@shslawfirm.com - and - Annette A. Idalski, Esq. CHAMBERLAIN HRDLICKA 191 Peachtree Street NE, 34th Floor Atlanta, GA 30303 Telephone: (404) 658-5386 Facsimile: (404) 658-5387 E-mail: annette.adalski@chamberlainlaw.com MANUFACTURERS FINANCIAL: Faces Compressor Suit in E.D.N.Y. ---------------------------------------------------------- A class action lawsuit has been filed against Manufacturers Financial Corporation. The case is captioned Compressor Engineering Corporation individually and as the representative of a class of similarly situated persons, the Plaintiff, v. Manufacturers Financial Corporation; Charity Marketing, LLC; and Richard K. Stephens, the Defendants, Case No. 1:16-mc-03020-MKB (E.D.N.Y., Dec. 2, 2016). The case is assigned to Hon. Judge Margo K. Brodie. Manufacturers Financial Corporation is a privately held company in Waterford, Michigan, categorized under financing. The Plaintiff is represented by: Jason J. Thompson, Esq. SOMMERS SCHWARTZ PC 2000 Town Center, Ste. 900 Southfield, MI 48075 Telephone: (248) 355 0300 Facsimile: (248) 936 2147 E-mail: jthompson@sommerspc.com - and - Kim Richman, Esq. THE RICHMAN LAW GROUP 81 Prospect Street Brooklyn, NY 11201 Telephone: (212) 687 8291 Facsimile: (212) 687 8292 E-mail: krichman@richmanlawgroup.com - and - Tod A. Lewis, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle, Ste. 1000 Chicago, IL 60602 Telephone: (312) 658 5500 E-mail: tod@classlawyers.com MRS BPO: Faces "Schwaner" Suit in Eastern Dist. of New York ----------------------------------------------------------- A class action lawsuit has been filed against MRS BPO, LLC. The case is styled Glen F. Schwaner and Lourdes B. Fischer, individually and on behalf of all others similarly situated, the Plaintiffs v. MRS BPO, LLC, the Defendant, Case No. 2:16-cv-06698 (E.D.N.Y., Dec. 2, 2016). MRS BPO is debt collector firm. The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 50 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com MYLAN NV: Faces "Muchin" Suit in Calif. Over Overpriced EpiPens --------------------------------------------------------------- ANDREA MUCHIN and PAUL GIBB, on Behalf of Themselves and All Others Similarly Situated v. MYLAN N.V., and MYLAN SPECIALTY L.P., Case No. 4:16-cv-06883-DMR (N.D. Cal., November 30, 2016), arises from Mylan's alleged unfair and oppressive pricing of EpiPen devices. "To extract maximum profits from its monopoly in the epinephrine autoinjector market, Mylan N.V. raised the price it charges for its EpiPen device to levels far beyond what is reasonable or fair to consumers relying on this life-saving device," the Plaintiffs said in their complaint. Today, they add, Mylan charges $609 for a two-pack of EpiPens that costs no more than $20 to make, which represents a 548% price increase since Mylan first began selling the drug, generating revenues for the Company of over one billion dollars annually. Mylan N.V. is a corporation organized under the laws of the Netherlands with its headquarters in Canonsburg, Pennsylvania. Mylan Specialty L.P., formerly known as Dey Pharma, is a limited partnership organized under the laws of Delaware with its headquarters in Basking Ridge, New Jersey. Dey is a wholly owned subsidiary of Mylan. In 2007, Mylan NV purchased the rights to EpiPen from Merck. The Plaintiffs are represented by: Elizabeth C. Pritzker, Esq. Jonathan K. Levine, Esq. Bethany Caracuzzo, Esq. PRITZKER LEVINE LLP 180 Grand Avenue, Suite 1390 Oakland, CA 94612 Telephone: (415) 692-0772 Facsimile: (415) 366-6110 E-mail: ecp@pritzkerlevine.com jkl@pritzkerlevine.com bc@pritzkerlevine.com NAVAJO EXPRESS: "Dianne" Suit Moved from Super. Ct. to C.D. Cal. ---------------------------------------------------------------- The class action lawsuit titled Dianne Searles, an individual, on behalf of herself, and on behalf of all persons similarly situated, the Plaintiff, v. Navajo Express, Inc., a Corporation; and Does 1-50, Inclusive, the Defendants, Case No. CIVDS1613846, was removed from the Superior Court State of CA for San Bernardino, to the U.S. District Court for Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:16-cv-02504-AB-SP to the proceeding. The case is assigned to Hon. Judge Andre Birotte Jr. Navajo Express is a national transportation provider with refrigerated, dry van, and intermodal transport services, specializing in grocery store deliveries. The Plaintiff is represented by: Norman B Blumenthal, Esq. Aparajit Bhowmik, Esq. Kyle R Nordrehaug, Esq. BLUMENTHAL NORDREHAUG AND BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551 1223 Facsimile: (858) 551 1232 E-mail: norm@bamlawlj.com aj@bamlawlj.com Kyle@bamlawlj.com Navajo Express, Inc. is represented by: Ellen M Bronchetti, Esq. Kymberly M Harris, Esq. Ronald J Holland II, Esq. SHEPPARD MULLIN RICHTER AND HAMPTON LLP Four Embarcadero Center 17th Floor San Francisco, CA 94111-4109 Telephone: (415) 434 9100 Facsimile: (415) 434 3947 E-mail: ebronchetti@sheppardmullin.com kmharris@sheppardmullin.com rholland@sheppardmullin.com NEWMAN'S OWN: Faces "Wong" Suit in Eastern Dist. of New York ------------------------------------------------------------ A class action lawsuit has been filed against Newman's Own, Inc. The case is titled Heung Man Wong and John Does 1-100, on behalf of themselves and all others similarly situated, the Plaintiffs, v. Newman's Own, Inc., the Defendant, Case No. 1:16-cv-06690-ARR- RML (E.D.N.Y., Dec. 2, 2016). The case is assigned to Hon. Judge Allyne R. Ross. Newman's Own is a food company founded by actor Paul Newman and author A.E. Hotchner in 1982. The company gives 100% of the after- tax profits from the sale of its products to Newman's Own Foundation (a private non-profit foundation) which in turn, gives the money to various educational and charitable organizations. 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 NOVA SCOTIA: Africville Residents' Suit Heads to Supreme Court -------------------------------------------------------------- Joseph Brean, writing for Montreal Gazette, reports that the Supreme Court of Nova Scotia was set to hear arguments about whether to certify a proposed class action lawsuit for dozens of former residents of Africville, the black community in north-end Halifax that in 1969 was cleared of its residents and demolished to make room for industrial development. The destruction of the site, especially the Seaview United Baptist Church that had stood there for over a century, is widely regarded as a shameful symbol of the treatment of black Nova Scotians, many of whom had fled slavery in America. "I'm hoping for a settlement," said Flemming Vemb, a plaintiff and former resident who recalls being forced out of the four-bedroom house on the waterfront where his father had tried to build a dry dock, but was refused permission by the city. "It was an abrupt thing," he said of his family's removal from their home. After years of slow negotiations and growing awareness of the historical outrage, in 2010 then Halifax mayor Peter Kelly signed off on an almost $5-million compensation deal, from three levels of government, which included an apology. As a result, a replica of the church has been built and a park established on the site. "We apologize for the heartache experienced at the loss of the Seaview United Baptist Church, the spiritual heart of the community, removed in the middle of the night. We acknowledge the tremendous importance the church had, both for the congregation and the community as a whole," Kelly said. That deal involved no personal compensation and no admission of liability by Halifax, however, and it led to discord, with some plaintiffs saying the settlement was signed over their objections. The lawsuit was filed in 1996, the same year Africville was designated a National Historic Site. It includes nearly 40 plaintiffs who are still alive, and families of many more who have died, who claim they were not compensated for the loss of their lands. Many of the named plaintiffs are related, with Carvery, Flint, Izzard and Vemb especially common surnames. As a judge put it, they claim "Halifax is liable to the former residents and their descendants for a broad array of tortious conduct and breaches of contract over the span of the community's existence." PMF STEEL: Violates Wage and Hour Laws, "Culajay" Suit Alleges -------------------------------------------------------------- ROCAEL ANTONIO CULAJAY, individually and on behalf of all others similarly situated v. P.M.F. STEEL CORP., and HELDER CARDOSO and MARIA G. MARTINS, as individuals, Case No. CV16-6597 (E.D.N.Y., November 29, 2016), seeks to recover damages for alleged egregious violations of state and federal wage and hour laws arising out of the Plaintiff's employment at P.M.F. Steel. P.M.F. Steel Corp. is a New York corporation with a principal executive office in Hempstead, New York. The Individual Defendants own or operate P.M.F. Steel. The Company is a full service custom steel fabrication company that specializes in custom steel work and steel repairs. The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 E-mail: avshalumovr@yahoo.com POMONA, CA: Lockers for Homeless Opened Following Class Action -------------------------------------------------------------- Monica Rodriguez, writing for Inland Valley Daily Bulletin, reports that everyday, a handful of homeless people have been stopping at the courtyard of the Pomona Armory and to store their belongings in one of 388 lockers. The storage lockers, what Pomona officials call the Transitional Storage Center, opened Nov. 21 and are the result of a federal class-action lawsuit filed in March on behalf of 15 Pomona homeless individuals. In their lawsuit, the plaintiffs complained members of the Pomona Police Department and other city personnel often seized and discarded their belongings. Among the items confiscated were prescription medications, documents such a identification cards, family photographs and other mementos. Homeless advocates view the settlement agreement as a step to address the problems the homeless face. As of midday Nov. 25, 24 homeless Pomona residents had signed up for a locker, said Angie Valenzuela, a case manager assistant with the Volunteers of America Greater Los Angeles, which is responsible for monitoring the center along with a security guard. Most of the people who have been seeking storage lockers are men who are chronically homeless. "Mostly they bring clothes, blankets, hygiene products and books," Ms. Valenzuela said, adding she reminds people that if they are going to need their blankets, they will have to return to retrieve them before 2:00 p.m. when the center closes for the day. The center features four shipping containers that accommodate the lockers capable of holding 60 gallons of materials. Of the 388 lockers, about 20 have been set up to be easily accessible by clients who are disabled. For now, the center will be open from 10:00 a.m. to 2:00 p.m., seven days a week, Benita DeFrank, the city's homeless services director, said. The start of the center's operation is considered a soft opening, Ms. DeFrank said, but a major outreach effort is planned to attract Pomona homeless residents to the facility in early December, when the Pomona Armory opens its doors to serve as a winter shelter. Once the winter shelter opens,so will Operation Warm Hart, a daytime initiative in which various nonprofits and other groups offer numerous services, including help to secure permanent housing, Ms. DeFrank said. The idea for the Transitional Storage Center came about as city staffers researched how other cities are helping the homeless in their communities, according to a city staff report. Natasha Maseuli signed up for a locker on Nov. 25. She learned about the lockers through a friend. Ms. Maseuli said she opted to get a locker "so I won't be losing my stuff." Before Ms. Maseuli walked away, Ms. Valenzuela provided a packet of information that included names and contact information for organizations, as well as various resources that she may find useful. The lockers come with a heavy-duty combination lock, with the combination set by each client, for free. Clients -- who must be Pomona residents -- must check in at the center at least once a week to continue to use the locker. Information on the Transitional Storage Center is by calling the city's homeless services coordinator at 909-620-2571 or Volunteers of America Greater Los Angeles at 909-593-4796. PROGRESSIVE CASUALTY: Faces "Jones" Suit in N.D. of California --------------------------------------------------------------- A class action lawsuit has been filed against Progressive Casualty Insurance Company. The case is captioned Bobby Jones, Individually, and on behalf of all others similarly situated, the Plaintiff, v. Progressive Casualty Insurance Company, Mitchell International, Inc., and The Progressive Corporation, the Defendants, Case No. 3:16-cv-06941-EDL (N.D. Cal., Dec. 2, 2016). The case is assigned to Hon. Magistrate Judge Elizabeth D. Laporte. Progressive Casualty provides insurance products in the United States. It offers auto, motorcycle, recreational vehicle/trailer, boat, car, snowmobile, all-terrain vehicle, personal watercraft, golf cart, and Segway insurance products. The Plaintiff is represented by: David Alexander Kleczek, Esq. KLECZEK LAW OFFICE 825 Washington Street, Suite 301 Oakland, CA 94607 Telephone: (510) 633 7100 Facsimile: (510) 663 7102 E-mail: david.kleczek@kleczeklaw.com PRUDENTIAL SECURITY: Court Certifies Class in "Kritcher" Suit ------------------------------------------------------------- The Hon. Bernard A. Friedman granted the Plaintiff's motion to certify a class in the lawsuit entitled BRIAN KRITCHER v. PRUDENTIAL SECURITY, INC., et al., Case No. 2:16-cv-12637-BAF-EAS (E.D. Mich.). As discussed on the record, Judge Friedman ruled that the parties will have to prepare an order detailing the acceptable methods of noticing class members. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=gmRQuieC RENOVATE AMERICA: "Ramos" Suit Moved from Super. Ct. to C.D. Cal. ----------------------------------------------------------------- The class action lawsuit titled Richard Ramos, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. San Bernardino Associated Governments and Renovate America, Inc., the Defendants, Case No. CIVDS1618459, was removed from the San Bernardino County Superior Court, to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:16-cv-02491 to the proceeding. Renovate America provides financing solutions for homes and communities in the areas of energy and water in the United States. The Plaintiff appears pro se. RENOVATE AMERICA: "Richardson" Suit Moved to C.D. of California -------------------------------------------------------------- The class action lawsuit titled Michael Richardson On Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. County of Los Angeles and Renovate America, Inc., Defendants, Case No. BC639230, was removed from the Los Angeles Superior Court, to the U.S. District Court for the Central District of California (Western Division - Los Angeles). The District Court Clerk assigned Case No. 2:16-cv-08943 to the proceeding. Renovate America provides financing solutions for homes and communities in the areas of energy and water in the United States. The Plaintiff appears pro se. RENUE SYSTEMS: Gorss Motels Suit Seeks Certification of Class ------------------------------------------------------------- In the lawsuit captioned GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. RENUE SYSTEMS DEVELOPMENT CORP., INC., RENUE SYSTEMS, INC., RENUE SYSTEMS OF CHICAGO, INC., Illinois corporations, and JOHN DOES 1-5, the Defendants, Case No. 1:16-cv-10975 (N.D. Ill.), the Plaintiff asks the Court for class certification of: "all persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice". To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=V07HE4qi The Plaintiff is represented by: Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 E-mail: bwanca@andersonwanca.com RENZENBERGER INC: Court Certified Waiting Time Class in "Wright" ---------------------------------------------------------------- In the lawsuit entitled RODERICK WRIGHT, FERNANDO OLIVAREZ, MARCUS HAYNES, JR., and MICHAEL WATSON, individuals on behalf of themselves and others similarly situated, the Plaintiffs, v. RENZENBERGER, INC., a Kansas corporation; and DOES 1-10, inclusive, the Defendants, Case No. 2:13-cv-06642-FMO-AGR (C.D. Cal.), the Hon. Fernando M. Olguin entered an order: 1. certifying a derivative Waiting Time Class consisting of: "all members of the certified Separate Pay and Pay Averaging Classes whose employment with Renzenberger ended at any time between August 1, 2011 and the date of certification of the Waiting Time Class"; 2. appointing named Plaintiff Michael Watson as representative of the derivative Waiting Time Class; and 3. appointing Hayes Pawlenko LLP, Matthew B. Hayes and Kye D. Pawlenko as class counsel for the derivative Waiting Time Class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=D5a9HykS The Plaintiffs are represented by: HAYES PAWLENKO LLP Matthew B. Hayes, Esq. Kye D. Pawlenko, Esq. 595 East Colorado Blvd., Suite 303 Pasadena, CA 91101 Telephone: (626) 808 4357 Facsimile: (626) 921 4932 E-mail: mhayes@helpcounse.com kpawlenko@helpcounsel.com SAN BERNARDINO, CA: Turner et, al. Seeks Certification of Class --------------------------------------------------------------- In the lawsuit titled RAHSHUN TURNER, MONIQUE LEWIS, JOSHUA MILLS, AND JAIME JARAMILLO, on behalf of themselves and all others similarly situated, the Plaintiffs, v. COUNTY OF SAN BERNARDINO, Defendant, Case No. 5:16-cv-00355-VAP-DTB (C.D. Cal.), the Plaintiffs will move the Court at a hearing on December 19, 2016 at 2:00 p.m. for entry of an order certifying a class of: Plaintiff class: "all people who are now, or in the future will be, incarcerated in the San Bernardino County jails"; and Plaintiff subclass: "all people who are now, or in the future will be, incarcerated in the San Bernardino County jails and who have a psychiatric and/or intellectual disability, as defined under the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act". The Plaintiffs further ask the Court for certifying the named Plaintiffs as representatives of the Plaintiff Class and Subclass and their counsel of record as counsel for the Plaintiff Class and Subclass. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=ak38pl5X The Plaintiffs are represented by: Donald Specter, Esq. Margot Mendelson, Esq. PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710 Telephone: (510) 280 2621 Facsimile: (510) 280 2704 E-mail: dspecter@prisonlaw.com mmendelson@prisonlaw.com The Defendant is represented by: Martin H. Dodd, Esq. Jamie L. Dupree, Esq. Jaime G. Touchstone, Esq. FUTTERMAN DUPREE DODD CROLEY MAIER LLP 180 Sansome Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 399 3840 Facsimile: (415) 399 3838 E-mail: mdodd@fddcm.com jdupree@fddcm.com jtouchstone@fddcm.com SHK MANAGEMENT: "Tan" Suit Claims FLSA, NY Labor Law Violations --------------------------------------------------------------- CHOO LEE TAN a/k/a Molly Tan, on behalf of herself and others similarly situated, Plaintiff, v. SHK MANAGEMENT INC. d/b/a AKA Central Park Hotel; and d/b/a Korman Communities, Inc.; STEVEN H. KORMAN, LAWRENCE KORMAN, BRADLEY I. KORMAN, MARK KORMAN, KATHLEEN M. PALMEN, ROBERT S GROSSMAN, JAQUELINE AUSTIN a/k/a Jackie Austin, MARIZELA ALFARO, Defendants, Case No. 1:16-cv-09302 (S.D.N.Y., December 1, 2016), alleges violations of the Federal Labor Standards Act, and of the New York Labor Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. Shk Management, Inc.'s line of business includes the operation of apartment buildings. The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Blvd., Suite 119 Flushing, NY 11355 Phone: (718) 762-1324 SHUTTERFLY INC: Sued by Monroy for Storing Biometric Identifiers ---------------------------------------------------------------- ALEJANDRO MONROY, on behalf of himself and all others similarly situated v. SHUTTERFLY, INC., Case No. 1:16-cv-10984 (N.D. Ill., November 30, 2016), accuses the Company of violating the Illinois Biometric Information Privacy Act by collecting, storing and using the Plaintiff's and other similarly situated individuals' biometric identifiers and biometric information without informed written consent. Shutterfly is a Delaware corporation headquartered in Redwood City, California. Shutterfly operates several e-commerce and social networking websites that offer a wide range of electronic and print-based photo storage and photo sharing services. The Plaintiff is represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. Ismael T. Salam, Esq. LITE DEPALMA GREENBERG, LLC 211 West Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 750-1265 E-mail: kcarroll@litedepalma.com E-mail: kshamberg@litedepalma.com isalam@litedepalma.com - and - Tina Wolfson, Esq. Robert Ahdoot, Esq. Meredith S. Lierz, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: twolfson@ahdootwolfson.com rahdoot@ahdootwolfson.com mlierz@ahdootwolfson.com - and - David P. Milian, Esq. Frank S. Hedin, Esq. CAREY RODRIGUEZ MILIAN GONYA, LLP 1395 Brickell Avenue, Suite 700 Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 E-mail: dmilian@careyrodriguez.com fhedin@careyrodriguez.com STATE FARM: In-House Counsel Plays Key Role in Court Ruling ----------------------------------------------------------- Sue Reisinger, writing for Corporate Counsel, reports that if State Farm's dark money got a state Supreme Court justice elected, then Shepherd could be the Dark Shadow who helped bring about the outcome. It started with his work on the executive committee of the ICJL, which operates its own PAC, called JUSTPAC. After founding the ICJL, Shepherd and a co-founder hired Edward Murnane to be president. Four years later came the first round in what would become a nearly 20-year legal battle. In Avery v. State Farm, more than 4 million State Farm policyholders, led by a plaintiff named Michael Avery, filed a class action suit in Illinois state court accusing State Farm of approving the use of lower-quality parts for repairs, contrary to its policy language. The jury agreed, and after the trial judge tacked on $600 million in punitive damages, the plaintiffs were awarded nearly $1.2 billion in the breach of contract suit. An outraged State Farm appealed. The state appeals court affirmed the judgment, but reduced it slightly to $1.05 billion. The author of that opinion was Justice Gordon Maag of the Fifth District Appellate Court, who all but put a target on his back for State Farm. Again the insurance company appealed the Avery judgment, this time to the Illinois Supreme Court, where it was argued in May 2003. But the court delayed its ruling for more than two years. During the delay, the high court had a seat to fill. Judge Maag, a favorite of trial lawyers but not of State Farm, ran for it. So, according to the RICO complaint, State Farm went in search of its own candidate to oppose Maag and hopefully support its pending appeal of the $1.05 billion judgment. It found Illinois trial judge Lloyd Karmeier. The company then allegedly worked through Shepherd and Murnane, who became the other named defendant in the RICO action . The complaint alleges that Shepherd, Murnane and the ICJL "functioned collectively as State Farm's vehicle to: a) recruit Karmeier as a candidate, b) direct Karmeier's campaign, c) lend credibility to that campaign via endorsement and d) assure that Karmeier's campaign was well-funded." ICJL aided Judge Karmeier with in-kind services and financial support funneled through its JUSTPAC. Murnane, the ICJL president, also served as the treasurer of JUSTPAC. He acted as Karmeier's de facto campaign chief, the suit claims, taking his marching orders from Shepherd. In briefs State Farm has denied Shepherd's involvement, disputed that Murnane ran Karmeier's campaign and called its campaign contributions "minimal." Both the ICJL and the U.S. Chamber of Commerce are listed as unnamed co-conspirators in the RICO suit. Because the case is ongoing, even though it is not a party to the suit, U.S. Chamber spokesman Justin Hakes said that the chamber cannot comment on its political contribution policies or on being named a co-conspirator in the suit. Judge Karmeier handily won the election in 2004. The Avery plaintiffs filed a motion to disqualify Judge Karmeier from participating in State Farm's appeal because it said that the company and its employees had made direct contributions amounting to $350,000 to Judge Karmeier's campaign. State Farm scoffed at the $350,000 figure in its brief. It accused plaintiffs of "grossly misrepresenting the magnitude of State Farm's financial support . . . for Karmeier's campaign." It argued that its support "consisted of quite modest contributions" and said that the $350,000 figure was 'incorrect and meritless." The court refused to disqualify Judge Karmeier, and he declined to recuse himself. In 2005, in a split decision, the Illinois Supreme Court overturned the billion-dollar Avery judgment. As expected, Judge Karmeier voted with the majority, in State Farm's favor. The plaintiffs claim that Karmeier's participation tainted the entire vote. Says Belth, the insurance professor: "I thought what State Farm allegedly did amounted to a subversion of the Illinois court system." Still the policyholders did not give up. They moved for a rehearing, but the state court denied their motion without comment. They petitioned the U.S. Supreme Court, but it refused. Then something happened out of the blue -- the justices in 2010 decided, in a West Virginia case with remarkably similar facts to Avery, except that the big contributor was a coal company -- that the 14th Amendment's due process clause can require a judge to recuse himself. Justice Anthony Kennedy wrote the majority opinion. It says that recusal is required not only when actual bias is shown or when the judge has an economic interest in the case's outcome, but also when a case contains "extreme facts" that create a probability of bias. Then Justice Kennedy offered some advice to courts. He wrote, "We conclude that there is a serious risk of actual bias -- based on objective and reasonable perceptions 00 when [one] with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." Justice Kennedy's opinion then described a test for recusal. "The inquiry," it states, "centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election." The West Virginia judge was ordered to recuse himself -- and the Avery plaintiffs' hopes soared. SUNDAY RILEY: Faces "Armstrong" Suit in S.D. of New York -------------------------------------------------------- A class action lawsuit has been filed against Sunday Riley Modern Skincare, LLC. The case is titled Helena Armstrong and Lynn Moore, on behalf of themselves and others similarly situated, v. Sunday Riley Modern Skincare, LLC, the Defendant, Case No. 1:16-cv-09329- ALC (S.D.N.Y., Dec. 2, 2016). The case is assigned to Hon. Judge Andrew L. Carter, Jr. Sunday Riley is in the cosmetics, perfumes, and hair products business. The Plaintiffs are 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 SUNRISE FAMILY: Ellis Moves Certification of Two FLSA Subclasses ---------------------------------------------------------------- Tiffany Ellis, Dana Davis, Judy Swank, Brenda Phillips, and JoEllen Conway, Plaintiffs in the lawsuit entitled TIFFANY ELLIS, et al. for themselves and all others similarly situated v. SUNRISE FAMILY HEALTHCARE, LLC, et al., Case No. 2:16-cv-01088-ALM-TPK (S.D. Ohio), move, pursuant to the Fair Labor Standards Act, for entry of an order conditionally certifying their proposed collective FLSA classes defined as: Collective Action Subclass 1: All current and former Office Staff Members employed by Defendants, for 3 years prior to the date of filing this action through the present, who were paid on an hourly basis, and who did not receive overtime payment at a rate of one and one-half times their regular rate of pay for all hours worked in a workweek in excess of 40, including work completed while "on call;" and Collective Action Subclass 2: All current and former Home Health Aides employed by Defendants from January 1, 2015 through the present who were paid on an hourly basis, and who did not receive overtime payment at a rate of one and one-half times their regular rate of pay for all hours worked in a workweek in excess of 40. The Plaintiffs also ask the Court to implement a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail and e-mail) to Plaintiffs' two proposed subclasses, and to require the Defendants to identify all potential opt-in plaintiffs. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=aGEcOsTr The Plaintiffs are represented by: Greg R. Mansell, Esq. Carrie J. Dyer, Esq. MANSELL LAW, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 610-4134 Facsimile: (513) 826-9311 E-mail: Greg.Mansell@Ohio-EmploymentLawyer.com Carrie.Dyer@Ohio-EmploymentLawyer.com TRANSNATIONAL FOODS: Faces "Lejbman" Suit in S.D. of Florida ------------------------------------------------------------ A class action lawsuit has been filed against Transnational Foods, Inc. The case is captioned Vivian Lis Lejbman, individually, and on behalf of all others similarly situated, the Plaintiff, v. Transnational Foods, Inc., a Florida corporation; and Conservas Cerqueira, S.A., a foreign corporation, the Defendant, Case No. 1:16-cv-25023-CMA (S.D. Fla., Dec. 2, 2016). The case is assigned to Hon. Judge Cecilia M. Altonaga. Transnational Foods is a US-based food vendor company known for offering leading supermarkets, wholesalers, dollar stores, convenience stores and distributors a wide range of products through its own brands or through private labels. The Plaintiff is represented by: James Paul Gitkin, Esq. Salpeter Gitkin, LLP One East Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301 Telephone: (954) 467 8622 Facsimile: (954) 467 8623 E-mail: jim@salpetergitkin.com TWO JINNS INC: Parties Seek Approval of "Shelby" Class Settlement ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled GAYLA SHELBY, on behalf of himself and all others similarly situated v. TWO JINNS, INC. DBA ALADDIN BAIL BONDS, Case No. 2:15-cv-03794-AB-GJS (C.D. Cal.), move the Court for preliminary approval of the parties' class action settlement. Specifically, through the Motion, the Plaintiff moves for certification of a settlement class, appointment of class counsel and class representatives, preliminary approval of the Parties' proposed settlement, and approval of the proposed plan to provide notice to the class. The Court will commence a hearing on January 30, 2017, at 10:00 a.m., to consider the Motion. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=F21zDhts The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com abacon@attorneysforconsumers.com The Defendant is represented by: Robert W. Hicks, Esq. Kenneth R. Wright, Esq. ROBERT W. HICKS & ASSOCIATES 14510 Big Basin Way, Suite 151 Saratoga, CA 95070 Telephone: (619) 846-4333 Facsimile: (619) 236-3413 E-mail: rhicks@rwhlaw.com kwright@rwhlaw.com UNITEDHEALTH GROUP: K. Fellgren Sues Over Prescription Bogus Fees ----------------------------------------------------------------- Carrie Salls, writing for Louisiana Record, reports that a UnitedHealth Group Inc. plan participant has filed suit against the insurance company for allegedly overcharging for prescription drugs after New Orleans television station Fox 8 revealed the findings of its investigations into prescription drug costs. In a segment entitled "Medical Wa$te," Fox 8's Lee Zurick investigated the "rising costs of prescription meds and questionable practices by the pharmaceutical and insurance industries." The class action complaint filed by Kathy L. Fellgren on Nov. 15 in the U.S. District Court for the District of Minnesota is at least the third lawsuit in roughly six weeks filed in connection with UnitedHealth's relationship with pharmacy benefit manager OptumRx. Specifically, the lawsuit alleges that UnitedHealth and OptumRx charge "hidden bogus fees" to customers whose prescriptions cost less than the policyholders' copayment. If the copayment amount is more than the retail price of a prescription drug, the class action complaint alleges that UnitedHealth and OptumRx "claw back" the extra amount. The lawsuit alleges these clawed back amounts are "pure, undisclosed profits." "These excess payments by patients for their prescription drugs are collected by benefit defendants, who have concocted a scheme to unlawfully pocket the difference between the amount the patient is required to pay at the pharmacy counter and the actual price of the drug," the complaint said. Some pharmacy benefit managers often collect for themselves more than the prescription costs, while the patient's insurance plan provides no benefit to the patient, the complaint alleges. In addition to the alleged clawback scheme, Ms. Fellgren also claims that UnitedHealth is employing "gag clauses," which require pharmacists not to tell their patients how much their prescription drugs actually cost and prohibits them from providing lower-cost alternatives to their patients or disparaging the insurance company or pharmacy benefit manager in any way. Since pharmacies that violate the gag clauses could potentially lose hundreds of thousands of customers, "most pharmacists have concealed the practice," the lawsuit said. "Americans who go to the pharmacy for needed medications expect to be charged a fair price, especially if insurance is involved," the complaint said. "Indeed, the majority of Americans enroll in or purchase insurance plans specifically to reduce the cost of their medications and to reduce their out-of-pocket expenses for what is often life-saving care." Other lawsuits were filed on Oct. 4 and Oct. 14 in connection with UnitedHealth's relationship with OptumRx, and Cigna Corp. and Humana have been the targets of lawsuits containing similar allegations to the one filed by Ms. Fellgren. All of these complaints cite Fox 8's investigation into health insurance clawbacks. The station said the investigation revealed that some insured patients would pay less for the prescription drugs in question if they had not had prescription coverage at all. All of the known lawsuits filed against UnitedHealth, Cigna and Humana assert claims under the Racketeer Influenced and Corrupt Organizations Act. In response to possible overcharging schemes, Louisiana Gov. John Bel Edwards signed legislation in June that attempts to curb overpayments for prescription drugs. The class in Fellgren is seeking restitution, monetary damages, injunctive relief and/or other available remedies for losses suffered. VOLVO: Suit Over Sunroof Leak Still Trying to Get Certification --------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Volvo leaking sunroof lawsuit is still trying to reach class-action certification, six years after the original sunroof drain lawsuit was filed in August 2010. Volvo and owners are still fighting in court over alleged leaking sunroofs in the 2004-present Volvo S40, S60, S80, V70 vehicles, 2005-present Volvo V50 sport wagons and 2003-present Volvo XC 90 SUVs. The lawsuit was filed on behalf of current and former owners and lessees of the subject vehicles allegedly at risk of water damage due to leaking sunroofs. The lawsuit alleges water should stay outside the vehicles but instead enters the passenger compartments, causing damage to carpets, electronics, sensors and anything in the path of the invading water. Owners report an assortment of vehicle parts that are damaged by the intruding water, including various control modules, hydraulic units, pumps, pressure generator assemblies, yaw rate sensors, lateral acceleration sensors and wheel sensors. The Volvo sunroofs have electronic sliding glass panels with drainage systems made of holes and tubes to prevent water from intruding into the passenger compartments. Although the drain tubes should direct outside water to the underside of the vehicles, the plaintiffs say debris can clog the drains and direct water into the vehicles. Lead plaintiff Joanne Neale says her 2005 Volvo V50 suffered from water damage to the interior carpet, causing a "sloshing" sound when driving around corners or hitting the brakes. With 32,000 on the V50, Neale took the vehicle to her dealer and was told the leaking sunroof was to blame but the warranty wouldn't cover the repairs because the damage was caused by an "outside influence." The plaintiff claims her only choice was to pay the $592 repair bill. The plaintiffs claim Volvo has known about the leaking sunroofs for years but concealed that knowledge from consumers. Additionally, the lawsuit alleges the Volvo vehicles typically suffer from leaking sunroofs shortly after the warranties expire, leaving customers with the expense of repairs. Many Volvo owners have complained about the prospect of paying thousands of dollars to keep the vehicles safe to drive. "Water leaked into my vehicle through the sunroof, destroyed the computer and air airbag system. The carpets are soaked with standing water sitting in the body of the front passenger side of the vehicle. I took my vehicle to the dealership and was told the sunroof drainage tubes where clogged. I was then quoted a price for repairs which totaled in excess of $2000." -- 2006 Volvo S40 owner / Virginia Beach, Virginia Separately, another S40 owner said they paid $1,000 just to keep vital systems functioning while driving. "Vehicle passenger rear floor flooding continuously. One day the windshield wipers wouldn't turn off and none of the interior electrical equipment would work, no power windows or locks. Drove to Volvo, they stated clogged sunroof drain and that floormat had affected the ECM under the steering column. They cleared drain and cleaned floor for $1K. Very scary." -- 2006 Volvo S40 owner / Columbus, Ohio According to the lawsuit, Volvo equips the vehicles with an important safety feature called Dynamic Stability and Traction Control used to drive during hazardous weather. However, owners claim the system is just one of many that can experience outages and problems once water enters the vehicles. Volvo owners say they weren't told the sunroof drain tubes needed maintenance, something the owner of a 2004 XC90 says they wish they would have known. "Today, we learned our Volvo XC90's yaw rate sensor has failed. The root cause was water leaking into the passenger side of the car due to blocked moonroof (I.e. sunroof) drains, which shorted the yaw rate sensor. This impaired the electronic stability control and brakes of our Volvo, putting us at risk of accident. Even though easy and inexpensive regular maintenance would prevent expensive damage, neither the Volvo user manual nor maintenance service operations guides mention the need. The damage we and others have suffered was completely preventable." -- 2004 Volvo XC90 owner / Mountain View, California The plaintiffs say Volvo sent its dealerships technical service bulletins warning dealers about customers who complain about leaking sunroofs and the damage caused by waterlogged interiors. But Volvo plaintiffs claim even when the automaker issued a technical service bulletin to its dealers in 2005 concerning the sunroof drain tubes, dealers forced customers to cover the cost of new hoses. After the sunroof leak lawsuit was filed in 2010, Volvo owners finally won class-action certification in 2013 for six states: California, Florida, Hawaii, Maryland, Massachusetts and New Jersey, but in 2015 a court reversed the ruling. In reversing class-action certification, the Third Circuit declared the owner's claims were different than the claims listed in the class-action certification documents. Six years later and Volvo owners are still trying to convince the judge the lawsuit should be certified as a class-action. Volvo and owners have battled over everything, including testimony of experts and the evidence submitted by the plaintiffs. In its fight against certification, Volvo told the judge there is no way to prove every vehicle owner experienced damage from water and it would be impossible to prove damage was caused by a leaking sunroof. The Volvo leaking sunroof lawsuit was filed in the U.S. District Court for the District of New Jersey - Neale, et al. v. Volvo Cars of North America LLC, et al. The owners are represented by Caddell & Chapman, Crowley Norman LLP, Chimicles & Tikellis LLP, Mazie Slater Katz & Freeman LLC, Fisher Boyd Brown & Huguenard, McCuneWright LLP, Lite DePalma Greenberg LLC, and Shepherd Finkelman Miller & Shah. WALLACE RUSH: Thomas Seeks Certification of Class Under FLSA ------------------------------------------------------------ De'Marcus Thomas moves the Court to conditionally certify the lawsuit titled DE'MARCUS THOMAS, individually and on behalf of all similarly situated v. WALLACE, RUSH, SCHMIDT, INC., Case No. 3:16- cv-00572-BAJ-RLB (M.D. La.), as a collective action pursuant to the Fair Labor Standards Act. The Plaintiff seeks an order allowing notice to be sent to members of a class of all individuals, who were formerly or are currently employed by the Defendant in the state of Louisiana and who have not been compensated for regular wages and have not been compensated the overtime rate of one and one-half times the regular rate of pay for all work performed in excess of 40 hours per work week, and for any employee for which the Defendant failed to maintain and preserve payroll records or other records, containing, without limitation, the total hours worked by each class member each workday and total hours worked by each class member each workweek. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sQQKoLfk The Plaintiff is represented by: Galen M. Hair, Esq. VARADI, HAIR, & CHECKI 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Telephone: (504) 684-5200 Facsimile: (504) 613-6351 E-mail: hair@vhclaw.com - and - David Vicknair, Esq. Chris Meeks, Esq. SCOTT, SEVIN & VICKNAIR 3850 N. Causeway Blvd., Suite 1130 Metairie, LA 70002 Telephone: (504) 264-1057 Facsimile: (504) 264-5557 E-mail: david@ssv-law.com chrism@ssv-law.com WAL-MART STORES: Appeal Filed in Pennsylvania Superior Court ------------------------------------------------------------ Michelle Braun, on behalf of herself and all others similarly situated, Appellant v. Wal-Mart Stores, Inc., a Delaware Corporation and Sam's Club an operating segment of Wal-Mart Stores, Inc.; and Dolores Hummel, on behalf of herself and all others similarly situated, Appellant v. Wal-Mart Stores, Inc., a Delaware Corporation, and Sam's Club an operating segment of Wal- Mart Stores, Inc., Case No. 3633-EDA-2016 (Penn. Super. Ct., Dec 2, 2016), is an appeal filed before the Pennsylvania Superior Court from a lower court decision in a class action, Case No. 2:15-cv-04361-DDP-FFM (Phil Cty. Ct., Nov. 3, 2016). Appellee Wal-Mart Stores, Inc. is represented by: McBride, Maureen Murphy, Esq. Cunningham, John J., IV, Esq. Telephone: (610) 430-8000 Appellant Michelle Braun and Dolores Hummel is represented by: Donovan, Michael D., Esq. 1055 Westlakes, Dr 155 Berwyn, PA Telephone: (610) 647 6067 WCI COMMUNITIES: Bushansky Questions Efforts to Sell to Lennar -------------------------------------------------------------- STEPHEN BUSHANSKY, On Behalf of Himself and All Others Similarly Situated v. WCI COMMUNITIES, INC., KEITH E. BASS, STEPHEN D. PLAVIN, PATRICK J. BARTELS, JR., MICHELLE MACKAY, DARIUS G. NEVIN, CHARLES C. REARDON, CHRISTOPHER E. WILSON, LENNAR CORPORATION, MARLIN BLUE LLC, and MARLIN GREEN CORP., Case No. 12947- (Del. Ch. Ct., November 29, 2016), is a stockholder class action brought on behalf of the public stockholders of WCI for alleged breaches of fiduciary duties in connection with the efforts to sell the Company to Lennar through its wholly-owned subsidiaries LLC Sub and Corporate Sub. WCI is a Delaware corporation with its principal executive offices located in Bonita Springs, Florida. The Company is a lifestyle community developer and luxury homebuilder of single- and multi- family homes and luxury high-rise tower units. The Individual Defendants are directors and officers of the Company. Lennar is a Delaware corporation with its corporate headquarters located in Miami, Florida. Lennar was founded in 1954 and is one of the nation's largest builders of affordable move-up and retirement homes. LLC Sub is a Delaware limited liability company and a direct, wholly-owned subsidiary of Lennar. Defendant Corporate Sub is a Delaware corporation and a direct, wholly-owned subsidiary of Lennar. The Plaintiff is represented by: Ryan M. Ernst, Esq. Daniel P. Murray, Esq. O'KELLY & ERNST, LLC 901 N. Market Street, Suite 1000 Wilmington, DE 19801 Telephone: (302) 778-4000 E-mail: rernst@oelegal.com dmurray@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 E-mail: racocelli@weisslawllp.com mrogovin@weisslawllp.com kkeenan@weisslawllp.com WELLS FARGO: "Stanton" Suit Moved from Cir. Ct. to M.D. Fla. ------------------------------------------------------------ The class action lawsuit titled Nadine Stanton, individually and as representative of all persons similarly situated, the Plaintiff, v. Wells Fargo & Company and Wells Fargo Bank, N.A., the Defendant, Case No. 16-CA010247, was removed from the 13th Judicial Circuit, Hillsborough County, FL, to the U.S. District Court for Middle District of Florida (Tampa). The District Court Clerk assigned Case No. 8:16-cv-03318-JSM-JSS to the proceeding. The case is assigned to hon. Judge James S. Moody, Jr. Nadine Stanton, individually and as representative of all persons similarly situated is represented by: Anthony Garcia, Esq. AG LAW, INC. 742 S Village Cir Tampa, FL 33606-2563 Telephone: (813) 259 9555 Facsimile: (813) 254 9555 E-mail: anthony@aglawinc.com - and - Christopher R. Hood, Esq. LEITMAN SIEGAL & PAYNE, PC 600 N 20th St., Suite 400 Birmingham, AL 35203-2601 Telephone: (205) 251 5900 - and - W. Lewis Garrison, Jr. HENINGER GARRISON DAVIS, LLC 2224 First Ave N PO Box 11310 Birmingham, AL 35202 Telephone: (205) 326 3336 Facsimile: (205) 326 3332 E-mail: wlgarrison@hgdlawfirm.com Wells Fargo & Company and Defendant Wells Fargo Bank, N.A. are represented by: Emily Yandle Rottmann, Esq. Robert Eric Bilik, Esq. Sara F. Holladay-Tobias, Esq. MCGUIREWOODS, LLP 50 N Laura St. Suite 3300 Jacksonville, FL 32202 Telephone: (904) 798 3200 Facsimile: (904) 798 3207 E-mail: erottmann@mcguirewoods.com ebilik@mcguirewoods.com sfhollad@mcguirewoods.com WESTERN RECYCLERS: "Poullard" Lawsuit Seeks OT Pay Under FLSA ------------------------------------------------------------- J.C. POULLARD, JR., Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. WESTERN RECYCLERS, INC., DBA AMERICAN RECYCLER, Defendant, Case No. 4:16-cv-03545 (S.D. Tex., December 1, 2016), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. Defendant is a clothing recycling company. It collects donated clothes around the city and sells them for a profit, giving half of the proceeds to local charities. The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Phone: (713) 222-6775 Fax: (713) 222-6739 WEX INC: Court Denies Swinter Group's Bid for Class Certification ----------------------------------------------------------------- The Hon. John A. Ross entered a memorandum and order in the lawsuit captioned SWINTER GROUP, INC. v. WEX, INC., d/b/a WEX FLEET ONE, et al., Case No. 4:16-CV-01464 JAR (E.D. Mo.), denying without prejudice the Plaintiff's motion for class certification and to stay ruling and briefing on the Motion. Judge Ross also stated that the matter will be set for a Rule 16 conference by separate order. Swinter Group, Inc. brings the putative class action against the Defendants for alleged violations of the Telephone Consumer Protection Act, also known as the "Junk Fax Act." The action was originally filed in the Eleventh Judicial Circuit Court of St. Charles County, Missouri, and timely removed to the Court on September 15, 2016. The Plaintiff has filed the Motion to certify this class and to stay ruling and briefing thereon until completion of discovery: All persons in the United States who on or after four years prior to the filing of this action, (1) were sent by or on behalf of Defendants a telephone facsimile message of material advertising the commercial availability or quality of any property, goods, or services, (2) with respect to whom Defendants cannot provide evidence of prior express invitation or permission for the sending of such faxes, and (3) either (a) with whom Defendants did not have an established business relationship, or (b) the fax identified in subpart (1) of this definition (i) did not display a clear and conspicuous opt-out notice on the first page stating that the recipient may make a request to the sender of the advertisement not to send any future advertisements to a telephone facsimile machine or machines and that failure to comply, within 30 days, with such a request meeting the requirements under 47 C.F.R. Section 64.1200(a)(4)(v) is unlawful, (ii) lacked a telephone number for sending the opt-out request, or (iii) lacked a facsimile number for sending the opt-out request. "Numerous courts in this District have opted to deny these early motions to certify without prejudice to refiling at the appropriate time rather than permit the motions to pend indefinitely. See e.g., Prater v. Medicredit, Inc., 301 F.R.D. 398, 401 (E.D. Mo. 2014)...)," Judge Ross opined. A copy of the Memorandum and Order is available at no charge at https://goo.gl/D4UQOF Plaintiff Swinter Group, Inc., is represented by: Robert Schultz, III, Esq. Ronald J. Eisenberg, Esq. SCHULTZ & ASSOCIATES LLP 640 Cepi Drive, Suite A Chesterfield, MO 63005 Telephone: (636) 537-4645 Facsimile: (636) 537-2599 E-mail: rschultz@sl-lawyers.com reisenberg@sl-lawyers.com Defendant Wex, Inc., is represented by: David P. Stoeberl, Esq. CARMODY MACDONALD P.C. 120 S. Central Avenue, Suite 1800 St. Louis, MO 63105 Telephone: (314) 854-8602 Facsimile: (314) 854-8660 E-mail: dps@carmodymacdonald.com - and - James F. Bogan, III, Esq. Jeffrey H. Fisher, Esq. KILPATRICK TOWNSEND LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA, 30309-4528 Telephone: (404) 815-6467 Facsimile: (404) 541-3133 E-mail: Jbogan@kilpatricktownsend.com JFisher@kilpatricktownsend.com WHOLESOME GOURMET: Faces "Valentin" Suit Under FLSA, NY Labor Law ----------------------------------------------------------------- DOUGLAS VALENTIN, individually and on behalf of all other persons similarly situated who were formerly or are presently employed by WHOLESOME GOURMET MARKET, INC. and/or any other entities affiliated with or controlled by WHOLESOME GOURMET MARKET, INC., Plaintiffs, v. WHOLESOME GOURMET MARKET, INC. and/or any other entities affiliated with or controlled by WHOLESOME GOURMET MARTKET, INC., Defendants, Case No. 1:16-cv-06657 (E.D.N.Y., December 1, 2016), is brought pursuant to the Fair Labor Standards Act and New York Labor Law and New York Codes, Rules, and Regulations to recover unpaid overtime compensation. WHOLESOME GOURMET MARKET, INC. -- http://www.wholesomegourmetmarket.com/-- describes itself as a classic diner in Brooklyn, New York. The Plaintiff is represented by: Jack Newhouse, Esq. Lloyd Ambinder, Esq. Virginia & Ambinder, LLP 40 Broad Street, 7th Floor New York, NY 10004 Phone: (212) 943-9080 * Class Actions Over Unpaid Overtime Gain Traction in Canada ------------------------------------------------------------ Justin R. Lambert, Esq. -- lambertj@bennettjones.com -- and Christine Plante, Esq. -- plantec@bennettjones.com -- of Bennett Jones LLP, in an article for Mondaq, reports that on October 12, 2016, a former GoodLife personal trainer filed a class action lawsuit for $60 million in damages under Ontario's Class Proceeding Acts, 1992. The proposed class members include current and former non-managerial employees of GoodLife employed in Ontario since October 2014. The Action alleges, among other things, that GoodLife: -- failed to maintain accurate records of all actual hours worked; -- failed to advise employees of entitlement to overtime pay; -- imposed an unlawful overtime policy; and -- required and permitted employees to work more hours than scheduled, but failed to pay those regular and overtime hours. This is one of a number of recent high-profile and high-stakes class actions by employees seeking compensation for unpaid overtime. In July 2016, the Ontario Superior Court of Justice approved the settlement of two unpaid overtime class actions filed by BMO Nesbitt Burns Inc. and Bank of Nova Scotia investment advisors (Rosen v BMO Nesbitt Burns Inc., 2016 ONSC 4752, and Fulawka v Bank of Nova Scotia, 2016 ONSC 1576). In both cases, the employers agreed to create a compensation fund ($12 million for BMO Nesbitt Burns Inc. and $93.3 million for Bank of Nova Scotia) and pay the class members' legal fees. These types of class actions have been more popular in the United States, and entrepreneurial Canadian class actions counsel appear to be taking note. In the United States, the oilfield services industry is a current target for employment class actions. The common use of blended day rates, independent contractors, and time off in lieu of overtime policies make the industry susceptible to these types of claims, particularly because these practices are often not properly implemented by employers. In Alberta, many employees and contractors would not have been eager to either initiate or participate in such a class action because of reputational risk and the risk of being "blacklisted" by the industry. However, now that many oilfield workers are out of jobs, these disincentives may not be as great. Time will tell if the combination of an increasingly entrepreneurial Alberta- based class actions bar and out of work oilfield workers leads to an increase in this type of class action litigation. * Options for Challenging Class Action Authorization Reduced ------------------------------------------------------------ Sylvie Rodrigue, Esq. -- srodrigue@torys.com -- and Marie-Eve Gingras, Esq. -- mgingras@torys.com -- of Torys LLP, in an article for Mondaq, report that in 2016, the Quebec Court of Appeal has allowed no less than five appeals from judgments that refused to authorize class actions. In Charles v. Boiron Canada inc., Sibiga v. Fido Solutions inc., Lambert (Gestion Peggy) v. Ecolait ltee, Blouin v. Parcs eoliens la Seigneurie de Beaupre et, s.e.n.c., and Masella v. TD Bank Financial Group, the province's highest court overturned the decisions of the Superior Court and authorized these class proceedings. These decisions, which follow the Supreme Court of Canada's recent trend of advocating a broad and liberal interpretation of the four criteria for authorizing class actions, once again reduce the burden on plaintiffs in Quebec. Although it is still possible to successfully challenge a class action at the authorization stage, it is clear that the number of options for challenging authorizations has once again been reduced. This is particularly true in the context of consumer law cases. In both Sibiga (related to the allegedly excessive or abusive nature of international mobile data roaming fees charged by wireless telephone service providers to their customers) and Boiron (related to allegedly misleading or deceptive advertising concerning a homeopathic product), the Court of Appeal has lessened the already low burden of proof applicable to the colour of right and to the ability to properly represent class members criteria. What You Need To Know Colour of Right. It is still possible to argue that the plaintiff has failed to establish that he has an arguable case, especially in the absence of some evidence to support the allegations contained in the application for authorization. However, at the authorization stage, the court must not decide the substantive issues in the dispute and must be limited to assessing whether the conclusions sought flow logically from the facts alleged and whether the allegations in the application are sustained by the evidence submitted in support thereof. The colour of right criterion should be assessed in light of the proposed representative's personal cause of action. If there are contradictory facts between the defendant's authorized evidence and the facts alleged in the application for authorization or the evidence filed in support thereof, the authorization judge must accept the facts alleged by the plaintiff as proven, unless they seem improbable or obviously inaccurate. In proposed consumer law class actions, the plaintiff is not required to submit his/her contract as evidence at the authorization stage in order to demonstrate an arguable case, insofar as the contract is properly alleged, that its existence is not disputed, and that the details of the contractual obligations it provides are not essential for the assessment of whether the conclusions sought by the plaintiff flow logically from the facts alleged. Description and Composition of the Class. Despite recent case law, a proposed class that contains a limited number of members remains solid ground for challenging an application for authorization to institute a class action. Moreover, the only first instance judgment denying such an application that has been affirmed by the Court of Appeal in 2016 has been upheld on this basis: the proposed class only had 12 members, which is insufficient to justify the authorization of a class action. A circular, imprecise or subjective description of the class, as well as the lack of prima facie evidence relating to the existence or composition of the class, are also possible grounds for challenge. Representative Plaintiff. The appearance of a conflict of interest between the plaintiff and the members of the proposed class remains a valid ground for challenge. In class actions outside the consumer law context, it is still possible to oppose an application for authorization on the basis that the plaintiff does not have the competence to act as a representative, especially if no reasonable investigation has been conducted with regards to the existence of the class. In consumer law class actions, the requirements relating to the competence of the class members' representative are (even more) minimal. A proposed representative can properly represent class members although the proceedings have been initiated by class counsel. The bankruptcy of the plaintiff does not mean that he/she does not possess the interest to act as representative: the plaintiff can represent the class members despite his/her bankruptcy.13 * Securities Class Actions on the Rise in U.S., AGCS Says --------------------------------------------------------- Actuarial Post reports that new risks such as cyber incidents or data privacy, rising regulator and shareholder activism and the influence of third party litigation funders are putting corporate leaders under more pressure than ever of falling foul of investigations, fines or prosecution over alleged wrongdoing, says Allianz Global Corporate & Specialty (AGCS), a leading provider of Directors and Officers (D&O) insurance globally. -- Liability of directors' and officers' (D&O) increasing, as shareholder and regulator activism rises globally -- Growing trend to seek personal legal action against executives. Non-compliance with laws and regulations now top cause of D&O loss. Average claim for breach of trust and care is $1m+, AGCS analysis shows -- Senior Executives in the UK could face prosecution in future for offenses including fraud and money laundering carried out by staff -- Emerging perils include cyber and data privacy as well as reputational risks such as climate change impact. M&A activity remains key driver of D&O claims Directors and officers are walking a managerial tightrope as executive liability continues to increase annually. There is a growing trend towards seeking punitive and personal legal action against executives for failure to follow regulations and standards which could result in costly investigations, criminal prosecutions or civil litigation putting the company's assets, or their own, at risk, AGCS says in its new report D&O Insurance Insights: Management liability today. "While the legal landscape differs strongly from country to country, increasing shareholder or regulatory action has become a global phenomenon that needs to be given top priority within companies' internal risk management departments," says Bernard Poncin, Global Head of Financial Lines, AGCS. D&O litigation - lengthier and more costly According to AGCS analysis, non-compliance with laws and regulations is now the top cause of D&O claims[1] by number, followed by negligence and maladministration/lack of controls. The average D&O claim for breach of duty costs over $1 million (EUR1 million). However, in large corporate liability cases D&O claims can be valued in the hundreds of millions of dollars. AGCS observes a general trend for D&O claims to be dismissed or resolved more slowly, meaning lengthier litigation, increased defense costs and higher settlement expectations. For example, the average US securities class action case takes between three and six years to complete while legal defense costs average around $10 million, rising to $100 million for the largest cases. In the past six years defense costs have almost doubled for large D&O claims in the US. The influence of third party litigation funding is also changing the global litigation map, with it being pivotal in the development of collective actions against financial institutions and commercial entities and their directors and officers. Management in the UK could be prosecuted for failure to prevent fraud by staff Speaking at the Cambridge International Symposium on Economic Crime in September this year, the Attorney General reiterated the Prime Minister's priority of expanding economic opportunities - meaning businesses "of all sizes" should be better held accountable for their failures. The Attorney General also restated the intention to consult on extending the criminal offence of 'failure to prevent' to other economic crimes such as fraud and money laundering so that firms are properly held to account for criminal activity that takes place within them. "If a new corporate offence of failing to prevent economic crime is introduced in the UK, it will represent a huge expansion in corporate criminal liability," said Terry FitzGerald, Head of Commercial D&O and Financial Institutions, UK at Allianz Global Corporate & Specialty. "Although these particular reforms are focused on corporate liability, there is, of course, a broader drive to hold individuals accountable in the event of criminal conduct or regulatory breaches at their companies. In recent years, increasing emphasis has been placed on personal accountability across all business sectors, with Deferred Prosecution Agreements now a means to further increase cooperation with regulators and encourage best practice. Reform in this area could ultimately have a fundamental impact on the risks faced by senior executives." The risks and potential liabilities of senior executives have never been greater Litigation against companies and their officers is on the rise. In the US, the number of security class action filings is rising and, at mid-year, was on course for its highest annual total for 12 years[2]. Many Asian countries such as Japan, Hong Kong, Thailand and Singapore are also moving towards a more litigious culture. The increase in claims has also been pronounced in Germany where the number of D&O claims for AGCS alone has tripled in the past 20 years. Cyber risks on the board agenda The landscape for executives is further complicated by a number of emerging perils, such as liability around cyber-attacks and data privacy. In the US; several class actions have already been filed related to data breaches. Data protection rules around the world are becoming increasingly tough, with severe penalties for non- compliance. As a consequence, AGCS experts anticipate cyber security-related D&O litigation more widely in the US, but also in Europe, the Middle East and Australia -- if there has been negligence in any failure to protect data or a lack of controls. "Many directors used to see cyber as an IT issue and not an exposure for the board to consider," explains Emy Donavan, Regional Head of Cyber Liability North America, AGCS. "But there is no escaping cyber risks and directors need to be adequately informed, otherwise they will leave themselves exposed." Other new management risks include negative disclosures or allegations around environmental pollution, climate change and modern slavery which could result in reputational risks and shareholder activism, public outcry or governmental action. Mergers and acquisitions (M&A) continue to be a key driver of D&O litigation and is predicted to continue at rapid pace in future. "M&A, but also divestitures, belong to the more riskier moments in the life of a company," says Mr. Poncin. "Expectations are always high, and synergies are easier planned than realized." Highly sophisticated risk management required In order to tackle the increase in executive risk in future directors need to develop a highly sophisticated risk management culture. Examples include instilling first-class cyber and IT protection, keeping records of all information relevant to a managerial role and maintaining open communication with authorities, investors and employees. Executives should ask tough questions about compliance related topics such as sanctions, embargoes, domicile registrations, price-fixing and fraud and also learn more about "classic" D&O exposures such as M&A, capital measures and IPOs. The AGCS report contains best practice advice and checklists outlining how executives can mitigate risk. D&O insurance has become a regular part of companies risk management in the past 20 years. It provides financial protection for managers against the consequences of actual or alleged "wrongful acts". Common D&O risk scenarios include HR issues, shareholder actions, reporting or disclosure errors. Coverage does not include fraudulent, criminal or intentional non-compliant acts or cases where directors obtained illegal remuneration, or acted for personal profit. Asbestos Litigation ASBESTOS UPDATE: GE Dropped as Defendant in "Perez" --------------------------------------------------- Judge Nancy J. Rosenstengel of the United States District Court for the Southern District of Illinois granted without prejudice General Electric Company's Motion to Dismiss for Lack of Jurisdiction the case captioned SYLVIA PEREZ, Individually and as Special Administrator of the Estate of Armando Perez, Plaintiffs, v. AIR AND LIQUID SYSTEMS CORPORATION, Individually and as Successor to BUFFALO PUMPS, INC., et al., Defendants, Case No. 3:16-CV-00842-NJR-DGW (S.D. Ill.). Plaintiff Sylvia Perez, Special Administrator of the Estate of Decedent Armando Perez, brought the action against numerous defendants for injuries her husband allegedly sustained from asbestos exposure while serving in the United States Navy from approximately 1944 to 1946. On May 4, 2015, the decedent was diagnosed with mesothelioma, which ultimately led to his death. In granting GE's Motion, Judge Rosenstengel held that contrary to Perez's argument, the language of Illinois' registration statutes is more akin to the Connecticut statutes analyzed by the Second Circuit in Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016), and the Delaware statutes analyzed in Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016). Nothing in the statutes expressly advises a foreign corporation that registration to do business constitutes consent to the exercise of general jurisdiction. Given the inclusion of limiting language ("permitted by law") and the lack of any reference to jurisdiction, the Court cannot say that Illinois' registration statutes require a foreign corporation to consent to the general jurisdiction of Illinois courts. Thus, GE did not consent to jurisdiction by registering to do business and appointing an agent for service of process, as required by Illinois law to do business in the state, Judge Rosenstengel held. Defendants Air & Liquid Systems and Warren Pumps also filed motions to dismiss Count III (loss of consortium claim), which Judge Rosenstengel denied after determining that to the extent that Perez's loss of consortium claim seeks damages for injury to the marriage sustained after her husband's injury but before his death, "it is derivative of the surviving personal injury claims and is not part of the wrongful death claim." According to Judge Rosenstengel, any recovery under the Wrongful Death Act for injuries to the marriage sustained after her husband's death would not compensate for injuries sustained before his death. Thus, Perez may bring her claim for loss of consortium for any injury to the marriage suffered between the time of her husband's injury and his death, Judge Rosenstengel concluded. A full-text copy of the Memorandum and Order dated December 2, 2016, is available at https://is.gd/EQzsxB from Leagle.com. Sylvia Perez, Plaintiff, represented by Matthew H. Armstrong, Armstrong Law Firm LLC. Air & Liquid System Corporation, Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Alfa-Laval, Inc., Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. Carrier Corporation, Defendant, represented by Christopher T. Gardino, Segal, McCambridge Singer & Mahoney, Ltd & Scott R. Hunsaker, Tucker Ellis LLP. Crane Co., Defendant, represented by Carl J. Geraci, HeplerBroom LLC, Jessica Schmit, HeplerBroom LLC & Benjamin J. Wilson, HeplerBroom LLC. FMC Corporation, Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. Gardner Denver, Inc., Defendant, represented by Madeline V. Tzall, Segal, McCambridge Singer & Mahoney, Ltd. General Electric Company, Defendant, represented by Anita M. Kidd, Armstrong Teasdale LLP, Julie Fix Meyer, Armstrong Teasdale LLP, Melanie R. King, Armstrong Teasdale LLP & Raymond R. Fournie, Armstrong Teasdale LLP. John Crane Inc., Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. SPX Corporation, Defendant, represented by Bradley R. Bultman, Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Defendant, represented by Bradley R. Bultman, Larson King LLP. Warren Pumps LLC, Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. General Electric Company, Cross Claimant, represented by Raymond R. Fournie, Armstrong Teasdale LLP. General Electric Company, Cross Defendant, represented by Raymond R. Fournie, Armstrong Teasdale LLP. Air & Liquid System Corporation, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Crane Co., Cross Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC. FMC Corporation, Cross Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. John Crane Inc., Cross Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. SPX Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Warren Pumps LLC, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Crane Co., Cross Claimant, represented by Benjamin J. Wilson, HeplerBroom LLC. Crane Co., Cross Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC. Air & Liquid System Corporation, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. FMC Corporation, Cross Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. General Electric Company, Cross Defendant, represented by Raymond R. Fournie, Armstrong Teasdale LLP. John Crane Inc., Cross Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. SPX Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Warren Pumps LLC, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Air & Liquid System Corporation, Cross Claimant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Crane Co., Cross Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC. FMC Corporation, Cross Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. General Electric Company, Cross Defendant, represented by Anita M. Kidd, Armstrong Teasdale LLP, Julie Fix Meyer, Armstrong Teasdale LLP, Melanie R. King, Armstrong Teasdale LLP & Raymond R. Fournie, Armstrong Teasdale LLP. John Crane Inc., Cross Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. SPX Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Warren Pumps LLC, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Warren Pumps LLC, Cross Claimant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Air & Liquid System Corporation, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Crane Co., Cross Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC. FMC Corporation, Cross Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. General Electric Company, Cross Defendant, represented by Anita M. Kidd, Armstrong Teasdale LLP, Julie Fix Meyer, Armstrong Teasdale LLP, Melanie R. King, Armstrong Teasdale LLP & Raymond R. Fournie, Armstrong Teasdale LLP. John Crane Inc., Cross Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. SPX Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. John Crane Inc., Cross Claimant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C.. Air & Liquid System Corporation, Cross Defendant, represented by James R. Grabowski, Heyl, Royster et al. & Keith B. Hill, Heyl, Royster et al.. Carrier Corporation, Cross Defendant, represented by Christopher T. Gardino, Segal, McCambridge Singer & Mahoney, Ltd. Crane Co., Cross Defendant, represented by Carl J. Geraci, HeplerBroom LLC, Jessica Schmit, HeplerBroom LLC & Benjamin J. Wilson, HeplerBroom LLC. FMC Corporation, Cross Defendant, represented by Anthony D. Danhelka, Swanson, Martin & Bell, LLP. General Electric Company, Cross Defendant, represented by Anita M. Kidd, Armstrong Teasdale LLP, Julie Fix Meyer, Armstrong Teasdale LLP, Melanie R. King, Armstrong Teasdale LLP & Raymond R. Fournie, Armstrong Teasdale LLP. SPX Corporation, Cross Defendant, represented by Bradley R. Bultman, Esq. -- bbultman@larsonking.com -- Larson King LLP. Superior-Lidgerwood-Mundy Corporation, Cross Defendant, represented by Bradley R. Bultman, Larson King LLP. ASBESTOS UPDATE: Calif. Inmates' Civil Rights Suits Dismissed ------------------------------------------------------------- Judge Edward M. Chen of the United States District Court for the Northern District of California granted the motions for summary judgment filed by defendants in the pro se prisoner's civil rights actions styled DEWEY TERRY, Plaintiff, v. BRAD SMITH, et al., Defendants, Case No. 13-cv-01227-EMC (N.D. Calif.), and RICHARD L. ARNOLD, Plaintiff, v. BRAD SMITH, et al., Defendants, Case No. 13- cv-04456-EMC (N.D. Calif.). The amended complaint separately alleged that the Defendants required Dewey Terry and Richard Arnold to clean and work in an area containing lead paint and asbestos in May and early June 2012. The amended complaint also alleged that defendants Philip Earley and Gary Loredo "fail[ed] to disclose/enter onto the Worker's Compensation forms exposure to Asbestos," and that failure "resulted in a 'fraudulent and/or Incomplete Worker's Compensation Claim.'" Judge Chen found, among other things, that the inmates did not present a claim to the Board that mentioned any intentional concealment or fraud in the preparation of the worker's compensation claim form. The claim that the inmates did present asserted only lead and asbestos exposure claims, and did not mention any misrepresentation or other problem with the preparation of the worker's compensation claim form. Therefore, any state law claim that is not barred by the rule that the workers' compensation scheme is the exclusive remedy must be dismissed because the inmates did not comply with the claim- presentation requirement of the California Government Claims Act. A full-text copy of the Order with respect to Mr. Terry dated December 2, 2016, is available at https://is.gd/UjtNqY from Leagle.com. A full-text copy of the Order with respect to Mr. Arnold dated December 2, 2016, is available at https://is.gd/2F9k32 from Leagle.com. Dewey Terry, Plaintiff, Pro Se. Richard L. Arnold, Plaintiff, Pro Se. Phillip Earley, Defendant, represented by Kyle Anthony Lewis, Department of Justice, Matthew M. Grigg, Law Offices of Nancy E. Hudgins, Carol B. Ho, Law Offices of Nancy E. Hudgins & Nancy Eaton Hudgins, Law Offices of Nancy E. Hudgins. Gary Loredo, Defendant, represented by Kyle Anthony Lewis, Department of Justice, Matthew M. Grigg, Law Offices of Nancy E. Hudgins, Carol B. Ho, Law Offices of Nancy E. Hudgins & Nancy Eaton Hudgins, Law Offices of Nancy E. Hudgins. Joe Dobie, Defendant, represented by Kyle Anthony Lewis, Department of Justice, Matthew M. Grigg, Law Offices of Nancy E. Hudgins, Carol B. Ho, Law Offices of Nancy E. Hudgins & Nancy Eaton Hudgins, Law Offices of Nancy E. Hudgins. Jeremy Young, Defendant, represented by Kenneth Robert Williams, Kenneth R. Williams, Attorney at Law & Kyle Anthony Lewis, Department of Justice. ASBESTOS UPDATE: Kaanapali Continues Talk with FFIC on Insurance ---------------------------------------------------------------- Kaanapali Land, LLC, says it is continuing its talk with Fireman's Fund Insurance Corporation over asbestos litigation defense costs, 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, "Kaanapali Land, as successor by merger to other entities, and D/C Distribution Corporation have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there are relatively few cases that name Kaanapali Land, there were a substantial number of cases that were pending against D/C on the U.S. mainland (primarily in California). Cases against Kaanapali Land (hereafter, "Kaanapali Land asbestos cases") are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. Each entity defending these cases believes that it has meritorious defenses against these actions, but can give no assurances as to the ultimate outcome of these cases. The defense of these cases has had a material adverse effect on the financial condition of D/C as it has been forced to file a voluntary petition for liquidation. Kaanapali Land does not believe that it has liability, directly or indirectly, for D/C's obligations in those cases. Kaanapali Land does not presently believe that the cases in which it is named will result in any material liability to Kaanapali Land; however, there can be no assurance in that regard. "On February 12, 2014, counsel for Fireman's Fund Insurance Company, the carrier that has been paying defense costs and settlements for the Kaanapali Land asbestos cases, stated that it would no longer advance fund settlements or judgments in the Kaanapali Land asbestos cases due to the pendency of the D/C and Oahu Sugar Company, LLC bankruptcies. In its communications with Kaanapali Land, Fireman's fund expressed its view that the automatic stay in effect in the D/C bankruptcy case bars Fireman's Fund from making any payments to resolve the Kaanapali Land asbestos claims because D/C Distribution is also alleging a right to coverage under those policies for asbestos claims against it. However, in the interim, Fireman's Fund advised that it presently intends to continue to pay defense costs for those cases, subject to whatever reservations of rights may be in effect and subject further to the policy terms. Fireman's Fund has also indicated that to the extent that Kaanapali Land cooperates with Fireman's Fund in addressing settlement of the Kaanapali Land asbestos cases through coordination with its adjusters, it is Fireman's Fund's present intention to reimburse any such payments by Kaanapali Land, subject, among other things, to the terms of any lift-stay order, the limits and other terms and conditions of the policies, and prior approval of the settlements. Kaanapali Land continues to pursue discussions with Fireman's Fund in an attempt to resolve the issues, however, Kaanapali Land is unable to determine what portion, if any, of settlements or judgments in the Kaanapali Land asbestos cases will be covered by insurance." Kaanapali Land, LLC operates through two segments: property and agriculture. ASBESTOS UPDATE: D/C Continues to Defend A&F Suit at Sept. 30 ------------------------------------------------------------- Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation, continues to defend itself against the insurance coverage lawsuit filed by American & Foreign Insurance Company, according to Kaanapali's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "On February 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight-count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought, among other things, a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. D/C believed that it had meritorious defenses and positions, and intended to vigorously defend. In addition, D/C believed that it was entitled to amounts from plaintiffs for reimbursement and recoupment of amounts expended by D/C on the lawsuits previously tendered. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with Kaanapali Land, in August 2006, whereby Kaanapali Land provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled this lawsuit with payment by plaintiffs in the amount of $1,618,000. Such settlement amount was paid to Kaanapali Land in partial satisfaction of the secured indebtedness. "Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the United States Bankruptcy Court, Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is not expected to have a material adverse effect on the Company as D/C was substantially without assets at the time of the filing. Kaanapali Land filed claims in the D/C bankruptcy that aggregated approximately $26,800, relating to both secured and unsecured intercompany debts owed by D/C to Kaanapali Land. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos- related claims, filed proofs of claim on behalf of approximately two thousand claimants. While it is not likely that a significant number of these claimants have a claim against D/C that could withstand a vigorous defense, it is unknown how the trustee will deal with these claims. It is not expected, however, that the Company will receive any material additional amounts in the liquidation of D/C." Kaanapali Land, LLC operates through two segments: property and agriculture. ASBESTOS UPDATE: D/C Lift Stay Issue Remains Pending at Sept. 30 ---------------------------------------------------------------- A motion to lift stay remains pending in the bankruptcy case of Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation, according to Kaanapali's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "On or about April 28, 2015, eight litigants who filed asbestos claims in California state court (hereinafter, "Petitioners") filed a motion for relief from the automatic stay in the D/C bankruptcy (hereinafter "life stay motion"). Under relevant provisions of the bankruptcy rules and on the filing of the D/C bankruptcy action, all pending litigation claims against D/C were stayed pending resolution of the bankruptcy action. In their motion, Petitioners asked the bankruptcy court to lift the stay in the bankruptcy court to name D/C and/or its alternate entities as defendants in their respective California state court asbestos actions and to satisfy their claims against insurance policies that defend and indemnify D/C and/or their alternate entities. The Petitioner's motion to lift stay thus in part has as an objective ultimate recovery, if any, from, among other things, insurance policy proceeds that were allegedly assets of both the D/C and Oahu Sugar Company, LLC bankruptcy estates. As noted above, Kaanapali, the U.S. Environmental Protection Agency, and the Navy are claimants in the Oahu Sugar bankruptcy and the Fireman's Fund policies are allegedly among the assets of the Oahu Sugar bankruptcy estate as well. For this and other reasons, Kaanapali, the EPA and the Navy opposed the motion to lift stay. After briefing and argument, on May 14, 2015, the United States Bankruptcy Court, for the Northern District of Illinois, Eastern Division, in In Re D/C Distribution, LLC, Bankruptcy Case No. 07- 12776, issued an order lifting the stay. In the order, the court permitted the Petitioners to "proceed in the applicable nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law. Claimants are entitled to settle or enforce their claims only by collecting upon any available insurance Debtor's liability to them in accordance with applicable nonbankruptcy law. No recovery may be made directly against the property of Debtor, or property of the bankruptcy estate." Kaanapali, Firemen's Fund and the United States appealed the bankruptcy court order lifting the stay. In March 2016, the district court reversed the bankruptcy court order finding that the bankruptcy court did not apply relevant law to the facts in the case to arrive at a reasoned decision. On appeal the district court noted that the law requires consideration of a number of factors when lifting a stay to permit certain claims to proceed, including consideration of the adequacy of remaining insurance to meet claims still subject to the stay. Among other things, the court noted that the bankruptcy court failed to explain why it was appropriate for the petitioners to liquidate their claims before the other claimants whose claims remained subject to the stay. The district court remanded the case for further proceedings. It is uncertain whether such further proceedings on the lift stay will take place. "The parties in the D/C and Oahu Sugar Company, LLC bankruptcies have reached out to each other to determine if there is any interest in pursuing a global settlement of the claims in the Oahu Sugar and D/C bankruptcies insofar as the Fireman's Fund insurance policies are concerned. If such discussions take place, they may take the form of a mediation or other format and involve some form of resolution of Kaanapali's interest in various of the Fireman's Fund insurance policies for Kaanapali's various and future insurance claims. Kaanapali may consider entering into such discussions, but there is no assurance that such discussions will take place or prove successful in resolving any of the claims in whole or in part." Kaanapali Land, LLC operates through two segments: property and agriculture. ASBESTOS UPDATE: Westrock Co. Faces 693 Suits at Sept. 30 --------------------------------------------------------- Westrock Company faces approximately 693 asbestos-related personal injury litigation as of September 30, 2016, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2016. The Company states: "As with numerous other large industrial companies, we have been named a defendant in asbestos-related personal injury litigation. Typically, these suits also name many other corporate defendants. To date, the costs resulting from the litigation, including settlement costs, have not been significant. As of September 30, 2016, there were approximately 693 lawsuits. We believe that we have substantial insurance coverage, subject to applicable deductibles and policy limits, with respect to asbestos claims. We have valid defenses to these claims and intend to continue to defend them vigorously. Should the volume of litigation grow substantially, it is possible that we could incur significant costs resolving these cases. We believe that the resolution of pending litigation and proceedings is not expected to have a material adverse effect on our consolidated financial condition or liquidity. In any given period or periods, however, it is possible such proceedings or matters could have a material effect on the results of operations." WestRock Company manufactures and sells paper and packaging solutions for the consumer and corrugated markets. ASBESTOS UPDATE: Cabot Ups Respirator Liabilities Reserve to $21M ----------------------------------------------------------------- Cabot Corporation increased reserve for its estimated share of liability for pending and future respirator claims by $13 million to $21 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2016. The Company states: "We have exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation (AO) in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. In exchange for the subsidiary's assumption of certain of AO's respirator liabilities, AO agreed to provide to the subsidiary the benefits of: (i) AO's insurance coverage for the period prior to the 1990 acquisition and (ii) a former owner's indemnity of AO holding it harmless from any liability allocable to AO respiratory products used prior to May 1982. "Generally, these respirator liabilities involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are alleged to have been negligently designed and/or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. At no time did this respiratory product line represent a significant portion of the respirator market. The subsidiary transferred the business to Aearo Corporation ("Aearo") in July 1995. Cabot agreed to have the subsidiary retain certain liabilities associated with exposure to asbestos and silica while using respirators prior to the 1995 transaction so long as Aearo paid, and continues to pay, Cabot an annual fee of $400,000. Aearo can discontinue payment of the fee at any time, in which case it will assume the responsibility for and indemnify Cabot against those liabilities which Cabot's subsidiary had agreed to retain. We anticipate that we will continue to receive payment of the $400,000 fee from Aearo and thereby retain these liabilities for the foreseeable future. We have no liability in connection with any products manufactured by Aearo after 1995. "In addition to Cabot's subsidiary, other parties are responsible for significant portions of the costs of respirator liabilities, leaving Cabot's subsidiary with a portion of the liability in only some of the pending cases. These parties include Aearo, AO, AO's insurers, another former owner and its insurers, and a third-party manufacturer of respirators formerly sold under the AO brand and its insurers (collectively, with Cabot's subsidiary, the "Payor Group"). "As of both September 30, 2016 and 2015, there were approximately 38,000 claimants in pending cases asserting claims against AO in connection with respiratory products. Cabot has contributed to the Payor Group's defense and settlement costs with respect to a percentage of pending claims depending on several factors, including the period of alleged product use. In order to quantify our estimated share of liability for pending and future respirator liability claims, we have engaged, through counsel, the assistance of Hamilton, Rabinovitz & Alschuler, Inc. ("HR&A"), a leading consulting firm in the field of tort liability valuation. The methodology used by HR&A addresses the complexities surrounding our potential liability by making assumptions about future claimants with respect to periods of asbestos, silica and coal mine dust exposure and respirator use. Using those and other assumptions, HR&A estimates the number of future asbestos, silica and coal mine dust claims that will be filed and the related costs that would be incurred in resolving both currently pending and future claims. On this basis, HR&A then estimates the value of the share of these liabilities that reflect our period of direct manufacture and our contractual obligations. During the three months ended September 30, 2016, HR&A updated this estimate. Based on the HR&A estimates, as of September 30, 2016, we increased our reserve for our estimated share of liability for pending and future respirator claims by $13 million to $21 million. The increase reflects recent increases in certain defense and indemnity costs. We made payments related to our respirator liability of $3 million in fiscal 2016 and $2 million in each of fiscal 2015 and 2014. "Our current estimate of the cost of our share of existing and future respirator liability claims is based on facts and circumstances existing at this time. Developments that could affect our estimate include, but are not limited to, (i) significant changes in the number of future claims, (ii) changes in the rate of dismissals without payment of pending claims, (iii) significant changes in the average cost of resolving claims, (iv) significant changes in the legal costs of defending these claims, (v) changes in the nature of claims received, (vi) changes in the law and procedure applicable to these claims, (vii) the financial viability of members of the Payor Group, (viii) a change in the availability of the insurance coverage of the members of the Payor Group or the indemnity provided by AO's former owner, (ix) changes in the allocation of costs among the Payor Group, and (x) a determination that the assumptions that were used to estimate our share of liability are no longer reasonable. We cannot determine the impact of these potential developments on our current estimate of our share of liability for these existing and future claims. Accordingly, the actual amount of these liabilities for existing and future claims could be different than the reserved amount." Cabot Corporation -- http://www.cabotcorp.com/-- is a global specialty chemicals and performance materials company. ASBESTOS UPDATE: JCI Has $116MM Asbestos Liability at Sept.30 ------------------------------------------------------------- Johnson Controls, Inc., recorded estimated liability for pending and future claims and related defense costs of $116 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 year ended September 30, 2016. The Company states, "The Company and certain of its subsidiaries, along with numerous other third parties, are named as defendants in personal injury lawsuits based on alleged exposure to asbestos containing materials. These cases have typically involved product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were used with asbestos containing components. As of September 30, 2016, the Company's estimated asbestos related liability recorded on a discounted basis within the Company's consolidated statements of financial position is comprised of a liability for pending and future claims and related defense costs of $116 million, of which $7 million is recorded in other current liabilities and $109 million is recorded in other noncurrent liabilities. "The Company's estimate of the liability for pending and future claims and defense costs is based on the Company's historical claim experience, and estimates of the number and resolution cost of potential future claims that may be filed and is discounted to present value from 2049 (which is the Company's reasonable best estimate of the actuarially determined time period through which asbestos-related claims will be filed against Company affiliates). Asbestos related defense costs are included in the asbestos liability. The Company's legal strategy for resolving claims also impacts these estimates. The Company considers various trends and developments in evaluating the period of time (the look-back period) over which historical claim and settlement experience is used to estimate and value claims reasonably projected to be made through 2049. Annually, the Company assesses the sufficiency of its estimated liability for pending and future claims and defense costs by evaluating actual experience regarding claims filed, settled and dismissed, and amounts paid in settlements. In addition to claims and settlement experience, the Company considers additional quantitative and qualitative factors such as changes in legislation, the legal environment, and the Company's defense strategy. The Company evaluates all of these factors and determines whether a change in the estimate of its liability for pending and future claims and defense costs is warranted. "In the fourth quarter of fiscal 2016, the Company changed its accounting policy for accruing for defense costs for asbestos related claims on a discounted basis. The Company's historical accounting treatment for asbestos claim defense costs was to accrue as incurred. The new policy is to record an accrual for all future asbestos related defense costs which are determined to be probable and estimable of being incurred. The Company believes this new policy is preferable as it better reflects the economics of settlement of the Company's asbestos claims, improves comparability among the Company's peer group and provides greater transparency to on-going operating results. These changes have been reported through retrospective application of the new policy to all periods presented. These changes did not have an impact to any period presented on the consolidated statements of income. The financial statement impact of this change for all periods presented was an increase to other noncurrent liabilities of $68 million, an increase to other noncurrent assets of $27 million and a decrease to retained earnings of $41 million. In September 2016, in conjunction with the Tyco Merger, the par value of the Company's common stock was changed from $1.00 per share to $0.01 per share. This change resulted in a decrease to common stock and corresponding increase in capital in excess of par value in the consolidated statements of financial position and is reported through retrospective application of the new par value for all periods presented." ASBESTOS UPDATE: Johnson Controls Has $148M Liability at Sept. 30 ----------------------------------------------------------------- Johnson Controls International Plc has $148 million estimated asbestos related net liability recorded on a discounted basis as of September 30, 2016, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2016. The Company and certain of its subsidiaries, along with numerous other third parties, are named as defendants in personal injury lawsuits based on alleged exposure to asbestos containing materials. These cases have typically involved product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were used with asbestos containing components. As of September 30, 2016, the Company's estimated asbestos related net liability recorded on a discounted basis within the Company's consolidated statements of financial position is $148 million. The net liability within the consolidated statements of financial position is comprised of a liability for pending and future claims and related defense costs of $548 million, of which $35 million is recorded in other current liabilities and $513 million is recorded in other noncurrent liabilities. The Company also maintains separate cash, investments and receivables related to insurance recoveries within the consolidated statements of financial position of $400 million, of which $41 million is recorded in other current assets, and $359 million is recorded in other noncurrent assets. Assets include $16 million of cash and $264 million of investments, which have all been designated as restricted. In connection with the recognition of liabilities for asbestos-related matters, the Company records asbestos-related insurance recoveries that are probable; the amount of such recoveries recorded at September 30, 2016 is $120 million. The Company believes that the asbestos related liabilities and insurance related receivables recorded as of September 30, 2016 are appropriate. The Company's estimate of the liability and corresponding insurance recovery for pending and future claims and defense costs is based on the Company's historical claim experience, and estimates of the number and resolution cost of potential future claims that may be filed and is discounted to present value from 2069 (which is the Company's reasonable best estimate of the actuarially determined time period through which asbestos-related claims will be filed against Company affiliates). Asbestos related defense costs are included in the asbestos liability. The Company's legal strategy for resolving claims also impacts these estimates. The Company considers various trends and developments in evaluating the period of time (the look-back period) over which historical claim and settlement experience is used to estimate and value claims reasonably projected to be made through 2069. Annually, the Company assesses the sufficiency of its estimated liability for pending and future claims and defense costs by evaluating actual experience regarding claims filed, settled and dismissed, and amounts paid in settlements. In addition to claims and settlement experience, the Company considers additional quantitative and qualitative factors such as changes in legislation, the legal environment, and the Company's defense strategy. The Company also evaluates the recoverability of its insurance receivable on an annual basis. The Company evaluates all of these factors and determines whether a change in the estimate of its liability for pending and future claims and defense costs or insurance receivable is warranted. The amounts recorded by the Company for asbestos-related liabilities and insurance-related assets are based on the Company's strategies for resolving its asbestos claims, currently available information, and a number of estimates and assumptions. Key variables and assumptions include the number and type of new claims that are filed each year, the average cost of resolution of claims, the identity of defendants, the resolution of coverage issues with insurance carriers, amount of insurance, and the solvency risk with respect to the Company's insurance carriers. Many of these factors are closely linked, such that a change in one variable or assumption will impact one or more of the others, and no single variable or assumption predominately influences the determination of the Company's asbestos-related liabilities and insurance-related assets. Furthermore, predictions with respect to these variables are subject to greater uncertainty in the later portion of the projection period. Other factors that may affect the Company's liability and cash payments for asbestos-related matters include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, reforms of state or federal tort legislation and the applicability of insurance policies among subsidiaries. As a result, actual liabilities or insurance recoveries could be significantly higher or lower than those recorded if assumptions used in the Company's calculations vary significantly from actual results. Johnson Controls International plc, formerly Tyco International plc, is a provider of security products and services, fire detection and suppression products and services and life safety products. ASBESTOS UPDATE: Scotts Miracle-Gro Still Faces Suits at Sept. 30 ----------------------------------------------------------------- The Scotts Miracle-Gro Company continues to defend a number of cases alleging injuries resulting from exposure to asbestos- containing products, apparently based on its historic use of vermiculite in certain products, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year September 30, 2016. The Company states: "In many of these cases, the complaints are not specific about the plaintiffs' contacts with us or our products. The cases vary, but complaints in these cases generally seek unspecified monetary damages (actual, compensatory, consequential and punitive) from multiple defendants. We believe that the claims against us are without merit and are vigorously defending against them. It is not currently possible to reasonably estimate a probable loss, if any, associated with the cases and, accordingly, no reserves have been recorded in our consolidated financial statements. We are reviewing agreements and policies that may provide insurance coverage or indemnity as to these claims and are pursuing coverage under some of these agreements and policies, although there can be no assurance of the results of these efforts. There can be no assurance that these cases, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material adverse effect on our financial condition, results of operations or cash flows." The Scotts Miracle-Gro Company is a manufacturer and marketer of branded consumer lawn and garden products. ASBESTOS UPDATE: Telecom Italia Directed to Pay Asbestos Damages ---------------------------------------------------------------- An Italian court has issued a judgment directing Telecom Italia S.p.A. to pay damages to people who were endangered as a result of exposure to asbestos, according to the Company's Form 6-K filing with the U.S. Securities and Exchange Commission for the month ended November 30, 2016. The Company states, "In September 2014 the Ivrea (Piedmont, Italy) Public Prosecutor's Office closed the investigation into the alleged exposure to asbestos of 15 former employees of the company "Ing. C. Olivetti S.p.A." (now Telecom Italia S.p.A.), "Olivetti Controllo Numerico S.p.A", "Olivetti Peripheral Equipment S.p.A.", "Sixtel S.p.A." and "Olteco S.p.A" and served notice that the investigations had been concluded on the 39 people investigated (who include former Directors of the aforementioned companies). "On December 2014 the Ivrea Public Prosecutor's Office formulated a request for 33 of the 39 people originally investigated to be committed for trial, and at the same time asked that 6 investigations be archived. "During the preliminary hearing, which started in April 2015, Telecom Italia assumed the role of civilly liable party, after being formally summonsed by all 26 civil parties (institutions and natural persons) joined in the proceedings. At the end of the preliminary hearing, 18 of the original 33 persons accused were committed for trial. The trial started in November 2015, and, as the party liable for damages, the Company has reached a settlement agreement with 12 of the 18 individuals (heirs/injured persons/family members) who are civil parties to the dispute and they have, therefore, withdrawn the claim for damages against Telecom Italia. "In the judgement of first instance, in July 2016, 13 of the 18 defendants were found guilty, with sentences ranging from 1 year to 5 years of imprisonment: four of the defendants were found not guilty, and one case was dismissed for health reasons. The defendants were also sentenced to compensate, jointly and severally with the party liable for damages Telecom Italia, with an overall sum of approximately EUR1.9 million as a provisional payment to INAIL (the Italian Workers' Compensation Authority) and 6 heirs who were not part of the settlement. A generic judgement to pay compensation for damages to the remaining damaged parties (entities/unions/associations) was issued, although they must in any case ask the civil court to quantify the damages. The reasons for the judgement have not yet been made available. When the full argument supporting the judgement is published, the Company will consider what, if any, further action it should take to protect its interests." Telecom Italia S.p.A. operates fixed voice and data infrastructure in Italy, and provides mobile network platforms. ASBESTOS UPDATE: Mallinckrodt Faces 11,700 Cases at Sept. 30 ------------------------------------------------------------ Mallinckrodt public limited company faces approximately 11,700 asbestos-related cases as of September 30, 2016, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year September 30, 2016. The Company states, "Beginning with lawsuits brought in July 1976, the Company is also named as a defendant in personal injury lawsuits based on alleged exposure to asbestos-containing materials. A majority of the cases involve product liability claims based principally on allegations of past distribution of products containing asbestos. A limited number of the cases allege premises liability based on claims that individuals were exposed to asbestos while on the Company's property. Each case typically names dozens of corporate defendants in addition to the Company. The complaints generally seek monetary damages for personal injury or bodily injury resulting from alleged exposure to products containing asbestos. The Company's involvement in asbestos cases has been limited because it did not mine or produce asbestos. Furthermore, in the Company's experience, a large percentage of these claims have never been substantiated and have been dismissed by the courts. The Company has not suffered an adverse verdict in a trial court proceeding related to asbestos claims and intends to continue to defend these lawsuits. When appropriate, the Company settles claims; however, amounts paid to settle and defend all asbestos claims have been immaterial. As of September 30, 2016, there were approximately 11,700 asbestos-related cases pending against the Company. "The Company estimates pending asbestos claims, claims that were incurred but not reported and related insurance recoveries, which are recorded on a gross basis in the consolidated balance sheets. The Company's estimate of its liability for pending and future claims is based on claims experience over the past five years and covers claims either currently filed or expected to be filed over the next seven years. The Company believes that it has adequate amounts recorded related to these matters. While it is not possible at this time to determine with certainty the ultimate outcome of these asbestos-related proceedings, the Company believes, given the information currently available, that the ultimate resolution of all known and anticipated future claims, after taking into account amounts already accrued, along with recoveries from insurance, will not have a material adverse effect on its financial condition, results of operations and cash flows." Mallinckrodt public limited company develops, manufactures, markets, and distributes specialty pharmaceutical and biopharmaceutical products, and nuclear imaging agents in the United States, Europe, the Middle East, Africa, and internationally. ASBESTOS UPDATE: Maremont Faces 5,800 Asbestos Claims at Sept. 30 ----------------------------------------------------------------- Maremont Corporation had approximately 5,800 pending asbestos- related claims at September 30, 2016, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. The Company states, "Maremont, a subsidiary of Meritor, manufactured friction products containing asbestos from 1953 through 1977, when it sold its friction product business. Arvin Industries, Inc., a predecessor of the company, acquired Maremont in 1986. Maremont and many other companies are defendants in suits brought by individuals claiming personal injuries as a result of exposure to asbestos-containing products. Maremont had approximately 5,800 and 5,600 pending asbestos-related claims at September 30, 2016 and 2015, respectively. Although Maremont has been named in these cases, in the cases where actual injury has been alleged, very few claimants have established that a Maremont product caused their injuries. Plaintiffs' lawyers often sue dozens or even hundreds of defendants in individual lawsuits, seeking damages against all named defendants irrespective of the disease or injury and irrespective of any causal connection with a particular product. For these reasons, the total number of claims filed is not necessarily the most meaningful factor in determining Maremont's asbestos related liability." Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Maremont Has $72MM Liabilities at Oct. 2 --------------------------------------------------------- Maremont Corporation had $72 million asbestos-related liabilities at September 30, 2016, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. Maremont's asbestos-related reserves and corresponding asbestos- related recoveries as of September 30, 2016, are summarized as follows: Pending and future claims $70,000,000 Billed but unpaid claims 2,000,000 Asbestos-related liabilities $72,000,000 Asbestos-related insurance recoveries $32,000,000 Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Maremont May Face Up to $83MM Injury Claims ------------------------------------------------------------ Maremont Corporation potentially faces $70 million to $83 million asbestos personal injury claims over the next ten years, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. Maremont engaged Bates White LLC, a consulting firm with extensive experience estimating costs associated with asbestos litigation, to assist with determining the estimated cost of resolving pending and future asbestos-related claims that have been, and could reasonably be expected to be, filed against Maremont. Although it is not possible to estimate the full range of costs because of various uncertainties, Bates White advised Maremont that it would be possible to determine an estimate of a reasonable forecast of the cost of the probable settlement and defense costs of resolving pending and future asbestos-related claims, based on historical data and certain assumptions with respect to events that may occur in the future. As of September 30, 2016, Bates White provided a reasonable and probable estimate that consisted of a range of equally likely possibilities of Maremont's obligation for asbestos personal injury claims over the next ten years of $70 million to $83 million. After consultation with Bates White, Maremont recognized a liability for pending and future claims over the next ten years of $70 million and $71 million as of September 30, 2016 and 2015, respectively. The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Maremont. Maremont recognized $2 million of expense and $2 million of income in fiscal years 2016 and 2015, respectively, associated with its annual valuation of asbestos- related liabilities and receivables. Maremont has recognized incremental insurance receivables associated with recoveries expected for asbestos-related liabilities as the estimate of asbestos-related liabilities for pending and future claims changes. Assumptions: The following assumptions were made by Maremont after consultation with Bates White and are included in their study: -- Pending and future claims were estimated for a ten-year period ending in fiscal year 2026; -- Maremont believes that the litigation environment could change significantly beyond ten years and that the reliability of estimates of future probable expenditures in connection with asbestos-related personal injury claims will decline for each year further in the future. As a result, estimating a probable liability beyond ten years is difficult and uncertain; -- On a per claim basis, defense and processing costs for pending and future claims will be at the level consistent with Maremont's prior experience; -- Potential payments made to claimants from other sources, including other defendants and 524(g) trusts, favorably impact Maremont's estimated liability in the future; and -- The ultimate indemnity cost of resolving nonmalignant claims with plaintiffs' law firms in jurisdictions without an established history with Maremont cannot be reasonably estimated. Recoveries: Maremont has historically had insurance that reimburses a substantial portion of the costs incurred defending against asbestos-related claims. The insurance receivable related to asbestos-related liabilities was $32 million and $41 million as of September 30, 2016 and 2015, respectively. The receivable is for coverage provided by one insurance carrier based on a coverage-in-place agreement. Maremont currently expects to exhaust the remaining limits provided by this coverage sometime in the next ten years. The difference between the estimated liability and insurance receivable is primarily related to exhaustion of settled insurance coverage within the forecasted period and proceeds from settled insurance policies. Maremont maintained insurance coverage with other insurance carriers that management believed also provided coverage for indemnity and defense costs. During fiscal year 2013, Maremont re- initiated lawsuits against these carriers, seeking a declaration of its rights to coverage for asbestos claims and to facilitate an orderly and timely collection of insurance proceeds. During the first quarter of fiscal year 2016, the dispute related to these insurance policies was settled. As part of this settlement, on December 12, 2015, Maremont received $17 million in cash, of which $5 million was recognized as reduction in asbestos expense and $12 million was recorded as a liability to the insurance carrier as it is required to be returned to the carrier if additional asbestos liability is not incurred. During the fourth quarter of fiscal year 2016, Maremont recognized an additional $9 million of the cash settlement proceeds as a reduction in asbestos expense. As of September 30, 2016, $3 million remained recorded as a liability to the insurance carrier. The settlement also provides additional recovery for Maremont if certain future defense and indemnity spending thresholds are met. The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Maremont could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Maremont in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; Maremont's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending and future claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Maremont's asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Rockwell Faces 3,200 AM Claims at Oct. 2 --------------------------------------------------------- Rockwell International had approximately 3,200 pending active asbestos claims in lawsuits that name ArvinMeritor, Inc. (AM), as defendants at September 30, 2016, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. ArvinMeritor, a subsidiary of Meritor, along with many other companies, has been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell products many years ago. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. Rockwell had approximately 3,200 and 3,000 pending active asbestos claims in lawsuits that name AM, together with many other companies, as defendants at September 30, 2016 and 2015, respectively. A significant portion of the claims do not identify any of Rockwell's products or specify which of the claimants, if any, were exposed to asbestos attributable to Rockwell's products, and past experience has shown that the vast majority of the claimants will likely never identify any of Rockwell's products. Historically, AM has been dismissed from the vast majority of similar claims filed in the past with no payment to claimants. For those claimants who do show that they worked with Rockwell's products, management nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products involved and the lack of any impairing medical condition on the part of many claimants. Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Rockwell Had $61-Mil. Liabilities at Oct. 2 ------------------------------------------------------------ Rockwell International had $61 million asbestos-related liabilities at September 30, 2016, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. The Rockwell legacy asbestos-related reserves and corresponding asbestos-related recoveries at September 30, 2016, are summarized as follows : Pending and future claims $60,000,000 Billed but unpaid claims $1,000,000 Asbestos-related liabilities $61,000,000 Asbestos-related insurance recoveries $27,000,000 Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Rockwell May Face Up to $75MM PI Claims -------------------------------------------------------- Rockwell International may face $60 million to $75 million obligation for asbestos personal injury claims over the next ten years, according to Meritor, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year October 2, 2016. Pending and Future Claims: The company engaged Bates White LLC, a consulting firm, to assist with determining whether it would be possible to estimate the cost of resolving pending and future Rockwell legacy asbestos-related claims that have been, and could reasonably be expected to be, filed against the company. As of September 30, 2016, Bates White provided a reasonable and probable estimate that consisted of a range of equally likely possibilities of Rockwell's obligation for asbestos personal injury claims over the next ten years of $60 million to $75 million. After consultation with Bates White, management recognized a liability for pending and future claims over the next ten years of $60 million as of September 30, 2016 compared to $55 million as of September 30, 2015. The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Rockwell. The increase in the estimated liability is primarily due to higher settlement values, compared to the prior year. AM recognized a $2 million and $4 million charge in the fourth quarter of fiscal years 2016 and 2015, respectively, associated with its annual valuation of asbestos-related liabilities and receivables. Assumptions: The following assumptions were made by the company after consultation with Bates White and are included in their study: -- Pending and future claims were estimated for a ten-year period ending in fiscal year 2026; -- The company believes that the litigation environment could change significantly beyond ten years and that the reliability of estimates of future probable expenditures in connection with asbestos-related personal injury claims declines for each year further in the future. As a result, estimating a probable liability beyond ten years is difficult and uncertain; -- On a per claim basis, defense and processing costs for pending and future claims will be at the level consistent with the company's prior experience; -- Potential payments made to claimants from other sources, including other defendants and 524(g) trusts, favorably impact the company's estimated liability in the future; and -- The ultimate indemnity cost of resolving nonmalignant claims with plaintiff's law firms in jurisdictions without an established history with Rockwell cannot be reasonably estimated. Recoveries: Rockwell has insurance coverage that management believes covers indemnity and defense costs, over and above self- insurance retentions, for a significant portion of these claims. In 2004, the company initiated litigation against certain of these carriers to enforce the insurance policies. During the fourth quarter of fiscal year 2016, the company executed settlement agreements with two of these carriers, thereby resolving the litigation against those particular carriers. Pursuant to the terms of one of those settlement agreements, the company received $32 million in cash from an insurer, of which $10 million was recognized as a reduction in asbestos expense, and $22 million was recorded as a liability to the insurance carrier as it is required to be returned to the carrier if additional asbestos liability is not ultimately incurred. Pursuant to the terms of a second settlement agreement, the company recorded a $12 million receivable to reflect expected reimbursement of future defense and indemnity payments under a coverage-in-place arrangement with that insurer. In addition to the coverage provided from the settlements executed during the fourth quarter of fiscal year 2016, the company continues to maintain a receivable of $6 million related to a previously executed coverage-in-place arrangement with other insurers. The insurance receivables for Rockwell's asbestos- related liabilities totaled $27 million and $14 million as of September 30, 2016 and 2015, respectively. Included in these amounts are insurance receivables of $9 million at both September 30, 2016 and 2015, which are associated with policies in dispute. Although the company continues to pursue litigation and believes it has insurance coverage, the collection of the $9 million has become doubtful; therefore, in the fourth quarter of fiscal year 2016, the company recorded a $9 million reserve. Also, during the third quarter of fiscal year 2016, the company reached a settlement relating to certain proofs of claim filed under certain insurance policies with an insolvent insurer for $6 million (the "allowed claim"). On June 17, 2016, the company entered into an assignment of claim ("Assignment") with a third party to assign the allowed claim the company had against the insolvent insurer. The Assignment was approved by the liquidator, which resulted in the receipt by the company of $3 million and was recognized as a reduction of selling, general and administrative expenses in the consolidated statement of operations in the third quarter of fiscal year 2016. The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Rockwell could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Rockwell in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; Rockwell's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. Meritor, Inc. provides drivetrain mobility and braking solutions for original equipment (OE) manufacturers of trucks, trailers, and specialty vehicles. Rockwell International spins off its automotive business in 1997, creating Meritor Automotive. In 2000, Meritor Automotive and Arvin Industries merge to form ArvinMeritor, Inc. ArvinMeritor is a subsidiary of Meritor, Inc. ASBESTOS UPDATE: Calif. Court Allows Inmates to Amend Suit ---------------------------------------------------------- Magistrate Judge Kenly Kiya Kato of the United States District Court for the Central District of California dismissed PAUL ADAMS, et al., Plaintiffs, v. CALIFORNIA CORRECTIONAL INSTITUTION, et al., Defendants, Case No. EDCV 16-1678-AB(C.D. Calif.), and granted the motion for leave to amend. Plaintiffs Paul Adams, Phillip L. Dorsey, and Ezequiel Monarrez, proceeding pro se and in forma pauperis, have filed a First Amended Complaint pursuant to Title 42 of the United States Code, section 1983, against California Correctional Institution, K. Holland, California Department of Corrections and Rehabilitation, Jeffrey Beard, and Jerry G. Brown, alleging, among other things, they were exposed to asbestos and contaminated water at CCI. As a result of their alleged injuries from both the asbestos exposure and water contamination, the Plaintiffs seek, at minimum, $1,000,000 in compensatory damages and $5,000,000 in punitive damages awarded to each Plaintiff, as well an injunction requiring an immediate evacuation of CCI and a lifetime of limitless medical treatment. According to the magistrate, the Plaintiffs have failed among others, to allege a protected liberty or property interest for which they have been deprived. Magistrate Kato held that the Plaintiffs cannot simply rely on a "bare assertion" of a due process right violation. They must specifically identify a liberty interest protected by the Due Process Clause, otherwise their claim will be dismissed. Because the Plaintiffs have failed to identify a specific liberty interest protected by the Due Process Clause, their substantive due process claim must be dismissed, Magistrate Kato held. A full-text copy of the Order dated November 1, 2016, is available at https://is.gd/NK5dVx from Leagle.com. Paul Adams, Plaintiff, Pro Se. Phillip L. Dorsey, Plaintiff, Pro Se. William J. Bryant, Plaintiff, Pro Se. Ezequiel Monarrez, Plaintiff, Pro Se. ASBESTOS UPDATE: Cal. App. Affirms Ruling in "Evans" ---------------------------------------------------- In the case captioned LAOSD ASBESTOS CASES. DOROTHY EVANS et al., Plaintiffs and Appellants, v. AMERICAN OPTICAL CORPORATION, et al., Defendants and Respondents, No. B265222, the Court of Appeals of California, Second District, Division Four, affirmed the judgment of the trial court finding no error in its judgment and entitled respondent Hood Corporation to its costs on appeal. Plaintiff Kenneth Evans was diagnosed with asbestosis after a decades-long career working for the Southern California Gas Company (SoCalGas). For about 35 percent of his employment, Evans worked alongside contractors who helped build and replace gas pipelines; some of those pipelines were covered in a coating that contained asbestos. Evans and his wife, plaintiff Dorothy Evans, sued several contractors, alleging that they contributed to Evans's asbestosis. By the end of the trial, the only remaining defendant was respondent Hood Corporation, and the only remaining cause of action was negligence. The jury found that Hood's conduct exposed Evans to asbestos, but that Hood was not negligent. A defense judgment was entered, and plaintiffs appealed. The Plaintiffs argue that the court erred by excluding two exhibits containing SoCalGas specifications for contractors, allowing the president of Hood to use a contract from an irrelevant time period to refresh his recollection about the content of earlier contracts, and giving the jury two erroneous instructions: one about employer duties, and another stating that Hood was required to adhere to a "professional" standard of care. On the first argument, the Court of Appeals held that while the plaintiffs are correct that both an employer and a third party may be liable for an employee's injury, nothing in Special Instruction No. 5 suggested to the jury that a third party cannot be liable. Indeed, the entire focus of the trial was whether a third party -- Hood -- was liable to Evans. The jury was instructed to determine that issue, therefore making clear that Hood could be held liable. Moreover, the jury was instructed that if it found Hood negligent, it could attribute some or all of the fault to other entities, including SoCalGas, further indicating that multiple parties could be liable for Evans's injuries, the Court of Appeals further held. Even if the instruction were an erroneous statement of the law, the plaintiffs have not demonstrated that there is a reasonable probability that in the absence of the error, the jury would have reached a result more favorable to plaintiffs, the Court of Appeals added. On the second argument, the Court of Appeals held that there was no suggestion from the court that the jury was required to rely on any particular type of expert testimony. In addition, the plaintiffs did not object to the trial court that they were limited in the type of expert testimony they were allowed to present. In short, there is no indication that plaintiffs' case suffered for lack of a different type of expert, the Court of Appeals further held. A full-text copy of the Decision dated November 22, 2016 is available at https://is.gd/9ZKtJ2 from Leagle.com. The Arkin Law Firm, Sharon J. Arkin, Esq.; Farrise Firm and Simona A. Farrise, Esq. for Plaintiffs and Appellants. Foley & Mansfield, Jennifer McCormick, Esq. -- jmccormick@foleymansfield.com, Joseph V. Macha, Esq. -- jmacha@foleymansfield.com, and Judith A. Zipkin, Esq. -- jzipkin@foleymansfield.com for Defendants and Respondents Hood Corporation. ASBESTOS UPDATE: Court Denies Bid to Remand Action "French" ----------------------------------------------------------- Judge Donald C. Nugent of the United States District Court for the Northern District of Ohio, Eastern Division, refused to remand the case captioned DONALD R. FRENCH, et al., Plaintiffs, v. A. W. CHESTERTON COMPANY, et al., Defendants, Case No. 1:16 CV 1777 (N.D. Ohio). This matter is before the Court on the Plaintiffs' Motion to Remand this action to the Court of Common Pleas for Cuyahoga County, Ohio. Plaintiffs move to remand on two grounds. First that the removal was untimely under 28 U.S.C. Section 1446(b)(3); and secondly, that the removing Defendants have not established all of the elements necessary for federal officer removal under 28 U.S.C. Section 1442(a)(1). The Plaintiffs filed this action on December 1, 2015, against multiple defendants including the removing defendants GE and Westinghouse. The Complaint states that Donald French was exposed to the Defendants' asbestos and asbestos-containing materials by virtue of working with or around asbestos and asbestos-containing materials, and that such exposures were substantial factors which directly and proximately caused him to develop mesothelioma. Plaintiffs filed an Amended Complaint adding additional defendants on May 2, 2016. The Amended Complaint asserts the following eight claims against all of the defendants: negligence (failure to warn), strict liability (design defect), breach of express warranty, breach of implied warranty, statutory products liability under Ohio R.C. Section 2307.71, punitive damages and loss of consortium. Neither complaint provides any details concerning any specific product manufactured or supplied by GE or Westinghouse to which Mr. French was allegedly exposed or identifies any specific sites at which Mr. French encountered the Defendants' products. The Defendants assert that this case was removable because GE and Westinghouse-in all relevant aspects of their design, manufacture, and supply of any Navy turbines aboard the Forrestal, and of any warning or other written materials to be supplied therewith-were acting under the direction of an officer of the United States. The Court found that the Defendants' removal in this matter occurred within the time requirements of Section 1446(b)(3) and that GE and Westinghouse have produced sufficient evidence to establish a colorable federal contractor defense for Plaintiffs' design defect claims and to permit removal under 28 U.S.C. Section 1442(a)(1). A full-text copy of the Memorandum Opinion and Order dated November 10, 2016 is available at https://is.gd/Bo3d4M from Leagle.com. Donald R French, Plaintiff, is represented by Brian R. Herberth, Esq. -- Kelley & Ferraro. Donald R French, Plaintiff, is represented by James L. Ferraro, Esq., Ryan J. Cavanaugh, Esq. -- Kelley & Ferraro & Shawn M. Acton, Esq. -- Kelley & Ferraro. Charlene French, Plaintiff, is represented by Brian R. Herberth, Kelley & Ferraro, James L. Ferraro, Ryan J. Cavanaugh, Kelley & Ferraro & Shawn M. Acton, Kelley & Ferraro. A.W. Chesterton Company, Defendant, is represented by Drew M.L. Odum, Esq. -- Tucker Ellis & John P. Patterson, Esq. -- Tucker Ellis. Foster Wheeler Energy Corporation, Defendant, is represented by Nicholas L. Evanchan, Jr., Esq. -- Evanchan & Palmisano & Ralph J. Palmisano, Esq. -- Evanchan & Palmisano. Hersh Packing & Rubber Co., Defendant, is represented by Christopher F. Mars, Esq. -- Bonezzi, Switzer, Polito & Hupp, Kevin O. Kadlec, Esq. -- Bonezzi, Switzer, Polito & Hupp & William D. Bonezzi, Esq. -- Bonezzi, Switzer, Polito & Hupp. F.B. Wright Company of Ohio, Defendant, is represented by Andrew M. Wargo, Esq. -- amwargo@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin. JNO. J. Disch Company, Defendant, is represented by Carol K. Metz, Esq. -- metz@buckleyking.com -- Buckley King, Justin W. Whelan, Esq. -- whelan@buckleyking.com -- Buckley King & Theodore M. Dunn, Jr., Esq. -- dunn@buckleyking.com -- Buckley King. General Electric Corporation, Defendant, is represented by Christopher G. Conley, Esq. -- cgconley@ewhlaw.com -- Evert Weathersby Houff, pro hac vice, John A. Heller, Esq. -- jheller@sidley.com -- Sidley Austin, Stephen C. Musilli, Esq. -- scmusilli@vorys.com -- Vorys, Sater, Seymour & Pease, Susan Barrett Harty, Esq. -- sharty@vorys.com -- Vorys, Sater, Seymour & Pease & Perry W. Doran, II, Esq. -- pdoran@vorys.com -- Vorys, Sater, Seymour & Pease. Riley Power, Inc., Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell. CBS Corporation, Defendant, represented by Christopher G. Conley, Evert Weathersby Houff, pro hac vice, Stephen C. Musilli, Vorys, Sater, Seymour & Pease, Susan Barrett Harty, Vorys, Sater, Seymour & Pease & Perry W. Doran, II, Vorys, Sater, Seymour & Pease. Pneumo Abex Corporation, Defendant, represented by Christopher J. Caryl, Tucker Ellis & Drew M.L. Odum, Tucker Ellis. BMI Refractory Services, Inc., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. Allied Glove Corporation, Defendant, represented by Matthew J. Doz, Swartz Campbell & Ryan M. Joyce, Swartz Campbell. A.O. Smith Corporation, Defendant, represented by Christopher F. Mars, Bonezzi, Switzer, Polito & Hupp, Kevin O. Kadlec, Bonezzi, Switzer, Polito & Hupp & William D. Bonezzi, Bonezzi, Switzer, Polito & Hupp. Atlas Industries, Inc., Defendant, represented by Derek M. Brondou, Dickie, McCamey & Chilcote. Beazer East, Inc., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. Borg-Warner Corporation, Defendant, represented by Bruce P. Mandel, Ulmer & Berne, James N. Kline, Ulmer & Berne, Kurt S. Siegfried, Ulmer & Berne & Robert E. Zulandt, III, Ulmer & Berne. Cooper Industries, Inc., Defendant, represented by Matthew J. Doz, Swartz Campbell & Ryan M. Joyce, Swartz Campbell. Fairmont Supply Company, Defendant, represented by Colin G. Skinner, Oby Kramer Skinner. Goodyear Tire & Rubber Company, Defendant, represented by Richard D. Schuster, Vorys, Sater, Seymour & Pease, Stephen C. Musilli, Vorys, Sater, Seymour & Pease & Perry W. Doran, II, Vorys, Sater, Seymour & Pease. Grefco, Inc., Defendant, represented by Laura K. Hong, Tucker Ellis. Greene Tweed & Company, Inc., Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell. Guard-Line, Inc., Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna. Edward R. Hart Company, Defendant, represented by Bruce P. Mandel, Ulmer & Berne, James N. Kline, Ulmer & Berne, Kurt S. Siegfried, Ulmer & Berne & Robert E. Zulandt, III, Ulmer & Berne. M.V.S. Company, Defendant, represented by Christopher F. Mars, Bonezzi, Switzer, Polito & Hupp, Kevin O. Kadlec, Bonezzi, Switzer, Polito & Hupp & William D. Bonezzi, Bonezzi, Switzer, Polito & Hupp. Sentinel Safety Supply Company, Defendant, represented by Christopher F. Mars, Bonezzi, Switzer, Polito & Hupp, Kevin O. Kadlec, Bonezzi, Switzer, Polito & Hupp, Paul W. Smith, Bonezzi, Switzer, Polito & Hupp & William D. Bonezzi, Bonezzi, Switzer, Polito & Hupp. Mau-Sherwood Supply Company, Defendant, represented by Michele L. Larissey, Swartz Campbell. Marmon Group, Inc., Defendant, represented by Laura K. Hong, Tucker Ellis. Lockheed Martin Corporation, Defendant, represented by Christopher C. Ross, Pullin Fowler Flanagan Brown & Poe & Stephen M. Fowler, Pullin Fowler Flanagan Brown & Poe. Exxon Mobil Corporation, Defendant, represented by James P. Burke, Roetzel & Andress, Moira H. Pietrowski, Roetzel & Andress & Susan Squire Box, Roetzel & Andress. Nitro Industrial Coverings, Inc., Defendant, represented by Joni M. Selep, Zimmer Kunz. Ohio Valley Insulating Company, Inc., Defendant, represented by Bruce P. Mandel, Ulmer & Berne, James N. Kline, Ulmer & Berne, Kurt S. Siegfried, Ulmer & Berne & Robert E. Zulandt, III, Ulmer & Berne. Osram Sylvania, Inc., Defendant, represented by Colin G. Skinner, Oby Kramer Skinner. Record Industrial Co., Defendant, represented by John P. Mazza. Robertson-Ceco Corp., Defendant, represented by Laura K. Hong, Tucker Ellis. RSCC Wire & Cable, Inc., Defendant, represented by Laura K. Hong, Tucker Ellis. Rockwell Automation, Inc., Defendant, represented by Drew M.L. Odum, Tucker Ellis. Rust Engineering & Construction Inc., Defendant, represented by Timothy J. Green, Dinsmore & Shohl. Tasco Insulations, Inc, Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. Macomb Group, Inc., Defendant, represented by Thomas R. Wolf, Reminger & Reminger. Thiem Corporation, Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. UB West Virginia, Inc., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. Uniroyal Holding, Inc., Defendant, represented by Angela M. Hayden, Law Office of Benjamin G. Dusing. Uniroyal Fiber & Textile Division of Uniroyal, Inc., Defendant, represented by Angela M. Hayden, Law Office of Benjamin G. Dusing. Universal Refractories, Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp. Wheeler Protective Apparel Corp., Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna. Zurn Industries, Inc., Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell. Flexo Products, Inc., Defendant, represented by Christopher F. Mars, Bonezzi, Switzer, Polito & Hupp, Kevin O. Kadlec, Bonezzi, Switzer, Polito & Hupp, Paul W. Smith, Bonezzi, Switzer, Polito & Hupp & William D. Bonezzi, Bonezzi, Switzer, Polito & Hupp. American Optical Corporation, Defendant, represented by Drew M.L. Odum, Tucker Ellis, Jeffrey A. Healy, Tucker Ellis, Karen E. Ross, Tucker Ellis & Scott J. Wilkov, Tucker Ellis & West. Amchem Products, Inc., Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease. CertainTeed Corporation, Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease. I.U. North America, Inc., Defendant, represented by Diane L. Feigi, Baker & Hostetler & Edward D. Papp, Baker & Hostetler. Red Seal Electric Company, Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna. Illinois Tool Works, Inc., Defendant, represented by Laura K. Hong, Tucker Ellis. ArvinMeritor, Inc., Defendant, represented by Diane L. Feigi, Baker & Hostetler & Edward D. Papp, Baker & Hostetler. Honeywell International, Inc., Defendant, represented by Melanie M. Irwin, Willman & Silvaggio, pro hac vice, Joseph D. Silvaggio, Willman & Silvaggio & Steven G. Blackmer, Willman & Silvaggio, pro hac vice. Eaton Corporation, Defendant, represented by James L. McCrystal, Jr., Sutter O'Connell & Nathan F. Studeny, Sutter O'Connell. Foseco, Inc., Defendant, represented by Richard D. Schuster, Vorys, Sater, Seymour & Pease, Stephen C. Musilli, Vorys, Sater, Seymour & Pease & Perry W. Doran, II, Vorys, Sater, Seymour & Pease. Ferro Engineering Division of ON Marine Services Company, Defendant, represented by Evan J. Palik, McMahon DeGulis, James A. Byrne, McMahon DeGulis & Stephen H. Daniels, McMahon DeGulis. Union Carbide Corporation, Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease. Dana Companies, LLC, Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease. Insul Company, Inc., Defendant, represented by Joni M. Selep, Zimmer Kunz. Clark Industrial Insulation Co., Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna. Nock Refractories Co., LLC, Defendant, represented by C. Richard McDonald, Sr., Davis & Young. Ajax Magnethermic Corp., Defendant, represented by Mark E. Floyd, Riley Hewitt Witte & Romano & William J. Witte, Riley, Hewitt, Witte & Romano. Ajax Manufacturing Company, Defendant, represented by Laura K. Hong, Tucker Ellis. Fives North American Combustion Inc., Defendant, represented by Derek M. Brondou, Dickie, McCamey & Chilcote. North American Manufacturing Company, Defendant, represented by Derek M. Brondou, Dickie, McCamey & Chilcote. ASBESTOS UPDATE: Cal. App. Affirms Summary Judgment in "Kase" ------------------------------------------------------------- In the case captioned GARY KASE et al., Plaintiffs and Appellants, v. METALCLAD INSULATION CORPORATION, Defendant and Respondent, No. A143590 (Cal. App.), the Court of Appeals of California, First District, Division One, affirmed the summary judgment on the plaintiffs' failure to warn claims on the ground the evidence was insufficient to raise a triable issue as to causation. The Plaintiffs appeal from a defense summary judgment in this asbestos case arising from Gary Kase's exposure to asbestos insulation used on nuclear submarines during the early 1970's. The principal issue in this case is whether the Navy's procurement of asbestos insulation for its nuclear submarines comes within the ambit of the government contractor defense set forth in Boyle v. United Technologies Corp. (1988) 487 U.S. 500. The Court of Appeals held that this defense has long been available, even if not always successfully proved up, in asbestos lawsuits brought against the manufacturers and suppliers of military hardware and equipment. However, defendant Metalclad Insulation Corporation did not design or produce a piece of hardware or equipment that included asbestos-containing materials, the Court of Appeals held. Rather, as a broker, it arranged for asbestos-containing insulation to be shipped directly to the Mare Island Naval Shipyard, where workers packed it around the submarine piping it protected, the court said. Metalclad provided the asbestos-containing insulation, called Unibestos, pursuant to and in compliance with relatively detailed performance and testing specifications. These specifications did not expressly call out for asbestos in the insulation. But according to the undisputed record evidence, the specifications could only be met by asbestos-containing insulation, and the only product on the Navy's approved list of suitable products was Unibestos, the Court of Appeals held. It is also undisputed that for decades the Navy studied the health hazards associated with the use of asbestos products and, despite the concerns raised by these studies, continued to require use of these products and continued to expressly approve the use of Unibestos. The Navy did not, however, participate in the development or manufacture of Unibestos and, in addition to military sales, the insulation has long been sold commercially, the court said. A full-text copy of the Decision dated November 22, 2016 is available at https://is.gd/esfrOT from Leagle.com. Brayton Purcell, LLP, Gary L. Brayton, Esq. and Richard M. Grant, Esq. for Plaintiff and Appellant. Dentons US LLP, Lisa Lurline Oberg, Esq. -- Lisa.Oberg@dentons.com, Felicia Y. Feng, Esq. and Andrea J. Casalett, Esq. -- Andrea.Casalett@dentons.com; Morgan, Lewis & Bockius LLP, Thomas M. Peterson, Esq. -- thomas.peterson@morganlewis.com and Deborah E. Quick Esq. -- deborah.quick@morganlewis.comfor Defendant and Respondent. ASBESTOS UPDATE: Cal. App. Flips Dismissal Order in "Kordestani" ---------------------------------------------------------------- In the case captioned NADER KORDESTANI et al., Plaintiffs and Appellants, v. EXXONMOBIL OIL CORPORATION et al., Defendants and Appellants, No. B257193, the Court of Appeals of California, Second District, Division Four, reversed the order of dismissal, remanded the matter for further proceedings, and dismissed Exxon's cross-appeal. In this asbestos-related personal injury case, plaintiffs Nader and Sherry Kordestani appeal from the order dismissing their negligence claims against defendants ExxonMobil Oil Corporation and Exxon Mobil Corporation (collectively, Exxon). Exxon cross- appeals, challenging an earlier oral ruling denying its request to apply Iranian law to select issues of liability and damages. The Court of Appeals agreed with appellants that the trial court erred in concluding that the negligence claims already had been summarily adjudicated against them. The Court of Appeals held that the appellants have met the burden of showing error by showing that the trial court dismissed their negligence claims against Exxon on the erroneous assumption that they were indistinguishable from claims that had been summarily adjudicated earlier. The written order states the court broadly determined that "there is no basis to support any duty not previously adjudicated," but the record does not show the court had considered the merits of plaintiffs' remaining theories separately from the previously adjudicated claims, the court pointed out. Nor has Exxon argued that plaintiffs' three theories of liability are legally insufficient for any other reason, and we decline to construct arguments in its favor, the Court of Appeals said. Accordingly, the Court of Appeals reverses the order of dismissal without expressing a view on the merits of the plaintiffs' negligence theories. A full-text copy of the Decision dated November 17, 2016 is available at https://is.gd/D1vWYp from Leagle.com. Weitz & Luxenberg, Benno Ashrafi, Esq., Cindy Saxey, Esq., and Josiah Parker, Esq. for Plaintiffs and Appellants. Horvitz & Levy, David M. Axelrad Esq. -- daxelrad@horvitzlevy.com -- and Daniel J. Gonzalez, Esq. -- dgonzalez@horvitzlevy.com; McKenna Long & Aldridge, Jaime C. Long, Esq. and Frederic W. Norris, Esq.; Armstrong & Associates, William H. Armstrong, Esq. - - bill.armstrong@armstrongetal.com and Jennifer D. Fitzpatrick, Esq. -- jennifer.fitzpatrick@armstrongetal.com for Defendants and Appellants. ASBESTOS UPDATE: Court Grants IDC's Bid to Dismiss "Lindsay" ------------------------------------------------------------ Judge Sarah S. Vance of the United States District Court for the Eastern District of Louisiana granted third-party defendant Industrial Development Corporation of South Africa, Limited's motion to dismiss, and dismissed with prejudice Cooper/T. Smith Stevedoring Company, Inc.'s claims against IDC in the case captioned EARL T. LINDSAY, JR. AND JOCELYN BUTLER, INDIVIDUALLY AND ON BEHALF OF THE DECEDENT, EARL T. LINDSAY, SECTION "R" (5), v. PORTS AMERICA GULFPORT, INC., ET AL, Civil Action No. 16-3054 (E.D. La.), holding that because Cooper's claims against IDC are invalid as a matter of both Louisiana and maritime law, and because no set of facts could alter this conclusion, Cooper's claims must be dismissed with prejudice. Judge Vance also remanded the Plaintiffs' remaining claims to the Civil District Court for the Parish of Orleans. The case arises out of decedent Earl T. Lindsay's occupational exposure to asbestos and contraction of lung cancer. The Plaintiffs, two of Lindsay's surviving children, allege that Lindsay worked as a longshoreman for several stevedoring companies in the Port of New Orleans from 1954 to 1979. During this period, Lindsay was allegedly exposed to airborne asbestos fibers during the loading and off-loading of cargo that included raw asbestos and asbestos-containing products and materials. Plaintiffs allege that Lindsay developed lung cancer as a result of this exposure and died from the disease on February 18, 2015. On February 17, 2016, plaintiffs filed this lawsuit in the Civil District Court for the Parish of Orleans against Lindsay's employers, various vessel owners and vessel repair contractors associated with his employment, two insurance companies, and other firms. One of the entities named as a defendant in plaintiffs' state-court petition was IDC. As to most of the named defendants, plaintiffs asserted claims for, among other things, negligence, strict liability, intentional tort, and premises liability. As to IDC, plaintiffs also asserted claims under the Jones Act, 46 U.S.C. Section 30104, et seq. Plaintiffs then sought to remand the case to state court, or in the alternative, to sever Cooper's third-party claims and remand the main action. The Court rejected all of plaintiffs' arguments for remand as well as their request to sever Cooper's claims in its July 14, 2016 order. The Court observed that Cooper's claims against IDC appeared to be an attempt to manufacture federal jurisdiction and lacked merit. Accordingly, the Court ordered IDC to file a motion to dismiss Cooper's third-party claims within twenty-one days of the Court's July 14 order. IDC filed its motion on August 4, and Cooper filed a memorandum in opposition, which also asks the Court to convert IDC's motion to dismiss into a motion for summary judgment. IDC argues that plaintiffs' dismissal of all claims against IDC with prejudice renders Cooper's claims for contribution and/or indemnity void as a matter of both Louisiana and maritime law. Under Louisiana law, a joint tortfeasor benefits from the release of debt or liability of another joint tortfeasor by the tort claimant. Cooper contends that this rule does not apply to dismissals with prejudice, but both the Fifth Circuit and Louisiana courts have held that it does. A full-text copy of the Order dated November 18, 2016 is available at https://is.gd/4wyLA9 from Leagle.com. Joycelyn L Butler, Plaintiff, is represented by J. Burton LeBlanc, IV, Esq. -- Baron & Budd, P.C.. Joycelyn L Butler, Plaintiff, is represented by Christopher C. Colley, Esq. -- Baron & Budd, P.C., David Ryan Cannella, Esq. -- Cannella Law Firm, LLC, Jeremiah S. Boling, Esq. -- Baron & Budd, P.C. & Renee M. Melancon, Esq. -- Baron & Budd, P.C.. Earl T. Lindsay, Jr., Plaintiff, is represented by J. Burton LeBlanc, IV, Baron & Budd, P.C., Christopher C. Colley, Baron & Budd, P.C., David Ryan Cannella, Cannella Law Firm, LLC, Jeremiah S. Boling, Baron & Budd, P.C. & Renee M. Melancon, Baron & Budd, P.C.. Cooper/T. Smith Stevedoring Company, Defendant, is represented by Alan Guy Brackett, Esq. -- abrackett@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC, Robert Neven Popich, Esq. -- rpopich@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC & Wilton Ellwood Bland, IV, Esq. -- wbland@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC. Crowley Marine Services, Inc., Defendant, is represented by Kevin J. LaVie, Esq. -- kevin.lavie@phelps.com -- Phelps Dunbar, LLP, Meredith W. Blanque, Esq. -- meredith.blanque@phelps.com -- Phelps Dunbar, LLP & Robert J. Barbier, Esq. -- robert.barbier@phelps.com -- Phelps Dunbar, LLP. James J. Flanagan Shipping Corporation, Defendant, is represented by Gus David Oppermann, V, Esq. -- Wheat, Oppermann & Meeks, P.C.. Ports America Gulfport, Inc., Defendant, is represented by Jacques P. DeGruy, Esq. -- jdegruy@frfirm.com -- Fowler Rodriguez & Jeffrey S. Hall, Jr., Esq. -- jhall@frfirm.com -- Fowler Rodriguez. SSA Gulf, Inc., Defendant, is represented by Richard P. Sulzer, Esq. -- rsulzer@sulzerandwilliams.com -- Sulzer & Williams, LLC, Christina F. Baldwin, Esq. -- cbaldwin@sulzerandwilliams.com -- Sulzer & Williams, LLC & Robert Edward Williams, IV, Esq. -- rwilliams@sulzerandwilliams.com -- Sulzer & Williams, LLC. Union Carbide Corporation, Defendant, represented by Deborah DeRoche Kuchler, 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. Georgia-Pacific LLC, Defendant, represented by Gary A. Bezet, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Anthony M. Williams, Kean Miller LLP, Barrye Panepinto Miyagi, Kean Miller, Gayla M. Moncla, Kean Miller, Gregory M. Anding, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Kean Miller & Sarah W. Anderson, Kean Miller. Cooper/T. Smith Stevedoring Company, Third Party Plaintiff, represented by Alan Guy Brackett, Mouledoux, Bland, Legrand & Brackett, LLC, Robert Neven Popich, Mouledoux, Bland, Legrand & Brackett, LLC & Wilton Ellwood Bland, IV, Mouledoux, Bland, Legrand & Brackett, LLC. ASBESTOS UPDATE: NY Police Allowed To Pursue Sec. 205-e Claim ------------------------------------------------------------- In IN THE MATTER OF JAMES R. DIEGELMAN ET AL., Appellants, v. CITY OF BUFFALO ET AL., Respondents, No. 168, 2016 NY Slip Op 07817 (N.Y. App.), the Court of Appeals of New York was asked to determine whether a police officer who is entitled to receive benefits under General Municipal Law Section 207-c for a duty- related injury is barred from bringing a claim against his or her employer under General Municipal Law Section 205-e. The Court of Appeals concluded that, where the municipal employer has elected not to provide coverage pursuant to the Workers' Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer's statutory or regulatory violations may pursue a section 205-e claim. The City of Buffalo employed claimant James R. Diegelman as a police officer from 1968 until 1995. On August 9, 2012, he was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. Claimant and his wife, Andrea M. Diegelman, allege that exposure to asbestos occurred during his employment at properties owned by the City and respondent Board of Education, and used by the Police Department. Claimants commenced this proceeding seeking permission to serve a late notice of claim on the City. In opposition, the City argued, among other things, that leave should be denied on the ground that the claim was patently without merit because General Municipal Law Section 207-c provides the exclusive remedy for the alleged work-related injuries. The New York Supreme Court granted claimants' application for permission to serve a late notice of claim on the City. The City appealed, and the Appellate Division reversed on the law and denied the application. The Appellate Division agreed with the City that the claim was barred by General Municipal Law Section 207-c and, thus, held that claimants' application should be denied because "leave to file a late notice of claim is not appropriate for a patently meritless claim". This Court granted claimants' motion for leave to appeal. The Court of Appeals concluded that General Municipal Law Section 205-e, when construed "in an unforced and natural manner," cannot be read to bar suits by recipients of General Municipal Law Section 207-c benefits when those police officers are employed by municipalities that have elected not to provide workers' compensation coverage. The contrary interpretation urged by the City and the dissent is inconsistent with the plain words of the statute, as well as the express statement of legislative intent and the legislative history of the statute, the Court of Appeals said. The City's interpretation also conflicts with our prior decisions recognizing that the statute should be applied expansively and disregards the distinctions between workers' compensation benefits and section 207-c benefits long recognized by this Court, the court said. A full-text copy of the Decision dated November 21, 2016 is available at https://is.gd/771Tyd from Leagle.com. John A. Collins, Esq. for appellants. David M. Lee, Esq. for respondents. ASBESTOS UPDATE: 3rd Circ. Reverses Remand Ruling in "Papp" ----------------------------------------------------------- The United States Court of Appeals for the Third Circuit reversed the district court's judgment granting Steven Papp's bid to remand his lawsuit back to state court because the federal officer removal statute extends to contractors who possess a colorable federal defense, and that The Boeing Company made a sufficient showing of such a defense at the time of removal. Papp, individually and on behalf of Mary's estate, alleges that Mary suffered secondary "take home" asbestos exposure while washing the work clothes of her first husband, Robert Keck. Keck had several jobs that exposed him to asbestos, including one for the New Brunswick Plating Co. in the late 1970s. While working for New Brunswick, Keck sandblasted the landing gear of World War II military cargo planes to prepare the gear for repairs. Papp contends that that process resulted in Keck having airborne asbestos fibers adhere to his clothing so that Mary, who handled the clothes, inhaled the asbestos. Steven Papp filed this failure-to-warn product liability suit against Boeing in the Superior Court of New Jersey, alleging that his late wife, Mary was made ill by exposure to asbestos from a Boeing aircraft. Boeing removed Papp's failure-to-warn suit to the United States District Court for the District of New Jersey on the basis of the federal officer removal statute, 28 U.S.C. Section 1442(a)(1). According to Boeing, it was acting as a government contractor when it engaged in the allegedly tortious conduct. After removal, Papp filed a motion to remand the case to state court, which the District Court granted. The District Court ruled that Boeing had failed to meet a "special burden" of establishing that a federal officer or agency affirmatively prohibited Boeing from warning third parties of the dangers of asbestos found in planes manufactured in the mid-twentieth century. The District Court held that, because Boeing was a contractor and not a federal officer, it had a "special burden" to demonstrate that it was acting under the control of the federal government. The District Court said that, to prove removal jurisdiction, Boeing was required to show that it performed the complained-of activity at the direction of official federal authority. Because the allegedly wrongful behavior was the failure to warn third parties of asbestos, the District Court concluded that Boeing must show "that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties worked or otherwise provided services." Using that standard, the Court decided that Boeing did not meet its special burden and that remand to state court was proper. Boeing timely appealed. The appeals case is STEVEN PAPP, individually and as Executor and Executor as Prosequendum of the Estate of MARY SUE PAPP, v. FORE- KAST SALES CO., INC.; HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., as successor-in-interest to the Bendix Corporation; NEW BRUNSWICK PLATING CO., f/k/a New Brunswick Nickel and Chrome Plating; UNION CARBIDE CORPORATION; JOHN DOE CORPORATIONS 1-50; JOHN DOE CORPORATIONS 51-100; GOODRICH CORP., f/k/a B.F. Goodrich Co.; THE GOODYEAR TIRE & RUBBER CO.; THE BOEING COMPANY, individually and as successor by merger to the McDonnell Douglas Corporation The Boeing Company, Appellant, No. 15-2851 (3d Cir.). A ful-text copy of the Decision dated November 22, 2016 is available at https://is.gd/ihq7fr from Leagle.com. Amaryah K. Bocchino, Esq. -- abocchino@mgmlaw.com, Jason A. Cincilla, Esq. -- jcincilla@mgmlaw.com, Marc S. Gaffrey, Esq. -- mgaffrey@hoaglandlongo.com, Bryan P. Smith, Esq. -- bsmith@mgmlaw.com -- Manion Gaynor & Manning, 1007 N. Orange Street, Tenth Floor, Wilmington, DE 19801. Martin F. Gaynor, III, [ARGUED], Esq. -- mgaynor@mgmlaw.com -- Nicholas D. Stellakis, Esq. -- nstellakis@mgmlaw.com -- Manion Gaynor & Manning, 125 High Street, Boston, MA 02110. Brian D. Gross, Esq. -- bgross@mgmlaw.com -- Manion Gaynor & Manning, One Citizens Plaza, Suite 620, Providence, RI 02903, Counsel for Appellant, Boeing Co. Jeffrey P. Blumstein [ARGUED], Esq. -- JBlumstein@szaferman.com, Robert E. Lytle, Esq. -- RLytle@szaferman.com, Robert G. Stevens, Jr., Esq. -- RStevens@szaferman.com, -- Szaferman Lakind Blumstein & Blader, 101 Grovers Mill Road, Suite 200, Lawrenceville, NJ 08649. Joseph J. Mandia, Esq. -- Levy Konigsberg, 800 Third Avenue, 13th Floor, New York, NY 10022, Counsel for Appellee. ASBESTOS UPDATE: "Loupe" Remanded to Louisiana State Court ---------------------------------------------------------- Judge Sarah S. Vance of the United States District Court for the Eastern District of Louisiana granted the plaintiffs' motion to remand the case captioned BONNIE ANN TREGRE LOUPE, ET AL. v. PENNSYLVANIA GENERAL INSURANCE COMPANY, ET AL. SECTION "R" (5), Civil Action No. 16-6075 (E.D. La.), because defendant Huntington Ingalls Inc.'s removal petition was untimely and denied the Plaintiffs' other motions. Plaintiffs Bonnie Anne Tregre Loupe, Lee Ann Tregre Cortez, and Sherry Tregre Cortez, move to remand the case to state court. The Plaintiffs also move for costs and fees, and sanctions, based on Huntington's purportedly improper removal to this Court. Marie Nell Martinez Tregre originally filed this suit in the Civil District Court for the Parish of Orleans. According to the complaint, Mrs. Tregre's husband, Lee Tregre, worked for Avondale Industries, Inc., a predecessor company to Defendant Huntington Ingalls Inc., from approximately 1953 through 1994. While working at Avondale, Mr. Tregre was allegedly exposed to asbestos, and some of this asbestos clung to Mr. Tregre and his clothing after he left work each day. As a result, Mrs. Tregre came into contact with dangerously high levels of asbestos in the course of interacting with Mr. Tregre and laundering his clothes. Mrs. Tregre was diagnosed with mesothelioma in April 2015. In addition to Avondale, Mrs. Tregre sued several defendants involved in the manufacture, distribution, and sale of asbestos- containing products that Mr. Tregre allegedly encountered in the course of his work. Mrs. Tregre also brought claims against insurance companies that allegedly provided coverage to defendants and their employees for asbestos-related claims. Mrs. Tregre died on September 2, 2015. Mrs. Tregre's three surviving children, Bonnie Ann Tregre Loupe, Lee Ann Tregre Cortez, and Sherry Tregre Cortez, have since been substituted as plaintiffs. Mrs. Tregre's children now bring claims sounding in negligence, intentional tort, fraud, and strict liability. Avondale removed to this Court on May 16, 2016. In its notice of removal, Avondale asserts that this Court may exercise jurisdiction pursuant to the federal officer removal statute, 28 U.S.C. Section 1442, because Mr. Tregre was exposed to asbestos on ships Avondale built for the U.S. government, and Avondale's government contracts required the use of asbestos. Plaintiffs argue that removal was both untimely and improper on the merits, and now move to remand to state court. In addition to moving for remand, plaintiffs also move for costs and fees, and for sanctions, against Avondale. A full-text copy of the Order dated November 17, 2016 is available at https://is.gd/9NJsKt from Leagle.com. Bonnie Ann Tregre Loupe, Plaintiff, is represented by Gerolyn Petit Roussel, Esq. -- Roussel & Clement. Bonnie Ann Tregre Loupe, Plaintiff, is represented by Jonathan Brett Clement, Esq. -- Roussel & Clement, Lauren Roussel Clement, Esq. -- Roussel & Clement & Perry Joseph Roussel, Jr., Esq. -- Roussel & Clement. Lee Ann Tregre Cortez, Plaintiff, is represented by Gerolyn Petit Roussel, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement. Sherry Tregre Cortez, Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement. Pennsylvania General Insurance Company, Defendant, is represented by Samuel Milton Rosamond, III, Esq. -- Taylor, Wellons, Politz & Duhe, APLC, Adam Devlin deMahy, Esq. -- Taylor, Wellons, Politz & Duhe, APLC & Angela J. O'Brien, Esq. -- Taylor, Wellons, Politz & Duhe, APLC. Huntington Ingalls Incorporated, Defendant, is represented by Gary Allen Lee, Esq. -- glee@leefutrell.com -- Lee, Futrell & Perles, LLP, Daphne M. Lancaster, Esq. -- dlancaster@leefutrell.com -- Lee, Futrell & Perles, LLP, John M. Futrell, Esq. -- jfutrell@leefutrell.com -- Lee, Futrell & Perles, LLP, Michael Scott Minyard, Esq. -- mminyard@leefutrell.com -- Lee, Futrell & Perles, LLP & Michael Kevin Powell, Esq. -- mpowell@leefutrell.com -- Lee, Futrell & Perles, LLP. Albert L Bossier, Jr, Defendant, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Daphne M. Lancaster, Lee, Futrell & Perles, LLP, John M. Futrell, Lee, Futrell & Perles, LLP, Michael Scott Minyard, Lee, Futrell & Perles, LLP & Michael Kevin Powell, Lee, Futrell & Perles, LLP. J Melton Garrett, Defendant, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Daphne M. Lancaster, Lee, Futrell & Perles, LLP, John M. Futrell, Lee, Futrell & Perles, LLP, Michael Scott Minyard, Lee, Futrell & Perles, LLP & Michael Kevin Powell, Lee, Futrell & Perles, LLP. Hopeman Brothers Inc, Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Jennifer H. McLaughlin, Willingham Fultz & Cougill, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC. 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. Eagle, Inc., Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, 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, Robert Leland Redfearn, Jr., Simon, Peragine, Smith & Redfearn, LLP & Stephen Jared Austin, Stephen J. Austin, LLC. Foster Wheeler LLC, 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.. 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. & Rebecca Abbott Zotti, Frilot L.L.C.. Uniroyal, Inc., Defendant, represented by Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC. Owens-Illinois, Inc., represented by Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Mary Reeves Arthur, Forman, Perry, Watkins, Krutz, LLP & Thomas Peyton Smith, Forman, Watkins, & Krutz, LLP. OneBeacon America Insurance Company, as successor to Commercial Union Insurance Company and Employers Commercial Union Insurance Company, Defendant, represented by Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC, Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC & Angela J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC. Travelers Indemnity Company, Defendant, represented by Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Katherine Osborne Hannan, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard. Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Anne Elizabeth Medo, Deutsch Kerrigan LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale. 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 D. Zajac, Willingham Fultz & Cougill. ASBESTOS UPDATE: Pa. High Court Affirms Ruling in "Rost" -------------------------------------------------------- In the case captioned RICHARD M. ROST, EXECUTOR OF THE ESTATE OF RICHARD J. ROST & ERIN SIPLEY, EXECUTRIX OF THE ESTATE OF JOYCE ROST, Appellees, v. FORD MOTOR COMPANY, Appellant, No. 56 EAP 2014 (Pa.), the Supreme Court of Pennsylvania, Eastern District, addressed again the proper application of the "frequency, regularity, and proximity" criteria in asbestos product liability litigation, seeking to provide further illumination on the principles set forth in the decisions in this area, Gregg, v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007), and Betz, v. Pneumo Abex. LLC, 44 A.3d 27 (Pa. 2012). The Supreme Court concluded that the trial court and the Superior Court properly applied those principles in this case, and thus affirmed the judgment entered in favor of Appellees. In October 2009, Richard and Joyce Rost filed suit against multiple manufacturers of asbestos, averring that exposure to the defendants' asbestos-containing products caused Richard Rost to contract mesothelioma. Before trial, the Rosts settled their claims against all defendants except for Ford Motor Company. Over Ford's objections, the trial court consolidated the case for trial with two other mesothelioma cases. Trial commenced in September 2011, at which time the trial court reminded the parties of a pre- trial ruling, in accordance with Gregg, precluding any expert from offering testimony that "each and every breath" of asbestos may constitute an evidentiary basis for the jury to find that the defendant's product was a substantial cause of mesothelioma. A full-text copy of the Opinion dated November 22, 2016 is available at https://is.gd/pCa9BO from Leagle.com. Robert L. Byer, Esq. -- rlbyer@duanemorris.com -- Duane Morris LLP, for Ford Motor Company, Appellant. Sharon L. Caffrey, Esq. -- slcaffrey@duanemorris.com -- Duane Morris, L.L.P., for Ford Motor Company, Appellant. David James Bird, Esq. -- Reed Smith LLP, for Product Liability Advisory Council, Inc., 1850 Centennial Park Drive, Suite 510, Appellant Amicus Curiae. John Jacob Hare, Esq. -- jjhare@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Pennsylvania Chamber of Business and Industry, Appellant Amicus Curiae. John Jacob Hare, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Pennsylvania Defense Institute, Appellant Amicus Curiae. Alice Sacks Johnston, Esq. -- Obermayer Rebmann Maxwell & Hippel LLP, for Volkswagen Group of America, Inc., Appellant Amicus Curiae. Martin S. Kaufman, Esq. -- Atlantic Legal Foundation, for Atlantic Legal Foundation, Appellant Amicus Curiae. Peter J. Neeson, Esq. -- pneeson@rawle.com -- Rawle & Henderson LLP, for Honeywell International, Inc., Appellant Amicus Curiae. Sean Peter Wajert, Esq. -- swajert@shb.com -- Shook, Hardy & Bacon, L.L.P., for American Insurance Association (The), Appellant Amicus Curiae. Sean Peter Wajert, Shook, Hardy & Bacon, L.L.P., for American Tort Reform Association, Appellant Amicus Curiae. Sean Peter Wajert, Shook, Hardy & Bacon, L.L.P., for Coalition for Litigation Justice, Inc., Appellant Amicus Curiae. Sean Peter Wajert, Shook, Hardy & Bacon, L.L.P., for National Association of Manufacturers, Appellant Amicus Curiae. James Michael Beck, Esq. -- jmbeck@reedsmith.com -- Reed Smith LLP, for Product Liability Advisory Council, Inc., 1850 Centennial Park Drive, Suite 510, Appellant Amicus Curiae. Carl D. Buchholz, III, Esq. -- cbuchholz@rawle.com -- Rawle & Henderson, L.L.P., for Honeywell International, Inc., Appellant Amicus Curiae. James Michael Evans, Obermayer Rebmann Maxwell & Hippel LLP, for Volkswagen Group of America, Inc., Appellant Amicus Curiae. Angela Marie Heim, Rawle & Henderson LLP, for Honeywell International, Inc., Appellant Amicus Curiae. Patrick Joseph Hughes, Connell Foley, LLP, for Atlantic Legal Foundation, Appellant Amicus Curiae. Clayton Layne Thompson, Maune Raichle Hartley French & Mudd, LLC, for Erin Sipley, Executrix of the Estate of Joyce Rost, Appellee. Clayton Layne Thompson, Maune Raichle Hartley French & Mudd, LLC, for Richard M. Rost, Executor of the Estate of Richard J. Rost, Appellee. Steven J. Cooperstein, Brookman, Rosenberg, Brown & Sandler, for Erin Sipley, Executrix of the Estate of Joyce Rost, Appellee. Steven J. Cooperstein, Brookman, Rosenberg, Brown & Sandler, for Richard M. Rost, Executor of the Estate of Richard J. Rost, Appellee. Michael B. Leh, Locks Law Firm, for Ana Diez Roux, M.D., PhD., M.P.H., Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Dr. Med. Xaver Baur, Prof. Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Carlos Bedrossian, MD, PhD (Hon), FIAC, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Eula Bingham, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Yv Bonnier- Viger, MD, MSc, MM, CMSQ, FRCPC, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for James Brophy, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Massimiliano Bugiani, MD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Barry Cattleman, ScD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Richard Clapp, DSc, MPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Dario Consonni, MD PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Emilie Counil, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Mohamed Aqiel Dalvie, BSc, Hons, MSc, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for John M. Dement, Ph.D., CIH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Tony Fletcher, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Professor Bice Fubini, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Thomas H. Gassert, MD, MSc, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Michael Gochfeld, MD, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for David F. Goldsmith, MSPH, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Lennart Hadell, MD, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for James Huff, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Peter F. Infante, DDS, DrPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Mohamed F. Jeebhay MBChB, MPH OeeMed), PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for T.K. Joshi, FRCS, FFOM, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Margaret Keith, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for John R. Keyserlingk, MD, MSC, FRCS(C), FACS, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Kapil Khatter, MD, CCFP, MES, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Shira Kramer, MHS, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Philip J. Landrigan, MD, MSc, FAAP, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Bruce Lanpher, MD, MPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Richard A. Lemen, PhD., MSPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Charles Levenstein, PhD., MS, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Abby Lippman, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Gerald Markowitz, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Sigurd Mikkelson, MD, DrMedSci, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Dario Mirabelli, MD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Celeste Monforton, DrPH, MPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Muge Akpinar-Elci, M.D., MPH; Prof. Dr. Med. Xavier Baur, et al., Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Rama C. Nair, BSc, MStat, MSc, PhD, FACE, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for L. Christine Oliver, MD, MPH, MS, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for David Ozonoff, MD, MPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Domyung Paek, MD, MSc, ScD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Smita Pakhale, MD, FRCPC, MSc (Epidemiology & Biostatistics), Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Rolf Petersen, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Beth Rosenberg, ScD, MPH, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Kenneth Rosenman, MD, FACE, FACPM, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for David Rosner, PhD, Appellee Amicus Curiae. Bruce E. Mattock, Goldberg, Persky & White, P.C., for Ethel H. Wise, Appellee Amicus Curiae. Joseph D. Satterley, KAZAN, McCLAIN, SATTERLEY & GREENWOOD, for The Asbestos Disease Awareness Organization, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Xaver Baur, Prof. Dr. Med., Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Carlos Bedrossian, MD, PhD (Hon), FIAC, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Eula Bingham, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Yv Bonnier-Viger, MD, MSc, MM, CMSQ, FRCPC, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for James Brophy, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Massimiliano Bugiani, MD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Barry Cattleman, ScD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Richard Clapp, DSc, MPH, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Dario Consonni, MD PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Emilie Counil, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Mohamed Aqiel Dalvie, BSc, Hons, MSc, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for John M. Dement, Ph.D., CIH, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Tony Fletcher, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Bice Fubini, Professor Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Thomas H. Gassert, MD, MSc, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Michael Gochfeld, MD, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for David F. Goldsmith, MSPH, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Lennart Hadell, MD, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for James Huff, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Peter F. Infante, DDS, DrPH, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Mohamed F. Jeebhay MBChB, MPH OeeMed), PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for T.K. Joshi, FRCS, FFOM, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Margaret Keith, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for John R. Keyserlingk, MD, MSC, FRCS(C), FACS, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Kapil Khatter, MD, CCFP, MES, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Shira Kramer, MHS, PhD, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Philip J. Landrigan, MD, MSc, FAAP, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Bruce Lanpher, MD, MPH, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Richard A. Lemen, PhD., MSPH, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Charles Levenstein, PhD., MS, Appellee Amicus Curiae. Jason Timothy Shipp, Goldberg, Persky & White, P.C., for Abby Lippman, PhD, Appellee Amicus Curiae. ASBESTOS UPDATE: Newport News Cases Example of Broken System ------------------------------------------------------------ A new whitepaper released on December 8, 2016, highlights how lawyers for asbestos victims in Newport News, VA, routinely manipulate court cases to force solvent companies to pay for injuries caused by other, bankrupt companies. The paper, Disconnects & Double-Dipping, provides several examples in which asbestos plaintiffs and their lawyers failed to identify exposures to bankrupt companies' asbestos products until after collecting large multi-million dollar jury awards or settlements from solvent companies. As a result of this scheme, asbestos plaintiffs "double-dip" by collecting through court cases and again from large trust funds set up by bankrupt companies. The paper was commissioned by the U.S. Chamber Institute for Legal Reform (ILR). "The lack of transparency in the Newport News courts allows plaintiffs' lawyers to game the system, squeeze extra money out of businesses and finite trust funds, and maximize their own fees on these cases," said Lisa A. Rickard, president of ILR. "This is not a victimless behavior," Rickard added. "Abuse today leaves less for future claimants, and creates economic damage when companies are forced to pay more than their fair share." Newport News is home to many asbestos cases because it is a major shipbuilding center and asbestos was widely used in that industry. According to the paper, 732 asbestos cases were filed in the Circuit Court for the City of Newport News from January 2013 until September of this year. The paper explains that a growing number of states have passed "transparency" legislation to stop abuses like those found in the Newport News courts and encourages the Virginia legislature to enact similar reforms. ILR seeks to promote civil justice reform through legislative, political, judicial, and educational activities at the global, national, state, and local levels. The U.S. Chamber of Commerce is the world's largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations. ASBESTOS UPDATE: Fight for State-Funded Treatment Continues ----------------------------------------------------------- The Northland Age reported that one of New Zealand's youngest asbestos cancer sufferers, Deanna Trevarthen, died in Auckland on Monday, surrounded by family and in the arms of her long-term partner, Greg Robertson. She was 45. Deanna, like Greg a one-time employee of the Northland Age, fought her incurable disease for a year longer than doctors had expected, Greg telling the NZ Herald that his soul mate and best friend had but passed away in peace and without pain. "Dee faced death as she lived life; smiling and with absolute determination," he said. "She never allowed this incurable disease to take her dignity, and it's a testament to her qualities that in the last days of her life she was more concerned about me than herself. She never gave in, and it was only her body that stopped her fight." Cancer specialists treating Deanna believe she was exposed to the deadly asbestos fibres as a 10-year-old through her electrician father's work, but she was not entitled to ACC cover because she had not been employed in an asbestos risk industry. The couple took the dispute to court, but lost. Mr Robertson said there was no doubt that Deanna had accidentally inhaled the asbestos fibres, and believed that linking compensation to employment was unfair and outdated. It had also taken ACC too long to review evidence when dealing with a fast-moving disease like cancer. The couple had called on family (Mr Robertson is the son of Bev, who lives at Hihi, and the late Les Robertson, one-time principal at Taipa Area School), fundraised and borrowed to self-fund treatment with Keytruda. That had cost hundreds of thousands of dollars, he said, but had given Deanna almost a year longer than expected. Large tumours on her back had almost disappeared and a "tricky" tumour on her lung improved enough for radiation treatment. The cancer returned two months ago. And despite his grief, Mr Robertson said he would continue fighting on Deanna's behalf and for future asbestos cancer sufferers. ASBESTOS UPDATE: Patterson Schools Improperly Handled Asbestos -------------------------------------------------------------- Fausto Giovanny Pinto, writing for NJ.com, reported that a former environmental officer is suing Paterson Schools, claiming the district mishandled numerous environmental issues like mold and asbestos removal in violation of federal regulations. Brenda Zemo, an Environmental Occupational Health and Safety Officer since 2008, claims she was subjected to a hostile workplace after she raised concerns about the alleged mishandling of the material by the Facilities Department and its Executive Director Steve Morlino, according to the lawsuit. She claims she was let go by the department after she filed the complaint. The only female employee at the department, Zemo's role was to ensure the district provided a safe and healthy work environment for about 23,000 students and 5,400 staff. During several instances, Zemo claims Morlino disregarded her advice to hire outside contractors licensed in abatement and improperly undertook actions at the school in violation of federal safety regulations. These allegedly include: * Having unlicensed school staff remove asbestos tiles inside a classroom at School 12 * Improperly storing asbestos material at the school facilities site on 200 Sheridan Avenue as opposed to a proper landfill * Having untrained staff remove mold at various schools including P.S. 25, P.S. 24, P.S. 10, P.S. 4, P.S. 30 and the Boris Kroll Mill Building. * Improper installation of an HVAC system at 5 Colt Street, which housed the HARP and YES academies, leading staff members to complain about feeling ill due to a mildew odor at the building. * Construction debris and dust being left at the 5 Colt Street site in violation of Indoor Air Quality Standards. During the 2014-2015 school year, Zemo was tasked with testing lead levels in water at district schools. Her information was handed off to Morlino, who then presented it to district supervisors, chiefs and principals, the lawsuit states. When it was determined in February that principals and superintendents did not pass on the information to parents in 2015, Morlino allegedly tried to blame Zemo for the oversight. Superintendent Donnie Evans sent a letter to parents in April, apologizing for not notifying them about the lead issue. Morlino was the director of facilities at Newark Schools from 1999 to 2014, during which time the district allegedly failed to change water filters leading to elevated levels of lead in drinking water. After Zemo filed a hostile workplace complaint with the district, she was reassigned to the school business department in May. They later deemed her report "unfounded" and on June 3 Evans told Zemo that her contract would not be renewed for the following school year. Zemo is suing the district for an order or reinstatement or compensatory pay and an order from the district banning Morlino and other employees from retaliating against her. A lawyer of Zemo did not return a request to comment. Morlino and Terry Corallo, district spokeswoman, did not return emails seeking comment. ASBESTOS UPDATE: Councils Pay Out More Than GBP37,000 in Claims --------------------------------------------------------------- Michael Cox, writing for Nottingham Post, reported that councils have paid out more than GBP370,000 in the last ten years to victims of asbestos-related illnesses caused by historical exposure in schools. The figures, obtained through the Freedom of Information Act, reveal the scale of the ongoing problem of asbestos in schools, which was banned from all buildings in 1999. The material was widely used in buildings from the 1950s onwards and is known to remain in 266 council-run schools in the city and county. Bosses at Nottinghamshire County Council have said they take the problem of asbestos in schools "extremely seriously". It has settled claims totalling GBP196,907 to two people since 2011, while the city council has paid a total of GBP177,000 to "fewer than five" individuals since 2006. All victims, who have been kept anonymous by the local authorities, were teachers, caretakers or pupils in Nottinghamshire schools when they were exposed to asbestos. Jas Hundal, service director for transport, property and environment at Nottinghamshire County Council, said: "Since 2011, the council has received three claims relating to exposure to asbestos - all of which relate to historic incidents - prior to the current controls which are now in place. "Asbestos was widely used in construction until the late 1990s and is present in thousands of public buildings, schools, homes and offices throughout the country. It only becomes a danger when materials that contain it are disturbed or damaged. "There have been no notifiable asbestos related incidents in Nottinghamshire schools in the last five years." An incubation period of up to 40 years means health problems often occur decades after the asbestos fibres were originally inhaled. This means victims, and local authorities, are dealing with the impact decades after exposure. One of the most common types of asbestos-related illness is mesothelioma, a cancer that develops in the lungs. There is currently no known cure for the disease. A Nottingham City Council spokesperson said parents and staff didn't need to be concerned about asbestos in its schools. He said: "Policies and procedures are in place to ensure that pupils and staff are not put at risk. Surveys are undertaken in schools on a regular basis to ensure that asbestos-containing materials are identified and action taken where necessary. "Any asbestos-containing materials that remain are in a condition and/or location that do not present any health risks." An investigation carried out by the BBC found that local authorities across England have paid out over GBP10m in compensation over the past decade to people who have developed illnesses after exposure to asbestos in schools. It also found that asbestos is known to be present in 12,600 local authority schools nationally. Steve Aldridge, managing director of Asbestos Consultancy & Management Services, based in Lenton, said the problem was a "ticking time bomb". He said: "Because it takes so long for asbestos-related health problems to materialise, this problem is a ticking time bomb which, in future, will cost councils significantly more than the GBP10 million in compensation they have already paid out. "Children are an extremely precious commodity, so there should be higher levels of compliance for asbestos management in schools. Many schools simply aren't aware of what their responsibilities are in relation to asbestos." Each school has an asbestos register and management plan for the material, which covers a wide range of issues from training to dealing with emergencies. Head teachers are responsible for maintaining this plan, which is audited every year. The National Union of Teachers has claimed that up to 300 adults die every year from asbestos-related illnesses. ASBESTOS UPDATE: Rules for Transfer Stations Customers Changing --------------------------------------------------------------- Metro News reported that customers dropping off leftovers from their most recent renovation projects will have to make sure their loads meet new standards that go into effect April 1. That's when the two Metro-owned transfer stations will change their drop-off procedures to further limit possible asbestos exposure to staff and visitors. Since last spring, Metro has required proof that certain construction materials arriving at its transfer stations do not contain asbestos. Beginning April 1, the list of construction materials requiring testing for asbestos will expand to include drywall and other products. "These changes are important to ensure the health and safety of our customers and our facility workers, as well as to ensure continued operation of the transfer station," said Penny Erickson, a manager in Metro's Property and Environmental Services Department. The changes come after the Oregon Department of Environmental Quality saw an increase in materials containing asbestos at local facilities not permitted to take asbestos. Since then, the DEQ asked Metro for a more thorough and comprehensive list of prohibited items that may contain asbestos. "These types of suspect materials we are screening for are very common in construction and remodeling projects," Erickson said. "Because of that, many of our customers could be impacted with longer waits and rejected loads." Though no longer commonly found in modern building materials, asbestos has not been completely prohibited in new materials sold in the United States, and it still poses a threat to people when openly exposed. Asbestos was mostly used in a variety of construction materials from the 1940s through the 1970s, but is still considered dangerous since it's linked to three different types of cancer, including lung cancer, asbestosis and mesothelioma. For more detailed information about bans on asbestos in the United States, check out the Environmental Protection Agency's overview on the mineral. Building materials ranging from vinyl flooring to wallboard to ceiling tiles can contain asbestos. It was used in glues, tapes, and many other construction products in the mid 20th century. "When in doubt, have it checked out by a qualified inspector or lab prior to doing any remodeling work," said Erickson. "Be sure to bring proof of that with you when delivering the load." Asbestos poses a threat mostly when disturbed or damaged, so materials that haven't been disturbed probably haven't released the toxic fibers. Erickson says that a proactive step to take prior to beginning any project at home, is to find out whether the updated list of prohibited items contains any of the products you may plan to get rid of, such as drywall, stucco, gaskets and insulation. "Plan ahead when considering a remodeling project," Erickson said. "Call for information concerning our rules to make sure you know what is needed to dispose of your materials." Material that could contain asbestos must be tested by a certified lab before it can be brought to a Metro transfer station. Loads of construction waste that contain asbestos or that do not have proper paperwork will be turned away. While materials containing asbestos cannot be accepted at a Metro transfer station, Metro can receive up to two 25-pound bags of asbestos-containing materials per residential customer per day at its two separate household hazardous waste facilities. These materials must be properly prepared before they come to the hazardous waste facility. ASBESTOS UPDATE: Teacher Dies From Asbestos Exposure ---------------------------------------------------- Isobel Frodsham, writing for Mail Online, reported that a former teacher died after being exposed to asbestos in schools, a coroner has ruled. Sue Stephens, 68, worked as a teacher in Buckinghamshire for 30 years before retiring in 2008 to Crediton, Devon. The grandmother was diagnosed with malignant mesothelioma, which can lie dormant for decades, in 2014 and died in June this year. During the inquest, held at Exeter's County Hall, the court heard that Sue had written a statement saying she recalled construction work being undertaken at another school and asbestos being removed by builders in the classrooms during lessons. In the statement, she said: 'Previously I had been very fit and well. This diagnosis came as an enormous shock to me and my family. My symptoms started around 18 months ago.' She said at one school she used a staple gun to pin children's work to the walls. She said: 'I would stand on a table to do this and it took around two hours. I did it one afternoon every fortnight and I believe I was exposed to asbestos dust and fibres. 'I was never told it (the school) contained asbestos or to take extra care.' Greater Devon coroner Dr Elizabeth Earland concluded that Sue died from industrial disease. She said: 'I'm satisfied Mrs Stephens was exposed to asbestos during her time as a teacher in schools in Buckinghamshire which underwent building repairs from the 90s upwards. 'On the balance of probability, and noting the type of repairs at the time and the materials involved, I believe this led to fatal asbestos exposure.' Prior to her death, Sue's daughter, Lucie, launched a petition calling for the government to make it law to begin the removal of asbestos from all schools by 2028. The petition has more than 9,000 signatures. A Buckinghamshire County Council spokesman said: 'We would like to express our sympathy to Sue Stephens' family on their sad loss. 'We are, however, unable to make any comment on individual cases.' ASBESTOS UPDATE: Salvage Owner Jailed for Asbestos Violations ------------------------------------------------------------- Gordon Gibb, writing for Lawyers and Settlements, reported that it's a situation that is the closest one might come to a crystal ball: the sentencing of a salvage company owner who allowed the demolition of an asbestos-laden tire plant without protecting his workers from asbestos fibers. As it takes asbestos mesothelioma some 30 years to emerge in most cases, it is not beyond the realm of possibility that new asbestos claims may well be stemming from this incident three decades from now. The US Attorney's Office for the Western District of Kentucky launched an asbestos lawsuit against the owner of S & S Salvage LLC after employees of the salvage company were found to be engaged in the demolition of a former Goodyear tire plant without breathing apparatuses or respirators. Insulation materials believed to contain asbestos were also not properly wetted down, in violation of the Clean Air Act. Timothy J. Smith pled guilty to a misdemeanor violation of the Clean Air Act and was sentenced to 90 days in jail by Magistrate Judge H. Brent Brennenstuhl, followed by two years' probation. Given the carcinogenic properties of asbestos and the potential for asbestos cancer and Mesothelioma, asbestos abatement is taken seriously and enforced when violations are found. According to court documents, a local inspector noted that a crew working for S & S Salvage was seen in the throes of demolishing the former tire plant located in Madisonville, Kentucky. The work, it has been reported, was taking place in violation of a rule that requires the submission of written notice ten days prior to the commencement of demolition on any structure containing asbestos. On two previous occasions, the defendant had been cited for not providing proper advance notice before commencing demolition projects. Those enforcements were conducted by the Kentucky Department of Environmental Protection. With regard to the 2014 incident which eventually landed the salvage company owner in jail, the inspector returned a month later to witness the work continuing. Boilers were dismantled and asbestos-laden insulation was being removed and tossed into dumpsters. The insulation was not dampened down as is required -- nor were salvage workers wearing any kind of breathing apparatus to protect them. "These federal safety guidelines for hazardous materials exist to protect us -- to protect workers and protect the community," US Attorney John Kuhn, with the US Attorney's Office for the Western District of Kentucky, said in a statement on December 2. "Our fervent hope is that 90 days of incarceration will encourage Mr. Smith and others to think long and hard before once again violating regulations that ensure worker and community safety." The asbestos lawsuit is United States of America v Timothy J. Smith, Case No: 4:16-mj-00010, in US District Court Western District of Kentucky, Owensboro. In recent years a host of plaintiffs have come forward with asbestos claims following alleged exposure to asbestos in plants, industrial environments and the ship building industry in an era where asbestos was more commonly used, without benefit from a wide-ranging understanding of the carcinogenic properties of asbestos. It takes mesothelioma, asbestosis and other forms of asbestos cancer 30 years or more to emerge, in most cases. ASBESTOS UPDATE: Woman Injured Through Secondary Exposure --------------------------------------------------------- Carrie Bradon, writing for Louisiana Record, reported that a woman diagnosed with mesothelioma alleges she was exposed to asbestos through her husband's and father's clothes. Sharon A. Barrilleaux filed a suit against Ingersoll-Rand Co., et al. in the Orleans Parish Civil District Court on Nov. 2. According to the claim, the plaintiff was exposed to dangerous levels of asbestos fibers brought home on her husband's clothing from his job. She also alleges she was exposed to asbestos fibers in the same manner through her father. The defendants are accused of negligence because they designed, manufactured, sold and or supplied asbestos-containing products. The plaintiff is seeking an unspecified amount in damages. The plaintiff is represented by Amanda Ballay, Frank J. Swarr, Mickey P. Landry, Philip Hoffman and Matthew Clark of Landry & Swarr in New Orleans. The case has been assigned to Division C Judge Sidney H. Cates IV. The Orleans Parish Civil District Court Case number 2016-10919 ASBESTOS UPDATE: Employers, Land Owners Have Duty to Protect ------------------------------------------------------------ Guy W. Stilson, Esq. -- Gstilson@lowball.com -- at Low, Ball & Lynch, in an article for JD Supra Business Advisor, wrote that in the cases captioned CECELIA KESNER, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; PNEUMO ABEX, LLC, Real Party in Interest. CECELIA KESNER, Plaintiff and Appellant, v. PNEUMO ABEX, LLC, Defendant and Respondent; JOSHUA HAVER, et al. Plaintiffs and Appellants, v. BNSF RAILWAY COMPANY, Defendant and Respondent, Nos. S219534, S219919 (Calif.), the Supreme Court of California, in a unanimous opinion, held: "Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. Importantly, we hold that this duty extends only to members of a worker's household. Because the duty is premised on the foreseeability of both regularity and intensity of contact that occurs in a worker's home, it does not extend beyond this circumscribed category of potential plaintiffs. Decedent Johnny Blaine Kesner, Jr. spent an average of three nights each week at the home of his uncle, George Kesner, from 1973 to 1979. George worked at Abex, where he was exposed to asbestos released in the manufacture of brake shoes. Asbestos fibers came home with him on his person and Johnny was exposed. Johnny developed mesothelioma and died. The Kesner claim was based on employer negligence. Abex moved for and was granted a nonsuit based on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, a case which held that the take-home exposure theory was not viable." Decedent Lynne Haver was married to a man who, from 1972 to 1974, was exposed to pipe insulation and other products at his place of work. Lynne Haver developed mesothelioma and died. The Haver claim was based on premises liability. The defendant demurred based on Campbell and the demurrer was sustained. The Supreme Court reversed both decisions and overruled Campbell. The Supreme Court found: "A reasonably thoughtful person making industrial use of asbestos during the time periods at issue in this case (i.e., the mid-1970s) would take into account the possibility that asbestos fibers could become attached to an employee's clothing or person, travel to that employee's home, and thereby reach other persons who lived in the home." Thus, the Supreme Court determined that take-home exposure was foreseeable, at least as of 1972. The court's opinion provides several pages of information regarding the enactment in 1952 of U.S. Department of Labor standards for federal contractors, a 1934 recommendation from the International Labour Office's Standard Code of Industrial Hygiene, and the enactment of OSHA in 1972, all of which addressed the issue of preventing worker's family members from being experiencing take-home exposure. The court also noted, "as early as 1965, scholarly journals documented fatal cases of mesothelioma where patients' only exposure was through living with an asbestos worker." The court held it did not matter whether the plaintiff's legal theory was one of negligence or premises liability because take-home exposure liability is viable under either theory. The court did not say that either the Kesner or Haver plaintiffs are necessarily entitled to a damages award, only that they are entitled to move forward to trial. The court characterized its ruling as simply rejecting a "categorical" rule precluding take- home exposure liability, and pointed out that the plaintiffs still must prove the Rutherford factors (duration and proximity, etc. of exposure) and show that any exposure attributable to the defendant is substantial before liability may attach. Comment and Evaluation This case is a significant blow to asbestos defendants. The idea that it is foreseeable to an employer that a worker's family member could develop a disease from exposure to asbestos brought home on its worker's person has been the subject of heated debate. That debate has now been resolved in California, and the plaintiffs have prevailed. Defendants may still want to pursue a "lack of foreseeability" defense where the take-home exposures ended before 1972, but the Supreme Court's reference to earlier papers and recommendations means that convincing a court that the exposure or resulting disease was not foreseeable will be an uphill battle, with the slope getting increasingly steeper as the take-home exposures near the 1970s. We had seen a substantial increase in take-home exposure cases before Campbell. Based on Campbell, defendants had won a significant number of summary judgment and other dispositive motions in take-home exposure cases. When the Supreme Court agreed to review Kesner and Haver, lower courts started putting those motions on hold pending this opinion. Now that the Supreme Court has decided this issue in favor of plaintiffs, we expect to see more cases alleging take-home exposure in the near future. A full-text copy of the Opinion dated December 1, 2016, is available at https://is.gd/zUN3El from Leagle.com. Weitz & Luxenberg, Benno Ashrafi, Cindy Saxey, Josiah W. Parker; Kazan, McClain, Satterley & Greenwood and Ted W. Pelletier for Petitioner and for Plaintiff and Appellant Cecelia Kesner. Brayton Purcell, Alan R. Brayton, Gilbert L. Purcell and Gary L. Brayton as Amici Curiae on behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner. The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner. Walters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants Joshua Haver, et al. The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants Joshua Haver, et al. No appearance for Respondent Superior Court. Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Curt Cutting; Brydon Hugo & Parker, Hugo Parker, Edward R. Hugo, James C. Parker and Jeffrey Kaufman for Real Party in Interest and for Defendant and Respondent Pneumo Abex, LLC. McKenna Long & Aldridge, Lisa L. Oberg; McDermott Will & Emery and Colleen E. Baime for CertainTeed Corporation and Honeywell International Inc., as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Armstrong & Associates and William H. Armstrong for Resolute Management as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Schiff Hardin and Eliot S. Jubelirer for Owens-Illinois, Inc., as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Gordon & Rees and Don Willenburg for Association of Defense Counsel of Northern California and Nevada as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Horvitz & Levy, Curt Cutting and Steven Fleischman for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC. Sims Law Firm, Selim Mounedji; Gibson, Dunn & Crutcher, Veronica Lewis, Theodore J. Boutrous Jr., Joshua S. Lipshutz and Alexander M. Fenner for Defendant and Respondent BNSF Railway Company. Fred J. Hiestand; Erika C. Frank and Heather L. Wallace for The California Chamber of Commerce and The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company. Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company. Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company. Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent BNSF Railway Company. Louis P. Warchot, Daniel Saphire; Murphy, Campbell, Alliston & Quinn and Stephanie L. Quinn, Esq. -- squinn@murphycampbell.com -- for Association of American Railroads as Amicus Curiae on behalf of Defendant and Respondent BNSF Railway Company. King & Spalding, Peter A. Strotz, Esq. -- pstrotz@kslaw.com -- Steven D. Park, Esq. -- spark@kslaw.com -- and Ethan P. Davis, Esq. -- edavis@kslaw.com -- for Western States Petroleum Association as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company. ASBESTOS UPDATE: Ban Little Impact on Sweden Mesothelioma Rates --------------------------------------------------------------- Scientists at the Karolinska Institute in Sweden have just released new findings on the mesothelioma risk posed by various different jobs and its relationship to the country's 1982 asbestos ban. Surviving Mesothelioma has just published a new article on the findings. Of the 280 occupations analyzed in the newly-published study, 24 of them were found to carry an elevated risk for malignant mesothelioma. "Among men, increased risks of mesothelioma of the pleura were observed in male-dominated occupations, with the greatest elevation of risk among plumbers," writes Nils Plato, a Chemical Engineer with the Institute of Environmental Medicine at the Karolinska Institute. According to the report in Epidemiology and Health, as of 2009, the ban on asbestos instituted in 1982 had yet to show any "clear effect" on the number of mesothelioma diagnoses in the country. "Because mesothelioma takes decades to develop, it can decades for an asbestos ban to impact incidence of the disease," says Alex Strauss, Managing Editor of Surviving Mesothelioma. "This study is a clear argument for 'sooner is better than later' when it comes to banning asbestos." Although 58 countries have now banned asbestos because of its link to mesothelioma, the US has yet to do so. Plato, N, et al, "Occupations and mesothelioma in Sweden: updated incidence in men and women in the 27 years after the asbestos ban", September 20, 2016, Epidemiology and Health, eCollection 2016, http://www.e-epih.org/journal/view.php?number=863 ASBESTOS UPDATE: Pupils, Staff Get GBP10MM Pay for Illness ---------------------------------------------------------- Mark Ellis, writing for Mirror, reported that coucils have paid out more than GBP10m in compensation to pupils and staff made ill by exposure to asbestos in schools, new figures show. Teachers and pupils, as well as support staff, are among the 220 people who have made claims against local authorities over the last five years. Campaigners say there were 99 reported incidents of asbestos exposure in schools during the same period, but believe the real figure could be much higher. Freedom of Information requests to local councils to 173 local authorities revealed the shock figures and campaigners claim failure to remove asbestos from schools is a national scandal. Rachael Reeves MP, chair of the Asbestos in Schools group, said: "This is a ticking time bomb because very few teachers and parents know that there is asbestos in schools. The very least we should do is make sure that this information is available to them." Campaigners and Britain's biggest unions have backed the Mirror's Asbestos Timebomb campaign for a national audit of all 23,000 schools in England to discover the extent of the problem and remove the killer dust. Asbestos was used extensively in school buildings in the 1960s in ceilings, walls and lagging pipes and if left undisturbed it poses no risk. But the material, which was banned from buildings in 1999, can cause deadly diseases, including mesothelioma, a form of lung cancer, which claims more than 2,500 lives a year. The FOI request revealed a "shocking" lack of consistency across local authorities with some claiming not to know how many schools contain asbestos, some withholding information and others stating that responsibility lies with schools. Amanda Brown, Assistant General Secretary of the National Union of Teachers (NUT), said: "87% of schools have asbestos. 319 teachers have died from mesothelioma since 1980, and 205 of these deaths have occurred since. "We do not know exactly how many adults have died because of childhood exposure to asbestos in schools but estimates have been put as high as 200-300 people each year. "These are shocking and unacceptable facts. Children and school staff are being exposed on a daily basis to this silent killer. "It is high time that Government implemented a plan of phased removal of asbestos from our schools to protect future generations." Government advice is to leave asbestos alone. Education Secretary Justine Greening said:" In the overwhelming number of cases we do remove asbestos from schools, but in some cases our experts are telling us its better to leave the material in place." A spokesperson for the Department for Education added: "The health and safety of children and staff in our schools is vital - that's why we are investing GBP23bn in school buildings by 2021. "This will help ensure asbestos is managed safely and that the amount in school buildings continues to reduce over time." ASBESTOS UPDATE: Lansing Inmate's Asbestos Suit Can Move Ahead -------------------------------------------------------------- Justin Wingerter, writing for CJOnline.com, reported that the Kansas Supreme Court has revived a lawsuit by a Lansing Correctional Facility inmate who claims he will die an early death from exposure to asbestos in the prison's library. Between 1997 and 2010, Jeffrey Sperry spent most days in the LCF law library. When guards searched the library for contraband each week, insulation containing friable asbestos fell on his desk and work area, he says. Unaware of the asbestos, Sperry often wiped it away without protective gear. Friable asbestos fibers, if inhaled, can become lodged in the lungs and digestive tract, causing lung cancer, mesothelioma and asbestosis, a disabling and often fatal disease for which there is no cure. In 2010, the Environmental Protection Agency found the state corrections department violated the Clean Air Act when transporting asbestos debris at Topeka Correctional Facility. That prompted an audit by the Kansas Department of Corrections that found asbestos abatement was needed above the library in Lansing where Sperry worked. When Sperry, 53, sought medical assistance, he claims a doctor at the prison said there was nothing he could do for him. When he sought mental health counseling, he claims a psychologist told him "he should not worry about the fact that he will become seriously ill and die prematurely." For several years, Sperry, working without an attorney, filed grievances with the KDOC. They were denied, first by a warden and then by the secretary of KDOC. When he took his claims to Leavenworth County District Court, KDOC filed motions to have them dismissed. Judge Dan Wiley dismissed Sperry's lawsuit because Sperry did not file a complaint within 10 days of being exposed. Sperry appealed, claiming he had, in fact, filed a grievance form after learning of the asbestos exposure, albeit the wrong form. He blamed the prison for failing to provide him with the correct form. Sperry is seeking an injunction requiring KDOC to treat his medical needs at facilities of his choosing, an injunction ordering KDOC to remove all asbestos and other contaminants from LCF, and more than $75,000 in damages. In June, he caught a break in the form of a U.S. Supreme Court opinion that found inmates must exhaust their administrative complaints before moving onto lawsuits but don't need to prove they have done so. The opinion undercut one of KDOC's arguments: that Sperry failed to prove he had filed all possible administrative complaints. The matter made its way to the state's highest court where, on Nov. 23, Sperry, still typing his own legal briefs without the help of a lawyer, found some success. In a unanimous ruling, the Kansas Supreme Court ruled Wiley, the Leavenworth judge, erred when he dismissed Sperry's lawsuit for procedural reasons. The case now returns to Leavenworth County District Court for further deliberations, including a possible trial. The case is JEFFREY SPERRY, Appellant, v. DAVID McKUNE (Warden), et al., (Raymond Roberts, Kansas Department of Corrections), Appellees, No. 112,455 (Ks.). A full-text copy of the Opinion dated November 23, 2016, is available at https://is.gd/uumddO from Leagle.com. Jeffrey J. Sperry, appellant, was on the brief pro se. Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, was on the brief for appellees. ASBESTOS UPDATE: High Court Grants Woman Right to Sue Pipe-Maker ---------------------------------------------------------------- Katheryn Hayes Tucker, writing for Daily Report, reported that the Georgia Supreme Court has given a woman suffering from a fatal lung disease the right to continue with her lawsuit against the company that made the asbestos-containing pipe she claims caused her illness. Marcella Fletcher filed her lawsuit in South Georgia's Thomasville, where her father worked for 35 years with the city water department until his retirement in 1983. When she was 8 years old, she began laundering his work clothes, which were covered with a grayish dust that would poof into a fine mist as she shook them out. Decades later, she was diagnosed with malignant pleural mesothelioma. She sued the maker of the pipe her father cut and fit, Pennsylvania-based CertainTeed Corp., in Thomas County State Court. But Judge Mark Mitchell threw out her lawsuit, granting CertainTeed's motion for summary judgment. Fletcher appealed. The Georgia Court of Appeals reversed the trial judge's dismissal on two points. Wednesday, the Supreme Court agreed with the Court of Appeals on only one of those points, but that's enough to keep the lawsuit alive. The high court reversed the intermediate court and ruled with the trial judge on tossing Fletcher's failure-to-warn claim, ruling that CertainTeed could not have had a duty to warn someone whose contact with the product could not be foreseen. The surviving claim in Fletcher's lawsuit is defective design. In an opinion written by Justice Carol Hunstein, the court unanimously agreed with the Court of Appeals that the case had been tossed based on the wrong case. Hunstein wrote that the guiding decision is not CSX Transportation v. Williams , 278 Ga. 888 (2005). In the CSX case, written by Justice Robert Benham, "we held that an employer's duty to provide a safe workplace does not extend to third party, non-employees who come into contact with asbestos-tainted work clothing," Hunstein wrote. The CSX decision, Hunstein wrote, addressed the employer-employee relationship. "This case, however, presents an entirely different question," she added. Because Fletcher alleged that CertainTeed "negligently designed its asbestos-laden products," Hunstein wrote, "the risk-utility analysis applies to determine whether the manufacturer is liable." Hunstein wrote that the guide should be the Georgia Supreme Court ruling for another case, Banks v. ICI Americas Inc. , 264 Ga. 732 (1994), which spells out a risk-utility test for assessing the reasonableness of a product design given the probability and seriousness of safety hazards. Hunstein also wrote the Banks decision. It's a legally significant distinction, according to Fletcher's attorney, Robert Buck of the Buck Law Firm. Buck said by email that his client "is gratified that the Supreme Court has reaffirmed the existence of a duty on the part of product manufactures to design reasonably safe products that extends to all Georgians." Buck said Hunstein's ruling "will also have [an] impact around the country because asbestos companies have often erroneously cited CSX Transp. v. Williams for the proposition that Georgia eliminated take home asbestos claims. This decision eliminates that false argument." David Marshall of Hawkins Parnell Thackston & Young, who represents CertainTeed, read it differently. Marshall said in an emailed statement that his client prevailed "on the larger issue of whether a manufacturer owes a duty to warn family members of potential hazards in a take-home exposure case." "This will favorably impact companies that are defendants in asbestos and similar cases here and nationwide. The trend of courts around the country has been to limit such take-home claims because they are so remote. The issue on which the plaintiff prevailed, the negligent design claim, is often not pursued by plaintiffs because of proof challenges at trial," Marshall said. He added, "All in all, we are pleased with the result." The defense team includes E. Elaine Shofner of Hawkins Parnell as well as Neil Lloyd and Elizabeth Guise of Schiff Hardin. At oral arguments, the defense team also included former Chief Justice Leah Ward Sears. But Sears has since left Schiff Hardin and the case behind and joined Smith, Gambrell & Russell. The case is CertainTeed v. Fletcher, No. S15G1903 (Ga.). A full-text copy of the Opinion dated November 30, 2016, is available at https://is.gd/pS8ZFj from Leagle.com. Erin Elaine Shofner, HAWKINS, PARNELL, THACKSTON & YOUNG, LLP, for Appellant. David C. Marshall, HAWKINS PARNELL THACKSTON & YOUNG, LLP, for Appellant. Michael K. Wolensky, SCHIFF HARDIN LLP, for Appellant. Robert Cape Buck, BUCK LAW FIRM, for Appellee. Leonard Searcy, II, SHOOK, HARDY & BACON, L.L.P., for Amicus Appellant. Mark A. Behrens, SHOOK, HARDY & BACON, L.L.P., for Amicus Appellant. Cary Silverman, SHOOK, HARDY & BACON, L.L.P., for Amicus Appellant. William V. Custer, IV, BYRAN CAVE LLP, for Amicus Appellant. Edwin Montgomery Cook, BRYAN CAVE LLP, for Amicus Appellant. ASBESTOS UPDATE: EPA Confirms Priority Action for Asbestos ---------------------------------------------------------- Linda Reinstein, writing for The Huffington Post, reported that asbestos has been killing unwitting Americans for more than a century, but the U.S. Environmental Protection Agency took a historic step toward ending this tragic trend. Asbestos will be one of the first 10 high-risk chemicals evaluated and regulated as the EPA implements the Lautenberg Act, putting us on the path to finally achieving a federal ban. This couldn't come at a more crucial time. President-elect Trump has made clear his intentions to scale back the EPA drastically, and he's also given high praise to asbestos, has used it heavily in his own real estate developments, and claims the movement to ban asbestos is a mafia conspiracy. Anti-asbestos advocates have been rightfully concerned that if asbestos wasn't addressed before Trump takes office, it could mean a resurgence in use rather than restrictions. By including asbestos in this top 10 list for priority action, the outgoing EPA team set legally enforceable deadlines and requirements around asbestos assessment and regulation, avoiding the concerns of Trump derailing our fight for a federal ban on this deadly toxin. Fortunately, these forthcoming regulations are mandated by a congressionally passed law and are not easily reformed or repealed. On the Path to a Ban With asbestos locked in for early action, we're on a 3-5 year timeline to regulation that looks something like this: * EPA must release a scoping document within six months for each chemical, which will include the hazards, exposures, conditions of use, and vulnerable populations the agency plans to consider for the risk evaluation. * EPA will be under statutory deadline to complete a risk evaluation within 3 years to determine whether the chemicals present an unreasonable risk to humans and the environment. * If a chemical is found to pose unreasonable risk, EPA must take regulatory action to mitigate that risk within two years. This means a final rule -- one that bans asbestos in all forms -- would likely be enacted by 2021. But given the extensive legwork that EPA has already done evaluating the dangers of asbestos, there's a potential that this could happen even sooner. "EPA spent 10 years exploring the need for the asbestos ban and developing the regulation. On the basis of its review of over 100 studies of the health risks of asbestos as well as public comments on the proposed rule, EPA determined that asbestos is a potential carcinogen at all levels of exposure -- that is that it has no known safe exposure level," Natural Resource and Environment Director John Stephenson said in a 2006 testimony before the U.S. Senate Committee on Environment and Public Works. President-elect Trump has made clear his intentions to scale back the EPA drastically, and he's also given high praise to asbestos, has used it heavily in his own real estate developments, and claims the movement to ban asbestos is a mafia conspiracy. EPA has already tried to ban asbestos, based on the evidence from this decade of research. In 1989, EPA issued a full federal ban on asbestos, only to have it overturned when the chemical industry sued, claiming the restriction would be bad for business. The EPA's inability to regulate one of the most notoriously lethal chemicals in existence highlighted the need to empower the agency with stronger chemical safety laws that would prioritize public health over profits. In fact, when President Obama signed into law the Lautenberg Act reforms that expanded the EPA's authority, he singled out asbestos as the poster child for the failure of the chemical safety laws we'd been living under since the 70s. Righting a Century of Wrongs "Under the new law, we now have the power to require safety reviews of all chemicals in the marketplace," EPA Assistant Administrator Jim Jones said in a statement. "We can ensure the public that we will deliver on the promise to better protect public health and the environment." The new law includes some key points that will prevent chemical industry lobbyists from upending this important work -- namely, requiring EPA to review existing and new chemicals based on a health-based standard, and not the cost of any restriction or ban. This measure will prove invaluable, as the chemical industry wasted no time mounting their opposition to the top 10 announcement and the evaluations to follow. "It is important to note that a chemical's inclusion in this first group of ten chemicals does not in and of itself indicate anything about the safety of the chemical. Its listing is simply an acknowledgment by the Agency that it plans to conduct risk evaluations on these ten chemicals before others," the American Chemistry Council (ACC) said in a statement. The ACC represents the chloralkali industry -- responsible for nearly 90% of U.S. asbestos consumption -- and has worked long and hard to keep asbestos in legal in efforts to protect their profit margin, regardless of the irreversible harm they cause with continued use. The EPA followed through on this promise to protect public health and the environment from unnecessarily dangerous chemicals regardless of industry pressure, signaling the success of the Lautenberg Act reforms. For the Asbestos Disease Awareness Organization (ADAO) and asbestos victims everywhere, this is a significant victory in a years-long David and Goliath battle that pitted victims against deep-pocketed chemical industry lobbyists. Today, with the help of a forward-thinking EPA, Congressional champions, and countless supporters, we've proven that with enough grit, determination, and faith in the democratic process, the Davids of the world truly can make change happen. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *