/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170113.mbx C L A S S A C T I O N R E P O R T E R Friday, January 13, 2017, Vol. 19, No. 10 Headlines AARON'S INC: Faces Labor Class Action in California ACTAVIS HOLDCO: Rochester Sues Over Pravastatin Price-fixing ACTAVIS HOLDCO: Rochester Sues Over Desonide Price-fixing AGILE THERAPEUTICS: Faces Shareholder Class Action in New Jersey ALABAMA: Care Provider Testified in Inmate Mental Health Case ALERE INC: KSF Commences Investigation Into Abott Acquisition ALEXION PHARMACEUTICALS: Faces Second Securities Class Action AMAZON PROCESSING: Faces "Newsom" Suit in S.D. of California ANZ BANK: Seeks Dismissal of Singapore Rate Rigging Case in US ARIZONA SUMMIT: Judge Dismisses Consumer Fraud Claims ARMANDO MONTELONGO: Faces Racketeering Class Action in Texas ASHLEY MADISON: Parent Seeks to Arbitrate Data Breach Claims ATLANTIC LOTTERY: NL Court Certifies Disgruntled Players' Suit ATLANTIC LOTTERY: Gambler Pleased with Class Action Certification AUTOZONE INC: Oregon Appeals Court Affirms Class Certification BANK OF AMERICA: Weiss Appeals From W.D. Pa. Ruling to Third Cir. BANK OF AMERICA: Judge Cuts Attorneys' Class Action Fee Request BAXTER INT'L: Robins Kaplan Named Class Action Co-Lead Counsel BRISTOL HARBOUR: Settles Workers' Labor Class Action for $412,500 CAPITAL ONE: Faces "Nayab" Suit in Southern Dist. of California CAPSTONE LOGISTICS: Sued Over Failure to Pay Minimum & OT Wages CARL'S JR: Workers Urged to Testify at Confirmation Hearing CELADON GROUP: Wins Partial Judgment in "Blakley" Suit CEPHALON INC: April 13 Provigil Claim Form Submission Deadline Set CHEMTALL INC: Remaining Settlement Money Donated to Universities CHICAGO, IL: Speed-Camera Ticket Notices Sent to Motorists CHINA NORTH: April 4 Fairness Hearing on $925K Class Settlement CHRYSLER: May 2018 Trial Set in "uConnect" Class Action CITIBANK NA: Alaska High Court Affirms Arbitration Ruling CLAY ROAD: "Tayum" Suit Seeks to Recover Unpaid Overtime Wages CLEAR SKIES: Faces Class Action Over "Extortion" Conspiracy COMPANY STORE: Credit Card Receipts Risk ID Theft, Suit Says CONAGRA FOODS: Recent Ruling Not Bad for Class Action Defendants CONTINENTAL HOME: Doesn't Properly Pay Employees, Action Claims COOKNSOLO INC: Faces "Peters" Suit Over Failure to Pay Overtime DOLE PACKAGED: Sued for Falsely Marketing Fruit & Oatmeal Goods DR. REDDY'S: Faces Rochester Suit Over Divalproex Price-fixing DUKE ENERGY: Class-Action Settlement Checks Waiting for Approval DUKE ENERGY: SPDR ETF Receives Class Action Settlement Payout DUPONT: Plans to Appeal $10.5MM Verdict in C8 Exposure Case DUPONT: January 17 Trial Scheduled in C8 Exposure MDL EASY PC: State Farm No Duty to Defend TCPA Class Action EMERY FEDERAL: Court Okays "Vigna" Settlement, Cuts Lawyer Fees EMORY COLLEGE: Students Demanding Free Tampons on Campus ENDOLOGIX INC: Brower Piven Files Securities Suit in California ENDOLOGIX INC: March 6 Lead Plaintiff Motion Deadline Set ETHICON INC: Judge Says Defective Mesh Judgment Should Stand FALLS FESTIVAL: Suit Mulled Against Organizers Over Crowd Crush FANDUEL: Pre-Trial Proceedings Underway in Mass. Class Action FSL MANAGEMENT: 6th Cir. Affirms "Whitlock" Settlement Approval FULTON FRIEDMAN: Court Says Asset Acceptance Liable in Class Suit GENERAL CABLE: March 6 Lead Plaintiff Motion Deadline Set GENERAL ELECTRIC: Settles Service Technicians' Class Action GERMANY: Two Indigenous Groups File Class Action Over Genocide GOLDEN PONDS: Mother, Son Sue Over Foodborne Illness GOVERNMENT EMPLOYEES: Faces "Branch" Suit in E.D. of Virginia GROVETOWN CITY, GA: Settles Water Utility Rate Class Action HANNIBAL, MO: Court Grants Redflex Motion for Judgment HERTZ CORP: Court Trims Claims in "Spotswood" Amended Complaint HONEYWELL INTERNATIONAL: Court Tosses Retirees' Class Action ITT EDUCATION: Group of Former Students File Class Action J.D. MELLBERG: Faces "Portillo" Suit in C.D. of California JAY PEAK: Investors Want Court to Certify Fraud Class Action JC PENNEY: KSF Investigates Alleged False Reference Pricing JONES WOLF: Debt Collectors Take on Lawyers in New Jersey JPMORGAN CHASE: Montero's Bid to Vacate Arbitration Order Nixed KANE CO: Faces Lawsuit Over Abrupt Shutdown, Bankruptcy KANSAS, USA: Brown Files Appeal in Kansas Supreme Court LA FURNITURE: Sued Over Unlawful Information Capture Policy LIPOCINE INC: Investor Group Named Lead Plaintiff LS HOLDINGS: Faces "Newsom" Suit in Southern Dist. of California LUNDAY-THAGARD: Pichardo Accuses Violation of Calif. Labor Law MADISON COUNTY: Jan. 17 Opt-Out Deadline in Court Fees Class Suit MCDONALD'S: No Class Certification in Wage-Theft Action MCWANE INC: May 23 Cast Iron Settlement Fairness Hearing Set MDC TAVERN: Faces "Brooks" Suit Over Labor Law Violations MEZENTCO SOLUTIONS: Diluted Chemo Victims to Challenge Settlement MICHIGAN: UIA Class Action Awaits Oral Arguments MICHIGAN: Major Overhaul Coming in UIA Following Class Suit MIDWEST SERVICING: Violates Debt Collection Laws, Salazar Says MILBERG LLP: Faces Suit by Kahn Swick Over Vioxx Fees MILLENNIUM PARTNERS: Homeowners Sue Over Sinking Tower MILZY OF VILLA: Does Not Properly Pay Workers, "Reiman" Suit Says MUDTECH SERVICES: Faces Class Action Over Unpaid Overtime Wages MULTI-STATE LOTTERY: Faces Class Action Over Rigged Jackpots MYPILLOW: BBB Revokes Accreditation Following Class Action NATIONAL FOOTBALL: Faces New England Patriot Fans Suit in Mass. NATIONAL MILK: Settles Milk Price-Fixing Class Action NEOVASC INC: Wins Dismissal of "Grobler" Class Suit NESTLE SA: Sued for Underfilling Raisinets Candy Boxes OCWEN LOAN: Belcher Files Amended Suit, Court Rules on Discovery ORTHOBANC LLC: "Mickler" Suit Alleges Job Discrimination PAREXEL INT'L: Ex-Employee Files Suit Over Unpaid OT Work PARKING CONCEPTS: Sued Over Failure to Properly Pay Employees PATTERN ENERGY: Howard G. Smith Files Class Action PETSMART INC: "Leeds" Suit Moved from Cir. Ct. to S.D. Fla. PHC INC: Feb. 27 Trial Against Directors Set PHILADELPHIA: Judge Declares Landlord Liens Invalid, Null, & Void PHILIP MORRIS: Marlboro Case Plaintiffs' Lawyers Seek $30MM Fees PILOT FLYING J: Ruling May Return Suit to Federal Court REPAIRCLINIC LLC: Faces "Gamez" Suit in Central Dist. of Cal. RS&H INC: "Jones" Suit Alleges Job Discrimination SAGE CLIENT: "Sarego" Suit Seeks to Recover Unpaid OT Wages SANIMAX: Green Bay Residents Seek Final Approval of Settlement SCHAEFFLER GROUP: March 22 Settlement Approval Hearing Set SCOTT AND ASSOCIATES: Sued Over Failure to Maintain Surety Bond STONEMOR PARTNERS: Wolf Haldenstein Files Class Action Lawsuit TARO PHARMA: Faces Rochester Suit Over Generic Fluocinonide TELIGENT INC: Faces Rochester Suit Over Generic Fluocinonide TENET HEALTHCARE: "S.B." Suit Removed to N.D. Ga. TG THERAPEUTICS: Levi & Korsinsky Files Securities Class Action THERANOS INC: Sacks 155 Employees Amidst Class Action TRIBUNE CO: Judge Dismisses Claims Against Shareholders TRUEVISIONS: May Face Lawsuit Due to Cancellations of TV Channels UBER TECHNOLOGIES: Suva Says Must Pay Social Security for Drivers UBS FINANCIAL: FRCP Rule 23 Certification Requirements Analyzed UMTH LAND: "Fannin" Suit Remanded to Delaware Court of Chancery UTILIMAP CORP: Seeks 7th Cir. Review of Ruling in "Martinez" Suit VANGUARD HOME: Appeals Ruling in "Davis" Overtime Suit VICTORY LAB: "Diego" Suit Removed to S.D. Fla. VOLKSWAGEN AG: German Vehicle Owners Seek Emissions Compensation VOLKSWAGEN AG: In Advanced Talks to Settle Emission Criminal Case VOLKSWAGEN AG: Ex-Compliance Head Arrested in Emissions Scandal VOLKSWAGEN AG: Six Employees Indicted in Emissions Scandal WAL-MART STORES: Fails to Pay Employees OT, "Quiles" Suit Says WATTS REGULATOR: Inks Settlements to Solve Floodsafe Suits WELLS FARGO: Settles Race Discrimination Class Action for $35.5MM WELLS FARGO: Hearing on $35MM Settlement Set for Jan. 24 WELLS FARGO: "Varga" Suit Moved from Super. Ct. to C.D. Cal. WILLIAM HILL: Spanish Gamblers Mull Discrimination Class Action WOODLAND DIRECT: Faces "Gamez" Suit in Central Dist. of Cal. WV AMERICAN: Efforts to Finalize Water Crisis Settlement Ongoing XYTEX CORP: Judge Tosses Most Claims in Sperm Bank Donor Case YAHOO! INC: Verizon Shareholders Raise Concern Over Data Breach ZIMMER BIOMET: Khang & Khang Files Class Action Lawsuit * DOL Initiative May Help Small Businesses Avert Legal Woes * Food Labeling-Related Class Actions Clogs Federal Courts * President-Elect Trump's Businesses May Become Legal Targets * Proskauer Rose's Oncidi Reviews California Employment Cases * Rule Changes Under Trump Expected to Hit Securities Litigation Asbestos Litigation ASBESTOS UPDATE: DAP, Warren Pumps Lose Bid to Dismiss "Vesper" ASBESTOS UPDATE: Bid to Remand "Abrogast" Denied ASBESTOS UPDATE: Widow Allowed To Correct Deficiencies in Suit ASBESTOS UPDATE: Honeywell Dismissed as Defendant in "Sumner" ASBESTOS UPDATE: Plaintiff Ordered to Take Action vs. 2 Companies ASBESTOS UPDATE: GMS Inc. Faces 65 PI Injury Suits at Oct. 31 ASBESTOS UPDATE: Joy Global Faces 3,652 Asbestos, Silica Cases ASBESTOS UPDATE: Deere & Co. Still Faces Asbestos Cases at Oct31 ASBESTOS UPDATE: Navistar Still Faces Asbestos Claims at Oct. 31 ASBESTOS UPDATE: Toro Co. Still Faces Asbestos Claims at Oct. 31 ASBESTOS ALERT: Vistra Energy Has 30,900 Claims at Dec. 22 ASBESTOS UPDATE: Asbestos Found at Children's Hospital in Crumlin ASBESTOS UPDATE: No Asbestos Found in South Australia Ash Cloud ASBESTOS UPDATE: Essex Companies Fined for Exposing Workers ASBESTOS UPDATE: DIY, Decorating Pose Asbestos Risk ASBESTOS UPDATE: Clean Slate in Orange's Tests for Asbestos ASBESTOS UPDATE: Fitter Launches Compensation Claim ASBESTOS UPDATE: Wash. AG Targets Local Asbestos Abatement Co. ASBESTOS UPDATE: Hidden Asbestos Drops $19K Bill on Homeowners ASBESTOS UPDATE: Lung Biopsy Essential To Correct Diagnosis ********* AARON'S INC: Faces Labor Class Action in California --------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a store manager has filed a class-action suit against his former employer over allegations of violations of labor laws. Carlos Aguirre filed a complaint on behalf of all others similarly situated on Dec. 29 in the U.S. District Court for the Northern District of California against Aaron's Inc., doing business as Aaron's Sales & Lease Ownership, and Does 1-50 alleging violations of labor and business and professions codes. According to the complaint, the plaintiff alleges that he worked for the defendant from 2009 to 2016. The plaintiff holds Aaron's Inc. and Does 1-50 responsible because the defendants allegedly failed to provide accurate wage statements to the plaintiff, failed to pay overtime, failed to provide meal and rest breaks and misclassified him as exempt. The plaintiff requests a trial by jury and seeks unpaid wages, actual damages, liquidated damages, restitution, all legal fees and interest and any other relief as the court deems just. He is represented by Shaun Setareh and Thomas Segal of Setareh Law Group in Beverly Hills. U.S. District Court for the Northern District of California Case number 3:16-cv-07384-JCS ACTAVIS HOLDCO: Rochester Sues Over Pravastatin Price-fixing ------------------------------------------------------------ Rochester Drug Co-Operative, Inc., on behalf of itself and all others similarly situated v. Actavis Holdco U.S., Inc., Apotex Corp., Dr. Reddy's Laboratories Inc., USA, Glenmark Pharmaceuticals USA, Inc., Lupin Pharmaceuticals, Inc., Mylan Inc., Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA, Inc., and Zydus Pharmaceuticals (USA) Inc., Case No. 2:16-cv- 06661-CMR (E.D. Penn., December 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to raise, fix, and maintain prices, allocate markets, and/or rig bids for generic pravastatin ("Pravastatin"). The Defendants operate a pharmaceutical company that manufactures, markets, and sells generic drug products. The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. NASTLAW LLC 1101 Market Street Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S. Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com klandau@tcllaw.com atamoshunas@tcllaw.com ACTAVIS HOLDCO: Rochester Sues Over Desonide Price-fixing --------------------------------------------------------- Rochester Drug Co-Operative, Inc., on behalf of itself and all others similarly situated v. Actavis Holdco U.S., Inc., Fougera Pharmaceuticals Inc., Perrigo Company plc, Perrigo New York, Inc., Sandoz, Inc., Sun Pharmaceutical Industries Ltd., Taro Pharmaceutical Industries, Ltd., and Taro Pharmaceuticals USA, Inc., Case No. 2:16-cv-06662-CMR (E.D. Penn., December 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to raise, fix, and maintain prices, allocate markets, and/or rig bids for generic generic desonide ("Desonide"). The Defendants operate a pharmaceutical company that manufactures, markets, and sells generic drug products. The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. NASTLAW LLC 1101 Market Street Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S. Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com klandau@tcllaw.com atamoshunas@tcllaw.com AGILE THERAPEUTICS: Faces Shareholder Class Action in New Jersey ---------------------------------------------------------------- Glancy Prongay & Murray LLP has filed a class action lawsuit in the United States District Court for the District of New Jersey on behalf of a class consisting of persons and entities that purchased or otherwise acquired Agile Therapeutics, Inc. securities between March 9, 2016 and January 3, 2017, inclusive. If you are a member of the Class described above, you may move the Court no later than sixty days from the date of this notice, to serve as lead plaintiff. Please contact Lesley Portnoy at 888-773- 9224 or 310-201-9150, or at shareholders@glancylaw.com to discuss this matter. The complaint filed in this lawsuit alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose: (1) that the Twirla contraceptive patch had an efficacy rating that fell below peer group standards; (2) that over half of patients in its "Secure" Phase 3 Study discontinued the study early; (3) that the Twirla patch therefore allegedly had a slight chance of FDA approval; and (4) that, as a result of the foregoing, Defendants' statements about Agile's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. On January 3, 2017, Agile disclosed statistical information pertaining to its Phase 3 SECURE study analyzing the Company's combined hormonal contraceptive patch Twirla. The study, which was initiated at the request of the FDA, comes after the FDA rejected Agile's initial marketing application back in 2013. The Company cited "positive top-line results" in the study, yet reported an efficacy measure that failed to meet the standard set by other approved contraceptive patches. Additionally, 51.4% of subjects opted to discontinue the study. On this news, Agile stock fell nearly 64% during intraday trading on January 4, 2017. If you purchased shares of Agile during the Class Period you may move the Court no later than sixty days from the date of this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of Glancy Prongay & Murray LLP, 1925 Century Park East, Suite 2100, Los Angeles, California 90067, at (310) 201-9150, by e-mail to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. ALABAMA: Care Provider Testified in Inmate Mental Health Case ------------------------------------------------------------- Kelsey Davis, writing for Montgomery Advertiser, reports that roughly a month since a class action lawsuit against the Alabama Department of Corrections first began, a mental health care provider testified to a lack of consistent medical records within DOC facilities. The suit, brought on behalf of all 25,000 disabled Alabama inmates, was filed in June 2014 by the Southern Poverty Law Center and the Alabama Disabilities Advocacy Program. It alleges egregious neglect and deliberate indifference toward all disabled inmates, but this phase of the trial focuses solely on the mentally ill. "Prisoners with mental illnesses or serious psychological problems are entirely denied mental health care or provided only with medication with little or no medication management, follow-up, or concern for side effects, some of which are debilitating," the complaint reads. Brought against ADOC, ADOC Commissioner Jefferson Dunn and ADOC associate commissioner of health services Ruth Naglich, part of the suit hinges on the involvement of MHM Correctional Services, which is contracted by ADOC to provide mental health care in ADOC facilities. According to the complaint, the contract between MHM and ADOC provides for a part-time psychologist at Donaldson, Bullock, Limestone and Holman and a full-time psychologist at Tutwiler. No psychologist is provided for the remaining 10 facilities. Anna Walker-Davis, an MHM Correctional Services, testified that an Easterling -- a prison with 195 inmates on its mental health caseload -- had 23 patients with past-due labs. Forty treatment plans were outdated or requiring review. Gaps in record keeping were not uncommon. Inmates seek order to force mental health care improvements "Corrective action is imperative by senior management," Ms. Walker-Davis wrote in an email to higher-ups at MHM. But Ms. Walker-Davis could not specify whether the gaps should be attributed to a lack of keeping accurate records, or a failure to provide care. The plaintiffs' attorneys point to "systemic underfunding" of medical care in the facilities as one of the root problems. In part, the defense argues that such underfunding makes Dunn not liable for many of the woes the plaintiffs argue plague ADOC's health care. John Smith, an attorney for the defendants, contended that the some of the changes the plaintiffs want made to the prison system go beyond his scope of authority. "If (Dunn) does not in his official capacity have the ability to affect these changes, I don't see how he can be found deliberately indifferent," Mr. Smith said. The trial is expected to continue for at least two more weeks. ALERE INC: KSF Commences Investigation Into Abott Acquisition ------------------------------------------------------------- Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a partner at the law firm of Kahn Swick & Foti, LLC ("KSF"), on Jan. 6 disclosed that KSF has commenced an investigation into Alere Inc. (NYSE: ALR). In February 1, 2016, Alere announced that it had agreed to be bought by Abbott Laboratories for about $5.8 billion. Four weeks later, Alere disclosed that it would be delaying the filing of its annual report while it analyzed how it recognized revenue in Africa and China. When the report was submitted five months later, Alere admitted to internal control failures that required it to restate its 2013-15 financials. Then, on March 11, 2016, Alere announced that it had received a grand jury subpoena from the DOJ requiring it to produce documents relating to its sales practices in Africa, Asia, Latin America and other Foreign Corrupt Practices Act issues. In November, Alere lost Medicare reimbursement privileges for its diabetes division subsidiary for seeking reimbursement for 211 deceased people. Then, on December 7, 2016, Abbott sued Alere, seeking to terminate the buyout. Alere and certain of its executives have also been sued in a securities class action lawsuit, which charged them with failing to disclose material information to shareholders, violating federal securities laws. KSF's investigation is focusing on whether Alere's officers and/or directors breached their fiduciary duties to Alere's shareholders or otherwise violated state or federal laws. If you have information that would assist KSF in its investigation, or have been a long-term holder of Alere shares and would like to discuss your legal rights, you may, without obligation or cost to you, call toll-free at 1-877-515-1850 or email KSF Managing Partner Lewis Kahn (lewis.kahn@ksfcounsel.com). About Kahn Swick & Foti, LLC KSF -- http://www.ksfcounsel.com-- whose partners include the Former Louisiana Attorney General Charles C. Foti, Jr., is a law firm focused on securities, antitrust and consumer class actions, along with merger & acquisition and breach of fiduciary litigation against publicly traded companies on behalf of shareholders. The firm has offices in New York, California and Louisiana. ALEXION PHARMACEUTICALS: Faces Second Securities Class Action ------------------------------------------------------------- Robert Storace, writing for Law.com, reports that a Connecticut pharmaceutical company has been hit with its second class action lawsuit in as many months over claims it defrauded stockholders with shady sales practices and by falsely hyping the growth of its drug Soliris, a treatment that costs $455,000 a year. The Boston Retirement System filed the federal lawsuit in New Haven Dec. 29 on behalf of thousands of investors against Alexion Pharmaceuticals Inc. The federal securities class action is being brought on behalf of anyone who purchased Alexion securities between Feb. 10, 2014, and Dec. 9, 2016. The lawsuit -- which claims the company violated federal securities laws -- is similar to one filed Nov. 17 in U.S. District Court for the Southern District of New York by Victoriano Frutos Juarez. His lawsuit covers alleged Alexion securities violations during the same period. The 24-page lawsuit filed claims that Alexion "reported impressive earnings and growth because of strength in its Soliris franchise." Alexion develops and commercializes therapeutic products for rare diseases and its primary product was Soliris, an antibody used for the treatment of a genetic blood disorder. The lawsuit repeatedly claims Alexion went out if its way to mislead investors and the public about the strength of Soliris, which eventually led to the resignation of the company's two top executives. The drugmaker claimed it had "an effective marketing strategy for the drug and that Alexion could monitor the inventory levels for Soliris," according to the lawsuit. "These statements were materially false and misleading. In truth, defendants inflated the company's reported earnings by selling Soliris in violation of company policies and procedures, and otherwise engaging in illicit sales tactics for the drug." This distorted the company's inventory of Soliris, according to the lawsuit. The claim also notes that on Nov. 9 -- after the market closed -- the company announced it wouldn't be able to timely file its financial and operating results for the quarter ending Sept. 30. That was due to "allegations raised by a former Alexion employee regarding improper sales practices of Soliris and the related disclosure and other considerations raised by such practices," according to the lawsuit. The news had a devastating effect on Alexion stock, which fell $13.54 per share, closing to $113.62 per share on Nov. 11. The company continued its downward spiral when it was announced on Dec. 12 that CEO David Hallal and CFO Vikas Sinha resigned. That announcement caused the price of the company's stock to drop 13 percent. It's alleged throughout the lawsuit that Alexion routinely lied about Soliris' growth, stability and earnings over the years. In total, as of July 27, 2016, Alexion had over 224 million shares of stock outstanding, owned by hundreds of thousands of investors. The lawsuit is seeking, among other remedies, compensatory damages and attorney fees. Boston Retirement System is being represented by Gerald Silk -- jerry@blbglaw.com -- Hannah Ross -- hannah@blbglaw.com -- and Avi Josefson of the New York City law firm of Bernstein Litowitz Berger & Grossman and David A. Slossberg -- DSlossberg@hssklaw.com -- of the Milford-based law firm of Hurwitz, Sagarin, Slossberg & Knuff. Mr. Silk, Ross and Mr. Slossberg were not available for comment Dec. 30. Mr. Josefson declined comment. As of Dec. 30, Alexion had not assigned an attorney to the lawsuit. No one from the company was available for comment. AMAZON PROCESSING: Faces "Newsom" Suit in S.D. of California ------------------------------------------------------------ A class action lawsuit has been filed against Amazon Processing, LLC. The case is captioned as Keisha Newsom, individually and on behalf of others similarly situated, the Plaintiff, v. Amazon Processing, LLC doing business as Appstar Financial, the Defendant, Case No. 3:16-cv-03122-JAH-AGS (S.D. Cal., Dec. 30, 2016). The case is assigned to hon. Judge John A. Houston. Amazon Processing LLC is a privately held company in San Diego, California engaged in the data processing industry. The Plaintiff is represented by: Joshua Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233 7770 Facsimile: (619) 297 1022 E-mail: josh@westcoastlitigation.com ANZ BANK: Seeks Dismissal of Singapore Rate Rigging Case in US -------------------------------------------------------------- Sarah Danckert, writing for The Age, reports that a cabal of international banks including ANZ Bank and Macquarie have applied to dismiss a class action against them in the US for the alleged rigging of the Singapore intra-bank interest rates on the grounds they are incorporated abroad. If the application is successful, it could throw doubt on a separate action brought against Australia's big four banks and Macquarie for allegedly rigging the bank bill swap rate in New York. Both cases have been brought by US investment houses Sonterra Capital and Frontpoint, the latter of which was the inspiration for the film The Big Short. The second case regarding the BBSW also includes big-time US trader Richard Dennis, commonly referred to as the Prince of the Pit, as a plaintiff. In that case, the big four Australian banks and Macquarie have been named as defendants. Separately in Australia, the Australian Securities and Investments Commission is suing National Australia Bank, ANZ and Westpac for allegedly rigging the bank bill swap rate. The banks' lawyers argue the alleged rigging of the SIBOR and the swap offer rate (SOR) took place outside the US. "All of the foreign defendants are headquartered in and organised under the laws of a foreign country -- in Europe, Asia, or Australia," the banks argue. "For each of the foreign defendants, their contacts with the United States and New York (if any) represent a comparatively small portion of their global business operations," the banks add. However, lawyers for Frontpoint and Sonterra said the court should not dismiss the case as requested by the banks. "The moving defendants ask this court to absolve them of violations of United States law because they are incorporated abroad," lawyers for Frontpoint and Sonterra said. "These foreign banks want the court to leave their domestic co-conspirator banks responsible to pay the entire bill for the domestic injury they, together, caused." Lawyers for Frontpoint and Sonterra cited a case in the US where a victim of the Castro regime in Cuba was able to sue international and domestic banks which had blocked access to the country's assets held in their possession. In that ruling the court found that "there is no reason to give advantage to a foreign bank with a branch in New York, over a domestic bank". The lawyers for the US hedge funds bringing the action against ANZ, Macquarie and the other banks noted that all of the international banks "registered to do business and consented to jurisdiction in New York". The international bank "defendants intentionally caused harmful effects in the United States. Defendants reaped illicit profits off the backs of US investors in the SIBOR and SOR-based derivatives market they manipulated using their US operations." ANZ and Macquarie declined to comment, but both banks have previously denied any wrongdoing. In 2013, ANZ and Macquarie along with 18 other banks were sanctioned by the Monetary Authority of Singapore after traders within each of the banks were found to have attempted to "inappropriately influence financial benchmarks", according to a media release from the authority at the time. ARIZONA SUMMIT: Judge Dismisses Consumer Fraud Claims ----------------------------------------------------- Karen Sloan, writing for The National Law Journal, reports that a federal judge has dismissed fraud claims against Arizona Summit Law School brought by a former student and employee who alleged the school misrepresented incoming students' grades and Law School Admission Test scores. Judge Neil Wake, of the U.S. District Court for the District of Arizona, on Dec. 27 ruled that plaintiff Paula Lorona failed to provide evidence that the Phoenix law school materially misrepresented the qualifications of new students when it omitted from the data it reports publicly the undergraduate grades and LSAT scores of students admitted through its alternative admissions program. The school's Alternative Admission Model Program for Legal Education (AAMPLE) is a seven-week online law course that guarantees those who pass a spot at the school regardless of their grades and LSAT scores. While Wake dismissed Ms. Lorona's claims of consumer fraud, common law fraud and negligent misrepresentation, her claims of retaliatory discharge, violations of the Americans With Disabilities Act and gender discrimination remain. Ms. Lorona alleged that omitting the grades and LSAT scores of those who enrolled through AAMPLE in the admissions data reported to the American Bar Association and in promotional material amounted to fraud, and that she would not have enrolled had the school not misrepresented the statistics. During discovery, the law school provided data on the grades and LSAT scores of all enrolled students between 2008 and 2014 -- including AAMPLE participants -- which showed virtually no difference from what the school previously reported. In many cases, the school-provided data showed that the median LSAT scores and undergraduate grades were actually higher when all students were calculated than the figures officially reported to the ABA. "The law school produced evidence that when all enrolled students, including those from the alternative program, are included in a report of admission statistics, the report is not materially different from what the law school reported to the American Bar Association," Judge Wake wrote. Ms. Lorona objected to the use of the school-provided numbers, however, calling them hearsay and lacking in authentication. Her attorney, Sean Woods of the Phoenix firm Mills + Woods, declined to comment on Dec. 29. Ms. Lorona, a former assistant director of financial aid and a 2014 Arizona Summit graduate, sued the school in June 2015 claiming fraud, retaliatory discharge and violation of the Higher Education Act's program integrity regulations. She claimed she was ordered to submit false state tax documents on behalf of the school and was fired after she refused. Ms. Lorona claimed she raised concerns with top administrators over what she believed was false advertising and the inability of many AAMPLE participants to succeed in school and on the bar. Ms. Lorona also claimed that Arizona Summit and the two other for-profit law schools owned by Infilaw Corp. -- Florida Coastal School of Law and Charlotte School of Law -- pay poorly performing students $5,000 to delay taking the bar exam in an effort to prop up declining bar-passage rates. School officials later defended the program as a way to help students afford to take additional time to study for the all- important exam. ARMANDO MONTELONGO: Faces Racketeering Class Action in Texas ------------------------------------------------------------ InTouch reports that Flip or Flop's Tarek El Moussa and Christina El Moussa aren't the only house-flipping reality TV stars making headlines. In Touch has learned another wealthy TV real estate personality with a similar business model -- former A&E Flip This House star Armando Montelongo -- is being sued in Texas by nearly 200 plaintiffs who allege his company's $1,500 seminars were simply ruses to sell more classes that cost as much as $54,000. In the latest issue of In Touch, Mr. Armando speaks out telling the mag exclusively, "We've always been very transparent about our business model. We've even showed it on Undercover Boss." Those suing Armando feel "they've been cheated," attorney Christopher Wimmer, who's spearheading the class-action lawsuit against Armando and his company, reveals. Mr. Wimmer alleges that the company has "a plan to defraud all of these individuals because they're not offering genuine education services -- just an opportunity to buy more products." In the docs, obtained by In Touch exclusively, the class-action lawsuit claims Mr. Armando's company's "scheme has destroyed livelihoods, wrecked marriages, driven students into clinical depression and even resulted in suicide." In March, Armando's company issued a statement calling those suing him a small group of people who simply "decided that continuous hard work is not for them." To those who feel his system doesn't work in the current financial and real estate climate, Mr. Armando, whose new show, Flipping Nightmares, debuts on streaming platforms in February, says, "You would have a tough time telling that to my students who are actually doing deals right now." In an unusual twist, lawyers are using federal RICO laws, which are often used in organized crime cases, to go after Mr. Armando's company for racketeering, among other things. "These plaintiffs are reaching," says Mr. Armando, who also asserts that "a number of these individuals that I've taught how to be successful have opened up a competitive seminar company or a competitive educational online company and -- are colluding to come together to try to bring down No. 1." ASHLEY MADISON: Parent Seeks to Arbitrate Data Breach Claims ------------------------------------------------------------ Amanda Bronstad, writing for Law.com, reports that AshleyMadison.com's parent company is hoping to knock out more than 20 class actions filed over its 2015 data breach by invoking online arbitration agreements the plaintiffs signed when they subscribed to its matchmaking services. The move to arbitrate comes after Avid Life Media Inc., which has been rebranded as Ruby Corp., agreed to pay $1.6 million to settle claims by the Federal Trade Commission and several state attorneys general over the breach, which compromised financial and personal information of nearly 37 million subscribers. In a Nov. 15 motion to dismiss, Avid attorney Richard Cassetta, a partner at Bryan Cave in St. Louis, wrote that the plaintiffs agreed to arbitrate their disputes when they set up an account on AshleyMadison.com. Plaintiffs attorney Douglas Dowd countered that Avid's "shoddy record-keeping practices" made it difficult to know whether the plaintiffs signed such agreements or were aware that they contained an arbitration clause. Lawyers are due in court on Jan. 6 to schedule oral arguments on the matter. Neither Messrs. Cassetta nor Dowd, president at Dowd & Dowd in St. Louis, responded to requests for comment. AshleyMadison.com's motion delves into the world of online contractual agreements, whose enforceability has led to an array of court rulings attempting to decipher terms like "clickwrap" and "browsewrap," said Eric Goldman, co-director of the High Tech Law Institute and a professor at Santa Clara University School of Law. "We're seeing a number of judges saying, 'I don't know what to make of this,'" he said. Judges who have turned to basic arbitration principles, rather than the terminology of online contracts, have come out with clearer guidelines, he said. "If a site can show 'Here's the affirmative manifestation of assent, and a knowing action,' they do pretty well in court." In the litigation against AshleyMadison.com, a consolidated class action filed on June 24 alleges that Toronto-based Avid and its former CEO, Noel Biderman, generated revenues through a racketeering conspiracy of "valueless services" in violation of the Racketeer Influenced and Corrupt Organization Act. Those services included the use of fake female profiles to convince users to pay for credits and a $19 fee designed to delete their personal information from the site -- even though it didn't. Plaintiffs also brought negligence and other common law claims and alleged violations of various state consumer and data breach statutes. In moving to dismiss the claims, Avid argued that in 2011 it added an arbitration clause and class action waiver in its terms and conditions, which plaintiffs agreed to when they signed up. Of the 18 named plaintiffs in the consolidated complaint, 15 opened accounts or agreed to the terms and conditions after Avid added the clause, according to Avid's motion. The other three, who opened accounts before 2011, were bound by changes in the site's terms and conditions since they continued to use the site, Mr. Cassetta wrote. In a Nov. 18 opposition, Mr. Dowd insisted that the arbitration provision was "buried after pages of legalese." "Indeed, as comedian John Oliver astutely quipped, 'If Apple put the entire text of Mein Kampf in their use agreement, you'd still click agree," Mr. Dowd wrote, quoting from a 2015 ruling in Berkson v. Gogo that rejected arbitration provisions in the online Wi-Fi connection agreements the website offered to airline passengers. ATLANTIC LOTTERY: NL Court Certifies Disgruntled Players' Suit -------------------------------------------------------------- Lars Jones at World Casino News reports that the Atlantic Lottery Corporation and others could be facing a lawsuit brought by two disgruntled players after a class action proposal was certified by Supreme Court of Newfoundland and Labrador Justice Alphonsus Faour. The pair claim "deception and misrepresentation in the offering of these games to the public," and based on an affidavit submitted by a problem gambling researcher from the University of Waterloo, the justice determined there was 'some evidence' of such and, "The plaintiffs have persuaded me that their conceptualization of this case is workable, and can be considered on the merits of the case as framed." In order to frame their case, counsel for the plaintiffs who are identified in local media as Douglas Babstock of Mount Pearl, and Fred Small of Gander, relied on "the Statute of Anne, 1710" otherwise known as the "Gaming Act, 1710". The 306 year old law allows gambling losers to sue for treble damages of lost money. Cbc.ca reports that Faour wrote in his decision that: "The defendant rightly points out that the act may not be in force in the province at this time in history. The plaintiffs will have to make the argument for its applicability at trial," The case as of October 2014 (201201G2257; 2014 NLTD(G) 114) is indexed as Babstock et al. v. Atlantic Lottery Corp. Inc., the full title includes as many as seven third parties, to wit: Douglas Babstock and Fred Small (plaintiff) v. Atlantic Lottery Corporation Inc./Soci‚t‚ de loteries de l'Atlantique (defendant) and VLC, Inc. (first third party), IGT-Canada Inc. (second third party), International Game Technology (third third party), Spielo International Canada ULC (fourth third party), GTECH Corporation (fifth third party), Tech Link International Entertainment Limited (sixth third party) and HI-TECH Gaming.com Ltd. (seventh third party) According to patientinjurylaw.ca, the class action is on behalf of all residents of Newfoundland and Labrador who have gambled on video lottery terminals. The site goes on to state that: "Video lottery terminals, or VLTs, are a form of continuous electronic gambling. They differ from lotteries in that they are electronically programmed to create cognitive distortions of the perception of winning. These cognitive distortions are intended to keep the consumer engaged and losing money. The class action claims that VLTs are inherently deceptive, inherently addictive, and inherently dangerous when used as intended. Plaintiffs believe that Atlantic Lotto knows or ought to know that VLTs are inherently deceptive, inherently addictive, and inherently dangerous when used as intended." In the U.S. the Nevada Gaming Commission dealt with a possibly similar issue in 1988/1989 wherein 3-reel slots had been programmed to show high paying symbols on the pay line in non- winning combinations. This 'made people think' they might win on the next pull, or that the machine was 'getting hot'. In one case it was accomplished by placing 12 blanks on a reel above the high paying symbol and 7 blanks below. The slot software used 32 stops on reels with 22 physical symbols. The practice was ruled unfair and the 'clustering' technique has been banned in Las Vegas and the rest of Nevada since that time. It is currently unclear what sort of evidence the plaintiffs intend to introduce that would buoy their claim that the VLT's are programmed to create cognitive distortions and the 'perception of winning'. It would seem an argument of bells and whistles, low paying bonus rounds, or low variance machines that return a lot of small wins over time with rare jackpots would fall short. If plaintiffs are able to convince the court at trial that the more than 300 year old law should be in force, the trial could go forward. The first stage of certification was argued in June of 2014 with plaintiffs winning on the question of whether a cause of action is disclosed. The judge in that case released his decision in October 2014. ATLANTIC LOTTERY: Gambler Pleased with Class Action Certification ----------------------------------------------------------------- VOCM Local News Now reports that a man from central Newfoundland is happy to see the Supreme Court certify a class action against Atlantic Lottery Corporation. The suit claims that ALC's video lottery terminals deceive people into thinking they can win. Shaun Bown of Benton says he lost close to $100,000 dollars through his VLT addiction and would like to see them banned. He says he will never forget his worst day as a compulsive gambler. On that day he lost an entire income tax refund cheque, worth $3,000, and resolved to kill himself by pulling in front of a transport truck. He says it's just by chance that he didn't see one while driving home from Gander that night. Atlantic Lottery says the claim in the class action suit is simply not true, but Bown believes the machines are bad for society and they should be removed. He says line games give people the illusion they can win, but in the end all their money is gone, and they have to lie, cheat and steal to get more money to pump into the machines. It is estimated that 30,000 people play VLT line games in this province. AUTOZONE INC: Oregon Appeals Court Affirms Class Certification -------------------------------------------------------------- Justice Joel DeVore of the Oregon Court of Appeals affirmed the trial court's certification of the classes but reversed and remanded the imposition of statutory penalties as to the off-the- clock claims in the case captioned, Michael MIGIS, individually, and on behalf of all others similarly situated, Plaintiff- Respondent Cross-Appellant, v. AUTOZONE, INC., a Nevada corporation, Defendant-Appellant Cross-Respondent, Case No. A150540 (Or. App.). Plaintiff Migis filed a class action against his former employer, defendant AutoZone, Inc., on behalf of himself and current and former employees of defendant. He alleged several wage-violation claims, seeking damages and statutory penalties. Plaintiff's wage- violation claims are (1) that current and former employees were not paid for the time they worked off the clock (the off-the-clock claims), and (2) that defendant failed to timely provide final wages upon termination of employment (the final-wages claim). Before trial, plaintiff moved to certify three classes, which the trial court granted, determining that the classes met all of the requirements of ORCP 32. The claims proceeded to trial in January 2010. The parties disputed whether the jury was required to find that defendant willfully violated the wage and hour laws as to the off-the-clock claims in order to impose civil penalties under ORS 652.140, ORS 652.150, and ORS 653.055. The trial court sided with plaintiff, deciding that a finding of willfulness applied only to the final- wages claim and reserved the imposition of civil penalties as to the off-the-clock claims as a matter to be determined by the court. The jury returned a verdict against defendant as to the off-the-clock claims and the final-wages claim, awarding $110,030 in damages. In April 2010, the court held a bench trial in which it determined civil penalties in the amount of $2,439,266. In September 2011, defendant filed two motions: the first to reduce the civil penalties, arguing that the penalties exceeded what was permissible under federal due process, and the second, an alternative ORCP 64 motion for a new trial. The court denied those motions on substantive and procedural grounds. In June 2012, plaintiff filed a supplemental fee petition under ORCP 68. After discovery and a hearing, the trial court awarded attorney fees. The court determined that plaintiff was entitled under ORS 652.200 and ORS 653.055 to more than $2.2 million in fees. The trial court found, in part, that, because of the "risks involved" and the "excellent results" obtained by plaintiff's counsel, a "multiplier enhancement" to double the lodestar fee was appropriate, resulting in a fee award of more than $4.4 million. After a jury trial and bench trial, defendant appeals a general judgment that awarded plaintiff and other class members $110,030 in damages, $2,439,266 in statutory penalties, and $1,144,058 in prejudgment interest on the damages and statutory penalties. Defendant also appeals a supplemental judgment that, in addition to other things, awarded $4,249,665.49 in attorney fees to plaintiff. Defendant raises nine assignments of error. In its first assignment, defendant contends that the trial court erred when it certified the classes and denied defendant's two motions to decertify the classes. In defendant's third and fourth assignments of error, defendant challenges civil penalties that the trial court imposed under ORS 652.150 and ORS 653.055. Defendant's second, fifth, sixth, eighth, and ninth assignments of error also concern the civil penalties imposed. Defendant's second assignment asserts that the trial court was not authorized to impose $862,894 in civil penalties, prejudgment interest, and attorney fees after tolling the statutory limitations period for civil penalties under ORCP 32 N by way of another action filed against defendant. In his Order dated December 14, 2016 available at https://is.gd/bSU56z from Leagle.com, Judge DeVore concluded that (1) defendant's challenge to class certification as to the off- the-clock claims on the merits and its certification challenge to the final-wages claims are rejected because its arguments on appeal were not preserved; (2) a finding of willfulness was required for the court to impose civil penalties for the off-the- clock claims; (3) Defendant's second, fifth, sixth, eighth, and ninth assignments of error fails to comply with ORAP 5.45 and that the trial court's denials of the motions on procedural grounds were not made in error. Michael Migis is represented by Roy Pulvers, Esq. -- roy.pulvers@hklaw.com -- HOLLAND & KNIGHT Autozone, Inc. is represented by A E Bud Bailey, Esq. -- and J. Dana Pinney, Esq. -- jdpinney@wagelawyer.com -- danabernstein@atblaw.net -- BAILEY, PINNEY & ASSOCIATES, LLC BANK OF AMERICA: Weiss Appeals From W.D. Pa. Ruling to Third Cir. ----------------------------------------------------------------- Plaintiffs Ann Harrell, Eddie Harrell, Robert Lessman and William Weiss filed an appeal from a court ruling in their lawsuit entitled William Weiss, et al. v. Bank of America Corp., et al., Case No. 2-15-cv-00062, in the United States District Court for the Western District of Pennsylvania. The appellate case is captioned as William Weiss, et al. v. Bank of America Corp., et al., Case No. 16-4386, in the United States Court of Appeals for the Third Circuit. District Judge Cathy Bisoon of the United States District Court for the Western District of Pennsylvania granted summary judgment in favor of the defendants in the district court case captioned, WILLIAM WEISS, et al., Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., Defendants, Case No. 15-00062 (W.D. Pa.). In the civil action, Plaintiffs assert class claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sections 1961-68, as well as state law claims of unjust enrichment. The claims are based on allegations that Bank of America Corporation, which owns Bank of America, N.A. (BANA), referred borrowers to private mortgage insurance providers in exchange for kickbacks, funneled through Defendant Bank of America Reinsurance Corporation. Previously, Defendants moved to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) on grounds, inter alia, that the RICO claims are barred by the four-year statute of limitations. Defendants argued that Plaintiffs' RICO claims arose in 2006 and 2007, at the time of closing. Plaintiffs, in response, contended that their 2012 receipt of notice from counsel triggered the statute of limitations. By Memorandum Order dated December 22, 2015, the Court denied Defendants' Motion to Dismiss. The Court rejected Defendants' argument that, based on the mortgage documents and Plaintiffs' participation in their closings, Plaintiffs' claims accrued in 2006 and 2007. Defendants filed a Motion for Summary Judgment on grounds that Plaintiffs' claims are time-barred. In her Memorandum and Order dated November 22, 2016 available at https://is.gd/xh0jUR from Leagle.com, Judge Bisoon found that summary judgment is appropriate regarding Plaintiffs' RICO claims because the injuries allegedly caused by subsequent account statements, and the account statements themselves, were not "new and separate," as contemplated by either the separate-accrual rule or its underlying principles. The Court declines to exercise supplemental jurisdiction regarding the state law claims. Plaintiffs-Appellants WILLIAM WEISS, ROBERT LESSMAN, ANN HARRELL and EDDIE HARRELL, individually and on behalf of all others similarly situated, are represented by: Edward W. Ciolko, Esq. Natalie Lesser, Esq. James A. Maro, Esq. Donna S. Moffa, Esq. Amanda R. Trask, Esq. Terence S. Ziegler, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: eciolko@ktmc.com nlesser@ktmc.com jmaro@ktmc.com dmoffa@ktmc.com atrask@ktmc.com tziegler@ktmc.com - and - Stephen J. O'Brien, Esq. STEPHEN J. O'BRIEN & ASSOCIATES 650 Ridge Road, Suite 400 Pittsburgh, PA 15205 Telephone: (412) 788-7560 Facsimile: (412) 788-7563 E-mail: sjobrien@sobrienlaw.com Defendants-Appellees BANK OF AMERICA CORP., BANK OF AMERICA NA and BANK OF AMERICA REINSURANCE CORP. are represented by: Mary J. Hackett, Esq. Karla Johnson, Esq. REED SMITH LLP 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 288-3250 Facsimile: (412) 288-3063 E-mail: mhackett@reedsmith.com kljohnson@reedsmith.com - and - Keith E. Levenberg, Esq. David L. Permut, Esq. Matthew S. Sheldon, Esq. GOODWIN PROCTER LLP 901 New York Avenue, N.W., Suite 900 East Washington, DC 20001 Telephone: (202) 346-4248 Facsimile: (202) 346-4444 E-mail: klevenberg@goodwinprocter.com dpermut@goodwinprocter.com msheldon@goodwinprocter.com BANK OF AMERICA: Judge Cuts Attorneys' Class Action Fee Request --------------------------------------------------------------- Daniel Fisher, writing for Forbes, reports that a federal judge whacked $10 million from the fee request of a class-action firm that negotiated a $335 million settlement of mortgage-backed securities claims against Bank of America, saying it was based on the work of short-term "associates" who appeared to function as contract attorneys. It wasn't all bad news for the partners at Barrack, Rodos & Bacine: In his Dec. 28 order, U.S. District Judge William Pauley awarded $41.3 million in fees and $1.4 million in expenses for their work on the case, or about 12% of the sum they negotiated for their clients. But the fee order provides evidence at least some judges are starting to figure out the economics of the class-action business. Judge Pauley blocked Barrack, Rodos partners from engaging in the routine practice of earning a windfall from the markup of work performed by low-paid attorneys. Barrack's records showed that motion practice and mediation, the traditional work of partner-level attorneys, represented only about 5% of the billable hours. Indeed, 11 partners at the firm billed 88% of the hours in that area, at rates of $455 to $740 an hour. Yet 70% of the total hours the firm sought to charge its clients were billed by 26 Barrack associates, 16 of whom were "temporary associates" Barrack hired in 2013 and 2014 to work exclusively on the BoA case and who disappeared from the payroll before it was settled. Those new hires represented 40% of the billable hours and $10.8 million in fees at $362.50 an hour -- well above the prevailing rate for contract attorneys of less than $50 an hour. The judge declined to criticize Barrack for running a "lean, partner-heavy firm." "This Court simply concludes that a reduction in the requested fee is warranted to avoid a windfall to Barrack for charging more than $350 per hour for associates who are contract attorneys in all but name, while simultaneously overstaffing the substantive legal work with high-priced partners," he wrote. Leverage -- the practice of billing out low-paid associates at $350 an hour or more -- is under severe pressure at corporate law firms but plaintiff lawyers in class actions still get away with it, often paying outside agencies to supply roomfuls of contract attorneys to scan the millions of documents generated in a typical class action even though paralegals or computer software could do the work just as well. That markup is a valuable source of profits as well as a tool for cohesion among rival plaintiff firms: By allocating "contract hours" among themselves in cases where multiple firms are involved, they can tamp down disagreements that might lead to more vigorous price competition. The 12% contingency fee rate falls in the middle of rates judges in federal courts have been approving in recent years, and reflects a "discount" for so-called "mega funds" over $100 million where the assumption is lawyers gained from the economies of scale from attacking a rich target like BoA. The case took almost six years to resolve and survived two motions to dismiss including one where all the defendants but BoA were released. The plaintiffs made securities-fraud claims relating to BoA's alleged failure to disclose the risks associated with agreements to buy back mortgage-backed securities and problems associated with the MERS national mortgage registry system. BoA denied the allegations but agreed to class certification and mediation. This fee order was first reported by the Legal Intelligencer. BAXTER INT'L: Robins Kaplan Named Class Action Co-Lead Counsel -------------------------------------------------------------- National trial firm Robins Kaplan LLP(R) on Jan. 4 disclosed that it has been appointed co-lead counsel in a class action antitrust lawsuit against the three dominant suppliers of IV saline solution, a vital medical supply used in hospitals nationwide. Robins Kaplan filed the first complaint in the country in November 2016 alleging that defendants Baxter International, Baxter Healthcare, and Hospira -- which together control approximately 90 percent of the market -- orchestrated an artificial rise in prices under the pretext of a supply shortage. "The complaint alleges that the defendants created a public health crisis -- one that was avoidable and that unnecessarily drove up the cost of healthcare for hospitals and vulnerable patients," said Hollis Salzman -- HSalzman@RobinsKaplan.com -- co-chair of Robins Kaplan's Antitrust and Trade Regulation group. "We look forward to pursuing this action, obtaining redress for hospitals and others that have paid a higher price resulting from the defendants' alleged collusion." According to the allegations in the complaint, beginning in 2013 the defendants undertook extensive efforts to create a supply shortage that would justify price increases, including allocating the volume of product that each would place on the market. In addition, as the purported shortage extended over time, it became the subject of Congressional scrutiny. Approximately one year ago, a bipartisan group of U.S. senators urged the Federal Trade Commission to investigate possible collusion among saline suppliers, which it noted "are reported to have increased their prices by 200-300 percent." The letter continued: "This equates to increased annual costs to individual hospitals in the range of hundreds of thousands to millions of dollars." As court-appointed co-lead counsel, Robins Kaplan represents a proposed class of direct purchasers, including hospitals, that purchased IV saline solution after January 1, 2013. Providers of IV saline solution generate in excess of $1.2 billion in annual revenue. Hollis Salzman, as well as Robins Kaplan of counsel Eamon O'Kelly and associate Meegan Hollywood, are representing the plaintiffs. The case is Washington County Health Care Authority, Inc. et al. vs. Baxter International Inc., et al. It is pending in the United States District Court for the Northern District of Illinois before the Hon. John J. Tharp, Jr. About Robins Kaplan LLP(R) Robins Kaplan is among the nation's premier trial law firms, with more than 220 lawyers located in Boston; Los Angeles; Minneapolis; Naples, Fla; New York; and Silicon Valley. The firm litigates, mediates, and arbitrates high-stakes, complex disputes, repeatedly earning national recognition. Firm clients include -- as both plaintiffs and defendants -- numerous Fortune 500 corporations, emerging-markets companies, entrepreneurs, and individuals. BRISTOL HARBOUR: Settles Workers' Labor Class Action for $412,500 ----------------------------------------------------------------- Julie Sherwood, writing for Daily Messenger, reports that about 160 workers in a class-action lawsuit alleging Bristol Harbour Resort violated labor laws will share in funds agreed to in a settlement amount totaling $412,500. "The parties reached an amicable resolution," said attorney Justin Cordello, who represented the workers. Eric Dolan with Trevett Cristo Salzer & Andolina P.C. represented the resort most recently in the case. The decision signed by state Supreme Court Justice Matthew A. Rosenbaum outlines the settlement, which is subject to final court approval expected this March. The lawsuit claimed the resort in South Bristol for six years pocketed tips that should have gone to its banquet service staff, which includes bussers, wait staff and bartenders who worked at the resort between May 2008 and May 2014. The suit was filed on behalf of former Bristol Harbour employee Allison Plante and all other employees in a similar situation. According to the negotiated agreement, each member of the class action will receive a distribution from the settlement fund. The formula will determine what each individual member should receive based on their length of employment and other factors. The amount distributed will come from a fund balance after fees are paid. A settlement claim administrator will be paid about $16,250. Attorneys' fees will be no more than $165,000 and litigation costs no more than $5,000. Another local resort remains at the center of a lawsuit alleging violations of state and federal labor laws. A complaint filed in U.S. District Court was brought on behalf of Martin Hinckley Jr., a former employee of The Inn on the Lake in Canandaigua. The complaint seeks to recover damages for Hinckley and others in his situation through a class action. Mr. Hinckley worked at the resort and conference center from about July 2013 until July 2015 as a banquet service worker at events such as weddings, parties, conferences, corporate functions and other special events. The original complaint alleged unpaid minimum wages, unpaid overtime, improperly withheld tips, unpaid spread of hours premium, failing to maintain uniforms, providing employees with defective annual notices, and failing to provide employees with statements with every payment of wages. Mr. Cordello represents the workers. Defendants are The Inn on the Lake parent organizations, Seagate Hospitality Group LLC and Canandaigua Hotel Corp., and Thomas A. Blank, chief executive officer of Canandaigua Hotel Corp. Attorney Stephen Jones with Nixon Peabody LLP represent the defendants. In recent developments, U.S. District Court Judge Charles Siragusa ruled that most of the tipped workers' labor law claims should not be dismissed. The case is now going forward as a class action, minus a few allegations including the complaint regarding unpaid overtime. Mr. Jones said the case is entering the discovery phase. That will give Mr. Jones and his team the chance to sit down and ask the plaintiff questions under oath, among other activities during a period when both sides are able to collect and exchange information. Mr. Jones said he will continue to "to vigorously defend the case" and "move to dismiss the entire case." CAPITAL ONE: Faces "Nayab" Suit in Southern Dist. of California --------------------------------------------------------------- A class action lawsuit has been filed against Capital One Bank, N.A. The case is styled as Freshta Y Nayab, individually and on behalf of others similarly situated, the Plaintiff, v. Capital One Bank, N.A., the Defendant, Case No. 3:16-cv-03111-CAB-NLS (S.D. Cal., Dec. 30, 2016). The case is assigned to Hon. Judge Cathy Ann Bencivengo. Capital One Bank offers financial products and services to consumers, small businesses, and commercial clients in the United States. The Plaintiff is represented by: Asil A Mashiri, Esq. MASHIRI LAW FIRM 11251 Rancho Carmel Drive, Suite 500694 San Diego, CA 92150 Telephone: (858) 348 4938 Facsimile: (858) 348 4939 E-mail: alexmashiri@yahoo.com CAPSTONE LOGISTICS: Sued Over Failure to Pay Minimum & OT Wages --------------------------------------------------------------- Vincent Waller, Latasha Waller, Dennis Marable, Larry Marable, Quincy Moon, Jonathan Stovall, and Dekeda Townes, on behalf of themselves and all others similarly situated v. Capstone Logistics, LLC, Case No. 4:16-cv-00064-JLK (W.D. Va., December 27, 2016), is brought against the Defendants for failure to pay minimum and overtime wages in violation of the Fair Labor Standards Act. Capstone Logistics, LLC operates a distribution center warehouse for Dollar General Stores at 3207 Philpott Rd., South Boston, Virginia. The Plaintiff is represented by: Patrick S. Almonrode, Esq. Jason T. Brown, Esq. 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: patalmonrode@jtblawgroup.com jtb@jtblawgroup.com CARL'S JR: Workers Urged to Testify at Confirmation Hearing ----------------------------------------------------------- Jim Puzzanghera, writing for Los Angeles Times, reports that almost two dozen Senate Democrats are calling for fast-food workers to testify at the confirmation hearing for President-elect Donald Trump's Labor secretary pick, Andy Puzder, who is the chief executive of the parent company of the Carl's Jr. and Hardee's burger chains. Sens. Elizabeth Warren of Massachusetts, Patty Murray of Washington and 21 other Democrats wrote to the chairman of the Health, Education, Labor and Pensions Committee on Jan. 5 saying they were concerned that Labor Department investigations of CKE Restaurant Inc. outlets "have turned up violations of basic protections of workers' rights in more than half of their inspections." The Carpinteria-based chain, which has more than 3,300 locations in 42 U.S. states and 28 countries, is facing "several potential class-action lawsuits" by employees regarding wage and other disputes, the lawmakers said. "It is essential that the committee hear from these employees and other Americans who have had first-hand experience with Mr. Puzder or the businesses he has led," the senators wrote to committee chairman Lamar Alexander (R-Tenn.). An analysis in September by Bloomberg BNA found that about 60% of Labor Department investigations of Carl's Jr. and Hardee's restaurants since 2009 turned up at least one violation of the Fair Labor Standards Act, which covers minimum wage, overtime and other regulations. Still, that was one of the best performances by leading fast-food outlets. "Mr. Puzder's tenure at CKE and his company's treatment of thousands of working families 'bear directly' on his qualifications and suitability to serve as secretary of Labor," the senators wrote. They added that if confirmed, Mr. Puzder "would be responsible for overseeing the enforcement of many of the labor laws his company has repeatedly violated." In a letter released on Jan. 6, Mr. Alexander wrote back to the senators saying he would not change committee precedent used for nominees of presidents Obama, George W. Bush and others. At those confirmation hearings, the nominee has been the only witness after sometimes being introduced by home-state senators. "We should not change the rules of the confirmation process in the middle of a transition," Alexander said. "That would be a disservice to the nominees and would serve as a deterrent to attracting qualified people to put forth their names for consideration." Mr. Puzder's confirmation hearing tentatively is scheduled for Jan. 17. The Trump transition team did not immediately respond to a request for comment. Mr. Puzder has criticized new federal rules expanding overtime pay, which have been blocked by a federal judge, and opposes the push for a $15-an-hour minimum wage that many Democrats support. In selecting Mr. Puzder last month, Trump said the fast-food executive "will fight to make American workers safer and more prosperous by enforcing fair occupational safety standards and ensuring workers receive the benefits they deserve, and he will save small businesses from the crushing burdens of unnecessary regulations that are stunting job growth and suppressing wages." CELADON GROUP: Wins Partial Judgment in "Blakley" Suit ------------------------------------------------------ District Judge Larry J. McKinney of the United States District Court for the Southern District of Indiana granted Celadon Group's Motion for Partial Judgment on the Pleadings and granted Plaintiffs leave to amend their complaint in the case captioned, WILLIAM BLAKLEY on behalf of himself and those similarly situated, HELEN BLAKLEY on behalf of herself and those similarly situated, and KIMBERLY SMITH on behalf of herself and those similarly situated, Plaintiffs, v. CELADON GROUP, INC., CELADON TRUCKING SERVICES, INC., QUALITY COMPANIES, LLC, QUALITY EQUIPMENT LEASING, LLC, JOHN DOES 1-10, Defendants, Case No. 1:16-CV-00351-LJM-TAB (S.D. Ind.). Plaintiffs William Blakley, Helen Blakely and Kimberly Smith each entered into a written Contractor Operating Agreement with Defendants Celadon Group, Inc., Celadon Trucking Services, Inc., Quality Companies, Inc., and Quality Equipment Leasing, Inc. to work as commercial truck drivers. Under the terms of Agreement, Plaintiffs agreed "that their compensation for services may be withheld by Celadon for payment of, and Celadon may set off against their compensation for" various charges and expenses that may be incurred during the duration of the Agreement, including "advances and other extensions of credit by Celadon to Plaintiffs." Plaintiffs were also required to maintain an escrow account under the Agreement and authorized Celadon, in its discretion, "to apply all or any portion of Plaintiffs' Escrow Account to the payment of any charges or indebtedness" incurred during the term of the Agreement. The amounts remaining in the Plaintiffs' escrow accounts upon termination of the Agreement were returned to Plaintiffs. In their Complaint, Plaintiffs claim that advances Celadon made to Plaintiffs constitute loans in violation of the Indiana Small Loans Act and Indiana Consumer Loan Act because Celadon deducted the advances and service fees from Plaintiffs' paychecks and secured repayment of the advances with the ability to debit Plaintiffs' escrow accounts. Plaintiffs further assert that Celadon's deductions for items, such as "lease payments, fuel purchases, insurance purchases, and payroll advances," constitute wage assignments that violate the Indiana Wage Assignment Act by including transaction fees in excess of the permissible 8% rate and by securing agreements for assignments exceeding 30 days. In Counts IV and V of their Complaint, Plaintiffs allege that the advances provided by Celadon constitute loans in violation of the Indiana Small Loans Act and Indiana Consumer Loan Act, respectively. Plaintiffs allege that Celadon secured wage assignments through the Agreement that violate the Indiana Wage Assignment Act in Count VI of their Complaint. Celadon moved for Partial Judgment on the Pleadings, pursuant to Federal Rule of Civil Procedure 12(c). In its Motion, Celadon seeks to dismiss Counts IV, V, and VI of Plaintiffs' First Amended Individual, Collective, and Class Action Civil Complaint. Celadon asserts that (1) certain payments made by Celadon to Plaintiffs are not subject to the Indiana Consumer Loans Act, and the Indiana Small Loans Act, largely because the payments are advances, rather than "loans"; and (2) Celadon cannot be subject to the Indiana Wage Assignment Act if it is considered the Plaintiffs' employer, as Plaintiffs allege in the Complaint. In his Order dated December 2, 2016 available at https://is.gd/5Pssfk from Leagle.com, Judge McKinney concluded that (1) Plaintiffs have not sufficiently alleged facts to support finding Celadon's payments meet the statutory definition of a "loan"; (2) the Complaint does not allege sufficient facts to determine that any wage assignments made by Celadon were invalid because Plaintiffs failed to address the fixed and definite nature of the wages or salary earned. Plaintiffs are given leave to amend their complaint. William Blakley, et al. are represented by Justin L. Swidler, Esq. -- jswidler@swartz-legal.com -- Matthew D. Miller, Esq. -- mmiller@swartz-legal.com -- and -- Richard S. Swartz, Esq. -- rswartz@swartz=legal.com -- SWARTZ SWIDLER LLC Celadon Group, Inc., et al. are represented by Adam Eakman, Esq. -- aeakman@scopelitis.com -- Braden Kenneth Core, Esq. -- bcore@scopelitis.com -- Christopher J. Eckhart, Esq. -- ceckhart@scopelitis.com -- and -- Gregory M. Feary, Esq. -- gfeary@scopelitis.com -- SCOPELITIS GARVIN LIGHT HANSON & FEARY PC CEPHALON INC: April 13 Provigil Claim Form Submission Deadline Set ------------------------------------------------------------------ If You Paid for Provigil(R) or Generic Versions of Provigil(R) (Modafinil) You Could Get Money from a State Attorney General Settlement A proposed Settlement has been reached in a lawsuit regarding the price that individuals in 48 states and the District of Columbia paid for Provigil(R) and generic versions of Provigil(R). The lawsuit asserts that Defendants Cephalon, Inc., Teva Pharmaceutical Industries, Ltd., Teva Pharmaceuticals USA, Inc., and Barr Pharmaceuticals, Inc., (all collectively, "Defendants") violated antitrust laws relating to the sale of the prescription pharmaceutical Provigil(R). All Defendants have denied any wrongdoing. Provigil (modafinil) is used to treat excessive sleepiness caused by sleep apnea, narcolepsy, or shift work sleep disorder. If you purchased Provigil(R) and/or modafinil between June 24, 2006 and March 31, 2012, you may be entitled to a payment from the Settlement Fund. If you purchased Provigil(R) and/or modafinil through July 28, 2016, your rights will be affected, whether you act or don't act. No question is raised about the safety or effectiveness of Provigil(R) or modafinil. Who is eligible to make a claim? You are eligible to make a claim if you fit the definition below: -- Purchased and/or paid for Provigil(R) or generic versions of Provigil(R) (modafinil), including co-pays and co-insurance, -- Purchased between June 24, 2006 and March 31, 2012, -- In Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia, -- For consumption by yourself or a family member. -- Residents of Louisiana and California are not included. Specifically, you purchased and/or paid for Provigil(R) or generic versions of Provigil(R) if you were: (a) An uninsured consumer who paid all of the purchase price of the prescription; or (b) An insured consumer who made a co-payment or other partial out-of-pocket payment, or paid the entire cost because you had not met a deductible amount under your health plan. What do the settlements provide? The Defendants will pay a total of $35 million into a Settlement Fund to settle all claims in the lawsuit brought on behalf of consumers. The Settlement Fund will be distributed pro rata to consumers who file a valid Claim Form. The amount of money you are eligible to receive will depend on how much you (and other consumers) paid for Provigil(R) or modafinil. How do I get a payment? You must submit a Claim Form by April 13, 2017 to be eligible for a payment. The Claim Form, and instructions on how to submit it, are available at www.StateAGProvigilSettlement.com or by calling 1-877-236-1413. What are my other rights? If you purchased Provigil(R) and/or modafinil through July 28, 2016, and you do nothing, your rights will be affected. If you do not want to be legally bound by the Settlement, you must exclude yourself. The deadline to exclude yourself is April 14, 2017. If you do not exclude yourself, you will not be able to sue the Defendants for any claim relating to the lawsuit. If you stay in the Settlements, you may file an objection to the Settlements by April 14, 2017. The Court will hold a hearing on July 25, 2017 at 10:00 a.m. to consider whether to approve the Settlement, the proposed Plan of Allocation and any other issues the Court thinks are necessary. You can appear at the hearing, but you don't have to. You can hire an attorney, at your own expense, to appear or speak for you at the hearing. For more information and/or to obtain a claim form: Visit www.StateAGProvigilSettlement.com or call 1-877-236-1413. CHEMTALL INC: Remaining Settlement Money Donated to Universities ---------------------------------------------------------------- Drew Parker, writing for The Intelligencer, reports that a Marshall County judge helped turn a multi-million-dollar court settlement into an educational fund to benefit two Mountain State universities. When Circuit Judge David Hummel found out that more than $6 million remained in a court settlement account from a class-action lawsuit in Marshall County Circuit Court, court staff decided to make use of the money to help programs at Marshall University and West Virginia University. Judge Hummel, along with Wheeling attorney Dean Hartley, claims administrator Ted Gompers and Charleston attorney E. William Harvit recently traveled to both WVU and Marshall to present each school with a check for almost $3.1 million. Judge Hummel ordered the funds to be split equally between the WVU Blanchette Rockefeller Neurosciences Institute and the Robert C. Byrd Center for Rural Health at Marshall University in November. According to Judge Hummel, the order was a result of a class- action lawsuit against Chemtall Inc., which obtained medical monitoring for coal and wastewater treatment workers who had been exposed to a neurotoxin in their line of work. He added medical monitoring in the case ruling entitled affected West Virginia and Pennsylvania employees of Chemtall and other chemical providers to free doctor's examinations to determine if their exposure resulted in any adverse effects. "I made certain the money stayed in the state of West Virginia, but certainly the neuroscience research will help West Virginia and people outside of the state," Judge Hummel said. "The case itself was about health issues and the neuroscience dovetailed right into that. It just seemed like a logical place for it to go. At Marshall, they're doing amazing things for rural West Virginians with very little money." At Marshall University, funds will be used to improve initiatives at the Robert C. Byrd Center for Rural Health, which focuses on isolation as a health care barrier in remote areas. At WVU, the donation will support research into Alzheimer's disease, stroke, addiction and other neuroscience issues. George Spirou, Blanchette Rockefeller Neurosciences Institute director at WVU, said the institution recently merged with WVU and the donation will help secure more faculty and add to its 55 labs. "I anticipate the funds will be used to support the expansion of research and to add new faculty but also to target some of our existing research areas," Mr. Spirou said. "Addiction and stroke stick out as key health issues in the state." CHICAGO, IL: Speed-Camera Ticket Notices Sent to Motorists ---------------------------------------------------------- Mark Brown, writing for Chicago Sun-Times, reports that some 1.2 million motorists have been sent notices from the city of Chicago offering an "additional opportunity" to contest red-light and speed-camera tickets that some of them paid as long as seven years ago. What the notices don't explain is that it's actually the city that is trying to give itself the "additional opportunity" -- to reinforce its claim to millions of dollars in fines and penalties that it is in danger of having to repay those vehicle owners. The notices are part of a legal strategy by the Emanuel administration to lessen the potential impact of a pending class- action lawsuit brought on behalf of motorists ticketed under the red-light and speed-camera programs. A Cook County judge has ruled the city denied due process to recipients of camera tickets, in part by failing to send them a second notice of their violations before assessing additional penalties. Lawyers for the plaintiffs contend the city could be forced to refund $200 million. But there's no mention of any of that in the "Dear Camera Violation Ticket Recipient" letter that went out under the names of city Comptroller Erin Keane and Transportation Commissioner Rebekah Scheinfeld. The notices cover more than 1.9 million tickets issued between 2010 and 2015. The result is that even individuals who read newspapers and are at least somewhat aware of this issue have been confused by the city's notice inviting them to challenge their old tickets through a written or in-person administrative hearing. A city spokesman argued the letter is clear: offering vehicle owners a second chance to dispute their ticket. Sorry, I'm not buying it. OPINION As one loyal newspaper reader who contacted me put it: "How am I supposed to remember the circumstance of a ticket I got in 2010 in order to protest it?" In her case, she said the city only has video from one of two red- light tickets she received -- and paid -- in 2010, which the city confirms is a problem with some of the oldest tickets. She also questions whether the yellow light was too short on the incident for which there is a video, which the city says is not a permitted defense. So what should she and others do? Contest their tickets or ignore the notice and await the outcome of the class-action case? Jacie Zolna, a lawyer with Myron Cherry & Associates who brought the class-action case, said he's probably received 100 calls or emails in the past two days from people asking those questions. More recently, Mr. Zolna filed a second lawsuit against the city challenging the new notice procedure, which he calls the "biggest scam in the world." "They know all these prior debts are going to be invalidated. It's not going to work," Mr. Zolna said. Mr. Zolna said the city is just trying to make a retroactive attempt to establish the motorists' legal liability for fines and penalties. But Mr. Zolna wouldn't offer any legal advice on how individuals should respond to the city. He said he believes it's "irrelevant" whether someone contests their ticket. That's based on his expectation the city will be required to pay refunds or wipe out debts through the class-action case. But the city's notice warns: "If you do not respond by the response deadline, the liabilities listed on the notice will be deemed confirmed, and you will remain liable for any unpaid amounts." City Corporation Counsel Steve Patton has assured aldermen, who approved the new notice procedure, that it will pass legal muster. Mr. Patton also has argued the city's procedural errors should not invalidate legitimate tickets. I'm afraid the only real "additional opportunity" in the end will be for Chicago taxpayers to have another chance to pay up for the city's mistakes. CHINA NORTH: April 4 Fairness Hearing on $925K Class Settlement --------------------------------------------------------------- Wolf Haldenstein Adler Freeman and Herz LLP disclosed that the United States District Court for the Central District of California has approved the following class action settlement that would benefit purchasers of common stock of China North East Petroleum Holdings Limited. SUMMARY NOTICE To: All Persons Or Entities Who Purchased Or Acquired Shares Of Common Stock Of China North East Petroleum Holdings Limited between September 3, 2010, and March 14, 2012, Inclusive. You Are Hereby Notified, pursuant to an Order of the United States District Court for the Central District of California, that a hearing will be held on April 4, 2017, at 10:00 a.m., before the Honorable Consuelo B. Marshall, at the United States Courthouse, 350 West 1st Street, Los Angeles, CA 90012, for the purpose of determining: (1) whether the proposed Settlement of the claims in the Litigation for the sum of $925,000.00 in cash should be approved by the Court as fair, reasonable, and adequate to Members of the Settlement Class; (2) whether to certify the Settlement Class; (3) whether, thereafter, this Litigation should be dismissed with prejudice pursuant to the terms and conditions set forth in the Stipulation and Agreement of Settlement dated October 5, 2016; (4) whether the proposed plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable, and adequate and therefore should be approved; and (5) whether the application of Lead Counsel for the payment of attorneys' fees and expenses incurred in connection with this Litigation, as well as Lead Plaintiff reimbursement, should be approved. If you purchased or acquired common stock of China North East Petroleum Holdings Limited between September 3, 2010, and March 14, 2012, inclusive, your rights may be affected by this Settlement. If you have not received a detailed Notice of Proposed Settlement of Class Action, Motion for Attorneys' Fees and Expenses, and Settlement Fairness Hearing (the "Notice") and a copy of the Proof of Claim and Release, you may obtain copies by writing to the Claims Administrator at: Baker Tilly Hong Kong Limited Settlement, c/o Strategic Claims Services, 600 N. Jackson Street, Suite 3, P.O. Box 230, Media, PA 19063, Tel: (866) 274- 4004, Fax: (610) 565-7985, or you can download a copy at www.strategicclaims.net. If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than March 6, 2017, establishing that you are entitled to recovery. You may object to the Court if you do not like the Settlement, or you may exclude yourself from the Settlement. Please see the Notice for information concerning objection or exclusion. CHRYSLER: May 2018 Trial Set in "uConnect" Class Action ------------------------------------------------------- The Madison County Record reports that former U.S. attorney Stephen Wigginton's transition to the private sector includes representing a class of clients suing Chrysler over the alleged hacking of the "uConnect" information and entertainment system. A year-and-a half into the case, defendants are preparing to argue for dismissal over plaintiffs' failure to prosecute. The suit started on Aug. 4, 2015, when Mr. Wigginton still worked for taxpayers. Belleville attorney Christopher Cueto, brother of former St. Clair County judge Lloyd A. Cueto, filed the complaint along with Michael Gras of his firm. Attorney Brian Flynn of Belleville stood as lead plaintiff, with George Brown and Kelly Brown of Missouri standing second and third. The plaintiffs claim hackers could seize control of their vehicles through uConnect. Harman International Industries is named as a second defendant. The complaint relies on an article that Wired magazine published on July 31, 2015, "Hackers remotely kill a Jeep on the highway with me in it," the headline reads. In the fall, Mr. Wigginton moved to dismiss two of three plaintiffs from the suit, but U.S. District Judge Michael Reagan denied the motion. "To dismiss one claim or one party from a case that will otherwise continue, a plaintiff must instead file an amended complaint," Judge Reagan wrote. "[G]iven the current posture of the case, it looks as if the plaintiffs will need leave if they choose to file a second amended complaint." Judge Reagan set a Dec. 23 deadline, which passed without action on Mr. Wigginton's part. In the original complaint, Messrs. Gras and Cueto wrote that researchers were able to control radio, locks, wipers, center console display, and other peripheral functions. "They then demonstrated their ability to control engine functionality by shutting the vehicle down in highway traffic," the complaint states. "On a closed course, the researchers showed their ability to affect steering and disable braking." The lawyers wrote that Chrysler instituted a safety recall on July 23, 2015, but it didn't fix a fundamental design flaw. "As technology develops, this problem will only get worse," they wrote. "These vehicles will never be safe or secure." They argue that Chrysler and Harman should remedy the defect or refund the purchase price of their vehicles. They propose a national class action under federal warranty law. They also propose state class actions for Illinois and Missouri under warranty laws of those states and under theories of fraud, negligence and unjust enrichment. Belleville lawyer Lloyd M. Cueto, son of the former judge, entered his appearance for plaintiffs on Aug. 11. Chrysler retained John Rogers -- jrogers@thompsoncoburn.com -- of the Thompson Coburn firm in St. Louis, and he moved to dismiss the suit on Sept. 25, 2015. Mr. Rogers wrote that plaintiffs alleged no hacking or any risk of it. "Plaintiffs don't allege a single problem with their vehicles whatsoever," he wrote. He wrote that the federal Motor Vehicle Safety Act would preempt a recall order. Harman counsel Elizabeth Mazzocco of Chicago also moved to dismiss the suit. Plaintiffs then matched Chrysler by hiring a big firm across the river. On Nov. 3, 2015, Christopher Baucom -- cbaucom@armstrongteasdale.com -- and Lucas Pendry -- lpendry@armstrongteasdale.com -- of Armstrong Teasdale entered appearances for Mr. Flynn and the Browns. As soon as they entered, Messrs. Baucom and Pendry moved to extend the time for answering Chrysler's motion. Instead of answering, they amended the complaint on Dec. 22, 2015. They added a fourth plaintiff, Michael Keith of Michigan. Mr. Wigginton, who had resigned as U.S. attorney in November 2015, entered his appearance for Mr. Flynn, the Browns, and Mr. Keith last Feb. 16. Mr. Rogers withdrew as Chrysler counsel on Feb. 19, leaving Kathy Wisniewski -- kwisniewski@thompsoncoburn.com -- of Thompson Coburn to file a pair of motions to dismiss. One motion argued preemption, the other argued failure to state a claim. For Harman, Mazzocco also moved to dismiss. On Feb. 23, Messrs. Wigginton, Pendry, and Gras represented Mr. Flynn and the Browns at a scheduling conference before U.S. Magistrate Judge Donald Wilkerson. On March 21, Mr. Wiggington answered the motions to dismiss. "The injuries plaintiffs allege are unremarkable examples of just the type of economic injuries which courts commonly and consistently find to be quintessential injuries in fact sufficient to provide standing," Mr. Wigginton wrote. He wrote that plaintiffs would not have purchased the affected vehicles and their value had already diminished. In discovery last June, Chrysler found a dealer's form showing the Browns received an employee advantage discount. The form provided arbitration for warranty disputes. The Browns had not produced the form in discovery for their case. On July 11, Sharon Rosenberg -- srosenberg@thompsoncoburn.com -- of Thompson Coburn moved to compel arbitration of their warranty claims. She moved to stay the entire case until arbitration ended. On July 25, Mr. Wigginton answered that the arbitration clause was unconscionable. He wrote that it didn't apply to other claims of the Browns. He wrote that even if their claims were referred to arbitration, it didn't apply to the claims of Messrs. Flynn and Keith. "The Browns did not produce the form because they did not have it," he wrote. On Sept. 23, Judge Reagan directed the Browns to proceed with warranty arbitration. "The advantage agreement wasn't unconscionable under Missouri law," Judge Reagan wrote. "There's nothing to suggest that the Browns were pressured into signing the agreement, that the arbitration provision was hidden in the discount contract, or that anyone lied to the Browns about the arbitration provision." Judge Reagan stayed their other claims for 60 days. "If this court beat the arbitrator to the punch on a ruling concerning the non-warranty claims under Missouri law, say by ruling that the diminished value damages weren't viable in a fraud suit under Missouri law, the arbitrator may feel hamstrung by the court's decision as it concerns the warranty claims under that same source of law, or he could reject the court's logic and all involved could face inconsistent decisions," he wrote. "In addition, there is a chance that the arbitrator's ruling might press the Browns to drop their suit against Chrysler or press Chrysler to settle the entirety of the Browns' case against them, thereby saving the court and the parties' resources." Judge Reagan stayed all claims of the Browns against Harman, finding his rulings on damages could impact the arbitrator's ruling on warranty claims against Chrysler. He ruled that Messrs. Flynn and Keith could proceed. "It's doubtful that the other plaintiffs in this case will drop their claims under Michigan and Illinois law if the arbitrator rules that the Browns' warranty claims are bunk under Missouri law, and it's likewise doubtful that Chrysler and Harman would settle with the other plaintiffs if the arbitrator thought that the Brown's Missouri warranty claims against Chrysler had merit," Reagan wrote. Though Judge Reagan let Messrs. Flynn and Keith proceed, he signed a separate order dismissing many of their claims and denying a recall. "Only four owners in a universe of over a million reported anything close to a safety related problem," he wrote. Judge Reagan found no allegation that the four were injured, severely or otherwise. "So Flynn and Keith lack standing to press injuries based on a risk of injury or death and the fear of that injury," he wrote. "That leaves them only with economic damages, meaning that the negligence claims must go." He wrote that they sufficiently alleged economic loss, but he rejected several of their theories for recovery. On Oct. 25, Mr. Wigginton moved to dismiss two counts that the Browns brought against Chrysler under U.S. law and Missouri law. He moved to lift the stay on other claims, writing that, "there are no longer any claims in this action that will be submitted to arbitration, and therefore, no claims to be stayed pursuant to the Federal Arbitration Act." On Nov. 7, he moved to dismiss the same two counts and six more. Judge Reagan denied the motion on Nov. 22, finding the Browns cited no rule of procedure or case law in support of their voluntary dismissals. He wrote that Rule 41 allows dismissals under certain circumstances. "The rule is limited to dismissals of actions, not parties or claims, meaning that the rule cannot be used to cleave away one claim or one party from a larger case," Judge Reagan wrote. Judge Reagan granted leave to amend the complaint, but Mr. Wigginton didn't amend it. On Dec. 23, Ms. Rosenberg advised Judge Reagan that Chrysler would move to dismiss all claims of the Browns for failure to prosecute. As of Jan. 3, Chrysler hadn't filed a motion. Judge Reagan has set trial in May 2018. CITIBANK NA: Alaska High Court Affirms Arbitration Ruling --------------------------------------------------------- In the appellate case captioned, Janet Hudson, on behalf of herself and all others, Petitioner, v. CITIBANK (SOUTH DAKOTA) NA, ALASKA LAW OFFICES, INC., and CLAYTON WALKER, Respondents. CYNTHIA STEWART, on behalf of herself and all others who are similarly situated, Petitioner, v. MIDLAND FUNDING LLC, ALASKA LAW OFFICES, INC., and CLAYTON WALKER, Respondents, Case Nos. S-14740/S-14826, No. 7141 (Ala.), Justice Craig Stowers of the Alaska Supreme Court: -- affirmed a state superior court's order staying court proceedings and submitting the dispute to arbitration; -- reversed and vacated the superior court's ruling that the arbitrator can order statewide injunctive relief; and -- remanded the action for further proceedings. Plaintiffs defaulted on their Citibank credit card accounts, and the issuing bank elected to litigate debt-collection actions. After courts entered default judgments against the card holders, the card holders filed new and separate suits alleging that the bank violated the Uniform Trade Practices and Consumer Protection Act (UTPA) during the earlier debt collection actions. The bank moved in each case to arbitrate the UTPA claims, and the superior court stayed the UTPA litigation and ordered arbitration. Hudson petitioned for review on three issues: (1) whether Citibank waived its right to arbitrate the UTPA claims by litigating the debt-collection actions in court; (2) the extent of any waiver; and (3) whether the superior court erred in holding that the arbitrator could issue statewide injunctive relief. In his Opinion dated December 16, 2016 available at https://is.gd/Xg8grW from Leagle.com, Judge Stowers held that the bank did not waive its right to demand arbitration of the separate UTPA claims because the two claims were not sufficiently closely related. The Court, however, concluded that it was error for the superior court to interpret the arbitration agreement on the question of the availability of statewide injunctive relief: the interpretation of an arbitration agreement is in the first instance a matter for the arbitrator. The Court said it was error for the superior court to decide that the arbitrator could order statewide injunctive relief. On remand the issue of the availability and scope of injunctive relief must be referred to arbitration. Petitioners are represented by: James J. Davis, Jr., Esq. Goriune Dudukgian, Esq. NORTHERN JUSTICE PROJECT LLC 310 K Street, Suite 200 Anchorage, AK 99501 Tel: (907) 264-6634 They are also represented by Matthew W.H. Wessler, Esq. -- mwessler@publicjustice.net -- PUBLIC JUSTICE, P.C. Midland Funding LLC and Citibank (South Dakota) NA are represented by Jon S. Dawson, Esq. -- jondawson@dwt.com -- and -- Elizabeth P. Hodes, Esq. -- elizabethhodes@dwt.com -- DAVIS WRIGHT TREMAINE LLP Alaska Law Offices, Inc. and Clayton Walker are represented by Marc G. Wilhelm, Esq. -- mwilhelm@richmondquinn.com -- RICHMOND & QUINN CLAY ROAD: "Tayum" Suit Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Manolo Tayum, on behalf of himself individually and all others similarly situated v. Clay Road Furniture LLC and Furniture 4 Everyone LLC, Case No. 4:16-cv-03726 (S.D. Tex., December 27, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. The Defendants own and operate a furniture shop located at 4303 Gessner Rd, Houston, TX 77041. The Plaintiff is represented by: Taft L. Foley II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Telephone: (832) 778-8182 Facsimile: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.com CLEAR SKIES: Faces Class Action Over "Extortion" Conspiracy ----------------------------------------------------------- Torrent Freak reports that a new class-action lawsuit is targeting a group of filmmakers, lawyers, and BitTorrent monitoring experts. According to a complaint filed at an Illinois federal court, the "copyright trolls" have been engaging in misleading, threatening and intimidating tactics in order to obtain settlements from alleged movie pirates. In recent years so-called copyright trolls have been accused of various dubious schemes and actions, including intimidation and extortion. In December it became apparent that these concerns are not just one-sided complaints, when the U.S. Government launched a criminal case against two of Prenda Law's principals. The copyright trolling allegations are once again brought to the forefront. In a class action lawsuit filed in an Illinois federal court on behalf of accused pirates, a group of rightsholders, lawyers, and a torrent monitoring expert are accused taking part in an "extortion conspiracy." The case centers around Clear Skies Network (CSN) which brought several lawsuits against alleged downloaders of the movie "Good Kill." As is common in these campaigns, the rightsholders work in tandem with lawyers and BitTorrent monitoring experts to make their case. One of their targets was a 62-year-old woman, who has now decided to strike back, also on behalf of other defendants that are in the same position. The complaint details how the woman was repeatedly threatened and intimidated with a possible $150,000 in statutory damages, asking her to settle for only a few thousand. It also mentions various other allegations including false statements. In addition, the complaint notes that the defendants may have purposefully operated a honeypot where they themselves distributed the infringing movie before its theatrical release in the U.S. "CSN and/or the German John Doe relies on 'fake experts' and/or honeypots or seeds its Motion Picture for the express purpose of being able to claim that it has 'caught' people downloading the copyrighted material," it reads. The monitored torrents and the various associated IP-addresses were used as the base evidence for copyright lawsuits throughout the country. According to the class action complaint, the rightsholders continuously relied on the same German monitoring outfit whose evidence is insufficient to prove infringement. Instead of protecting copyrights, the accused downloaders believe that the entire practice is primarily meant to generate a steady income flow for the filmmakers and other parties involved in the conspiracy. "CSN's existence has little to do with the protection of a copyright, and is instead an entity formed for the primary purpose of income generation through exploitation of the court system," the complaint states. As such, they accuse the alleged conspiracy of using the copyright cases as an extortion mechanism. "[The defendants] have been engaged in a conspiracy to monetize infringement whereby they use questionable means to entrap unsuspecting Illinois residents who have allegedly violated CSN's copyrights, and then extort money from these individuals using threatening and misleading settlement and litigation tactics under the guise of the Copyright Act." For the 62-year-old woman, this led to physical and emotional distress, and through the class action suit, she hopes to set the record straight. Together with other potential members of the class, who have been treated similarly, she accuses CSN, the lawyers and the German torrent monitoring outfit, of conspiracy to improperly prosecute copyright infringement. As compensation for the alleged unlawful acts, including of theft by deception barratry and maintenance, they ask for actual monetary damages as well as punitive damages. According to FCT's 'Sophisticated Jane Doe', it is about time that the Northern Illinois District takes a close look at these practices, and she hopes that it will help to finally cure this "judicial plague." COMPANY STORE: Credit Card Receipts Risk ID Theft, Suit Says ------------------------------------------------------------ Isaac Groves at Times-News reports that lawyers from three states put their names on a class-action lawsuit filed in Alamance County over the number of digits of credit-card numbers a retailer puts on receipts. Chapel Hill resident Timothy Miles accuses The Company Store of printing as many as 10 digits -- the first six and last four -- of his credit card number on a receipt. Credit cards generally have 16 digits. According to the suit, the Fair and Accurate Credit Transactions Act restricts retailers to printing no more than the last five digits of a credit card number, and has since 2006, to reduce the risk of identity theft. There could be thousands of participants in the class-action suit, according to the suit, including anyone "with sales or transaction receipts whereon Defendant printed more than the last five digits of the credit or debit card number." The transactions have to be within two years of the suit's filing, and participants could be awarded $100 to $1,000. The defendants are bedding retailer The Company Store Inc. and Hanover Company Store LLC. Parent company Hanover Direct, with offices in La Crosse Wis., and Weehawken, N.J., is a major catalog retailer. A call to the company's office was not returned. The Company Store has brick-and-mortar stores in three states. At least three are in Wisconsin, where the chain started, and one is in the Tanger Outlet Center in Mebane. Three lawyers were in the filing. Charlotte attorney Stephen Ashley, Esq., at Ashley Law Firm P.C., referred questions to the lead attorney in the suit. Calls to Jackson, Miss., attorney Brian Herrington, info@bherringtonlaw.com Herrington Law, PA and Glendale, Calif., attorney Chant Yedalian -- chant@chant.mobi -- Chant & Company were not returned. Herrington Law specializes in class-action suits, according to its website, and Yedalian, of Chant & Co., a Professional Law Corporation, bills himself as a consumer activist, and class- action suites are one of his specialties. CONAGRA FOODS: Recent Ruling Not Bad for Class Action Defendants ---------------------------------------------------------------- Jeffrey S. Jacobson, writing for Ad Law Access, reports that the Ninth Circuit's decision in Briseno v. ConAgra Foods, Inc., No. 15-55727, refused to engraft an "administrative feasibility" requirement to Federal Rule of Civil Procedure 23's prerequisites for certifying a class action. What this means, basically, is that in Ninth Circuit courts, a named plaintiff seeking class certification need not "demonstrate an administratively feasible way to identify all class members at the certification stage." (Slip Op. at 11 n.6). "All," however, is a very important word in that sentence. On the face of it, the Ninth Circuit's decision conflicts with the Third Circuit's decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and later cases. The Third Circuit explicitly requires class plaintiffs to demonstrate "ascertainability" at the certification stage. In reality, however, there would seem to be major areas of agreement between the Ninth Circuit's decision in Briseno and the Third Circuit's core holding. Consumer class action defendants still have plenty of arguments -- even in the Ninth Circuit -- that proposed classes fail because there will never be a reliable way to determine who is a member of the class. The Third Circuit's ascertainability doctrine arose from two cases with facts worthy of a law school exam. In Bayer, 727 F.3d at 304, the named plaintiff himself could not remember when he purchased the product he was challenging and was not even sure which product he purchased. That testimony made it impossible for the Third Circuit to agree that the defendant should have to swallow affidavits from absent class members that they, too, purchased the challenged product, without being able to mount individual challenges to those affidavits. And, in Marcus v. BMW of North America, LLC, 687 F.3d 583, 594 (3d Cir. 2012), neither the plaintiff nor the defendant had any idea which tires were on the plaintiff's car. The plaintiffs had discarded the tires, and the defendant had no relevant records. The Third Circuit held that the plaintiff had to come forward with some kind of a plan to determine who was in the class, beyond proposing to rely on potential class members' unreliable and unsupported "say so." To the extent the Third Circuit requires a separate showing of "ascertainability" that is not listed among the requirements in Rule 23(a) or (b) -- separate, for example, from the requirements that common questions predominate over individual questions and that a class action be "manageable" -- the Ninth Circuit refused to go that far. At the same time, however, the Ninth Circuit panel suggested it agreed with the way other Courts of Appeals had adopted the Third Circuit's core holding, focused on the predominance and manageability requirements, without going so far as to impose a separate requirement of ascertainability. Briseno's footnote 6 cited with approval the First Circuit's holding in In re Nexium Antitrust Litig., 777 F.3d 9, 19-20 (1st Cir. 2015), that district courts must be assured "that, by the time a case reaches the liability and claims administration stages, there will be an administratively feasible way to distinguish injured from uninjured class members." It also cited with approval the Second Circuit's holding in Brecher v. Republic of Argentina, 806 F.3d 22, 24-26 (2d Cir. 2015), "that a class definition must be objective and definite." It therefore is possible to read Briseno narrowly. The Ninth Circuit clearly held that sellers of small-ticket consumer goods do not have a free-standing defense to class certification solely because, at the class certification stage, the named plaintiff cannot say with certainty that she will be able to identify all purchasers of the product in a reliable manner. The court most certainly did not, however, cut off arguments that injured vs. uninjured people never can be reliably distinguished, or that a class definition is improperly "fail safe" because it turns on merits issues. Those defenses, grounded in the predominance and manageability requirements, remain. Indeed, although the Ninth Circuit panel clearly was more supportive of "say so" affidavits than was the Third Circuit in Marcus and Bayer, even that part of the holding was limited. In Briseno, the plaintiffs asserted that (1) they had a means of calculating aggregate damages to be awarded to the entire class, and (2) "say-so" affidavits would arrive only "after a liability [and damages] determination has already been made." For those reasons, the panel focused on the possibility of intentional fraud, not mistakes: "Why would a consumer risk perjury charges and spend time and effort to submit a false claim for a de minimis monetary recovery?" Slip Op. at 17. The question in Briseno was not whether class members would reliably remember having purchased the relevant product, as in Bayer, or whether they would even have any way to know they were class members, as in Marcus. Concerned only about fraud, the Ninth Circuit said that defendants have other tools to detect and refuse bad claims by "rel[ying] on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to validate claims." Slip. Op. at 20 (internal quotation and citation omitted). If "say so" affidavits would have impacted the amount the defendant was expected to pay if it lost, the Ninth Circuit panel explicitly said it might have reached a different result: "[I]dentification of class members will not affect a defendant's liability in every case." Slip Op. at 22 (emphasis added). To be sure, Briseno is a setback for consumer class action defendants in the Ninth Circuit. It also deepens a Circuit conflict and increases the odds of Supreme Court review. Absent high court review, however, or while we are awaiting it, Briseno need not be a significant setback. "Ascertainability" may be out as a free-standing requirement in the Ninth Circuit, but plaintiffs still have to satisfy predominance and manageability, and may not be able to do so if they cannot objectively and reliably determine who is in their proposed class. CONTINENTAL HOME: Doesn't Properly Pay Employees, Action Claims --------------------------------------------------------------- Feruza Rakhimova, individually and on behalf of all others similarly situated v. Continental Home Care, Inc., Case No. 522994/2016 (N.Y. Super. Ct., December 27, 2016), is brought against the Defendants for failure to pay for all hours worked, time and one half the minimum wage rate for hours worked in excess of 40 in a work week and to provide pay stubs and other wage notices that conform with the requirements of the New York Labor Law. Continental Home Care, Inc. provides home health care to frail elderly individuals who live in New York City. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, P.C. 1517 Voorhies Ave, 2nd Fl. Brooklyn, NY 11235 Telephone: (718) 808-2224 Facsimile: (866) 261-5478 E-mail: naydenskiylaw@gmail.com COOKNSOLO INC: Faces "Peters" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Tanya Peters, on behalf of herself and similarly situated employees v. CookNSolo, Inc., Case No. 2:16-cv-06637-PD (E.D. Penn., December 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. CookNSolo, Inc. owns and operates a restaurant called Zahav and located at 237 St. James Place, Philadelphia, PA 19106. The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 DOLE PACKAGED: Sued for Falsely Marketing Fruit & Oatmeal Goods --------------------------------------------------------------- Alfredo Ramirez, an individual on behalf of himself and all others similarly situated v. Dole Packaged Foods, LLC; and Does 1 through 25, Case No. 8:16-cv-02260 (C.D. Cal., December 27, 2016), arises out of the Defendants' false and misleading representations in their advertising and packaging of the Fruit & Oatmeal, Parfait, and Mixations products. Dole Packaged Foods, LLC is an American agricultural multinational corporation headquartered in Westlake Village, California. The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 West Pacific Coast Highway, Suite 350 Newport Beach, CA 92663 Telephone: (949) 263-5992 Facsimile: (949) 209-1948 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq. THE POTIER LAW GROUP 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Telephone: (562) 612-1708 Facsimile: (562) 394-9556 E-mail: ross.law@me.com DR. REDDY'S: Faces Rochester Suit Over Divalproex Price-fixing -------------------------------------------------------------- Rochester Drug Co-Operative, Inc., on behalf of itself and all others similarly situated v. Dr. Reddy's Laboratories, Inc., Impax Laboratories, Inc., Mylan Inc., Mylan Pharmaceuticals Inc., Par Pharmaceutical, Inc., Par Pharmaceutical Companies, Inc., and Zydus Pharmaceuticals (USA) Inc., Case No. 2:16-cv-06645-CMR (E.D. Penn., December 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to raise, fix, and maintain prices, allocate markets, and rig bids for generic divalproex sodium ("Divalproex ER"). The Defendants operate a pharmaceutical company that manufactures, markets, and sells generic drug products. The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. NASTLAW LLC 1101 Market Street Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S. Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com klandau@tcllaw.com atamoshunas@tcllaw.com DUKE ENERGY: Class-Action Settlement Checks Waiting for Approval ---------------------------------------------------------------- Bill Cieslewicz at Cincinnati Business Courier reports that Thousands of Duke Energy customers are a step closer to receiving settlement checks in a class-action lawsuit against the electric power holding company. Duke, based in Charlotte, N.C., agreed to pay $81 million in 2015 to settle the lawsuit over a subsidiary's contracts with large industrial and business customers of Duke Energy Ohio. On January 5, Markovits, Stock & DeMarco, a Cincinnati firm representing the plaintiffs, filed a motion requesting the approval of U.S. District Court for the Southern District of Ohio Judge Edmund A. Sargus Jr. to allow for distribution of checks totaling $50 million. Duke said it agreed to settle to avoid paying additional litigation costs and the uncertainty that goes with a lawsuit. Shareholders will pay for the settlement, not ratepayers. The lawsuit alleged Cincinnati Gas & Electric, which Duke later acquired, cut deals to reduce bills with large users such as Procter & Gamble, General Electric and others so they would end their opposition to a rate increase that needed approval from the Ohio Public Utilities Commission in 2004. The money will be distributed as follows: Up to $25 million to Duke Energy Ohio residential customers who were customers at any time during the period beginning Jan. 1, 2005 and ending Dec. 31, 2008. Up to $25 million to Duke Energy Ohio non-residential customers (such as businesses and local governments) who were customers at any time during the period beginning Jan. 1, 2005 and ending Dec. 31, 2008. $8 million to fund energy-related programs to benefit Duke Energy Ohio customers who were customers at any time during the period beginning Jan. 1, 2005 and ending Dec. 31, 2008. The remaining $23 million will go to pay plaintiffs' legal fees, settlement fund distribution costs and other expenses. If Sargus approves the request, it would take about three weeks from that point for the 200,000 checks to be distributed. Residential claimants who paid Duke tariffed electricity rates for the entire class period of 2005-2008 would receive about $140. Non-residential claimants may receive more based on their usage during the class period. DUKE ENERGY: SPDR ETF Receives Class Action Settlement Payout ------------------------------------------------------------- The SPDR(R) Exchange Traded Funds (ETF) listed in the table below, announced on Jan. 6 that the Funds received a payment as authorized claimants from a class action settlement related to Duke Energy Corporation (DUK). The total payments to be received by the Funds are listed below. When the Funds calculate their net asset value ("NAV") per share on Monday, January 9, 2017, it is estimated that the Fund's NAV will be impacted in the amounts stated below based on shares outstanding as of January 5, 2017. Fund SPDR S&P 500 ETF Trust (SPY) The Utilities Select Sector SPDR Fund (XLU) Payment Amount $3,338,534 $3,927,107 Shares Outstanding as of January 5, 2017 1,014,982,116 139,774,160 Per Share Impact $0.0033 $0.0281 About SPDR Exchange Traded Funds SPDR ETFs -- http://www.spdrs.com-- are a comprehensive family spanning an array of international and domestic asset classes. SPDR ETFs are managed by SSGA Funds Management, Inc., a registered investment adviser and wholly owned subsidiary of State Street Corporation. The funds provide investors with the flexibility to select investments that are precisely aligned to their investment strategy. Recognized as an industry pioneer, State Street created the first US listed ETF in 1993 (SPDR S&P 500(R) - Ticker SPY) and has remained on the forefront of responsible innovation, as evidenced by the introduction of many ground-breaking products, including first-to-market launches with gold, international real estate, international fixed income, and sector ETFs. DUPONT: Plans to Appeal $10.5MM Verdict in C8 Exposure Case ----------------------------------------------------------- Linda Harris, writing for The State Journal, reports that DuPont plans to appeal the $10.5 million punitive damages a federal jury in Columbus awarded an Ohio man for exposing him to C8, a cleaning agent the company used in the manufacture of Teflon at its Washington Works south of Parkersburg, WV. Kenneth Vigneron Sr. had claimed he developed testicular cancer after long-term exposure to C8, otherwise known as perfluorooctanoic acid (PFOA). DuPont bought C8 from 3M from the 1950s through 2000, then manufactured it itself before eventually discontinuing its use. The jury previously awarded Mr. Vigneron $2 million in compensatory damages, bringing his total award to $12.5 million. DuPont spokesman Dan Turner said the company was "disappointed in the verdict, which we will appeal." "We believe the verdict was the result of trial rulings that misrepresented the findings of an independent science panel and misled jurors about the risks of C8 exposure," he said. Some 3,500 lawsuits were filed alleging DuPont was aware as early as 1954 of the potential health risks from exposure to C8, and its own researchers had warned the company in 1961 of its toxicity yet the company continued to use the chemical in its manufacturing process nor did it alert the public to the risks. A 2004 settlement agreement for a class action lawsuit filed in West Virginia three years earlier called required formation of an independent science panel to decide whether a probable link exists between exposure to C8 and health problems. The panel's report, released in 2011, suggested C8 exposure could lead to kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and diagnosed high cholesterol. Harold Block, a Keep Your Promises advisor, said the Mr. Vigneron award means "two separate juries have now ruled that DuPont acted with malice and conscious disregard for mid-Ohio Valley residents in dumping C-8 into our drinking water." Keep Your Promise is a community-based organization developed in partnership with the nonprofit Action Network Fund. Its mission is to "(hold) DuPont to the promises it made to the people of the Greater Mid-Ohio Valley in connection to the company's contamination with the chemical C-8," according to a statement issued by Block. "We now know that not only was the company aware of the dangers of C-8, but that they also knew the chemical was contaminating local drinking water at harmful levels. Despite this knowledge, and the availability of cheap, alternative disposal methods, DuPont continued to poison surrounding communities, deny any harm, and cover up the evidence," Block said. Mr. Block said 40 more trials are slated for 2017, increasing the pressure on DuPont to negotiate a global settlement. "Yet another punitive award, this time for Kenneth Vigneron, exponentially drives up the price tag of a settlement," he noted. DuPont's Washington Works is now owned and operated by Chemours, a spin off from DuPont's chemical operations. On its website, Chemours states DuPont "never believed that the extremely low levels of C-8 that reached the community would cause any harm. During the time at issue in these lawsuits, federal and state environmental authorities had never established regulations on the use, handling, emissions or disposal of C-8." In a statement released after the jury's decision, Chemours spokesperson Cynthia Salitsky said they expect DuPont to appeal the verdict, subject to post-trial motions, "to address important, unresolved issues that affect the broader, ongoing multi-district litigation." "Of the 3500 claims in the MDL, the majority allege high cholesterol and thyroid disease, not cancer diagnoses," Ms. Salitsky said. "Each of these claims will be evaluated on an individual basis due to the unique facts present in every case. Litigation of this kind typically takes place over many years, and interim results do not predict the ultimate outcome. As previously disclosed, DuPont is the named defendant in each of the cases and is liable for any judgment. In the event DuPont claims it is entitled to indemnification from Chemours as to some or all of the judgment, Chemours retains its defenses to such claims." DUPONT: January 17 Trial Scheduled in C8 Exposure MDL ----------------------------------------------------- LawyersandSettlemnts.com reports that DuPont's losing -- to the tune of millions. A total of $10.5 million in punitive damages has been awarded to a man who alleges DuPont's C8 chemical dumping caused his cancer. This punitive award is the largest punitive to date in the multidistrict litigation (MDL). The jury awarded the $10.5 million on top of $2 million in compensatory damages, to Kenneth Vigneron as well as his attorney's fees. Mr. Vigneron claims that DuPont's decades long practice of dumping Teflon ingredient C8 into the air and water from their factory on the Ohio river in West Virginia, has caused a cancer cluster in a number of Ohio water districts. Verdicts from two earlier trials favoring the plaintiffs in the MDL are on appeal. The next trial is set to begin January 17, with 11 more trials set for later in the year in four different cities. The cases are In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, and Vigneron v. DuPont, case number 2:13-cv-00136, both in the U.S. District Court for the Southern District of Ohio. EASY PC: State Farm No Duty to Defend TCPA Class Action ------------------------------------------------------- Todd Smith, Esq. -- tsmith@gklaw.com -- of Godfrey & Kahn S.C., in an article for The National Law Review, reports that stating that Wisconsin law does not "require an insurer to speculate beyond the written words of the complaint in order to imagine a claim that a plaintiff might be making or to determine all the potential issues that could be sought," the Wisconsin Court of Appeals recently affirmed a finding of no coverage for claims plead pursuant to the Telephone Consumer Protection Act (TCPA), due to a TCPA exclusion. The decision also recognizes the breadth of the exclusion and that it applies even when the same allegations are re-cast as separate causes of action. In State Farm Fire & Casualty Company v. Easy PC Solutions, LLC, the court affirmed a trial court ruling that State Farm Fire & Casualty Co. had no duty to defend its insured in a class action suit alleging violations of the TCPA, due to a TCPA exclusion in State Farm's policy. The lawsuit arose out of unsolicited or "junk" faxes that the insured, Easy PC, sent to Wilder Chiropractic, Inc. on three separate days between Sept. 30 and Oct. 18, 2010. These unsolicited faxes are prohibited by the TCPA. After receiving the faxes, Wilder sued Easy PC, alleging violations of the TCPA as well as conversion. Easy PC tendered its defense to its insurer, State Farm, which refused to provide a defense because its insurance policy contained an exclusion barring coverage for any claim "arising directly or indirectly out of any action or omission that violates or is alleged to violate . . .[t]he Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law . . ." Easy PC settled the lawsuit and State Farm subsequently brought a declaratory judgment action to resolve the coverage dispute, and the trial court found that State Farm had no duty to defend Easy PC. The Wisconsin Court of Appeals affirmed, holding that the conversion claim was subject to the TCPA exclusion even though that cause of action had different elements. The court stated "[a]ll of the actions that Wilder's complaint alleges Easy PC took that give rise to the conversion claim are the same actions alleged to give rise to the TCPA violation." Accordingly, coverage for those claims was expressly excluded by the TCPA exclusion. A second issue in the case was whether the complaint alleged improper faxes prior to the 2010-2011 policy period, which was important because those policies did not contain a TCPA exclusion. Wilder argued that the class included persons who received faxes from Easy PC four years and six years before commencing the class- action lawsuit, implicating earlier State Farm policies. The Court rejected this argument too, as the complaint was utterly devoid of any allegation that Easy PC transmitted faxes on dates other than the three specific days in September and October 2010. Although this case should give some comfort to insurers considering coverage for class action allegations, we note that the outcome may have been different if Wilder had included allegations in its complaint alleging violations of the TCPA pre- dating the policy period that included the TCPA exclusion. EMERY FEDERAL: Court Okays "Vigna" Settlement, Cuts Lawyer Fees --------------------------------------------------------------- District Judge Susan J. Dlott of the United States District Court for the Southern District of Ohio granted in part Plaintiffs' Unopposed Motion for Approval of Stipulation of Settlement and Release for Collective Class Members and Plaintiffs' Unopposed Motion and Memorandum of Law for Approval of Attorneys' Fees and Costs in the case captioned, RUTH VIGNA, et al., Plaintiffs, v. EMERY FEDERAL CREDIT UNION, et al., Defendants, Case No. 1:15-CV- 51 (S.D. Ohio). The action was initiated on January 26, 2015 by Plaintiffs Ruth Vigna and Irina Abidin on behalf of themselves and similarly situated individuals who worked for Defendants Emery Federal Credit Union and Emery Financial Services, Inc. as loan processors and were allegedly denied overtime compensation and minimum wage in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201. The action is a spin-off of another FLSA collective action brought before the undersigned against Emery, O'Neal v. Emery, 13-cv-22. In O'Neal, the Court granted conditional certification to a class of loan officers, but denied conditional certification to a class of loan processors. Following the Court's Order, on January 26, 2015, Plaintiffs brought this action on behalf of a class of loan processors. On June 25, 2015, Plaintiffs filed the Motion for Conditional Certification requesting the Court to conditionally certify a class of all persons who worked as loan processors or in similar positions for Emery at any time during the three years prior to the filing of the Complaint. The Court granted in part and denied in part that Motion on January 13, 2016. On September 26, 2016, Plaintiff filed two unopposed motions: Plaintiffs' Settlement Approval Motion and Plaintiffs' Unopposed Motion and Memorandum of Law for Approval of Attorneys' Fees and Costs. On October 4, 2016, the Court held a status conference with the parties regarding the pending Motions and asked counsel to review the its Unopposed Motion and Memorandum of Law for Approval of Attorneys' Fees and Costs for mistakes and to closely review counsel's records for secretarial and/or associate work and formally file those billing records. Following the October 4, 2016 conference, Plaintiff filed a third version of its Unopposed Motion and Memorandum of Law for Approval of Attorneys' Fees and Costs. The parties agree to settle all claims for $410,000 (Settlement Fund), which represents payment of 55% of wages allegedly owed based upon the report by Plaintiffs' expert, Dr. Liesl Fox. Plaintiffs request the Court to approve the following proposed deductions from the Settlement Fund: attorneys' fees in the amount of $135,300 (constituting 33% of the Settlement Fund), litigation expenses and costs in the amount of $10,750, and enhancement payments to Plaintiffs Vigna and Abidin in the amount of $5,000 each. The remaining $235,950 of the Settlement Fund is to be divided among the 75 eligible Collective Class Members, the average recovery for which is approximately $3,386, but is to be calculated individually based upon Dr. Fox's report. In her Order dated December 2, 2016 available at https://is.gd/EJ2zqQ from Leagle.com, Judge Dlott found that an overall award lower than 29.9% is appropriate because the Court is not persuaded that this case was significantly more complex or time-consuming. The parties are instructed to modify the final Settlement to include a 25% award of attorneys' fees, as opposed to a 33% award, for a total award of $102,500. The Court approves the request for litigation costs in the amount of $10,750, the award of $5,000 incentive awards to each Plaintiff Vigna and Plaintiff Abidin, and the proposed method for Settlement administration. Irina Abidin, et al. are represented by Deborah R. Grayson, Esq. -- deborahg@meizgray.com -- MEIZLISH & GRAYSON -- and Daniel W. Craig, Esq. -- dan@donelonpc.com -- DONELON, P.C. Emery Federal Credit Union, et. al are represented by Fred G. Pressley, Jr., Esq. -- fpressley@porterwright.com -- and Rachel E. Burke, Esq. -- rburke@porterwright.com -- PORTER, WRIGHT, MORRIS & ARTHUR EMORY COLLEGE: Students Demanding Free Tampons on Campus -------------------------------------------------------- Daniel Barnes at 10News reports that Julie Chen, a sophomore at Emory College, wanted to help students get access to free tampons on campus, but she didn't know how. So she started a petition last January to see how many people would use the supplies. In one week, it received more than 900 responses. "It wasn't supposed to go viral," said Chen, now a junior and the college council vice president of finance. "Seeing all of those names made me really motivated and passionate to keep going on with it." The petition received so many responses that Emory launched a pilot program during the fall 2016 semester to provide free tampons. The university changed the tampon dispensers in three locations -- a dining hall, the library and one of its academic buildings -- to make them free. If enough people use the program, it could become a permanent, university-wide initiative. "Everyone was really excited about it, and we've definitely heard positive responses," Chen said. "One girl left a comment that said, 'If men had a need for tampons, they'd be falling out of the sky.'" Emory is not alone: Students at colleges across the country are demanding free menstrual products. The University of Arizona, Columbia University, Reed College and the University of Minnesota, among others, have launched similar programs on campus, according to Inside Higher Ed. "Every female has a period in some form, and these supplies aren't luxury items and should not be treated as luxury items," said Erin Deal, the infrastructure committee director at the University of Minnesota Student Association. "They're a necessity. They're a sanitation item." Deal helped expand the university's decade-old menstrual health program in September after getting her period on campus and having to ask strangers for supplies. She took inspiration from Brown University's menstrual health program and added tampons and pads in more bathrooms, including gender-neutral bathrooms, at Emory. Chen and Deal said their programs have been successful, but Columbia University had to cancel its menstrual pilot program after only half a semester because of a lack of interest, according to the Columbia Daily Spectator. Columbia's health services have continued to provide tampons and pads upon request. (The university did not respond to requests for an interview.) The cost of supplies is another hindrance to the success of these programs, Deal said. Tampons and pads can cost a person up to $7- $10 every month. That plus other menstruation-related items can amount to more than $18,000 over a lifetime. In 2015 alone, U.S. consumers spent $3.1 billion on pads, tampons and liners, according to the website Euromonitor. This expense could be one reason why 86 percent of women said they have been caught without needed supplies in public, according to Free the Tampons, an organization that works to make menstrual products freely accessible in public restrooms. "Women risk finding themselves in a situation where they lose their dignity and [feel] really humiliated because of the consequences of not having access to what they need," said Nancy Kramer, founder of Free the Tampons. Women often feel embarrassed when this happens because of the stigma around menstruation, which prevents people from talking openly about and getting resources for their periods, said Chris Bobel, president of the Society for Menstrual Cycle Research. "Because it's a reality that's shrouded in mystery -- the work of the menstrual silence and secrecy -- we do menstruators a great disseverance by not paying adequate and non-normalized, non- panicked attention to it," Bobel said. The movement to stop menstrual stigma has caught fire in recent years, Kramer said. National Public Radio called 2015 "the year of the period" because so many people, from Olympians to actresses to politicians, talked publicly about periods. In March, President Barack Obama became the first president to comment on menstruation when he asked why 40 states tax tampons as a luxury item. In July, New York became the 11th state to eliminate the sales tax on menstrual care products. Washington, D.C. and Florida also plan to get rid of the tax. "I think we're starting to see a real shift in how people are approaching menstrual care that's really critical," said Sarah Christopherson, policy advocacy director at the National Women's Health Network. "It is really critical to remove the stigma. This is a natural, healthy part of women's lives and the lives of people with uteruses." Girls sometimes miss school because they do not have menstrual products and face this stigma, Free the Tampons founder Kramer said. That's why New York City passed legislation in July to provide free menstrual products in all public schools, shelters and correctional facilities. "They realized that students' attendance actually increased by 2.4 percent after their pilot program," Kramer said. "That was a pretty staggering statistic for them to realize that, in fact, girls and women stay home from school when they have their menstrual cycle. So it's well worth the investment." Schools and colleges need not only to provide products, but also to have a "menstrual discourse" that openly talks about periods in order to eliminate the stigma, Bobel said. "Good information is the basis of good decision making, so it's really important that people have access to knowledge and support so they can indeed make those healthy decisions," Bobel said. "Products without education is really not attacking the problem." Chen said that the Emory menstrual program has already started a conversation on menstrual health. "Talking to other people, it's taught me that it's important for equality purposes," Chen said. "It's a good step in the right direction of equality and prioritizing women's health." Rachel Falek is a member of the USA TODAY College contributor network. ENDOLOGIX INC: Brower Piven Files Securities Suit in California --------------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation, announces that a class action lawsuit has been commenced in the United States District Court for the Central District of California on behalf of purchasers of Endologix Inc. securities during the period between August 2, 2016 through November 16, 2016, inclusive. Investors who wish to become proactively involved in the litigation have until March 6, 2017 to seek appointment as lead plaintiff. If you wish to choose counsel to represent you and the Class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the Class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in Endologix securities during the Class Period. Members of the Class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the defendants' failure to disclose during the Class Period that Endologix did not have the necessary clinical data for U.S. Food and Drug Administration ("FDA") premarket approval of its Nellix(R) EndoVascular Aneurysm Sealing System. According to the complaint, following a November 16, 2016 announcement that the FDA requested the Company to provide them with follow up data for two years for patients enrolled in the EVAS-FORWARD-IDE study to assess Nellix, the value of Endologix shares declined significantly. If you have suffered a loss in excess of $100,000 from investment in Endologix securities purchased on or after August 2, 2016 and held through the revelation of negative information during and/or at the end of the Class Period and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please visit our website at http://www.browerpiven.com/currentsecuritiescases.html. You may also request more information by contacting Brower Piven either by email at -- hoffman@browerpiven.com -- or by telephone at (410) 415-6616. Brower Piven also encourages anyone with information regarding the Company's conduct during the period in question to contact the firm, including whistleblowers, former employees, shareholders and others. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. ENDOLOGIX INC: March 6 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Law Offices of Howard G. Smith on Jan. 4 disclosed that a class action lawsuit has been filed on behalf of investors who purchased Endologix, Inc. ("Endologix" or the "Company" securities between August 2, 2016 and November 16, 2016, inclusive (the "Class Period"). Endologix investors have until March 6, 2017 to file a lead plaintiff motion. Investors suffering losses on their Endologix investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. Endologix develops, manufactures, markets and sells medical devices for the treatment of abdominal aortic aneurysms in the United States and internationally. Nellix is Endologix's endovascular aneurysm sealing system for infrarenal abdominal aortic aneurysms. On August 2, 2016, Endologix indicated that it would seek approval of the original version of the Nellix system that was used in the Nellix investigational device exemption (IDE) clinical trial, the EVAS FORWARD-IDE Study. However, on November 16, 2016, Endologix disclosed that the FDA had requested a two-year follow-up on patients enrolled in the EVAS-FORWARD-IDE study to accurately evaluate Nellix. On this news, shares of Endologix fell over 20% to close at just $7.82 per share on November 16, 2016. Then on December 27, 2016 Endologix announced a temporarily hold on AFX Endovascular AAA System shipments, citing the need to complete an investigation of a manufacturing issue with different sizes of the device. The Complaint filed in this class action lawsuit alleges that throughout the Class Period Defendants made false and/or misleading statements and/or failed to disclose that: (1) Endologix did not have the necessary clinical data for FDA premarket approval of its Nellix(R) EndoVascular Aneurysm Sealing System; and (2) consequently, the Company's public statements were materially false and misleading at all relevant times. On this news, shares of Endologix have fallen nearly 20% to just $5.76 per share during intra-day trading on December 27, 2016. If you purchased shares of Endologix during the Class Period you may move the Court no later than March 6, 2017 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at http://www.howardsmithlaw.com ETHICON INC: Judge Says Defective Mesh Judgment Should Stand ------------------------------------------------------------ P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a Philadelphia judge presiding over a transvaginal mesh case that resulted in a $13.7 million judgment said the award should not be disturbed on appeal. In an opinion issued in response to Johnson & Johnson subsidiary Ethicon's appeal of the judgment, Philadelphia Court of Common Pleas Judge Kenneth J. Powell Jr. wrote that the state Superior Court should allow the award to stand. The judgment stems from the case of Sharon Carlino, who claimed Ethicon's mid-urethral sling device failed because it was negligently designed, and that its failure caused her to suffer permanent pain during sex. The device was implanted in her in 2005 to combat urinary incontinence; however, she claimed the mesh was defective because its pores were too small, it had a tendency to degrade, it was overly friable because it was cut by a machine and not a laser, and the mesh can erode through the patient's tissue. After a 14-day trial last February, a jury awarded Ms. Carlino $3.25 million in compensatory damages, $250,000 to her husband for loss of consortium, and $10 million in punitive damages. Delay damages in the amount of roughly $240,000 were later awarded. Ethicon had asked the court to either enter judgment notwithstanding the verdict, grant a new trial, or reduce the verdict award. In doing so, Ethicon raised several arguments for why the jury's verdict should be reversed, including statute of limitations, inadequate jury instructions, and evidentiary disputes. Judge Powell disagreed with Ethicon's argument that the punitive damages should be remitted because there was no evidence Ms. Carlino's injuries were caused by "actual malice" or "wanton and willful disregard" for the potential harm to a patient. "The evidence of defendant-appellant's wanton and willful disregard for plaintiff adequately supported the jury's award of punitive damages," Judge Powell said. He added that the jury was entitled to find from the evidence that Ethicon deceptively withheld informations about the risks of having a transvaginal implant. "The jury was free to determine that Ethicon provided warnings so deliberately misleading as to warrant the imposition of punitive damages," the judge said. Judge Powell also held firm on the issue of compensatory damages in response to Ethicon's argument that they be remitted as well. Ethicon argued that there was no testimony as to past or future medical expenses, and characterized her pelvic pain as intermittent. "To characterize her pain this way is to minimize her damages to an unreasonable degree, even as a defense argument," Judge Powell said. "This is not merely 'intermittent' pain -- it is chronic pain, pain that will be with her for the rest of her life, with no real prospect of resolution." Ken Murphy of Drinker Biddle & Reath represented Ethicon and declined to comment on Powell's opinion. Shanin Specter -- Shanin.Specter@KlineSpecter.com -- of Kline & Specter, who represented the Carlinos, said he is "very optimistic" the Superior Court will uphold the judgment. FALLS FESTIVAL: Suit Mulled Against Organizers Over Crowd Crush --------------------------------------------------------------- The Australian Associated Press and The Examiner report that organisers of the Falls Festival music event in Victoria could face legal action from some of the 80-odd people who were injured in a crowd crush. The festival says a "confluence of events" led to the serious incident in Lorne on December 30 which left almost 20 people in hospital. But a law firm has spoken to 10 patrons and is asking for more revellers to come forward as it contemplates a potential class action. The firm claims the design of access to and from the Grand Theatre venue may be to blame. In the days after the crowd crush, festival co-producer Jessica Ducrou said organisers had spent many years working with authorities and emergency services resulting in an "impeccable safety record" for the previous 24 years. Initial reports suggested the December 30 crush began when patrons at the front of a crowd leaving a performance in the theatre lost their footing but the crowd behind kept on coming. Parents of some of those injured slammed organisers of the festival for poor communication in the aftermath of the stampede. Meanwhile, organisers in Tasmania are dealing with allegations that five women were sexually assaulted at the festival held in Marion Bay. Two more women have told police they were sexually assaulted at Tasmania's Falls Festival after three young women said they had been attacked at the annual music festival. One said she was raped. But police believe there may be more victims. The lead investigator on the case said the bravery of the first three female complainants had prompted others to follow suit. "Another two victims have come forward to us and we may get others as well," Detective Inspector Steve Burk said. "It's clear to us that there have been other offences committed. "We're grateful to the people who have come forward." FANDUEL: Pre-Trial Proceedings Underway in Mass. Class Action ------------------------------------------------------------- Kenneth Lynn Miller, writing for The Greenville Sun, reports that a civil lawsuit naming an online sports wagering site filed by the wife of former local bank manager Kenneth Lynn Miller has been dismissed in state court, while a second civil action is now part of a class-action case that will be decided by a federal judge in Massachusetts. Kenneth Miller is to be sentenced in March in a seperate criminal case in U.S. District Court in Greeneville. Last year, Erica Miller filed lawsuits seeking damages from FanDuel and DraftKings Inc. for money lost by her husband, former manager of the First Tennessee Bank branch at 206 N. Main St., on the sports wagering sites. On Jan. 4, Chancellor Douglas T. Jenkins formally dismissed with prejudice a Greene County Chancery Court civil lawsuit filed by Erica Miller in her name and on behalf of her minor son against DraftKings "to recover the net losses incurred" by her husband, according to court documents. Dismissal with prejudice means the court has made a final determination on the case and plaintiffs are forbidden to file another lawsuit based on the same grounds. "The matters in controversy have been resolved," the consent order signed by Jenkins states. CLASS-ACTION SUIT A second civil suit filed by Erica Miller against New York City- based FanDuel is now part of a class-action lawsuit involving more than 80 suits from plaintiffs across the country claiming players were duped into illegal gambling. The Miller vs. FanDuel case was originally filed in Chancery Court, transferred to federal court and jurisdiction was moved in August from the Eastern District of Tennessee to the District of Massachusetts, where pre-trial proceedings are underway. In December, Jenkins granted a joint motion by defendants and plaintiffs in the DraftKings case "to allow the parties to finalize a settlement that has been reached in principle by the parties," according to a document signed Dec. 5 by Jenkins. Terms of the settlement were not included in court documents. Lawyers for Erica Miller, DraftKings and New York City-based FanDuel declined comment or did not return calls seeking comment on the cases. The civil lawsuits filed last year in Chancery Court claimed that between April 7, 2015, and Feb. 16, 2016, Kenneth Miller "delivered $1,521,379 to FanDuel for the purpose of betting on FanDuel.com." The civil action also claims that during the same time period, Kenneth Miller withdrew more than $976,000 from his FanDuel account, losing a net amount of more than $545,000 "upon games, wagers and/or lottery contests promoted and operated by FanDuel." The FanDuel lawsuit now in federal court seeks compensatory damages of $545,119.22 plus interest and cost, and punitive damages of more than $1 million. The lawsuit filed against DraftKings claimed that between Jan. 1 and April 6, 2015, Kenneth Miller lost $46,400 "in gambling and illegal lottery contests" to DraftKings. In court documents filed in 2016 responding to the civil complaints, FanDuel and DraftKings denied all allegations. CRIMINAL CASE Mr. Miller, 37, awaits a March sentencing date in U.S. District Court after entering guilty pleas last November to one count of theft by a bank officer or employee and four counts of attempt to evade or defeat tax. Between April 2012 and February 2016, Kenneth Lynn Miller "knowingly embezzled, abstracted, purloined or willfully applied money, funds or credits of such bank or entrusted to the care of such bank," according to court documents outlining the plea agreement reached between Miller and the government. Mr. Miller, also a financial advisor, was "terminated for cause" on Feb. 25, 2016, from his role with First Tennessee Bank, according to the plea agreement. According to the plea agreement reached in October 2016 in the U.S. District Court criminal case, Mr. Miller incurred a "net unreimbursed loss" of $1,086,287. The total includes $967,573 that Miller obtained from First Tennessee Bank accounts. The plea agreement states that Miller "lost or spent" most of the money "by gambling online using various websites, including DraftKings and FanDuel, and by using the embezzled and misapplied funds to make payments on various consumer debts" with First Tennessee Bank and other financial institutions. The maximum punishment for the offenses Mr. Miller entered guilty pleas to totals at least 35 years and a $1.1 million fine, along with up to eight years' supervised release, according to court documents. Mr. Miller remains free on bond pending sentencing. Mr. Miller allegedly filed "false and fraudulent" income tax returns between 2012 and 2016, the plea agreement states. Mr. Miller worked for First Tennessee Bank from 2000 through February at various branches, including the Greeneville location. Mr. Miller allegedly "embezzled and misapplied" funds from depositors "who were not aware of the defendant's action and did not authorize it," the plea agreement states. One of the clients was a church, according to the filing. Mr. Miller entered a plea by information, which is an agreement with the government to bypass grand jury proceedings and plead guilty to the felony charges in federal court. FSL MANAGEMENT: 6th Cir. Affirms "Whitlock" Settlement Approval --------------------------------------------------------------- Circuit Judge Danny Julian Boggs of the Court of Appeals, Sixth Circuit, affirmed the decision of the district court approving class certification and class action settlement in the case captioned, WILLIAM WHITLOCK; DAVID SKYRM; KRISTIN MOORE; HOLLY GOODMAN; GARY MUNCY; MICHAEL BROWN, Plaintiffs-Appellees, v. FSL MANAGEMENT, LLC.; ENTERTAINMENT CONCEPTS INVESTORS SERVICES, LLC; CRDISH OPERATING VENTURES, LLC.; ENTERTAINMENT CONSULTING SERVICES, LLC.; FSH MANAGEMENT, LLC., Defendants-Appellants, Case No. 16-5086 (6th Cir.). In 2010, plaintiffs William Whitlock, David Skyrm, James Middleton, and Kristin Moore brought suit in Kentucky state court against the defendants, FSL Management, LLC, Entertainment Concepts Investors, LLC, and Cordish Operating Ventures, LLC. The plaintiffs were former employees of various establishments that operate in "Fourth Street Live," an entertainment district located in downtown Louisville, KY that was managed by the defendants. The plaintiffs individually alleged violations of the Kentucky Wage and Hour Act, KRS Section 337.385, against the defendants for their policies regarding off-the-clock work and mandatory tip- pooling. Citing proper diversity jurisdiction, defendants removed the action to federal court, whereupon the plaintiffs amended their complaint to include an additional defendant and to seek relief as a class. The court granted leave for the plaintiffs to amend their complaint, and the litigation proceeded as a class-action suit. In 2012, the district court granted class certification to the plaintiffs, finding that they had both met the requirements of Rule 23(a) and fell within one of the enumerated subcategories of Rule 23(b). In May 2014, the parties reached an agreement as to the financial component of the settlement. It would take them almost another year, however, until the parties could reach an agreement regarding the settlement's non-monetary terms. The defendants filed a motion with the district court, pursuant to Fed. R. Civ. P. 23(c)(1)(C), to decertify the class based on the rule and the Kentucky Court of Appeals decision in McCann. The plaintiffs urged the district court to maintain certification and grant final approval to the proposed class settlement. On December 22, 2015, the district court filed a memorandum opinion and order denying the defendants' motion to decertify the class, and granting final approval of the plaintiffs' proposed class action settlement. In its opinion, the district court concluded that, regardless of the present meaning of KRS Sec. 337.385,1 it was bound to maintain class certification and enforce the settlement agreement as "a binding contract under Kentucky law." On appeal, defendants-appellants, who were parties to the settlement, challenge both of these determinations, arguing that because the underlying Kentucky state-law cause of action does not support class relief, the district court was required to reject the settlement and decertify the class. In his Opinion dated December 14, 2016 available at https://is.gd/FNJMGG from Leagle.com, Judge Boggs held that Defendants failed to show that their proposed meaning of KRS Section 337.385(2) operates to prevent the plaintiffs from satisfying Rule 23's certification requirements. Therefore, to the extent that the district court concluded that continued certification of the class was proper under Rule 23 of the Federal Rules of Civil Procedure, it did not abuse its discretion. * * * The Sixth Circuit recently affirmed approval of a class action settlement agreement, holding that "a post-settlement change in the law does not alter the binding nature of the parties' settlement agreement, nor does it violate Rule 23 . . . or the Rules Enabling Act." The plaintiffs brought a class action against their former employers, alleging violations of the Kentucky Wage and Hour Act (KWHA). After the district court certified a class, the parties reached a class-wide settlement and informed the court that they would be filing formal settlement documents. Before filing those documents, however, the defendants discovered a recent decision by the Kentucky Court of Appeals, which held that the KWHA could not support class action claims. The defendants moved to decertify the class, arguing that, based on the Kentucky appellate decision: (1) certification violated the terms of Rule 23(a) and (b)(3); (2) certification violated the Rules Enabling Act because it modified the scope of the state substantive right defined by the KWHA; and (3) "approval of the proposed settlement violated Rule 23(e)(2)'s 'fairness' requirement because the proposed settlement contravened Kentucky public policy." The plaintiffs argued in favor of maintaining certification and for final approval of the settlement. The district court denied the defendants' motion and granted final approval of the class settlement. The defendants appealed. The Sixth Circuit affirmed the district court's decision, finding that the plaintiffs "failed to make any argument explaining why the prohibition against class-action litigation in [the KWHA] disturbs any of the class-certification requirements . . . " Further, the court determined that certification did not violate the certification terms of Rule 23, which was "designed to 'focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives.'" The court reasoned that because certification was challenged by the defendants, "who were fairly represented throughout the class-action litigation process," the impetus of Rule 23 was not implicated. The Sixth Circuit also found that certification did not violate the Rules Enabling Act because "certification of the settlement class [did] not amount to a finding that the plaintiffs [were] actually entitled to relief under substantive state law, [so] it cannot be the case that certification acts to 'abridge, enlarge, or modify any substantive right created by state law.'" Addressing the defendants' 23(e) argument, the court reiterated that Rule 23 was designed to protect unnamed class members, not parties to a settlement, and disregarded the defendants' attempt to liken settlement agreements to consent decrees. The court explained that settlements are akin to contracts, which are voluntary and binding and will not be revisited merely because "hindsight reveals that [a party's] decision was, given later changes in the law, probably wrong." FSL Management, LLC, et al. are represented by Clark C. Johnson, Esq. -- cjohnson@stites.com -- Chadwick A. McTighe, Esq. -- cmctighe@stites.com -- and Jeffrey S. Moad, Esq. -- jmoad@stites.com -- STITES & HARBISON PLLC William Whitlock, et al. are represented by Michele D. Henry, Esq. -- mhenry@craighenrylaw.com -- CRAIG HENRY PLC FULTON FRIEDMAN: Court Says Asset Acceptance Liable in Class Suit ----------------------------------------------------------------- District Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois granted Plaintiff's motion for summary judgment on the measure of class damages and denied Asset Acceptance's cross-motion on the same issue in the case captioned, MARY T. JANETOS, ERIK KING, PAMELA FUJIOKA, IGNACIO BERNAVE, Plaintiffs, v. FULTON FRIEDMAN & GULLACE, LLP, AND ASSET ACCEPTANCE, LLC, Defendants, Case No. 12 C 1473 (N.D. Ill.). Plaintiffs alleged violations of the Fair Debt Collection Practices Act (FDCPA) arising from a confusing language in the form debt collection letters they received from Defendant Fulton Friedman & Gullace. On appeal of entry of summary judgment for defendants, the Seventh Circuit held that Fulton's failure to make mandated disclosures violated the FDCPA as a matter of law. The Seventh Circuit also held that Defendant Asset Acceptance, LLC, as a debt collector, could not escape liability for Fulton's actions taken on its behalf. Specifically, the court held that "A debt collector should not be able to avoid liability for unlawful debt collection practices simply by contracting with another company to do what the law does not allow it to do directly." The case was remanded for further proceedings consistent with the rulings. In the motion, Plaintiffs argue that all liable debt collectors must be held separately to the penalties set forth in the statutory damages provision. Since Asset Acceptance is a liable debt collector, the plaintiffs argue, the Court may award additional damages to unnamed class members taking Asset Acceptance's net worth into account. In its cross motion, Asset Acceptance relies on traditional tort rules regarding vicariously liable parties to argue that its liability for class damages is coextensive with, but no greater than Fulton's liability under the statute, which is zero given Fulton's insolvency. In support, Asset Acceptance directs the Court to Section 13 of the Restatement (Third) of Torts, which provides that "a person whose liability is imputed based on the tortious acts of another is liable for the entire share of responsibility assigned to the other." In his Memorandum Opinion and Order dated December 15, 2016 available at https://is.gd/r2r2Df from Leagle.com, Judge Durkin held that (1) as a debt collector, Asset Acceptance's failure to ensure that Fulton adhered to the FDCPA -- a law to which Asset Acceptance is itself bound -- was sufficient to impose liability. If Asset Acceptance is liable for a violation of the Act, it is accountable for class damages under Sec. 1692k(a)(2)(B)(ii); (2) it is fair and consistent with the Act to require a debt collector who is independently obliged to comply with the Act to monitor the actions of those it enlists to collect debts on its behalf; and (3) the net worth of Asset Acceptance, a liable debt collector in its own right, is relevant to a determination of class damages. Erik King, et al. are represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. Francis Richard Greene, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Tel: (312) 739-4200 Fulton Friedman & Gullace, LLP is represented by Jack T. Riley, Esq. -- rileyj@jbltd.com -- and Alexandria Lyubov Bell, Esq. -- bella@jbltd.com -- JOHNSON & BELL LTD Fulton is also represented by: Bradley M. Sayad, Esq. THE SAYAD LAW GROUP, LTD 5 East Van Buren Street, Suite 214 Joliet, IL 60432-4224 Tel: (312) 894-4625 Asset Acceptance, LLC is represented by Theodore Wilson Seitz, Esq. -- tseitz@dykema.com -- Amy R. Jonker, Esq. -- ajonker@dykema.com -- Heather L. Kramer, Esq. -- hkramer@dykema.com -- and Robert M. Horwitz, Esq. -- rhorwitz@dykema.com -- DYKEMA GOSSETT PLLC -- Zafreen Jamaluddin Husain, Esq. -- zhusain@offitkurman.com -- OFFIT KURMAN PA GENERAL CABLE: March 6 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Gainey McKenna & Egleston on Jan. 6 disclosed that a class action lawsuit has been filed against General Cable Corporation ("General Cable" or the "Company") (NYSE:BGC) in the United States District Court for the Southern District of New York on behalf of purchasers of common stock of General Cable between February 23, 2012 and February 10, 2016 (the "Class Period"), seeking to recover damages caused by Defendants' violations of the Securities Exchange Act of 1934. According to the Complaint, the Company failed to disclose that: (i) General Cable paid millions of dollars in bribes to government officials in foreign countries, including Angola, Bangladesh, China, Egypt, Indonesia, India, and Thailand, in order to secure business; (ii) the foregoing conduct was in violation of the Foreign Corrupt Practices Act (the "FCPA"); (iii) General Cable's revenues were therefore in part the product of illegal conduct, and, as such, subject to disgorgement and unlikely to be sustainable; and (iv) the foregoing conduct, when it became known, would subject the Company to significant regulatory scrutiny and financial penalties. On September 22, 2014, the Company disclosed that it was reviewing "payment practices," "the use of agents," and "the manner in which the payments were reflected on our books and records" in connection with the Company's operations in Portugal, Angola, Thailand, and India. On this news, shares of the Company's stock fell $0.93 per share, or 4.7%, to close at $18.96 on September 22, 2014. Subsequently, on February 10, 2016, the Company reported that it had increased a disgorgement accrual for a potential FCPA settlement to $33 million after identifying "certain other transactions that may raise concerns." On this news, shares of the Company's stock fell an additional $3.05 per share, or 31.6%, to close at $6.60 on February 11, 2016. Finally, on December 29, 2016, The Wall Street Journal reported that General Cable had entered into a non-prosecution agreement with the U.S. Department of Justice and "agreed to pay $75.8 million to settle allegations it paid bribes across Africa and Asia and . . . agreed to an additional $6.5 million penalty to settle accounting-related violations." The article further reported that the Company's subsidiaries, "over a period of a dozen years, paid about $13 million to third-party agents and distributors," who in turn "paid bribes to government officials in Angola, Bangladesh, China, Indonesia and Thailand to get business in violation of the Foreign Corrupt Practices Act." If you wish to serve as lead plaintiff, you must move the Court no later than March 6, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. GENERAL ELECTRIC: Settles Service Technicians' Class Action ----------------------------------------------------------- Charles Toutant, writing for Law.com, reports that General Electric has agreed to a $9.5 million settlement of a wage-and- hour class action by service technicians for the company who alleged they were routinely required to perform certain tasks off the clock. U.S. Magistrate Judge Karen Williams held a hearing on the motion for preliminary approval of the proposed settlement on Jan. 3, but did not immediately issue a ruling. That followed the plaintiffs' Dec. 28 motion for preliminary approval and class certification in the case, Maddy v. General Electric. The settlement was reached following a Nov. 29 mediation with Diane Welsh, a former U.S. magistrate judge who is with JAMS in Philadelphia. The settlement resolves two consolidated actions, one from the District of New Jersey and the other from the Southern District of Florida. The plaintiffs asserted that GE violated wage-and-hour laws by its policy and practice of not paying for computer work and driving to jobs, and by requiring workers to meet certain productivity standards that allegedly discouraged them from reporting that they did not take a meal break. The settlement calls for one-third of the settlement fund, or $3.16 million, to pay attorney fees for class counsel. The settlement also provides that class members who opted in to the litigation are to receive $1,500 each. Class members who did not opt in are set to receive $750 each under the terms of the agreement. In addition, class members will be awarded points based on how many weeks they worked. The value of the points would be determined by the amount of the settlement fund remaining after other required payments are made. GE provides the technicians with company vans and laptop computers. The technicians park the vans outside their homes at night and are generally paid from the time they arrive at their first call to the time they leave the last call. Technicians said in the suit they begin each day by putting their computer in the van and logging in to get their list of calls for the day. Their preshift routine also includes making sure they have necessary parts for the day's service calls and contacting the first customer by phone to ensure they are at home. Plaintiffs also claim they often work though lunch in order to meet productivity goals, even though a 30-minute lunch period is automatically deducted from their pay. Plaintiffs submitted declarations from service technicians who said booting up and logging in to the computer takes 10 to 15 minutes and checking call lists, reading emails and contacting the first customer takes another 10 to 15 minutes. At the end of each shift, the suit claims, technicians perform additional off-the-clock duties, including using their computers to check the next day's calls, answering emails and ordering parts, according to plaintiffs. Other off-the-clock duties include accepting and organizing shipments of parts and taking their vehicles for maintenance, they claim. According to the complaint, some workers perform such tasks outside of paid work hours because they are required to meet certain revenue-per-day goals ranging from $700 to $815, and failure to meet those goals can result in termination. Richard Swartz -- rswartz@swartz-legal.com -- and Justin Swidler - - jswidler@swartz-legal.com -- of Swartz Swidler in Cherry Hill represented the class members. Mr. Swartz declined to comment on the settlement. Rachel Satinsky -- rsatinsky@littler.com -- and Nina Markey -- nmarkey@littler.com -- of Littler Mendelson in Philadelphia, representing GE, did not return calls. GERMANY: Two Indigenous Groups File Class Action Over Genocide -------------------------------------------------------------- AFP reports that representatives of two indigenous groups have filed a class action suit in New York against Germany seeking reparations for a genocide of their peoples by German colonial rulers over a century ago in what is now Namibia. The suit filed by the Ovaherero and Nama people on Jan. 5 in New York also demands that their representatives be included in negotiations between Germany and Namibia on the issue. The two countries have been in talks about a joint declaration on the 1904-05 massacres, although Germany has repeatedly refused to acknowledge that a genocide occurred or to pay reparations. The plaintiffs said they were bringing the class action suit "on behalf of all Ovaherero and Nama worldwide, seeking reparations and compensation for the genocide" suffered at the hands of the German colonial authorities. They said they were also seeking a declaration of their right "to be included in any negotiation between Germany and Namibia" and that no settlements can be reached unless they are among the signatories. The dispute harkens back to a period in the late 19th and early 20th century when South West Africa, now known as Namibia, was a German colony. The suit alleges that from 1885 to 1903 about a quarter of Ovaherero and Nama lands -- thousands of square miles -- was taken without compensation by German settlers with the explicit consent of German colonial authorities. It also claims that German colonial authorities turned a blind eye to rapes by colonists of Ovaherero and Nama women and girls, and the use of forced labour. Tensions boiled over in early 1904 when the Ovaherero rose up, followed by the Nama, in an insurrection crushed by German imperial troops. The suit alleges that as many 100,000 Ovaherero and Nama people died in a campaign of annihilation led by German General Lothar von Trotha. The plaintiffs include Vekuii Rukoro, identified as the paramount chief of the Ovaherero people, David Frederick, chief and chairman of the Nama Traditional Authorities Association, and the non- profit Association of the Ovaherero Genocide in the USA, Inc. GOLDEN PONDS: Mother, Son Sue Over Foodborne Illness ---------------------------------------------------- Steve Orr at Democrat & Chronicle reports that a mother and son who were among 260 people sickened after dining at Golden Ponds on Thanksgiving Day have filed suit against the Greek restaurant. Natalie Woods and her adult son, Connor Wynn, both of Webster, say they experienced severe gastrointestinal symptoms after their extended family ate at the jam-packed restaurant on Nov. 24. Woods, who was diagnosed with an inflamed and infected colon, said her prolonged bout with debilitating cramps and bloody diarrhea was "awful." "Somebody needs to be accountable for what happened. I was sick for 3-1/2 or 4 weeks. I started feeling better a few days before Christmas," she said. Public health officials determined that a foodborne pathogen, a bacteria known as Clostridium perfringens, was responsible for the mass illness. The case is now considered the largest known outbreak of foodborne illness in the Rochester area. The toxic bacteria multiplied in food that had been kept at unsafe temperatures and sat at buffet tables for an extended period of time, the investigation by the Monroe County and New York state health departments found. Gravy was the most likely culprit, they said. Source of Golden Ponds illnesses? Gravy Four Golden Ponds patrons were hospitalized, though all recovered, according to county health officials. No deaths were reported. The suit, filed in state Supreme Court in Rochester, likely is the first of many legal actions that will be brought against the restaurant and party house on Long Pond Road. Paul Nunes, a Rochester lawyer who is co-counsel on the case, said lawyers have already heard from several dozen patrons who fell ill after eating there on Thanksgiving. "A very similar Clostridium perfringens outbreak caused three deaths within the past couple months. This is not a matter to be taken lightly," Nunes said. "I don't take any pleasure in bringing these actions. I think of it as a public service. If there are no consequences for this, you'll see this again." The triple-fatal case to which he referred occurred at a Thanksgiving luncheon in November sponsored by a church in Antioch, California. Twenty-two others were sickened. Golden Ponds was closed by county health officials after an inspection conducted Nov. 25 found numerous problems, including three critical violations for things that could have affected food safety. The restaurant and banquet center, which had served as many as 1,100 people on Thanksgiving, reopened Dec. 27 after a reinspection by the county found the problems had been resolved. Golden Ponds owner Ralph Rinaudo said that business has been "really tough" since he reopened. "We have to build people's confidence up to come back and try us. Right now, they're not coming back. We hope that people do." Rinaudo, who has owned the restaurant and party house for 33 years, said he did not know about the lawsuit, and did not yet know whether his insurance company would assist with his legal defense. "Now we'll see what it's going to boil down to," he said. "It's tough to operate and handle a lawsuit on top of that. I'm just trying to do the best I can." Nunes has been involved in numerous foodborne safety lawsuits locally. He is partnering on this case, as he has with others, with Bill Marler of Seattle, whom Nunes described as the nation's leading foodborne illness litigator. Nunes said they either will amend the suit filed to add more plaintiffs, or file separate lawsuits on their behalf. He does not know if lawyers will seek class-action status for the case, and said that people who fell sick at Golden Ponds should contact him now if they wish to be involved in the legal action. The mother-and-son plaintiffs in the initial filing both developed stomach pain, cramping and diarrhea early Nov. 25, the day after they'd eaten turkey, mashed potatoes, gravy and other foods at Golden Ponds, according to the complaint filed. Wynn's symptoms subsided after two days, but his mother had to consult a physician twice, undergo a CT scan and take two types of antibiotics. She missed three days of work, Nunes said. "She was a very sick lady," he said. Woods said she dined with seven relatives and friends, but only she and her son got sick. She remembers the two of them scraping the last of the gravy from a serving dish at the buffet, and now wonders if that is where they took up the pathogen. Woods said she has gone out to eat since Thanksgiving, but certainly not to Golden Ponds and not to anyplace she didn't know and trust. "Yeah, I am leery," she said. The lawsuit accuses Golden Ponds of negligently serving food that contained a deadly pathogen and was prepared and served in violation of food safety laws. The suit seeks unspecified damages for pain and suffering and to cover medical and other expenses. GOVERNMENT EMPLOYEES: Faces "Branch" Suit in E.D. of Virginia ------------------------------------------------------------- A class action lawsuit has been filed against Government Employees Insurance Company. The case is titled as Tiffanie Branch, individually and on behalf of all others similarly situated, the Plaintiff, v. Government Employees Insurance Company, the Defendant, Case No. 3:16-cv-01010-REP (E.D. Va., Dec. 30, 2016). The case is assigned to Hon. District Judge Robert E. Payne. Government Employees Insurance Company is an American auto insurance company headquartered in Chevy Chase, Maryland. It is the second largest auto insurer in the United States, after State Farm. The Plaintiff is represented by: Andrew Joseph Guzzo, Esq. Camille Allan Crandall, Esq. Kristi Cahoon Kelly, Esq. KELLY & CRANDALL PLC 4084 University Drive, Suite 202A Fairfax, VA 22030 Telephone: (703) 424 7570 Facsimile: (703) 591 0167 E-mail: aguzzo@kellyandcrandall.com ccrandall@kellyandcrandall.com kkelly@kellyandcrandall.com GROVETOWN CITY, GA: Settles Water Utility Rate Class Action ----------------------------------------------------------- Abbigail Lennon, writing for The Columbia County, reports that Grovetown city officials OK'd a final offer to settle a class action lawsuit out of court on Jan. 4 for more than $1 million, after leaders said that they could not have challenged the accusations at trial. Grovetown Mayor Gary Jones said the lawsuit claimed that the city had charged higher water utility rates to cover up embezzlement by a city employee. Those allegations are the center of an ongoing federal investigation launched in March. "It is of my opinion that theft did occur and large amounts of money was taken and was embezzled and it was in water charges and we couldn't have won in court," Mayor Jones said. The city agreed to pay $750,000 in the next 10 days and an additional $62,500 per month for the remainder of 2017, for a total of $1.5 million, according to a Facebook post from Mayor Jones. After attorney fees are paid along with the plaintiffs, Alan Transou and business owner Deena Youngblood, the remaining total will be placed in a trust fund and redeemed to residents, Jones said, while stressing the fact that amounts "will not be astronomical." Residents will be reimbursed via vouchers or credits by an administrator of the trust fund. The council is expected to have a completed list of households affected and what each will be due at the city's regularly scheduled council meeting on Jan. 9. Mayor Jones added that residents will receive only a small portion each in relation to the settlement itself due to the more than 5,000 residents the money will be split among. The settlement, while unfortunate, was the right thing to do, Jones said. Part of the money to pay for the settlement will come out of the city's general fund and the rest will come out of insurance, he said. "We are not going to raise water rates and we aren't going to raise sewer rates. No. 1, it's not the right thing to do, and No. 2, we can't raise them; it's part of the lawsuit agreement," Mayor Jones said. "We have money in reserve, so we were able to utilize that to take care of a majority of this. Hopefully insurance will be able to recoup up to $500,000 of it." Mayor Jones said the forensic investigation is still ongoing and he expects to see a conclusion by the end of January. "I certainly want to move forward in a progressive fashion," Jones said of the forensic investigation. "But we don't know how deep this stuff goes still. We are still under active criminal investigation. Things are still being found almost daily that we were unaware of." HANNIBAL, MO: Court Grants Redflex Motion for Judgment ------------------------------------------------------ Senior District Judge E. Richard Webber of the United States District Court for the Eastern District of Missouri granted in part Defendant Redflex Traffic Systems, Inc.'s Motion for Judgment on the Pleadings in the case captioned, JACOB BLAIR, et al., Plaintiffs, v. CITY OF HANNIBAL, et al., Defendants, Case No. 2:15CV00061 ERW (E.D. Mo.). On May 18, 2007, Plaintiffs Jacob Blair and Sarah Blair entered into a contract for Redflex to install and operate a red light camera system in Hannibal. In December 2011, Plaintiff Joseph Blair received a ticket as a result of the red light camera system, was issued a fine, and paid the fine. At the end of 2012, or beginning of 2013, Plaintiff Sarah Blair received a ticket as a result of the red light camera system, was issued a fine, and paid the fine. Defendants shared revenue of approximately $500,000 annually since 2007, a sum greater than the cost of the program. Plaintiffs filed a Class Action Complaint on August 25, 2015, against the City of Hannibal, Redflex and Does 1 through 24, alleging the city's red light camera program is unconstitutional. On November 16, 2015, Plaintiffs filed an Amended Complaint against Defendants asserting the following eight counts: (1) Declaratory Judgment and Injunction pursuant to Missouri Revised Statute Section 527.010 et seq; (2) Violation of Plaintiffs' Constitutional Rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I Section 10 of the Missouri Constitution; (3) Unjust Enrichment, (4) Abuse of Process; (5) Civil Conspiracy; (6) Aiding and Abetting against Redflex; (7) Damages for Violation of Missouri Revised Statute Section 484.010, et seq, against Redflex; and (8) Money Had and Received. Counts II through VIII against Redflex, and all counts against Hannibal were dismissed when the Court granted previous motions for judgment on the pleadings filed by Defendants. On July 27, 2016, several of the defendants filed a notice of removal to the court based solely on the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1332(d). In the motion, Redflex asserts Count I must be dismissed because Plaintiffs' opportunity to appear in municipal court and challenge Hannibal's ordinance and procedures provides a complete, adequate remedy at law. Plaintiffs argue there was never an opportunity to dispute Redflex's involvement at a municipal hearing because Redflex would not have been a party to the hearing. In his Memorandum and Order dated December 15, 2016 available at https://is.gd/z2EEd8 from Leagle.com, Judge Webber concluded that the court lacks jurisdiction over the action under CAFA because plaintiffs' class action solely involves claims that fall within the internal affairs and securities exceptions to CAFA. Jacob Blair and Sarah Blair are represented by Nathan D. Sturycz, Esq. -- n.sturycz@mainstreet.ca -- MAIN STREET LAW, LLP Redflex Traffic Systems, Inc. is represented by JoAnn Tracy Sandifer, Esq. -- joann.sandifer@huschblackwell.com -- HUSCH BLACKWELL, LLP HERTZ CORP: Court Trims Claims in "Spotswood" Amended Complaint --------------------------------------------------------------- Senior District Judge William M. Nickerson of the United States District Court for the District of Maryland granted the motion to dismiss the First Amended Complaint except Count I in the case captioned, ROBERT SPOTSWOOD, v. THE HERTZ CORPORATION, Case No. WMN-16-1200 (D. Md.). Plaintiff brought the action challenging certain charges that Defendant assessed against him after the car he had rented from Defendant was damaged in a minor accident. Plaintiff, a resident of Alabama, rented a car from Defendant at the Baltimore Washington International Airport on July 3, 2013. Plaintiff is a member of Defendant's Gold Plus Rewards Program and when he enrolled in that program he agreed to certain terms and conditions that would govern future rentals. Those terms and conditions were set out in a 40-plus page Rental Terms Agreement booklet (Agreement). On July 5, 2013, Plaintiff was involved in a minor parking lot accident which resulted in some minor damage to Defendant's vehicle. Because Plaintiff had declined Defendant's loss damage insurance, the claim for this accident was submitted to American Express which provided car rental insurance through Plaintiff's credit card program. American Express agreed to pay and has paid for all of the Repairs and for one half of the Loss of Use, but has declined payment for the Administrative or Diminishment of Value Fees. Defendant takes the position that Plaintiff is responsible for the fees unpaid by American Express, which amount to $378.66. Plaintiff initially filed the suit as a putative class action in the Superior Court of New Jersey, Bergen County, on April 6, 2015. Defendant removed the action to the United States District Court for the District of New Jersey and then filed a motion to have the case transferred to this Court. That motion was granted on October 27, 2015. Defendant filed a motion to dismiss some of the claims asserted against it in the Complaint. Plaintiff filed a First Amended Complaint challenging the Loss of Use, Administrative, and Diminishment of Value fees. He observes that nowhere in the Agreement is there an expressed allowance for any Diminishment of Value fee. Based upon these allegations, Plaintiff brings the following claims in the First Amended Complaint: Count I (Breach of Contract), Count II (Violations of the Maryland Consumer Protection Act), Count III (Injunctive Relief), Count IV (Injunctive Relief Pursuant to Common Law), Count V (Unjust Enrichment), and Count VI (Negligent Misrepresentation). Plaintiff proposes a class consisting of all persons and entities that have rented vehicles from Defendants in the 6 years prior to the original filing of this action and who were charged a Diminishment of Value fee, a Loss of Use fee, and/or an Administrative fee for damage and/or loss by Defendant. As a subclass, Plaintiff proposes a similarly defined group of persons and entities who rented their vehicles in Maryland. Hertz seeks to dismiss the First Amended Complaint in its entirety arguing that there was no breach of contract because both the Agreement and Maryland common law permit the recovery of these challenged fees. For the same reasons, Defendant argues that the Maryland Consumer Protection Act (MCPA) claim fails because the challenged fees were fully disclosed. As for the unjust enrichment and negligent misrepresentation claims, Defendant asserts that those claims should be dismissed because these tort claims cannot be brought where the parties' relationship is governed by a contract. Finally Defendant suggests that claims for injunctive relief asserted in Counts III and IV should be dismissed because injunctive relief is a remedy and not an independent cause of action. As to that last argument, Plaintiff concedes that Counts III and IV should be withdrawn as separate counts. In his Memorandum and Order dated November 22, 2016 available at https://is.gd/bYNgG0 from Leagle.com, Judge Nickerson granted Defendant's motion as to all but Plaintiff's breach of contract claim asserted in Count I of the First Amended Complaint because Plaintiff's unjust enrichment claim fails for the additional reason that Plaintiff does not claim that he has paid the charges assessed against him. Because Plaintiff has declined to make the challenged payments to Defendant, there has been no benefit from Plaintiff conferred on or retained by Defendant, inequitably or otherwise. Robert Spotswood is represented by Maureen V. Abbey, Esq. -- maureen@hgdlawfirm.com -- and Taylor Bartlett, Esq. -- taylor@hgdlawfirm.com -- HENINGER GARRISON DAVIS LLC Hertz Corporation is represented by John F. Ward, Jr., Esq. -- jward@jenner.com -- Mark P. Gaber, Esq. -- mgaber@jenner.com -- and -- Paul March Smith, Esq. -- psmith@jenner.com -- JENNER AND BLOCK LLP HONEYWELL INTERNATIONAL: Court Tosses Retirees' Class Action ------------------------------------------------------------ Madeline C Rea, Esq. -- mrea@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, reports that a federal district court in Ohio dismissed retirees' claims for lifetime healthcare benefits from Honeywell. Honeywell provided healthcare benefits to plaintiffs through a series of collective bargaining agreements and, although it continued to do so for several years after the final CBA expired, Honeywell eventually notified plaintiffs that it would terminate contributions toward their healthcare benefits. Applying the principles set forth in M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015) and the Sixth Circuit's subsequent decision in Gallo v. Moen, Inc., 813 F.3d 265 (6th Cir. 2016), the district court held that plaintiffs' healthcare benefits did not vest because the CBAs were for three-year terms and did not expressly state that the healthcare benefits vested, whereas the CBAs did expressly vest pension benefits for life. Although, unlike in Gallo, there was no reservation-of-rights clause, the court held that such a clause was not required to find that the CBAs unambiguously did not provide lifetime health benefits to plaintiffs. The case is Watkins v. Honeywell Int'l, Inc., No. 16-1925, 2016 WL 7325161 (N.D. Ohio Dec. 16, 2016). ITT EDUCATION: Group of Former Students File Class Action --------------------------------------------------------- Ashlee Kieler, writing for Consumerist, reports that a group of former students who were stranded in September by the sudden closure of all ITT Tech campuses, have filed a lawsuit against parent company ITT Education Services in the hopes of providing thousands of their fellow students with a portion of the now- defunct school's assets. According to the lawsuit -- which features testimonials from 521 former students -- ITT Tech "engaged in systematic and sustained activities to conceal" that it had engaged in misleading recruitment practices and other illegal tactics to enroll students. In all, the suit claims that students were the real creditors of ITT Tech, contributing more than $7.3 billion to the school through federal and private student loans, and are entitled to representation in the bankruptcy proceedings. "ITT's revenue came almost entirely from tuition, and the vast majority of that tuition was paid through federal financial aid programs administered by the U.S. Department of Education," the suit claims. Because the students make far less than they were promised when attending the school, they are more likely to default on these loan obligations, according to the lawsuit. In fact, the suit claims that default rates on those loans can be as high as 80%. "Unlike ITT's obligations, students' debts cannot be discharged easily in bankruptcy," the lawsuit states. "ITT students are the true creditors of ITT. They seek recognition as creditors in this bankruptcy, a fair apportionment of the remaining estate, and an adjudication of their claims that will clear the path to loan cancellation in collateral proceedings." Students assert in the lawsuit that they were duped by schools administrators into taking out costly student loans in order to attend the college. "When I first met with the recruiter from ITT he presented me with charts with pay scales of what was stated as starting salaries of entry-level construction managers starting at $80,000 a year," one student claims. "The recruiter made it sound like a sure thing and had convinced me that enrolling there was a great investment in my future." In other cases, students recalled being forced to sign papers or having their signatures forged by the administrators that allowed the school to take out high-inters loans in their name. "The only financial aid that I applied for was the FAFSA," one student said. "[ITT] forged my signature on private loans that I'm just learning about with Peaks Private loans. I never received any documentation about the loans that was taken out, nor [was] anything explained to me about the loans." "I was told that all my loans were the same and that they were all government loans," another student recalls. "I did not find out I had private loans until after I had graduated and defaulted on them." With the lawsuit, the students are seeking a judgment that declares that ITT committed violations of consumer protection laws, an order prohibiting ITT from collecting on all private student loans administered by the company, and compensatory damages in an undisclosed amount. J.D. MELLBERG: Faces "Portillo" Suit in C.D. of California ---------------------------------------------------------- A class action lawsuit has been filed against J.D. Mellberg Financial of Texas, LLC. The case is entitled as Mynor F. Portillo, individually, and on behalf of all others similarly situated, the Plaintiff, v. J.D. Mellberg Financial of Texas, LLC, an Arizona limited liability corporation, and DOES 1 to 10, inclusive, the Defendants, Case No. 2:16-cv-09663 (C.D. Cal., Dec. 30, 2016). J.D. Mellberg Financial offers retirement planning services. The Plaintiff is represented by: Scott J Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Suite 800 Newport Beach, CA 92660 Telephone: (949) 706 6464 Facsimile: (949) 706 6469 E-mail: sferrell@pacifictrialattorneys.com JAY PEAK: Investors Want Court to Certify Fraud Class Action ------------------------------------------------------------ Alan Keays, writing for VTDigger, reports that a group of investors is asking a federal judge to officially declare the plaintiffs' fraud lawsuit against the Jay Peak resort developers a class action. The filing by an attorney on behalf of the investors was made in U.S. District Court in Miami, the city where Jay Peak owner Ariel Quiros lives and where many of his businesses are located. "This case is ideally suited for class certification," Thomas Ronzetti, the lawyer for the group of investors, wrote in the recent motion asking the judge to deem the case a class action. "The proposed class is comprised of investors who reside in Europe, Asia, India, the Middle East, Australia, and the Americas, including the United States, where investors reside in more than 40 different states." The lead plaintiff in the case is Alexander Daccache, of Brazil. He put up $500,000 in 2010 through the federal EB-5 immigrant investor program for a project headed by Quiros and Bill Stenger, former Jay Peak president and CEO. Mr. Daccache invested in the Penthouse Suites project, which is part of The Hotel Jay. In addition to projects at the Jay Peak resort, Messrs. Stenger and Quiros raised money over an eight-year span for developments in East Burke and Newport, other Northeast Kingdom communities. The recent filing asks the judge to certify as a class the 837 foreign investors who put money into projects led by Messr. Quiros and Stenger. Each investor put up $500,000 through the EB-5 program, for a total of more than $400 million. If their $500,000 investment created 10 jobs, an investor was then eligible for permanent U.S. residency. Defendants in the Daccache lawsuit are Mr. Quiros, Mr. Stenger, People's United Bank, the financial firm Raymond James, and Joel Burstein, a branch manager of Raymond James in Coral Gables, Florida, where Mr. Quiros did business. Federal and state lawsuits brought in April accuse Messrs. Stenger and Quiros of misusing $200 million of the money raised through the EB-5 program, including using funds set aside for specific projects to fund work on earlier projects. The lawsuits allege Mr. Quiros used an additional $50 million for personal expenses. Mr. Stenger reached a settlement with the SEC. Specifically, according to the recent filing in the Daccache case, the judge should certify the following class: "All persons who invested in the Jay Peak and Q Burke Limited Partnerships. Excluded from this class are defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees." Mr. Ronzetti argues that a class-action lawsuit is appropriate in part because allegations from various plaintiffs are similar even though they may have invested in different projects. "The key issues at trial will be whether Quiros and Stenger misused and commingled investor funds, and whether People's Bank, Burstein, and Raymond James aided and abetted Quiros and Stenger and breached duties owed to investors," the filing states. "Given that focus, the evidence that plaintiffs will offer to prove their claims will be common to all class members." Mr. Ronzetti added that a class-action certification would streamline the litigation process, including making it easier on the courts and the attorneys involved. And, he wrote, the defendants are seeking similar outcomes. "The investors have a common interest in recovering their damages from defendants, and they will share in any recovery in proportion to the amount of their principal loss," the filing states. A separate case filed by investors is also playing out in federal court in Miami. In that lawsuit, 31 Chinese investors also allege fraud against almost the same defendants, minus Mr. Stenger. He isn't named, according to the attorney who made the filing, because Mr. Stenger doesn't appear to have money that could help the investors recoup their losses. Curtis Carlson, the Florida attorney representing the 31 Chinese investors, said on Jan. 3 he isn't worried about a class-action lawsuit taking away his clients. He said what typically happens is all members of a projected class, in this case 837 investors, are sent notices alerting them of the opportunity to opt out or opt in. "All of my people will opt out," he said. Mr. Ronzetti could not be reached on Jan. 3 for comment. Court filings don't state the number of investors who have joined the Daccache lawsuit. Messrs. Stenger and Quiros led projects ranging from new hotels at Jay Peak and Burke Mountain ski areas to a proposed $110 million biomedical center in Newport that never materialized. The lawsuit alleges that Quiros "orchestrated" fraud and that Mr. Stenger and Mr. Burstein, Quiros' former son-in-law, as the former branch manager for Raymond James, "enabled" the alleged fraud. In addition, according to the lawsuit, Mr. Stenger was aware he had a fiduciary duty to investors and "facilitated" transfers of investor money from a People's United Bank account to Raymond James accounts that Mr. Quiros had sole authority over. All the defendants have submitted filings denying the allegations. JC PENNEY: KSF Investigates Alleged False Reference Pricing ----------------------------------------------------------- Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a partner at the law firm of Kahn Swick & Foti, LLC ("KSF"), on Jan. 3 disclosed that KSF has commenced an investigation into J.C. Penney Company, Inc. (NYSE: JCP). On December 8, 2016, the Los Angeles City Attorney's Office filed a lawsuit against the principal operating subsidiary of J.C. Penney Company, Inc., J.C. Penney Corporation, Inc. The lawsuit alleges that J.C. Penney has continued to engage in an unlawful, unfair, and fraudulent business practice commonly referred to as "false reference pricing." Moreover, the lawsuit alleges that, pursuant to a settlement in a private class action approved in 2016, J.C. Penney had agreed "that any former price to which JCPenney refers in its price comparison advertising will be the actual, bona fide price at which the item was openly and actively offered for sale, for a reasonably substantial period of time, in the recent, regular course of business, honestly and in good faith," and further that J.C. Penney represented to the federal district court overseeing the private class action that it had, in fact, implemented a new price-comparison advertising policy as of November 2015. KSF's investigation is focusing on whether J.C. Penney's officers and/or directors breached their fiduciary duties to J.C. Penney's shareholders or otherwise violated state or federal laws. If you have information that would assist KSF in its investigation, or have been a holder of J.C. Penney shares since November 2015, and would like to discuss your legal rights, you may, without obligation or cost to you, call toll-free at 1-877- 515-1850 or email KSF Managing Partner Lewis Kahn (lewis.kahn@ksfcounsel.com). About Kahn Swick & Foti, LLC KSF -- http://www.ksfcounsel.com-- whose partners include the Former Louisiana Attorney General Charles C. Foti, Jr is a law firm focused on securities, antitrust and consumer class actions, along with merger & acquisition and breach of fiduciary litigation against publicly traded companies on behalf of shareholders. The firm has offices in New York, California and Louisiana. JONES WOLF: Debt Collectors Take on Lawyers in New Jersey --------------------------------------------------------- Jessica Mazzola at NJ.com reports that it's shaping up to be a battle royale between members of some of the least popular professions in New Jersey. A Bergen County collections agency has filed a class action lawsuit against five lawyers who it claims are running a racketeering scheme targeting collections agencies. The lawsuit, filed in December in the U.S. District Court in Trenton, claims that the attorneys file bogus class action suits against the collections companies, knowing that the companies will be forced to settle the claims quickly for less than it would cost them to go through the judiciary process. According to the complaint, the title plaintiff, Jeffrey A. Winters of Hackensack-based Collection Solutions, Inc., was a victim of the alleged scheme, having settled a baseless case in September 2016 for $12,000, far less than it would have cost the company to fight and win a lawsuit. The suit claims that the attorneys -- Joseph K. Jones and Benjamin J. Wolf, of the Fairfield-based firm Jones, Wolf, & Kapasi, LLC, Laura Mann of Law Office of Laura Mann, LLC in Riverdale, and Ari H. Marcus and Yitzchak Zelman of Ocean Township's Marcus & Zelman, LLC -- have been running a "Mafia style racketeering enterprise" since 2013. According to the company's attorney, David Hoffman, the group has filed more than 50 federal class action lawsuits over the past two years. On average, he said, they settle them for just attorneys' fees, at an average of about $50,000 per case. Hoffman said he anticipates having as many as 500 plaintiffs sign onto the class action suit, and will seek about $50,000 in damages for each one. The suit also alleges that the lawyers use a rotating cast of "professional plaintiffs" to file the suits, which it says target creditors, and any other agencies that send out collections notices. Those suits, Hoffman says, violate the state and federal Racketeer Influenced and Corrupt Organizations Acts, or RICO Acts. In a statement to NJ Advance Media, Meredith Kaplan Stoma, the attorney representing Marcus and Zelman, called the accusations in the suit "completely frivolous." "Advocates who use the Fair Debt Collection Act to protect consumers from overzealous debt-collectors are doing a public service and acting within the law. It's the height of hypocrisy for debt-collectors to claim they are the ones being harassed," she said. Robert Modica, who represents Jones and Wolf, also called the suit "frivolous." Stoma said the attorneys are asking the court to dismiss the suit and sanction the plaintiffs. The attorney representing Mann did not return a request for comment. The dispute between the two groups, Hoffman said in a phone interview, is what he called an abuse of the legal system that he believes is happening all over the country. "In this case, the numbers are just astounding," Hoffman said. Though the individual settlement amounts are relatively small, he argues, they are masking "a large-scale scam." JPMORGAN CHASE: Montero's Bid to Vacate Arbitration Order Nixed --------------------------------------------------------------- In the case captioned, CECILIA MONTERO and ANABEL RODRIGUEZ, on behalf of themselves and all other similarly situated persons, known and unknown Plaintiffs, v. JPMORGAN CHASE & CO., and JPMORGAN CHASE BANK, N.A., Defendants, Case No. 14 CV 9053 (N.D. Ill.), Magistrate Judge Susan E. Cox of the United States District Court for the Northern District of Illinois denied Plaintiff's motion to vacate the order compelling Anabel Rodriguez to arbitration and Plaintiff's motion to join Rodriguez as a plaintiff, and denied Montero's motion to file a third amended complaint . Montero filed the class action suit against JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (Chase) alleging that Chase failed to pay overtime wages at the rate required under the Fair Labor Standards Act (FLSA), the Illinois Minimum Wage Law (IMWL), and the Illinois Wage Payment and Collection Act (IWPCA). On January 14, 2015, Cecilia Montero filed a first amended complaint, which alleged the same violations of law, but added Rodriguez as a plaintiff. Montero and Rodriguez were given leave to file a second amended complaint on February 13, 2015, alleging that Chase violated the IWPCA by making unauthorized deductions from their agreed-upon wages. Chase filed a motion to dismiss the second amended complaint on March 2, 2015. Simultaneously, Chase moved to compel arbitration with respect to Rodriguez, arguing that Rodriguez was subject to a Binding Arbitration Agreement (BAA) with Chase. On May 8, 2015, Plaintiffs filed a supplemental motion asking the district court to deny Chase's motion to compel arbitration arguing that Chase's decision not to adhere to the BAA in the Hightower matter should render Chase unable to compel individual arbitration of her claims in the matter. On January 15, 2016, the district court entered an order compelling arbitration of Rodriguez's claims. Montero on September 1, 2016, asked the Court to vacate the order entered on January 15, 2016, based upon the subsequent binding precedent issued by the Seventh Circuit Court of Appeals in Lewis v. Epic Systems Corp., 2015 WL 5330300, at *1-2 (W.D. Wis. Sept. 11, 2015), in which the court decided to follow the National Labor Relation Board's conclusion that "an employer violates the National Labor Relations Act by entering into individual arbitration agreements that include a prohibition on collective actions by employees." Montero alternatively moved for leave to join Rodriguez as a plaintiff pursuant to Fed. R. Civ. P. 20(a)(1). On the same date, Plaintiff sought leave to file a third amended complaint, seeking to clarify her FLSA and IMWL claims and seeking to add a new IWPCA claim for untimely payments. In her Order dated December 14, 2016 available at https://is.gd/Ux2I6W rom Leagle.com, Judge Cox concluded that the fact that Lewis was decided since the district court issued its ruling simply does not rise to the level of "extraordinary circumstances" necessary to grant a motion pursuant to Rule 60(b)(6). As to motion for leave, the Court ruled that the "alternative" Rule 20(a)(1) motion is nothing more than a reiteration of the Plaintiffs' 60(b)(6) arguments. The Court granted the motion to file a third amended complaint finding that Montero did not unduly delay filing her request, and Chase will not suffer undue prejudice as the result of the amendment and that Montero has pled facts sufficient to state claims under the FLSA and IMWL, to give Chase fair notice of the claims, and to show the claims are plausible. Cecilia Montero, et al. are represented by: Alejandro Caffarelli, Esq. Alexis D. Martin, Esq. Lorraine Teraldico Peeters, Esq. CAFFARELLI & ASSOCIATES LTD 224 S Michigan Ave #300 Chicago, IL 60604 Tel: (312)763-6880 JPMorgan Chase & Co., et al. are represented by Thomas F. Hurka, Esq. -- thomas.hurka@morganlewis.com -- Samuel S. Shaulson, Esq. -- sam.shaulson@morganlewis.com -- Sarah E. Bouchard, Esq. -- sarah.bouchard@morganlewis.com -- and Wonho John Lee, Esq. -- w.john.lee@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP KANE CO: Faces Lawsuit Over Abrupt Shutdown, Bankruptcy ------------------------------------------------------- Daniel J. Sernovitz at Washington Business Journal reports a trio of former Kane Co. employees, including one who worked for the Elkridge-based mover for more than 25 years, has filed a class- action complaint stemming from the mover's abrupt shutdown and subsequent bankruptcy. The three are among more than 900 employees impacted when Kane shut down Dec. 9, according to the lawsuit. The plaintiffs allege in court documents that Kane Co. deliberately violated the federal Worker Adjustment and Retraining Notification Act by failing to give 60-day advance notice. Kane Co. filed for Chapter 7 bankruptcy roughly two weeks after CEO John Kane announced plans to wind down. That was Dec. 8, the day before the layoffs. The company filed retroactive WARN notices Dec. 13 in Maryland, reporting 900 impacted employees in that state, and Virginia, reporting 122 impacted employees in that state. John Kane could not be immediately reached for comment for this story. The plaintiffs are being represented by Baltimore-based Gallagher Evelius & Jones LLP and Philadelphia-based Klehr Harrison Harvey Branzburg LLP. KANSAS, USA: Brown Files Appeal in Kansas Supreme Court ------------------------------------------------------- MARVIN L. BROWN, JOANN BROWN, AND, CHARLES WILLIAM STRICKLER III, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLEES, V. KRIS KOBACH, KANSAS SECRETARY OF STATE, IN HIS OFFICIAL CAPACITY, APPELLANT, Case No. 116989 (Kan. Sup. Ct.), is an appeal filed before the Kansas Supreme Court and Court of Appeals. The Secretary of State's office is a filing agency. It integrates online services and information from multiple state agencies, including the Kansas Secretary of State. LA FURNITURE: Sued Over Unlawful Information Capture Policy ----------------------------------------------------------- Cecilia Le, on behalf of herself, the General Public, and all others similarly situated v. La Furniture and Does 1 through 20, Case No. BC645110 (Cal. Super. Ct., December 27, 2016), arises out of the Defendants' pattern of unlawful and deceptive business practices of utilizing an "Information Capture Policy" whereby Defendant's employees request and record personal identification information and credit card numbers from customers using credit cards during sales transactions in Defendant's retail establishments. La Furniture sells furniture and home accessories within California. The Plaintiff is represented by: Phillip R. Poliner, Esq. Neil B. Fineman, Esq. FINEMAN POLINER LLP 155 North Riverview Drive Anaheim Hills, CA 92808-1225 Telephone: (714) 620-1125 Facsimile: (714) 701-0155 E-mail: Phillip@FinemanPoliner.com Neil@FinemanPoliner.com LIPOCINE INC: Investor Group Named Lead Plaintiff ------------------------------------------------- District Judge Brian R. Martinotti of the United States District Court for the District of New Jersey granted in part the motion to consolidate, and granted appointment of lead plaintiff, lead counsel and liaison counsel in the case captioned, DAVID LEWIS, et al., Plaintiffs, v. LIPOCINE INC., et al., Defendants. ANTHONY MORASSI, et al., Plaintiffs, v. LIPOCINE INC., et al., Defendants (D.N.J.). On July 1, 2016, Lewis filed a complaint against Defendants for violations of the Exchange Act and Rule 10b-5 on behalf of himself and a class consisting of individuals who purchased or otherwise acquired Lipocine securities during the Class Period. On July 6, 2016, Morassi filed a complaint against Defendants for the same or substantially similar claims on behalf of himself and the same class of plaintiffs. On July 7, 2016, Burleson also filed a complaint against Defendants for the same or substantially similar claims on behalf of himself and a class consisting of individuals who purchased or otherwise acquired Lipocine securities between February 27, 2015 and June 28, 2016. Plaintiffs assert Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the Exchange Act), as well as Rule 10b-5 promulgated thereunder, by allegedly (1) failing to disclose deficiencies in the Company's LPCN 1021 New Drug Application, which (2) caused Defendants' statements about the Company's business and operations to be false and misleading and/or lack a reasonable basis. On June 29, 2015, the Company allegedly issued a press release celebrating the success of its LPCN 1021, an oral testosterone replacement therapy, Phase 3 clinical study, and announcing that it expected to file a New Drug Application (NDA) for LPCN 1021 with U.S. Food and Drug Administration (FDA) in the second half of 2015. However, in June 29, 2016, the Company allegedly issued a press release disclosing the receipt of a Complete Response Letter from the FDA, which stated that their LPCN 1021 New Drug Application could not be approved in its current form, due to deficiencies in the application related to the dosing algorithm and the label for the drug. Plaintiffs seek to consolidate the actions together with Burleson v. Lipocine Inc. et al., Civ. No. 16-4129. Defendants and other plaintiffs do not oppose consolidation of these matters. On November 21, 2016, Burleson v. Lipocine Inc. et al., Civ. No. 16- 4129, was dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to timely serve Defendants. Also before the Court are three motions to be appointed lead plaintiff and to approve lead counsel and liaison counsel, pursuant to the Private Securities Litigation Reform Act of 1995 (the PSLRA), 15 U.S.C. Section 78u-4 (1997), by (1) Plaintiff Grey Burleson (Burleson) (Lewis v. Lipocine Inc. et al., Civ. No. 16- 4009, (2) Plaintiff John Redmond (Redmond) and (3) Plaintiffs Quantum Partners, Ltd., DPC Partners, Ltd., and John William Burke. In his Opinion dated December 2, 2016 available at https://is.gd/4j2MUe from Leagle.com, Judge Martinotti found that consolidation of these actions is appropriate, because both cases are based on substantially the same conduct, involve substantially the same claims, and name the same defendants except Burleson v. Lipocine Inc. et al., Civ. No. 16-4129 because it has been dismissed earlier. The Court appointed Lipocine Investor Group as the most adequate lead plaintiff, Pomerantz LLP as lead counsel and Lite DePalma Greenberg, LLC as liaison counsel for the class. Lipocine Investor Group, et al. are represented by Bruce Daniel Greenberg, Esq. -- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC David Lewis is represented by Laurence M. Rosen, Esq. -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA Lipocine Inc., et al. are represented by David A. Kotler, Esq. -- david.kotler@dechert.com -- DECHERT LLP LS HOLDINGS: Faces "Newsom" Suit in Southern Dist. of California ---------------------------------------------------------------- A class action lawsuit has been filed against LS Holdings Group, LLC. The case is styled as Keisha Newsom, individually and on behalf of others similarly situated, the Plaintiff, v. LS Holdings Group, LLC, doing business as Lendvantage, the Defendant, Case No. 3:16-cv-03120-BEN-AGS (S.D. Cal., Dec. 30, 2016). The case is assigned to Hon. Judge Roger T. Benitez. LS Holdings offers access to business loans & advances for small businesses. The Plaintiff is represented by: Joshua Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233 7770 Facsimile: (619) 297 1022 E-mail: josh@westcoastlitigation.com LUNDAY-THAGARD: Pichardo Accuses Violation of Calif. Labor Law -------------------------------------------------------------- Jeffrey Pichardo, Plaintiff, on behalf of himself and all others similarly situated v. Lunday-Thagard Company, a California corporation and Does 1 through 50, inclusive, Defendants, Case No. BC645411 (Cal. Super. Ct., January 6, 2017), is brought against the Defendants for failure to provide meal period, rest period, minimum wage and overtime in violation of California Labor Law. Defendant Lunday-Thagard Company operates an oil refinery in the city of South Gate, California, where crude oil is refined into a variety of different products. The Plaintiff is represented by: Kevin Mahoney, Esq. Alina B. Mazeika,Esq. MAHONEY LAW GROUP 249 East Ocean Boulevard, Suite 814 Long Beach, CA 90802 Tel: (562) 590-5550 Fax: (562) 590-8400 Email: kmahoney@mahoney-law.net amazeika@mahoney-law.net MADISON COUNTY: Jan. 17 Opt-Out Deadline in Court Fees Class Suit ----------------------------------------------------------------- Scott Cousins at the Telegraph reports that people affected by a class-action suit against former Madison County treasurer and current county board Chairman Kurt Prenzler, and Circuit Clerk Mark Von Nida over the cost of serving papers in small claims court have until Jan. 17, to opt out of the suit or file an objection. The original suit was filed in 2013 by attorney Peter Maag. Plaintiffs were Rickie Guthrie, Mary Blumer and Trisha Dumstorff. The suit stems from a $10 fee charged to serve papers relating to small-claims cases. According to a suit filed in 2013, the Illinois Supreme Court set that fee at $8. Von Nida said they had been trying to get rid of the case for years. "It just simply wasn't that big of a deal," Von Nida said. "I was in office maybe a month or two when the lawsuit was filed. We're glad to get it over with." The "class" includes several hundred people going back to March 12, 2008. According to a notice on the circuit clerk's website, while the defendants deny the allegations, all sides reached a settlement that was given preliminary approval in November by Associate Judge Don Flack. The total settlement is $6,632, with $1,989.60 going to the attorney. The rest will be paid at a maximum of $8 per claimant. Members of the suit wanting to object to any part of the settlement or to opt out of the class-action suit must fill out a form available on the Circuit Clerk's website. Objections must be filed and served by Jan. 17. A hearing on the settlement is set for 9 a.m. Tuesday, Feb. 21, at the Madison County Courthouse. MCDONALD'S: No Class Certification in Wage-Theft Action ------------------------------------------------------- Maria Dinzeo at Court House News reports that a federal judge ruled workers at eight McDonald's franchises cannot prove enough of them knew they were working for the fast-food corporation rather than franchisees to proceed with a wage theft class action. U.S. District Judge Richard Seeborg denied the 1,200 workers class certification under the theory of ostensible agency, where a franchisor can be believed to be acting on behalf of the parent company. Cashiers Guadalupe Salazar, Genoveva Lopez and Judith Zarate, sued McDonald's and franchise owner Bobby Haynes in March 2014, claiming they were denied meal and rest breaks and that McDonald's miscalculated their wages. The Haynes Partnership has owned eight franchises in Oakland and San Leandro since 2010. Ruling on McDonald's motion for summary judgment back in August, Seeborg observed that Haynes controlled hiring, firing, discipline, wage-setting and the employees' general working conditions. Seeborg dismissed the workers' claims against McDonald's based on actual agency because McDonald's didn't make direct personnel decisions. The Haynes Partnership settled with the workers in 2015, allowing the class to go forward on the ostensible agency claim against McDonald's, but Seeborg ruled there isn't enough evidence to show a common set of circumstances classwide. "Even interpreting broadly the rule that ostensible agency may be inferred from circumstances, plaintiffs' factual showing falls short," he said. Though their attorneys argued that the workers wore McDonald's branded uniforms, received paychecks bearing the McDonald's logo, received McDonald's orientation packets and watched McDonald's training videos, Seeborg said some workers received different information that led them to believe Haynes was their employer. "These differences preclude an inference of common belief among class members. Indeed, the record shows that some class members understand that McDonald's does not employ them, while others do not," Seeborg wrote. "Here, the information that any crew member knew or should have known varies. For example, some crew members are told at or near the time of their hire that they were employees of Haynes and/or that they were not employees of McDonald's," he added. "Some of Haynes' family members tell new hires that Haynes is their employer during new-hire orientation conducted at Haynes' offices. Likewise, some shift managers and general managers tell crew members that the Haynes family owns their restaurant." Attorney Michael Rubin with Altshuler Berzon, who represents the workers, said Seeborg's ruling may have a silver lining, as the workers will be able to present their joint-employer theory to the Ninth Circuit. "We're disappointed, but in the long run it may be for the best," Rubin said in an interview Thursday. "The key issue in this case has always been McDonald's liability as a joint employer. Ostensible agency was never our principal legal theory, but it gave us two bites at the liability apple. The consequence of Seeborg's ruling is undoubtedly that we will get the principal joint-employer issue adjudicated much more quickly with far less expenditure of time and money than if we first went through a classwide ostensible agency trial." McDonald's attorney, Lawrence Di Nardo with Jones Day, did not respond to a phone request for comment. MCWANE INC: May 23 Cast Iron Settlement Fairness Hearing Set ------------------------------------------------------------ If You Purchased Cast Iron Soil Pipe or Fittings Directly from Charlotte Pipe, McWane, Tyler Pipe or AB&I Foundry Between November 1, 2006 and December 31, 2013, You Could Be Affected by a Proposed Class Action Settlement WHAT'S THIS LAWSUIT ABOUT? There is a proposed Settlement of $30,000,000 in a class action lawsuit called In re Cast Iron Soil Pipe and Fittings Antitrust Litigation, which is pending in the United States District Court for the Eastern District of Tennessee. The defendants in the lawsuit, called "Defendants" in this notice, are McWane, Inc., and its unincorporated divisions, Tyler Pipe Company and AB&I Foundry; Charlotte Pipe and Foundry Company and Randolph Holding Company, LLC; and the Cast Iron Soil Pipe Institute. This lawsuit claims that all Defendants engaged in a conspiracy to fix, raise, maintain, and stabilize prices for cast iron soil pipe and fittings ("CISP") at artificially high levels in violation of the federal antitrust laws. This lawsuit also claims that Charlotte Pipe conducted an acquisition that substantially lessened competition in the relevant CISP market in violation the federal antitrust laws. The Defendants deny all of plaintiffs' claims, deny all wrongdoing, and have asserted various defenses to those claims. The Court hasn't made any decision on the merits of plaintiffs' allegations. AM I A MEMBER OF THE SETTLEMENT CLASS? There is a Settlement Class consisting of: All persons or entities that purchased CISP in the United States directly from any of the Defendants, their subsidiaries, predecessors, or affiliates, from November 1, 2006, through December 31, 2013. Excluded from the Settlement Class are certain companies that have already settled their claims against Defendants or which have otherwise agreed to exclude themselves from the Settlement, the Defendants, their parent companies, subsidiaries, predecessors, and affiliates, federal and state governmental entities and instrumentalities of federal or state governments. WHAT DOES THE SETTLEMENT PROVIDE AND HOW DO I GET A PAYMENT? The Defendants have paid $30,000,000 in cash (the "Settlement Fund"). If you are a Settlement Class Member and do not exclude yourself from the Settlement Class, you may be eligible to get a payment. To qualify for a payment, you must complete and send in a valid Claim Form. Be sure to sign the Claim Form and mail it by first-class mail postmarked no later than February 13, 2017, to: CISP Direct Purchaser Antitrust Litigation, c/o RG/2 Claims Administration, P.O. Box 59479, Philadelphia, PA 19102-9479. If the Court approves the Settlement, at a later date, payments from the Settlement Fund will be distributed, on a pro rata basis based on the amount of CISP you bought directly from Defendants, to Settlement Class Members who submitted valid and timely claims. There are specialized companies, which the Court has not authorized to contact you, that may contact you and offer to fill in and file your claim in return for a percentage of your claim's value. Before you contract with one of these companies, you can always seek help from the Claims Administrator or Settlement Class Counsel, without charge, in filing your Claim. CAN I EXCLUDE MYSELF? If you want to keep the right to sue or continue to sue Defendants about the legal issues in this case, then you must exclude yourself from the Settlement Class. If you exclude yourself from the Settlement Class, you will not get any payment from the Settlement. To exclude yourself, you must send a letter, postmarked by February 13, 2017, saying that you want to be excluded from the Settlement. The Settlement Website has instructions about how to exclude yourself. HOW DO I OBJECT? You can object to the Settlement, Plan of Allocation, or the request for attorneys' fees, expenses, and incentive awards if you are a Settlement Class Member and have not excluded yourself. To object, you must send a letter to the Court, postmarked by May 3, 2017. Please see page 8 of the Notice. WHAT IF I DO NOTHING? If you do nothing, you will not receive payment, you will remain in the Settlement Class, and you will be bound by the releases regarding the claims in this case, the terms of which appear in Paragraphs 35-38 of the Settlement Agreement. The only way to qualify for a payment from the Settlement is to send in a Claim Form. WHO REPRESENTS ME? The Court appointed Solomon B. Cera of Cera LLP, Kit A. Pierson of Cohen Milstein Sellers & Toll PLLC and Robert N. Kaplan of Kaplan Fox & Kilsheimer LLP as Settlement Class Counsel to represent the Settlement Class. If you want to be represented by your own lawyer, you may hire one at your own expense. Settlement Class Counsel will ask the Court to approve from the Settlement Fund an award of 331/3% of the Settlement Fund (which is $9,999,000) for attorneys' fees, as well as reimbursement from the Settlement Fund, not to exceed $2,000,000, for Settlement Class Counsel's out-of-pocket costs and expenses incurred in the prosecution of the lawsuit. Settlement Class Counsel will also seek incentive awards of no more than $50,000 for each of the three class representatives. The request for attorneys' fees, expenses, and incentive awards will be on the Settlement Website once it is filed with the Court. WHEN WILL THE JUDGE DECIDE WHETHER TO APPROVE THE SETTLEMENT? The Court will hold a Fairness Hearing to decide whether to approve the terms of the Settlement at 9 a.m. on May 23, 2017, at the U.S. Courthouse, 900 Georgia Ave., Chattanooga, Tenn. If there are objections or comments, the Court will consider them but may still approve the Settlement. You may appear at the hearing, but you are not required to do so. The hearing may be moved to a different date or time without notice, so periodically check this website for any updates. This Notice is only a summary. For more information, visit the Settlement Website: www.cispantitrustsettlement.com MDC TAVERN: Faces "Brooks" Suit Over Labor Law Violations --------------------------------------------------------- Jasmine Blue and Bria Brooks, Plaintiffs, individually and on behalf of others similarly situated v. MDC Tavern Corp., 53 Veterans Highway Inc., Mark E. Carney, Dennis Charette, Gregory Robert Walsh, Sean McCarthy and any other related entities, Defendants, Case No. 600162/2017 (N.Y., January 6, 2017), is brought against the Defendants for payment of all compensation in violation of Labor Law. The Plaintiff seeks payment of all compensation including minimum wage compensation, all earned gratuities and tips and improper deductions from wages, that they were deprived of -- plus interest, attorneys' fees and costs. The Defendants are engaged in the restaurant and hospitality industry. The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 MEZENTCO SOLUTIONS: Diluted Chemo Victims to Challenge Settlement ----------------------------------------------------------------- Brian Cross, writing for Windsor Star, reports that Colleen Campbell intended to sit in a Windsor courtroom on Jan. 10 and hold photos of her husband, Rick, and her sister, Joan Braine, who both died of cancer after being treated with diluted chemotherapy drugs. And she's hoping many more people affected by the diluted chemo scandal will join her, to show their opposition to the proposed class-action settlement -- providing as little as $1,500 for each of 1,202 diluted chemo victims in Ontario and New Brunswick -- that Superior Court Justice Gregory Verbeem will be asked to approve. "We can make a difference," the Stoney Point widow said on Jan. 6, expressing hope that a crowd of opponents will help convince the judge to not approve the settlement for $2.375 million, which would be divided up among the victims ($1.8 million), lawyers ($400,000), administrative costs ($75,000) and the Ontario and New Brunswick governments ($100,000). "It's not about the money," said Ms. Campbell, who wrote one of the 49 notices of objection (one has since been withdrawn) to the proposed settlement. "Even if they stand up and say: 'We were so wrong, we are so sorry, this will never happen again and this is what we're putting in place,' but everyone's acting like it's not a big deal." She stressed the she doesn't believe the diluted chemo killed her 61-year-old husband on July 19, 2013 -- it was the cancer. But she believes getting diluted chemo instead of regular-strength chemo may have shortened his life. "If Rick lived 57 more days he would have made it to our youngest son's wedding," said Ms. Campbell, who said she initially believed everything that could possibly be done was done for her husband. Receiving the letter informing her of the medication error threw her trust in the system "out the window," she said. Of the 290 people given the diluted drugs at Windsor Regional Hospital in 2012 and 2013, more than 70 have since died. An expert hired to study the under-dosing concluded there was "no evidence of any malicious or deliberate drug-sparing dilution" by Marchese Hospital Solutions, the firm that prepared the bags of chemo drugs Cyclophosphamide or Gemcitabine. He said the drugs were diluted no more than 10 and seven per cent, respectively, and that the impact on patients, given the fact they were often combined with other cancer-killing drugs, was small. The absence of any proof that the under-dosing harmed patients is why the settlement is much lower than the victims hoped for, according to their class-action lawyers, who insist the settlement is the best they could negotiate. "The case law is clear, the issues on liability and the damages for psychological injury are clear in Ontario, so we're bringing a settlement that is, in our opinion, fair and reasonable and within the range of reasonable for this type of incident," the victims' lawyer Sharon Strosberg -- sharon@strosbergco.com -- said on Jan. 6. "If others think otherwise, they can bring their objections to the court and the court will decide if it's fair and reasonable under the circumstances." Seven victims have opted out of the class action, which means that they can hire a lawyer and sue independently. One has since asked to rescind the opt-out. Ms. Strosberg said if the judge rejects the settlement, the case continues. The lawsuit alleges negligence by Marchese's parent company Mezentco Solutions Inc. Marchese supplied several hospitals in Ontario and New Brunswick -- including Windsor Regional Hospital - - with premixed intravenous chemotherapy treatment. Also named in the lawsuit are the hospitals and Medbuy, a consortium set up by hospitals to buy products in higher volumes. Diluted chemo victim Louise Martens said she has thought long and hard about what a reasonable settlement would be and concludes each victim should receive at least 100 times the $1,500 being proposed -- $150,000 for survivors and double that for the estates of those who have died. "I don't even know if that is fair, they lost their lives," said the Windsor woman, who has helped lead the opposition to the proposed settlement. She's hoping on Jan. 10 the judge would decide to send the lawyers "back to the drawing board," to hammer out a new settlement. She wants "way more" people than those who've filed objections to show up on Jan. 10, including victims from outside Windsor. "Our group here in Windsor has been very out there on Facebook, sharing with everybody, saying: 'You don't have to be a patient, you don't have to be a family member, you just have to be a Canadian who believes this is an unfair settlement, to show up and support us,'" said Ms. Martens, who has written an emotional address she hopes to read in court. "What our lawyers fail to grasp is the fact that we are all now terrified," she writes, explaining patients and their families are terrified the cancer is still there because the diluted chemo didn't kill it. "Tell the single mom with three small boys who has now had over 200 rounds of chemotherapy after receiving her doses of diluted chemotherapy that her boys should be happy with $500 each," she said. "Might buy an Xbox but won't buy a mom." MICHIGAN: UIA Class Action Awaits Oral Arguments ------------------------------------------------ Lindsay Vanhulle, writing for Crain's Detroit Business, reports that the state's embattled unemployment agency said Jan. 6 it will review all computer-identified claims of benefits fraud -- more than 30,000 -- that until now have not been re-examined after criticism from state auditors and a Michigan congressman that the practice was highly inaccurate. The Michigan Unemployment Insurance Agency said the fraud findings occurred from 2013 to 2015, when it launched an automated system to determine fraudulent claims. The agency hasn't relied solely on a computer system to identify possible fraud cases since August 2015, and now includes staff members in the review process. News of the additional reviews comes a day after the state's Talent Investment Agency said it will perform a top-to-bottom restructuring of the unemployment office, which it oversees -- including reassigning its director, Sharon Moffett-Massey, and launching a national search for her successor. "We are being as thorough as possible in reviewing potential fraud determinations because we want to be fair to people filing claims, but also continue to be vigilant against fraud, which hurts everyone," said Wanda Stokes, director of the Talent Investment Agency, in a statement. Bruce Noll, the talent agency's legislative liaison who is leading the unemployment agency on an interim basis, has started the process, Ms. Stokes said. About 7,000 of the roughly 30,000 cases already have been reviewed, the talent agency said on Jan. 6. U.S. Rep. Sander Levin, D-Royal Oak, has been one of the most vocal critics of the agency's reliance on automated fraud determinations. In December, Mr. Levin released data from the state unemployment agency, which indicated it reviewed 22,427 cases of fraud determinations out of a total 53,633 cases made by a computer system between October 2013 and August 2015. Of those reviewed, just 1,462 -- or slightly less than 7 percent -- were confirmed fraud cases, Mr. Levin said. The agency's review returned $5.4 million to more than 2,500 claimants, data show. In a February 2016 report, Auditor General Doug Ringler found that fraud was discovered in just 8 percent of appealed benefits claims. In a statement on Jan. 4, Mr. Levin said Ms. Stokes' restructuring changes were "long overdue." He said on Jan. 6 he was "very pleased" to hear of the planned fraud reviews, adding: "It is important that the Talent Investment Agency has announced a full review of all cases to ensure that anyone wrongly accused of fraud is made whole and has their record corrected." More challenges ahead Despite the additional oversight, a spotlight will continue to shine on the unemployment agency as it tries to fix problems of fraud and poor customer service. A potential class-action lawsuit is awaiting oral arguments in the Michigan Court of Appeals, alleging the state garnished wages and seized tax refunds on behalf of tens of thousands of plaintiffs falsely accused of benefits fraud. And Gov. Rick Snyder has just days remaining to sign two bills on his desk related to the agency, including one that would approve the transfer of $10 million from a fund containing money for the unemployment agency to the state's general fund for the fiscal year that started Oct. 1. Opponents of that bill say they want him to veto it on the grounds that the money was wrongly taken from jobless workers, citing the untested cases. Still, Ms. Stokes' three-point reform plan -- which will make customer service and fraud prevention priorities -- is a step toward resolving longstanding complaints, say some business groups and attorneys who have called attention to problems inside the agency. Mr. Ringler, in an April audit, found that the unemployment agency failed to answer nearly 235,000 phone calls -- 89.1 percent of all calls placed -- during business weeks that ended Aug. 22, 2014, and Sept. 22, 2014. Callers gave up on nearly 29 percent of the calls while waiting to be connected with an employee -- despite phone upgrades made since 2011, auditors said. The unemployment agency said those numbers were call attempts, not unique callers; 48 percent of unique calls were unanswered in the selected weeks. The agency also said the unanswered volume improved to 21 percent of total unique calls during the corresponding weeks of 2015. Employers in Michigan, who pay unemployment taxes to support the system that pays benefits to jobless workers, say they, too, have had trouble connecting to a live person on the other end of the phone line. "Once we can get the person to the right person at the agency, we've found that they often get what they need," said Wendy Block, director of health policy and human resources for the Michigan Chamber of Commerce. "We are encouraged by the changes that were announced . . . simply because they are focused on customer service." Ms. Block said she believes the restructuring signals the agency is serious about addressing the problems. She hopes its new leadership will focus on preventing identity theft, another contributor to fraudulent claims. The departure of Ms. Moffett-Massey, who led the Unemployment Insurance Agency since 2014, could lead to other administrative changes as Stokes overhauls the agency's operations. She soon plans to update a phone switchboard system to reduce wait times for callers. Ms. Stokes said companies needing information about filing taxes or resolving other issues should expect improvement in the agency's availability and timeliness going forward. The agency says about 213,000 employers contribute to the system, which collects about $1.4 billion annually in unemployment taxes. It paid more than $1 billion in benefits on more than 600,000 claims in the 2014 fiscal year, according to audit reports. Focus on fixing problems Ms. Stokes, who moved to the talent agency from the Michigan Department of Licensing and Regulatory Affairs in July, said she spent three to four months examining the unemployment agency, visiting offices and talking to hundreds of staffers to learn more about the organization's challenges. Her plan will focus on improving customer service via phone, online and in person, including updating signs at agency offices; increasing internal efficiency, transparency and accountability; and working to protect unemployed residents filing claims and employers who pay taxes into the system both from fraud and being wrongly accused of fraud. "How can we do it better?" she said in an interview. "That's been my focus, and this is a result of what I've seen so far. It's the right time to make this decision and to start moving ahead." She added: "Not to place blame, not to talk about what happened in the past, but identify what those problems are and then fix them." Jennifer Lord, an attorney with Pitt, McGehee, Palmer & Rivers PC in Royal Oak and the lead attorney on the potential class-action case in the state appeals court, said she wants the state to freeze any action that might take money out of the so-called "contingent fund" that includes unemployment funds and put it into the state's general fund until the agency knows for certain whether there are more false allegations of fraud. Senate Bill 1008, which would approve that transfer, is pending on Gov. Snyder's desk. Snyder spokeswoman Anna Heaton said the governor has not yet completed a full review of the bill. Ms. Lord contends the funds don't belong to state taxpayers and should not be used to balance the budget. She said she is awaiting a date for oral arguments in the Court of Appeals related to a pending class-action lawsuit that could include an estimated 60,000 plaintiffs. The case originated in the Michigan Court of Claims. "I hope it's a step in the right direction," Lord said of Ms. Stokes' restructuring plan. "There are clearly still massive, massive problems at the agency." Gov. Snyder also has not yet signed a bill that passed unanimously in the House and Senate that would prevent the state from determining fraudulent claims without first being reviewed by a person. Ms. Heaton said Gov. Snyder likely will sign it, "given that it codifies changes the UIA has already made to improve the unemployment system." Anticipated changes The agency also will change the way it accounts for uncollected unemployment taxes, Ms. Stokes said. Previously, a decision on whether an employer's taxes could be collected -- particularly in cases when a company has gone out of business or left the state -- didn't always occur, she said. That led to inaccurate accounting for tax revenue that never was going to be collected. About 20 percent of anticipated tax collections were written down as uncollectable as part of this process, an agency spokesman said. Going forward, the agency will look at those cases on a quarterly basis and decide annually whether that money will be received, Stokes said. Ms. Moffett-Massey will work on special projects within the Talent Investment Agency, including work with Michigan Works agencies, Ms. Stokes said. A new unemployment director is expected to be hired this year. Ms. Moffett-Massey earns $139,800; the range for the director position is $113,000 to $143,000, according to the agency. "We're making some changes that are going to allow us to use her talents and skills in a better way and we're going to get some fresh eyes on the organization," Ms. Stokes said in an interview. "I'm going to allow the new person to come in and take a look at our structure, look at how we're doing things, and then make the appropriate adjustment so that we're doing our job the best way that we can." MICHIGAN: Major Overhaul Coming in UIA Following Class Suit ----------------------------------------------------------- David Bailey at wzzm13.com reports that the 13 Watchdog team is learning about a major reorganization effort at Michigan's Unemployment Insurance Agency, including the reassignment of the agency's director Sharon Moffett-Massey. Moffett-Massey has now been assigned to work on special projects within the department. The leadership shakeup happens as the UIA is being sued in a class action lawsuit by people who feel they were wrongly accused of insurance fraud. Bruce Noll, an executive within the state's Talent Investment Agency (TIA), will serve as interim director during a national search for a new director. The search is expected to last three to four months. TIA Director Wanda Stokes, who oversees the UIA, sat down with the 13 Watchdog team for an exclusive TV interview and said she is going to be doing a top-to-bottom review of the department focusing on better customer service, reviewing the agency's structure and identifying and addressing fraud. "We need to work quickly," Stokes said. "At all times we must remember that we are here to serve our state's residents and employers. When people are looking for work, they look to us for help and we must do our best to get them the help they are entitled to." The fraud issue is the sticky part for the UIA at the moment. The class action lawsuits are underway against the governmental entity alleging people were falsely accused of fraud when they made valid unemployment claims. The plaintiffs say the State of Michigan wrongly took millions of dollars away from innocent people. One of the big changes that's already happened is the promise by the UIA to have staff members actually looking at determinations made, rather than relying solely on computer software which is what had been happening over the last couple of years. "What we have learned is that you need the individual to review because our talented staff are trained properly and they can review those claims," Stokes said. "They are the best ones to determine fraud." Before the recent changes, the state's automated computer system made fraud determinations on thousands of cases with little to no input from the claimants or even state employees. Some of the claimants were never notified there was a problem in the system and were eventually found to have committed fraud even if they weren't aware they were under investigation. The state's Auditor General recently indicated the state's UIA did not do enough to contact people who had claims that were questioned. The Auditor General also found the UIA's customer service was abysmal. At times they took about 10% of all calls into the agency. The Unemployment Insurance Agency recently indicated it reviewed more than 20,000 fraud cases and more than 90 percent of them had been overturned in favor of the claimant. Millions of dollars are expected to be returned because of that suggesting all of these changes needed to be made. The lead attorney on the lawsuits, Jennifer Lord of Pitt McGehee Palmer and Rivers, says there are approximately 60,000 people as part of the class action lawsuits against the UIA. Many of those claimants were the ones complaining that money was wrongly confiscated through the garnishment process. They are now having to wait through a lengthy court process to get their money back. "It was not (the state's) money to take," Lord said. As part of the changes, Stokes, who became the Talent Investment Agency director back in July, indicated she has an extensive plan to make the agency better. "We don't want it to be the worst experience for people," Stoke said. "Our goal is to make sure the experience is the best it can be." She says the UIA will address better customer service issues and she promises the agency will "do a better job listening to its customers to ensure they are assisted effectively and efficiently to get the benefits they are entitled to." MIDWEST SERVICING: Violates Debt Collection Laws, Salazar Says -------------------------------------------------------------- Jeremy Salazar, Plaintiff, individually and on behalf of all others similarly situated v. Midwest Servicing Group, Inc., Defendant, Case No. 2:17-cv-00137-PSG-KS (C.D. Cal., January 8, 2017), accuses the Defendant of violation of the Fair Debt Collection Act. Defendant Midwest Servicing Group Inc is a U.S.-based collection service company that specializes in collecting monthly payments for resorts located outside the United States. The Plaintiff is represented by: Nicholas J Bontrager, Esq. George Thomas Martin, III, Esq. MARTIN AND BONTRAGER APC 6464 West Sunset Boulevard Suite 960 Los Angeles, CA 90028 Tel: (323) 940-1697 (323) 940-1700 Fax: (323) 328-8095 Email: Nick@mblawapc.com tom@mblawapc.com MILBERG LLP: Faces Suit by Kahn Swick Over Vioxx Fees ----------------------------------------------------- Jessica Karmasek at Forbes reports that a Louisiana law firm known for representing investors in securities fraud class actions claims it is being shortchanged by a leading class action firm it teamed with to sue the maker of the painkiller Vioxx. In November, Kahn Swick & Foti LLC, considered one of the nation's premier boutique securities litigation law firms, filed its lawsuit against Milberg LLP in the Civil District Court for the Parish of Orleans. "Through misrepresentation and the omission of true information, and in bad faith, Milberg induced KSF to enter into a joint venture to jointly prosecute the Merck litigation, in conjunction with KSF's hand-selected affiliate New Jersey counsel, despite knowing always that it was under investigation by the United States Attorney concerning a conspiracy and kickback scheme in which it had engaged for over two decades, which also included obstructing justice, perjury, bribery and fraud," attorneys for KSF wrote in the Nov. 21 complaint. KSF's complaint notes that a federal grand jury in Los Angeles, in May 2006, indicted Milberg Weiss Bershad & Schulman LLP and two of its senior partners on federal conspiracy, fraud and money laundering charges. KSF alleges Milberg asked KSF to serve as its Louisiana local counsel in 2003, entering into an oral joint venture agreement in which KSF would be entitled to 10 percent of Milberg's proceeds from the litigation plus KSF's lodestar for its services as liaison counsel. KSF's complaint cites a May 18, 2006, press release issued by U.S. Attorney for the Central District of California -- at the time, Debra Wong Yang -- alleging Milberg participated in a scheme in which several individuals were paid millions of dollars in secret kickbacks in exchange for serving as named plaintiffs in more than 150 class action and shareholder derivative action lawsuits. According to the 2006 press release, the indictment alleged Milberg had received more than $200 million in attorneys' fees from these lawsuits over the past 20 years. KSF contends that immediately following Milberg's indictment, Milberg's hold on its co-lead counsel position in the Merck litigation was "in peril." MILLENNIUM PARTNERS: Homeowners Sue Over Sinking Tower ------------------------------------------------------ Kartikay Mehrotra, writing for Bloomberg News, reports that homeowners in San Francisco's sinking, tilting luxury high-rise are suing the city and the building's developer over claims they hid engineering flaws for years. Twenty tenants who collectively paid about $75 million for condominiums allege the city and Millennium Partners knew as early as February 2009, before the units were sold, that the structure was unstable, sinking more than four times engineers' estimates while continuing to tilt in the earthquake-prone city. San Francisco City Attorney Dennis Herrera sued the developer in August, claiming Millennium Partners alone knew that the 58-story tower was sinking faster than expected. John Cote, spokesman for Herrera, said the city shares the frustrations of Millennium Tower's residents. "Any notion that the city was somehow involved in a conspiracy to defraud residents is ridiculous and completely baseless," Mr. Cote said in an e-mailed statement. Millennium Partners and its vice president in San Francisco, Sean Jeffries, couldn't be immediately reached for comment. The Jan. 6 complaint in San Francisco state court is the second filed by residents seeking class-action status. The earlier case includes allegations of unfair business practices, creating dangerous conditions and breach of construction standards. The new complaint, alleging conspiracy to commit fraud, says the city's Department of Building Inspection and the developer colluded to keep secret the condition of the multibillion-dollar project linked to redevelopment of a nearby city bus terminal. Earthquake Vulnerability "At present, the building has sunk at least 16 inches vertically and is tilting northwest 2 inches at its base and 15 inches at its highest point," according to the complaint, which was filed by Jerry Dodson, a lawyer who is also a Millennium Tower resident. Claiming the tower is vulnerable to damage in an earthquake, Dodson says residents weren't told of the structure's flaws until a 2016 homeowners association meeting. The building continues to shift because it stands on a thin pile of soft soil without being anchored to the stronger bedrock that lies beneath, according to the complaint. The pile of soil directly under the tower is constantly shifting under the pressure of the structure. The residents cite a 2004 case in which a smaller building using similar construction techniques was planned in the city. The Department of Building Inspection stopped that project when engineers determined it was too heavy, concluding it would sink and remain vulnerable in an earthquake, according to the complaint. Millennium Tower is both taller and heaver than the 2004 project, according to the filing. The case is Buttery v. Jeffries, CGC-17-556292, Superior Court of the State of California (San Francisco). MILZY OF VILLA: Does Not Properly Pay Workers, "Reiman" Suit Says ----------------------------------------------------------------- Rachel Reiman, individually, and on behalf of all others similarly situated v. Milzy of Villa, LLC d/b/a Carolyn's Cleaning, Heather Grissom, and Milen Patel, Case No. 8:16-cv- 03504-CEH-TGW (M.D Fla., December 27, 2016), is brought against the Defendants for failure to pay minimum wage and overtime pay in violation of the Fair Labor Standards Act. The Defendants own and operate a residential and commercial cleaning company located at 4130 Lamson Avenue, Spring Hill, Florida 34608. The Plaintiff is represented by: Joseph Odato, Esq. Dennis A. Creed III, Esq. CREED & PINKARD, PLLC 13043 West Linebaugh Avenue Tampa, FL 33626 Telephone: (813) 444-4332 Facsimile: (813) 441-6121 E-mail: jodato@creedlawgroup.com dcreed@creedlawgroup.com MUDTECH SERVICES: Faces Class Action Over Unpaid Overtime Wages --------------------------------------------------------------- Louie Torres, writing for PennRecord, reports that a former employee has filed a class action lawsuit against Mudtech Services L.P., alleging violation of Pennsylvania and Ohio wage laws. Allen Gallow filed a complaint on Nov. 17 in the Court of Common Pleas of Allegheny County against Mudtech Services L.P., alleging that the employer failed to provide proper compensation to the plaintiff for his work. According to the complaint, the plaintiff alleges that he worked well over 40 hours per week but was not paid an overtime premium. The plaintiff holds Mudtech Services L.P. responsible because the defendant allegedly misclassified the plaintiff as an independent contractor in order to avoid paying overtime wages. The plaintiff requests a trial by jury and seeks unpaid back wages, interest, court costs and any further relief this court grants. He is represented by Joshua P. Geist of Goodrich & Geist, P.C. in Pittsburgh. Court of Common Pleas of Allegheny County Case number GD-16-022247 MULTI-STATE LOTTERY: Faces Class Action Over Rigged Jackpots ------------------------------------------------------------ Ryan J. Foley, writing for The Associated Press, reports that hundreds of thousands of lottery players who were allegedly cheated by an insider's long-running scheme to rig jackpots should be reimbursed for their losing tickets, according to a lawsuit filed on Jan. 4 that seeks class action certification. Lawyers filed the consumer fraud case against the Multi-State Lottery Association, the Iowa-based nonprofit that helps administer games that are offered by state lotteries. It alleges the association failed to prevent games from being rigged and failed to operate them in accordance with their own rules. The association's former security director, Eddie Tipton, is charged with installing software on lotteries' random number generators that allowed him to predict winning numbers on three days of the year. Prosecutors say Tipton worked with his brother and a longtime friend to buy winning tickets worth millions between 2005 and 2011 in Colorado, Wisconsin, Iowa, Kansas and Oklahoma. The alleged scheme unraveled after Tipton was caught on surveillance video buying a winning $16 million Hot Lotto ticket in December 2010 that others would unsuccessfully try to cash a year later. The plaintiff in the lawsuit, 53-year-old insurance salesman Dale Culler of Burlington, Iowa, kept the $45 in tickets that he played in that drawing, along with a detailed ledger of all games he plays. "While I know the odds aren't great, I never expected that the games were fixed and my chance was zero," he said in a statement. The lawsuit, filed in Iowa district court in Des Moines, argues that Culler should serve as the representative for a class that would consist of all those who bought tickets for games on dates in which winning numbers were made predictable by Tipton's software. It alleges that hundreds of thousands of lottery players lost money and should be reimbursed plus interest. Allowing them to join as a class would be more economical than pursuing individual lawsuits because the amount each player lost is relatively small compared to the expense of suing the association, the lawsuit argues. The games known to be at issue include Hot Lotto, Colorado Lotto, Wisconsin Megabucks and Kansas 2X2, but the litigation could uncover others, said one of the plaintiff's attorneys, Nicholas Mauro. He said the lawsuit will ask a judge to find the association liable for the rigged games first, and to certify the group as a class later. He said that players who did not keep their tickets should be allowed to join the class by filing a sworn statement of their participation, a form of proof allowed in some jurisdictions. Investigators say Tipton installed software on the random number generators that worked as intended 362 days of the year, but directed them to produce predictable numbers May 27, Nov. 22 and Dec. 29 if the drawings also occurred on Wednesdays or Saturdays after 8 p.m. Even then, Tipton wouldn't know the precise winning combinations but that they'd be predictable. Investigators alleged in a filing that Tipton supplied his friend, Texas businessman Robert Rhodes, with several index cards with potential winning combinations written on them and instructed him to play them all for a Wisconsin Megabucks game to be drawn Dec. 29, 2007. After driving around Wisconsin in a rental car buying them at different stores, Rhodes won and split the $783,000 cash jackpot with Tipton, the filing says. The association has argued that Tipton, who was fired after his arrest, acted alone. Still, the group's board ousted longtime executive director and founder Chuck Strutt in the wake of the scandal and has also made numerous security improvements. The lawsuit is the first potential class action to arise from the jackpot-rigging allegations and the second suit overall. The first was filed on behalf of Iowa financial planner "Lucky" Larry Dawson, who won a $9 million jackpot in 2011 but contends it should have been worth $25.5 million had the prior drawing not been rigged. A judge ruled in October that the case can move forward. MYPILLOW: BBB Revokes Accreditation Following Class Action ---------------------------------------------------------- Drew Harwell, writing for The Washington Post, reports that the list of problems keeps growing for My Pillow, the popular Minnesota-based pillow maker known for its late-night TV informercials and celebrity endorsements. Just months after settling a class action lawsuit alleging false and deceptive advertising, My Pillow has taken a hit over a different set of consumer complaints. On Jan. 3, the Better Business Bureau announced that it had revoked My Pillow's accreditation and lowered its rating from an A-plus to an F, saying the company's longstanding "buy one, get one free" offer was unfair and confusing to customers. The BBB said the offer violated the organization's code of advertising by marketing pillows in a two-for-one "deal" that was in fact the regular price. Consumers might have thought they were getting a special deal, the BBB found, but they were really paying the full cost of the product, as the Minneapolis Star Tribune reported. "Continuous BOGO offers, which can then be construed as an item's regular, everyday price, violate not only BBB's Code of Advertising, which all BBB Accredited Businesses agree to abide by, but also other state and national organizations' rules," said Dana Badgerow, president of BBB in Minnesota and North Dakota. Losing BBB accreditation doesn't carry any legal or financial penalties, but it does strip My Pillow of a widely-used industry certification designed to help establish consumer trust in a company. The F rating is the lowest mark a company can receive in the BBB's rating system based on a company's complaint history. A company's rating can be lowered when the bureau "determines that the business is not being transparent about its marketplace conduct," among other reasons, according to the BBB website. Founded in 2005, My Pillow touts its product as the "most comfortable pillow you'll ever own." The infomercials, a staple of late-night television, have claimed the pillow can prevent sleep loss associated with a range of ailments. The company has sold some 18 million pillows in the past decade at about $50 each, pulling in $100 million annually, as the Star Tribune has reported. The BBB said they received a "pattern of complaints" about My Pillow's buy one, get one offer. Bureau officials said they began urging My Pillow founder and spokesman Michael J. Lindell to discontinue the marketing ploy, and were left with no choice but to dock the company's rating when he didn't respond, the Star Tribune reported. Barb Grieman, senior vice president for the BBB in Minnesota, said the bureau seldom gives out F ratings because companies tend to comply. "We can't understand why he's not making the changes," Mr. Grieman told the Star Tribune. "We're not saying he can't offer a BOGO, just not continuously all year long." According to the BBB, My Pillow should have ended the offer after 30 days. "It's unfair to businesses in the same industry," Mr. Grieman said. "We want advertising to be clear." Mr. Lindell said on Jan. 3 he was disappointed in the BBB's decision. He told KARE that he wouldn't be able to stop the sale at the moment but would make unspecified changes later this year. In a tweet on Jan. 3 he said he was "sorry about the new rating as my customer service is the most important thing to me." The BBB said it has received 232 complaints about My Pillow in the past three years. Most have related to the buy one, get one offer, the BBB said, but the organization said consumers raised other issues as well. Among them were complaints that the pillow advertised on TV was not the same as the one they received and that a "full warranty" required purchasers to pay a fee to return the product, according to KANE. The bureau's announcement comes just a few months after My Pillow agreed to pay $1 million to settle a consumer lawsuit alleging the company overstated the benefits of its products. The company had claimed its pillows could prevent sleep loss from insomnia, restless leg syndrome, neck pain, fibromyalgia, sleep apnea and migraines, raising alarms at the consumer watchdog Truth in Advertising.org, as The Washington Post reported. The organization also objected to Mr. Lindell's claim that he was a "sleep expert," when he had no such training. Mr. Lindell said he chose to settle the case rather than pay the legal fees to fight it. The company did not admit fault. NATIONAL FOOTBALL: Faces New England Patriot Fans Suit in Mass. --------------------------------------------------------------- New England Patriots Fans v. National Football League, Roger Goodell, and Robert Kraft, Case No. cv-16-3929G (Mass. Cmmw., December 23, 2016), is brought by New England Patriots fans on behalf of all Patriots fans who believe the New England Patriots professional football team were harmed by the Defendants' arbitrary and capricious decision to revoke the Patriots first round draft choice in the April 28, 2016 National Football League Draft for alleged participation in a cheating scandal. National Football League is a professional football league, made up of 32 teams. The Plaintiff is represented by: Seth T. Carey, Esq. CAREY & ASSOCIATES, P.A. 114 Congress St., P.O. Box 100 Rumford, ME 04276 Telephone: (207) 364-7826 E-mail: stcareylaw@gwi.net NATIONAL MILK: Settles Milk Price-Fixing Class Action ----------------------------------------------------- LawyersandSettlements.com reports that a $52 million settlement has been reached in an antitrust class action lawsuit pending against several milk producers alleging they conspired to fix milk prices. According to the complaint, the defendants, namely National Milk Producers Federation aka Cooperatives Working Together (CWT), Dairy Farmers of America Inc., Land O'Lakes Inc., Dairylea Cooperative Inc. and Agri-Mark Inc., participated in an agreement to prematurely slaughter the dairy cows in their herds and, as of April 1, 2009, they agreed not to re-enter the dairy farming business for at least one year. Who does this? "The principle purpose and effect of this contract, combination and conspiracy has been to reduce the supply of milk, eliminate competition, and significantly reduce the number of dairy farmers competing in the market in order to increase the price of raw farm milk," the lawsuit states. Under the terms of the proposed milk pricing antitrust settlement, which requires final court approval, a total of $52 million in compensation will be made available to Class Members. The actual amount of compensation each Class Member can expect to receive depends on how much milk was purchased for their household, and how many total claims are filed. Eligible class members include consumers who purchased milk or other milk products including half & half, cream cheese, sour cream, cottage cheese, yogurt or cream, since 2003 while living in one of these states: Arizona, California, District of Columbia, Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin. Consumers must have bought the milk products from a grocery store or other retailer and not directly from the defendants. NEOVASC INC: Wins Dismissal of "Grobler" Class Suit --------------------------------------------------- Chief District Judge Richard G. Stearns of the United States District Court for the District of Massachusetts allowed defendants' motion to dismiss in the case captioned, SERGIO GROBLER, v. NEOVASC INC. ET AL, Case No. 16-11038-RGS (D. Mass.). Plaintiff Sergio Grobler purchased shares in defendant Neovasc Inc., a company controlled by defendants Alexei Marko (as chief executive officer) and Christopher Clark (as chief financial officer). When Neovasc was hit with a $70 million jury verdict after being accused of theft of intellectual property, Grobler brought suit, claiming that defendants had misled investors about the likely outcome of the case. Grobler also sought to represent a class of similarly situated purchasers. Grobler asserts claims under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 under that statute; and section 20a of the Act. Defendants moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In his Memorandum and Order dated November 22, 2016 available at https://is.gd/p8DPx7 from Leagle.com, Judge Stearns concluded that Grobler's section 20 claim necessarily fails because Grobler fails to make out a viable claim under the Rule. Sergio Grobler is represented by Joseph Edward White, III, Esq. -- jwhite@saxenawhite.com -- and Lester Hooker Esq. -- lhooker@saxenawhite.com -- SAXENA WHITE P.A. Yang Zhan is represented by Jeffrey C. Block, Esq. -- jeff@blockesq.com -- BLOCK & LEVITON LLP Alexei Marko, et al. are represented by Brian P. Miller, Esq. Bryan T. West, Esq. -- and Samantha J. Kavanaugh, Esq. -- AKERMAN LLP; Alan D. Rose, Sr., Esq. -- adr@rose-law.net -- Meredith Wilson Doty, Esq. -- mwd@rose-law.net -- and Michael L. Chinitz, Esq. -- mlc@rose-law.net -- ROSE, CHINITZ & ROSE NESTLE SA: Sued for Underfilling Raisinets Candy Boxes ------------------------------------------------------ FoxNews.com reports that a California woman has sued food and drink giant Nestle, claiming that the company purposefully deceives customers by "recklessly" underfilling its boxes of Raisinets candy. Plaintiff Sandy Hafer filed the class action lawsuit on Jan. 3 in U.S. District Court for the Central District of California. According to Law360, Ms. Hafer alleges that the "opaque packaging of Nestle USA Inc.'s Raisinets candies leads customers to believe they are buying a full box of the chocolate-coated raisins when, in fact, the box is only 60 percent full." Since customers can't really see the contents of each box of candy until after it's opened, "approximately 40 percent each [Raisinets'] packaging is non-functional slack-fill -- empty space which serves no functional purpose under the law," according to the suit. Though some food products, like potato chips or crackers in a bag, contain air to protect them from crumbling, Ms. Hafer's suit claims that since Raisinets are "smooth" and protected with "with confectioner's glaze" the extra space in the candy's box is unnecessary and deceptive. Nestle, says the suit, "recklessly disregarded the fact that the products contained a significant amount of non-functional slack-fill," which ultimately ends up misleading customers. The lawsuit contends that Nestle's "deceptive packaging" violates California's false advertising and unfair competition laws. Raisinets, which have been around since the 1920s, are sold in both boxes and flexible plastic packaging. Ms. Hafer says she purchased a questionable box of the chocolate-covered raisin confections at a Ralph's grocery in California and assumed it would contain a lot more of the candy than it actually did due to the relatively large size of the box. "However, the Nestle Dark Chocolate Raisinets [she] purchased contained approximately 40% empty space," the suit states. "She would not have purchased the Product or would have paid significantly less for the Product had she known that the package was only approximately 60% full of Raisinets." Now, Ms. Hafer says many customers (the suit is seeking to represent at least thousands of people), including herself, have suffered injury and lost money as a result of Nestl‚'s "misleading, false, unfair, and fraudulent practices." Ms. Hafer, who is represented by Barbara A. Rohr -- brohr@faruqilaw.com -- and Benjamin Heikali of Faruqi & Faruqi Los Angeles' office, is seeking at least $5 million in refunds and any interest accrued from previous purchases. A representative for Nestle was not immediately available for comment. OCWEN LOAN: Belcher Files Amended Suit, Court Rules on Discovery ---------------------------------------------------------------- In the case captioned, TIMOTHY J. BELCHER, Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant, Case No. 8:16-CV-690-T-23AEP (M.D. Fla.), Magistrate Judge Anthony E. Porcelli on January 9, 2017, granted Plaintiff's Motion to Compel Better Responses to Plaintiff's Request for Production, to Compel Better Responses to Plaintiff's First Set of Interrogatories, to Compel Defendant to Provide Responsive Documents to Plaintiff's First Request for Production. Also on January 9, Plaintiff filed a Second Amended Class Action Complaint for Unlawful Debt Collection Practices. Last month, District Judge Steven D. Merryday of the United States District Court for the Middle District of Florida granted in part Ocwen's motion to dismiss, but gave the Plaintiff an opportunity to amend the lawsuit. Belcher sued Ocwen Loan Servicing, LLC, under 15 U.S.C. Section 1692, the Fair Debt Collection Practices Act (federal act); and Section 559.55, Florida Statutes, the Florida Consumer Collection Practices Act (Florida act). According to the complaint, in 2006 Belcher financed the purchase of a house with a loan secured by a mortgage. Belcher defaulted and applied for assistance under a federally sponsored program. Ocwen offered Belcher a trial period for the assistance program. Belcher paid the initial trial-period amount and continued timely payments. Belcher alleges that Ocwen violated the federal act and the Florida Act by attempting collection efforts on the principal loan after Belcher commenced the trial plan. Ocwen moves under Rule 12(b)(6), Federal Rules of Civil Procedure, to dismiss Belcher's amended class-action complaint. Ocwen argues that a February 2014 consent order in another action fails to provide Belcher with a private right of action and thus cannot form the basis of Belcher's claims; that the "Home Affordable Modification Program" (HAMP) trial plan contradicts Belcher's claims; that Belcher's federal and state claims fail as a matter of law; and that the amended complaint must be dismissed because Belcher -- before filing the lawsuit -- failed to notify Ocwen in accord with the mortgage's pre-suit notice-and-cure requirement. In his Order dated December 15, 2016 available at https://is.gd/9pnCmQ from Leagle.com, Judge Merryday granted dismissal as to Belcher's claim under 15 U.S.C. Section 1692(d) and claim under Section 559.72(7), Florida Statutes and denied as to violation of Section 559.72(9) because the alleges facts sufficient to state a claim under Section 559.72(9). Belcher may proceed under 15 U.S.C. Section 1692(e)(4), 15 U.S.C. Section 1692(e)(10), 15 U.S.C. Section 1692(f), and Section 559.72(9), Florida Statutes is given leave to amend his complaint to conform to the order. Timothy J. Belcher is represented by James Frazier Carraway, Esq. -- fcarraway@saxongilmore.com -- and Claire Meryl Brueck, Esq. -- cbrueck@saxongilmore.com -- SAXON, GILMORE, CARRAWAY & GIBBONS, PA -- Katherine Earle Yanes, Esq. -- kyanes@kmf-law.com -- and -- Brandon Kyle Breslow, Esq. -- bbreslow@kmf-law.com -- KYNES, MARKMAN & FELMAN, PA Ocwen Loan Servicing, LLC is represented by Daniel Hurtes, Esq. -- Dhurtes@BlankRome.com -- and Joseph E. Culleiton, Esq. -- Jculleiton@BlankRome.com -- BLANK ROME, LLP ORTHOBANC LLC: "Mickler" Suit Alleges Job Discrimination -------------------------------------------------------- Bryan Mickler, Plaintiff, on behalf of himself and others similarly situated v. Orthobanc, LLC, Defendant, Case No. 8:17-cv- 00054-SCB-JSS (M.D. Fla., January 9, 2017), is brought against the Defendant for job discrimination (age). Defendant OrthoBanc, LLC is a risk assessment and payment management provider specializing in electronic payments for orthodontists, dentists and other companies that provide services for a set monthly fee. OrthoBanc, LLC currently does business as OrthoBanc, DentalBanc and PaymentBanc. The Plaintiff is represented by: Max H. Story, Esq. 328 2nd Avenue North, Suite 100 Jacksonville Beach, FL 32250 Tel: (904) 372-4109 Fax: (904) 758-5333 Email: max@storylawgroup.com PAREXEL INT'L: Ex-Employee Files Suit Over Unpaid OT Work --------------------------------------------------------- Jenie Mallari-Torres at Northern California Record reports that a former senior clinical research associate alleges she was not paid for overtime work. Schoulee Cones filed a complaint on behalf of herself and all others similarly situated on Dec. 22 in the U.S. District Court for the Southern District of California against Parexel International Corp. alleging violation of the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that she and other employees worked more than eight hours per day without receiving overtime wages, proper meal and rest periods, and timely wages upon resignation or termination. As a result of defendant's unfair practices, she alleges she has suffered irreparable harm and damages. The plaintiffs hold Parexel International Corp. responsible because the defendant allegedly failed to keep or provide an accurate record of its employees' hours worked and failed to compensate/provide its employees of overtime wages and proper meal/rest periods. The plaintiff requests a trial by jury and seek judgment against defendant, certify as a class action; injunctive relief; general, punitive, compensatory and consequential damages; interest; attorneys' fees; expenses; costs of action; statutory penalties; and further relief as the court deems necessary. She is represented by Patrick N. Keegan and James M. Treglio of Keegan & Baker LLP in Carlsbad and Walter Haines of The United Employees Law Group in Huntington Beach. PARKING CONCEPTS: Sued Over Failure to Properly Pay Employees ------------------------------------------------------------- Reny Navidad, on behalf of himself and all others similarly situated v. Parking Concepts, Inc. and Does 1 through 100, Inclusive, Case No. BC644998 (Cal. Super. Ct., December 23, 2016), is brought against the Defendants for failure to pay minimum and overtime wages in violation of the California Labor Code. Parking Concepts, Inc. is a California corporation that provides parking services. The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile: (310) 553-3603 PATTERN ENERGY: Howard G. Smith Files Class Action -------------------------------------------------- Law Offices of Howard G. Smith announces that a class action lawsuit has been filed on behalf of investors who purchased Pattern Energy Group Inc. securities between May 9, 2016 and November 4, 2016, inclusive. Pattern investors have until January 10, 2017 to file a lead plaintiff motion. Investors suffering losses on their Pattern investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to -- howardsmith@howardsmithlaw.com -- The Complaint filed in this class action lawsuit alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Pattern's operations were deficient with respect to various transaction, process level, and monitoring controls; (ii) as a result, Pattern lacked effective internal financial controls; and (iii) as a result of the foregoing, Pattern's public statements were materially false and misleading at all relevant times. On November 7, 2016, Pattern disclosed that it had a material weakness in its internal controls over financial reporting. According to the Company, internal controls were ineffective primarily because of "deficiencies related to the implementation, design, maintenance, and operating effectiveness of various transaction, process level, and monitoring controls." On this news, shares of Pattern fell over 3.5% to close at $20.86 per share on November 7, 2016. The Company's stock price then fell another 9% on November 9, 2016, to close at just $19.05 per share, thereby injuring investors. PETSMART INC: "Leeds" Suit Moved from Cir. Ct. to S.D. Fla. ----------------------------------------------------------- The class action lawsuit titled Scott Leeds, on behalf of himself and all others similarly situated, the Plaintiff, v. Petsmart, Inc., the Defendant, Case No. 16-03006 CA 01, was removed from the 11th Judicial Circuit of Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:16-cv-25380-FAM to the proceeding. The case is assigned to Hon. Judge Federico A. Moreno. PetSmart is an American retail chain operating in the United States, Canada, and Puerto Rico engaged in the sale of specialty pet supplies and services such as grooming and dog training, cat and dog boarding facilities, and daycare. The Plaintiff is represented by: Adam M. Moskowitz, Esq. Gail Ann McQuilkin, Esq. Michael Robert Lorigas, Esq. KOZYAK TROPIN & THROCKMORTON 2525 Ponce de Leon Boulevard, Suite 900 Coral Gables, FL 33134-6036 Telephone: (305) 372 1800 Facsimile: (305) 372 3508 E-mail: AMM@kttlaw.com gam@kttlaw.com mlorigas@kttlaw.com The Defendant is represented by: Clay Matthew Carlton, Esq. Robert Mark Brochin, Esq. Brian Michael Ercole, Esq. MORGAN, LEWIS, BOCKIUS LLP 200 South Biscayne Blvd., Suite 5300 Miami, FL 33131 Telephone: (305) 415 3447 Facsimile: (305) 415 3001 E-mail: clay.carlton@morganlewis.com bobby.brochin@morganlewis.com brian.ercole@morganlewis.com PHC INC: Feb. 27 Trial Against Directors Set -------------------------------------------- Notice of Pendency of Class Action To: All Class A shareholders of PHC, Inc. who abstained from voting or voted against the 2011 merger of PHC with Acadia Healthcare Company, Inc., and held their shares immediately prior to and whose shares were converted to Acadia shares after the effective merger date. The United States District Court, District of Massachusetts has certified In re: PHC, Inc. Shareholder Litigation, C.A. No. 11- 11049-PBS as a class action. A trial against certain former PHC directors, Acadia and Acadia Merger Sub, LLC (the "Defendants"), has been scheduled to begin on February 27, 2017. This lawsuit alleges Defendants violated fiduciary duties owed to the Class by causing the Merger to be effected on unfair terms and pursuant to an unfair process. Plaintiff MAZ Partners LP, on behalf of the Class, seeks an award of damages, interest, costs and other relief, including additional Acadia shares. Plaintiff must prove any entitlement to, and the amount of, any damages awarded at trial. The Court appointed Wolf Popper LLP as Lead Counsel to represent the Class. You may retain your own counsel at your own expense. If you want to stay in the Class and share in any potential recovery, you need not do anything now. You will be bound by the Court's determinations in this Action and will not be able to sue the Defendants for these legal claims in any other lawsuit. If you do not want to stay in the Class, you must exclude yourself. You will not share in any potential recovery or be bound by any decision in this lawsuit. However, you may be able to file/continue with your own lawsuit against the Defendants at your own expense. To exclude yourself, send a written request including your name, address, email address, telephone number and signature, and a statement indicating you request exclusion from the Class in In re: PHC, Inc. Shareholder Litigation postmarked no later than February 21, 2017 to: Chet B. Waldman, Esq. Wolf Popper LLP 845 Third Avenue New York, NY 10022 Tel No: 212-759-4600 E-mail: irrep@wolfpopper.com PHILADELPHIA: Judge Declares Landlord Liens Invalid, Null, & Void ----------------------------------------------------------------- Andrew Maykuth at Philly.com reports that a federal judge has permanently prohibited Philadelphia from placing liens on rental properties for tenants' unpaid gas bills and has declared any existing liens from unpaid tenant bills "invalid, null, and void." In the final installment of a long-running class-action lawsuit, U.S. District Judge J. Curtis Joyner issued a permanent injunction against the city and Philadelphia Gas Works over the city's practice of dunning landlords for the unpaid bills of their tenants. The judge ordered the city to vacate outstanding liens on registered rental properties since 2009, when PGW began using a computerized lien-management system that automatically placed 200 to 300 liens a day on properties. The decision could invalidate more than $25 million in liens. The city also was ordered to refund all money it collected from landlord liens since May, when Joyner placed a temporary injunction in place. "This case is one of constitutional dimension with consequences that reach across a large class of landlords, which we have surmised is in excess of 40,000," the judge said in his decision, released to the public. The decision makes permanent the injunction Joyner imposed, when he ruled that the city's method of placing liens on landlord properties without adequate notice was an unconstitutional taking of property. In some cases, landlords learned of the liens only after their deadbeat tenants were long gone. Joyner declared the case a class action in November, meaning that it would apply to all landlords, not just the five property owners who brought the lawsuit in 2014. "It's a great victory, exactly what we wanted," said John J. Grogan, who with his law partner Irv Ackelsberg filed the suit. The city is expected to appeal the decision. Barry O'Sullivan, a spokesman for PGW, said the utility was reviewing the judge's order. The legality of the city's practice of placing liens on properties for unpaid bills is not affected by the decision -- only the method by which PGW dunned landlords for tenant bills. Unlike investor-owned utilities, PGW as a government agency has the authority to place liens on property for unpaid bills. Liens are legal encumbrances that remain in place until they are paid off, often when the property is sold. The lawsuit did not seek to recover damages from the city beyond the amounts listed in the liens. "Although I do not gain monetarily from this decision, the satisfaction of winning far outweighs any financial gain," said David Wolf, the owner of Richmond Waterfront Industrial Park, one of the plaintiffs. Wolf said the action was designed to force the city to rework its lien system to give landlords a fair warning that their tenants had become delinquent on gas bills for which the property owner might be held liable. PGW argued that writing off the liens would cause hardship for its other customers, from whom the utility ultimately would seek to recover the money through higher rates. But the judge said the "irreparable harm" the landlords suffered outweighed the cost to PGW's customers. Joyner said the city could resume placing liens on properties if it devised a way to notify landlords with sufficient time to resolve the dispute before it placed the liens. He said that it "would be fairly easy and inexpensive for the city to create a method for resolving disputes between landlords and PGW," but that the city has "steadfastly insisted" it has a right to do what it is doing. "Insofar as the city has made clear that in the absence of a direct mandate, it will make no changes to its system of liening non-customer property owners for the long unpaid debts of their tenants, we find that the entry of a permanent injunction is necessary, appropriate and in the public interest," Joyner said. From 2009 through March 2016 , the city placed 80,000 liens for $71.8 million on properties that had different owners than the names listed on the delinquent PGW accounts, which the court used as a rough measure of rental properties. About $25.4 million is still outstanding and could potentially be affected by the judge's order. The case is Augustin et al v. City of Philadelphia in U.S. District Court. It was filed by landlords Lea and Gerard Augustin, Thomas and Donna McSorley, and Richmond Waterfront Industrial Park. The law firm of Langer, Grogan & Diver is counsel for the landlords. The city is represented by the Archer law firm. PHILIP MORRIS: Marlboro Case Plaintiffs' Lawyers Seek $30MM Fees ---------------------------------------------------------------- The Associated Press reports that the lawyers who secured a $45 million settlement for Marlboro Lights smokers in Arkansas have asked a judge to decide how much they should be paid. The lawyers didn't ask for a specific amount in their payment petition last month, the Arkansas Democrat-Gazette reported. But they said there is precedent that would allow them between $12.4 million and $30 million from the settlement fund, based on the value a judge places on their representation. The lawyers said they worked more than 15,000 hours, valued at $10.2 million, and spent $2.2 million of their own money to pursue the litigation over 13 years. According to the attorneys, the class-action lawsuit won compensation for smokers who may have turned to the Lights brand in hopes of getting a healthier product. The lawsuit accused Marlboro's parent company, Virginia-based Altria Group, of marketing the Lights brand as safer than normal cigarettes when that was not the case. Lead Little Rock attorney Tom Thrash said the lawsuit also helped bring the nationwide downfall of the lights class of cigarettes banned by federal regulators as of 2010. The attorneys' petition to the court also called the victory "truly extraordinary, succeeding where lawyers in 18 other jurisdictions had failed." Along with their payment, the lawyers want a portion of the settlement to go to the two lead plaintiffs in the suit, as well as to Arkansas health agencies and anti-tobacco activists. The lawyers will take up the question of their payment amount at a hearing scheduled for Jan. 17. PILOT FLYING J: Ruling May Return Suit to Federal Court ------------------------------------------------------- Greg Grisolano at Land Line reports that a recent ruling by a federal appeals court means one of two lawsuits filed by a trucking company against truck stop giant Pilot Flying J may be returning to federal court. The 11th Circuit Court of Appeals ruled in November 2016 on the civil suit brought by Wright Transportation against Pilot alleging the company defrauded them out of monies owed to the trucking company based on the truck stop chain's diesel fuel rebate program. According to the ruling, the lawsuit should be tried in federal court rather than at state court. The appellate court's ruling is the latest in a long line of legal maneuvers that began in April 2013, when federal agents raided Pilot's corporate headquarters in Knoxville, Tenn. Eight former executives and high-ranking employees have been charged in connection with a fraud scheme, and the company agreed to pay out more than $85 million in restitution to more than 5,000 customers who had partaken in the company's rebate plan. The company also agreed to pay $92 million in fines and accept responsibility for the criminal conduct of its employees. Ten former employees have pleaded guilty and agreed to cooperate with prosecutors. Wright Transportation was one of a handful of trucking companies to opt out of the restitution agreement and proceeded to sue Pilot in civil court. Another case is ongoing against the truck stop chain in Ohio state court. Wright's original lawsuit was filed at the federal level and sought class action status. While Wright's lawsuit was pending in Alabama federal court, another class action filed in Arkansas reached a court-approved settlement, which Wright Transportation and six other companies opted out of. Once the class action question was resolved by the Arkansas filing, Wright sought to dismiss its case out of federal court to refile at the state level. The appellate court's ruling reverses that decision and remands the case to federal court. Stephen Tunstall, at Riderattorney.com LLC the attorney representing Wright Transportation, declined to comment on the court's ruling, citing an appeal filed on behalf of his client that seeks a full-panel review from the 11th Circuit. Steve Brody -- steven.brody@morganlewis.com -- at Morgan Lewis, attorney for Pilot Flying J, said the court's ruling was "a positive step toward a favorable resolution of the claims brought by Wright Transportation." "We hope the 11th Circuit decision dispels that unrealistic belief by making it clear that Wright's case belongs in federal court, where it is subject to the court's prior rulings, including an order dismissing the majority of Wright's frivolous claims," Brody said in a statement emailed to Land Line. In addition to Pilot Corp. and Pilot Travel Centers LLC, named defendants in the Wright lawsuit include Pilot CEO Jimmy Haslam, former executives Mark Hazelwood, and John Freeman, and former director of sales Brian Mosher. Hazelwood and Freeman were indicted in February 2016 on criminal charges of conspiracy related to the rebate scheme. Mosher is one of the 10 former employees to have already pleaded guilty. The suit alleges that Pilot specifically targeted smaller companies only to cook the books and skim some of the discount moneys for itself to pay lavish bonuses to its officers, managers and employees, including Haslam. Haslam has not been charged in connection with the criminal case and has repeatedly denied any knowledge of the scheme. REPAIRCLINIC LLC: Faces "Gamez" Suit in Central Dist. of Cal. ------------------------------------------------------------- A class action lawsuit has been filed against Repairclinic, LLC. The case is titled as Joshua Gamez, individually, and on behalf of all others similarly situated, the Plaintiff, v. Repairclinic, LLC, a Delaware limited liability company, and DOES 1-10, inclusive, the Defendant, Case No. 2:16-cv-09658 (C.D. Cal., Dec. 30, 2016). Repairclinic is an online store selling replacement parts and maintenance products for over appliance, lawn equipment, power tools and heating & cooling equipment brands. The Plaintiff is represented by: Scott J Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Suite 800 Newport Beach, CA 92660 Telephone: (949) 706 6464 Facsimile: (949) 706 6469 E-mail: sferrell@pacifictrialattorneys.com RS&H INC: "Jones" Suit Alleges Job Discrimination ------------------------------------------------- Bradley Jones, Plaintiff, on behalf of himself and others similarly situated v. RS&H, Inc., Defendant, Case No. 8:17-cv- 00054-SCB-JSS (M.D. Fla., January 9, 2017), is brought against the Defendant for job discrimination (age). Defendant RS&H, Inc. is a facilities and infrastructure consulting firm in the United States. The Plaintiff is represented by: Kendra D. Presswood,Esq. SHANKMAN LEONE, PA 707 N Franklin St Ste 500 Tampa, FL 33602 Tel: (813) 223-1099 Fax: (813) 223-1055 Email: kpresswood@shankmanleone.com SAGE CLIENT: "Sarego" Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------- Deidra Sarego, on behalf of herself and all others similarly situated v. Sage Client 258 LLC, Case No. 2:16-cv-06636-JD (E.D. Pend., December 27, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. Sage Client 258 LLC owns and operates Urban Farmer Philadelphia restaurant in Philadelphia, PA. The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 SANIMAX: Green Bay Residents Seek Final Approval of Settlement -------------------------------------------------------------- Ben Krumholz, writing for FOX 11 News, reports that a settlement agreement between Sanimax and area residents is now in the hands of a county judge. From the lawsuit's beginning more than two years ago, FOX 11 Investigates has been following the legal battle over the emission odors from the animal rendering-plant on Green Bay's west side. "I've lived there for almost 20 years and it's been pretty consistent and we keep hearing it's going to be fixed," said Ken Dollhopf of Green Bay. Appearing in Brown County Court over the phone, lawyers for both Sanimax and its neighbors asked for final approval of a lawsuit settlement that they both believe will cure the plant's odor emissions and provide residents financial relief. "It was definitely a negotiation because there was not an agreement initially, or on many parts, until we ultimately got down to a final agreement, which we then worked out," said Richard Barron, the attorney for Sanimax. According to both attorneys, the settlement includes $915,000 to be divided among the suit's participating residents. Up to $460,000 of that could pay court costs and attorney fees. Sanimax would put $375,000 toward improvements to its facility that must be completed in the next one to two years. Nearly 11,000 residents living within a two-mile radius of Sanimax qualified to be part of the lawsuit. Of those who chose to participate, two residents opted out of the settlement agreement. It's unclear how many residents could possibly benefit from the settlement. FOX 11 planned to ask the attorney representing the residents, but she did not respond to our call for comment. "We've done several of these class actions, your honor, and I can tell you in a class size that big, those numbers were very pleasing to us, because they showed, like I said, an overwhelming support for the settlement agreement," Laura Sheets, the attorney representing the residents in the lawsuit, told the court. Brown County Supervisor Patrick Evans represents the Sanimax area. He told the court his constituents were confused by the lawsuit and just want the smell to go away. "The people who could utilize some dollars were the ones who were probably most intimidated by getting into a class action lawsuit," said Ms. Evans. The settlement includes a cooling off period that is supposed to give Sanimax time to fix the odor emission issues. After that period, if the smell remains, residents in the suit could sue again. "I'm not that interested in the past, as I am the future," said Mr. Dollhopf. The judge on the case says he expects to issue a settlement decision in about ten days. SCHAEFFLER GROUP: March 22 Settlement Approval Hearing Set ---------------------------------------------------------- If You Are a Truck and/or Equipment Dealership That Purchased Vehicles or Bought Certain Parts for a Vehicle in the U.S. Since 2000 You Could Receive Money from Settlements of Class Actions Lawsuits involving the prices of certain vehicle component parts have been settled with certain Defendants in various class actions in this litigation ("Settling Defendants"). The Settling Defendants are identified below. The cases are separate class actions within the lead case known as In re Automotive Parts Antitrust Litigation, 12-md-02311 (E.D. Mich.), which is currently before United States District Judge Marianne O. Battani. You may be part of a class action settlement if you are a Truck and/or Equipment dealership that indirectly purchased certain component parts and/or vehicles for resale or lease containing these parts ("Dealer") in the District of Columbia or one or more of the following states: Arizona, Arkansas, California, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin. What Are The Lawsuits About? The lawsuits claim that the Defendants in each lawsuit agreed to unlawfully raise the price of certain motor vehicle component parts. As a result, dealers of Trucks and/or Equipment who purchased for resale or lease Trucks and/or Equipment containing those parts or who indirectly purchased those parts as replacement parts, which were manufactured or sold by a Defendant or any subsidiary, affiliate, or alleged co-conspirator of a Defendant may have paid more than they should have. Although the Settling Defendants have agreed to settle, the Settling Defendants do not agree that they engaged in any wrongdoing or are liable or owe any money or benefits to Plaintiffs. The Court has not yet decided who is right. The Court has appointed Duane Morris LLP as interim class counsel ("Class Counsel") in these lawsuits to represent your dealership and all other members of the class actions. Your dealership will not be charged directly by these lawyers, and any fees that they are paid will come from any settlements or recovery in these lawsuits. If your dealership wants to be represented by its own lawyer, it may hire one at its own expense. Who's Included In The Settlements? Your dealership is part of one or more of the Settlements if it is a Truck and Equipment Dealer and falls within the definition of one or more of the settlement classes ("Settlement Classes") approved by Judge Battani. The class definitions are set forth in the full length Notice. The term "Truck and Equipment Dealer" or "Truck and Equipment Dealership" means an entity or person authorized to engage in the business of selling or dealing in Trucks and/or Equipment at retail in the United States. A list of the parts included in these Settlements and their manufacturers can be found at http://www.TruckDealerSettlement.com Who Are The Settling Defendants The Settling Defendants are: Schaeffler Group USA Inc. ("Schaeffler"); JTEKT Corporation and JTEKT North America Corporation, formerly known as Koyo Corporation of U.S.A. (collectively, "JTEKT"); and NTN Corporation and NTN USA Corporation (collectively "NTN"). A list of the Defendants, their affiliates, and the alleged co-conspirators for each case involving the parts described in the Settlement Class definitions and settlement agreements is available at http://www.TruckDealerSettlement.com What Do The Settlements Provide Generally, you are included if, at any time between January 1, 2000 and November 21, 2016 for Bearings, you were a dealer of heavy-duty (Class 8) or medium-duty (Class 4, 5, 6, & 7) trucks, buses, commercial vehicles (excluding automobiles, light trucks, vans, sports utility vehicles, crossovers, pickup trucks, and/or similar motor vehicles sold by automobile dealers), all-terrain vehicles, construction equipment, mining equipment, agricultural equipment, railway vehicles, materials-handling vehicles, and other similar vehicles ("Trucks and/or Equipment") that: (a) purchased Trucks and/or Equipment containing a Bearings; (b) indirectly purchased a Bearing as a replacement part. Indirectly means you bought the vehicle replacement part from someone other than the manufacturer of the part. The specific definition of who is included in each Settlement Class is set forth in each Settlement Agreement between the Settlement Classes and the Settling Defendants. Each of those Settlement Agreements, and the related Complaints are accessible on the website http://www.TruckDealerSettlement.com. The Settlement Funds total approximately $5.7 million. Detailed information about the respective Settlements and the parts involved can be found in the full-length Notice, which is available at http://www.TruckDealerSettlement.com. The amount of money your dealership may receive, if any, will depend upon where the dealership purchased the affected vehicles or component parts, the type and quantity of vehicles and parts your dealership purchased in the states listed above and the District of Colombia, and the total number of claims made by eligible Truck and Equipment Dealers. What Are My Rights And Options? 1. Opt Your Dealership Out of the Settlements If your dealership purchased any of the parts listed in the Settlement Class definitions as components in the specified vehicles or as parts and purchased such vehicles or parts in the states listed in this Notice or the District of Columbia and does not want to be legally bound by the Settlements, your dealership must exclude itself ("opt out") in a writing postmarked by March 1, 2017, or it will not be able to sue, or continue to sue, the Settling Defendants (including all related entities covered by the release in the individual settlement agreements) about the legal claims settled in the settlement agreements. If your dealership submits a valid and timely request for exclusion / opt out, it will not share in the proceeds of that Settlement, and it will not be bound by the judgment. To be valid, the request for exclusion / opt out must follow the instructions set forth in the full-length Notice and be postmarked by March 1, 2017. The full instructions and requirements for opting out may be viewed at http://www.TruckDealerSettlement.com. 2. Object to the Settlement If your dealership wishes to object to one or more of the Settlements or the request for attorneys' fees, reimbursement of expenses, and service awards, it may write to the Court and counsel about why it objects. To be considered, your dealership's objection must be filed according to the procedures set forth in the full-length Notice and postmarked no later than March 1, 2017. The full instructions and requirements for objecting to one or more of the Settlements may be viewed at http://www.TruckDealerSettlement.com. 3. Attend the Final Approval Hearing The Court will hold a Final Approval Hearing at 2:30 p.m. on March 22, 2017, at the United States District Court for the Eastern District of Michigan, Theodore Levin U.S. Courthouse, 231 W. Lafayette Blvd., Courtroom 272, Detroit, MI 48226 to decide whether to approve the Settlements and the request for attorney's fees, reimbursement of expenses, and service awards. You or your own lawyer may attend and ask the Court's permission to speak, but you don't have to participate in the hearing in order to attend. To request to speak at the Final Approval Hearing, you must follow the procedures set forth in the full-length Notice no later than March 1, 2017. The complete terms, including the definitions of what parties and claims are being released are set forth in the full-length Notice, settlement agreements, and the Court filings which may be obtained at http://www.TruckDealerSettlement.com. For more information, contact the Settlement Administrator toll free at 1-866-742-4955 or visit http://www.TruckDealerSettlement.com. SCOTT AND ASSOCIATES: Sued Over Failure to Maintain Surety Bond --------------------------------------------------------------- Sajhresa Hill, individually and on behalf of others similarly situated v. Scott and Associates, P.C., Case No. D-l-GN-16-006159 (261st Tex. Ct., December 27, 2016), alleges that the Defendant is acting illegally as a debt collector in Texas due to its failure to maintain a $10,000.00 surety bond as required by the Texas Finance Code. Scott and Associates, P.C. is in the business of collecting defaulted consumer debts and judgments originally owed to other entities. The Plaintiff is represented by: Brent A. Devere, Esq. DEVERE LAW FIRM 1411 West Avenue, Suite #200 Austin, TX 78701 Telephone: (512) 457-8080 Facsimile: (512) 457-8060 E-mail: BDevere@14llwest.com - and - Tyler Hickle, Esq. THE LAW OFFICE OF TYLER HICKLE 4005C Banister Lane, Suite 120C Austin, TX 78704 Telephone: (512) 289-3831 Facsimile: (512) 870-9505 E-mail: tylerhickle@hicklelegal.com STONEMOR PARTNERS: Wolf Haldenstein Files Class Action Lawsuit -------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP reminds investors that a class action lawsuit has been commenced in the United States District Court for the Eastern District of Pennsylvania on behalf of all persons or entities that purchased StoneMor Partners L.P. common units between January 19, 2012 and October 27, 2016, inclusive. Units purchased in the open-market or traceable to the secondary offerings issued in May 2014, July 2015 and/or April 2016 are part of the class. Investors who have incurred losses in StoneMor Partners L.P. units are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may also review the filed complaint and obtain additional information concerning the action on our website, www.whafh.com. If you purchased the common units of StoneMor Partners L.P. within the class period and suffered losses, you may, no later than January 20, 2017, request that the Court appoint you lead plaintiff of the proposed class. StoneMor Partners L.P. operates cemeteries in the United States, primarily along the East Coast. The Company owns various cemeteries and operates others through management agreements. StoneMor sells burial lots, lawn and mausoleum crypts, cremation niches, and perpetual care. According to the filed Complaint, StoneMor made false and misleading statements and/or failed to disclose during the Class Period: (1) that the Company's reported non-GAAP financial metrics were materially misleading and concealed the truth about the Company's actual financial condition; and (2) that the primary purpose of the Company's regular debt and equity offerings were to pay distributions to unitholders rather than to pay down indebtedness under the Company's revolving credit facility as publicly stated. As a result, StoneMor's statements about its business, operations, and prospects, were false and misleading and/or lacked a reasonable basis at all relevant times. On October 27, 2016, StoneMor shocked investors when it announced a "temporary" 50% reduction in its quarterly cash distribution to $0.33 per share and that third quarter sales goals "meaningfully lagged our expectations." On the resumption of trading on October 28, 2016, the units closed at $13.74, a decline of $11.08 per unit. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein Adler Freeman & Herz LLP by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com TARO PHARMA: Faces Rochester Suit Over Generic Fluocinonide ----------------------------------------------------------- Rochester Drug Co-Operative, Inc., on behalf of itself and all others similarly situated v. Taro Pharmaceuticals Industries, Ltd., Taro Pharmaceuticals USA, Inc., Sun Pharmaceutical Industries Ltd., Teva Pharmaceutical Industries Ltd., Teva Pharmaceuticals USA, Inc., Fougera Pharmaceuticals, Inc., Sandoz, Inc., and Actavis Holdco U.S., Inc., Case No. 2:16-cv-06639-CMR (E.D. Penn., December 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to raise, fix, and maintain prices, allocate markets, and/or rig bids for generic generic fluocinonide ("Fluocinonide"). The Defendants operate a pharmaceutical company that manufactures, markets, and sells generic drug products. The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. NASTLAW LLC 1101 Market Street Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S. Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com klandau@tcllaw.com atamoshunas@tcllaw.com TELIGENT INC: Faces Rochester Suit Over Generic Fluocinonide ------------------------------------------------------------ Rochester Drug Co-Operative, Inc., on behalf of itself and all others similarly situated v. Teligent, Inc., Perrigo Company Plc, Taro Pharmaceuticals Industries, Ltd., Taro Pharmaceuticals USA, Inc., and Fougera Pharmaceuticals, Inc., Case No. 2:16-cv-06638- CMR (E.D. Penn., December 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to raise, fix, and maintain prices, allocate markets, and/or rig bids for generic generic fluocinonide ("Fluocinonide"). The Defendants operate a pharmaceutical company that manufactures, markets, and sells generic drug products. The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. NASTLAW LLC 1101 Market Street Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S. Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com klandau@tcllaw.com atamoshunas@tcllaw.com TENET HEALTHCARE: "S.B." Suit Removed to N.D. Ga. ------------------------------------------------- S.B., Plaintiff, on behalf of herself and all others similarly situated v. Tenet Healthcare Corporation, Defendant, was removed from Superior Court of Fulton County, Case No. 2016CV283573, to the U.S. District Court of Northern District of Georgia (Atlanta) Case No. 1:17-cv-00075-RWS on January 9, 2017. The Plaintiff alleges fraud claims. Defendant Tenet Healthcare Corporation is a multinational investor-owned healthcare services company based in Dallas, Texas. The Plaintiff is represented by: Edward Adam Webb, Esq. WEBB, KLASE&LEMOND, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Tel: (770) 444-0773 Email: eadamwebb@hotmail.com - and - G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Tel: (770) 444-9594 Fax: (770) 444-0271 Email: flemond@webbllc.com - and - Richard D. McCune, Esq. McCune, Wright, Arevalo, LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Tel: (909) 557-1250 Fax: (909) 557-1275 Email: rdm@mccunewright.com The Defendant is represented by: Matthew L.J.D. Dowell, Esq. ALSTON & BIRD, LLP 1201 West Peachtree Street Atlanta, GA 30309-3424 Tel: (404) 881-7434 Email: matt.dowell@alston.com - and - Samuel Reed Rutherford, Esq. William H. Jordan, Esq. ALSTON & BIRD, LLP One Atlantic Center, Suite 4900 1201 West Peachtree Street Atlanta, GA 30309-3424 Tel: (404) 881-4454 Email: sam.rutherford@alston.com TG THERAPEUTICS: Levi & Korsinsky Files Securities Class Action --------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired shares of TG Therapeutics, Inc. ("TGTX") (NASDAQ:TGTX) between September 15, 2014 and October 12, 2016. You are hereby notified that a securities class action lawsuit has been commenced in the USDC for the Southern District of New York. To get more information go to: http://www.zlk.com/pslra/tg-therapeutics or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that, throughout the Class Period, TGTX misrepresented and/or omitted material information concerning its GENUINE Phase III clinical trial for its proprietary combination of drug therapies TG-1101 and TGR-1202. The Phase III trial consisted of two parts, Part I evaluating the effect of the addition of TG-1101 to ibrutinib on overall response rate (ORR) in approximately 200 patients, and Part II evaluating the effect of the addition of TG-1101 to ibrutinib on progression-free survival (PFS) in all study patients. During the class period TGTX repeatedly assured investors as to the efficacy and potential FDA approval of the treatment, referring to it as a "best-in-class treatment." Then on October 13, 2016, TGTX announced that it would abandon Part II of the study, thus annulling its filed Special Protocol Assessment with the FDA and cutting enrollment and increasing the likelihood that the FDA would not approve the combination treatment. If you suffered a loss in TGTX you have until March 7, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, New Jersey, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. THERANOS INC: Sacks 155 Employees Amidst Class Action ----------------------------------------------------- Alicia McElhaney at The Street reports is "re-engineering operations" the "conscious uncoupling" of 2017? No, this isn't another feel-good term for divorce hatched by Gwenyth Paltrow and Chris Martin or a clip from some hair-brained tweet at an automaker from our President-elect. No, its the latest spin from one the most talked about healthcare companies of the past two years: Theranos Inc. Theranos, headed by CEO and founder Elizabeth Holmes said Friday, Jan. 6, it "has identified a core team of 220 professionals to execute on its business plans, and informed 155 employees that their positions have been eliminated." The announcement, which came headlined with the words "Company Re- engineers Operations" is the latest installment in the on-going fall from grace of the blood testing company that has once been valued as high as $9 billion. The company had promised one drop blood testing but it was proven that the testing process was sloppy, and likely wouldn't provide accurate results. The company is currently the subject of two class action lawsuits filed at the end of May against the company after the Wall Street Journal raised questions about the startup's testing legitimacy. Walgreens Boots Alliance(WBA) which ended its relationship with Theranos in June, is a co-defendant in a one of the class action suits and also filed a separate, $140 million suit in November. The $140 million is the same amount Walgreens initially invested in Theranos back in 2010. Partners Fund Management, a hedge fund based in San Francisco, filed a lawsuit against Theranos on Oct. 10. The fund alleged Theranos used a "series of lies" to gain $100 million in investment, as originally reported by The Wall Street Journal. Little information is available publicly on Theranos' financials, as the company is privately held. However, the company noted in its recent release that intends on continuing to work on its miniLab, which aims to test for Zika virus with a drop of blood. However, some experts are skeptical of whether this technology will actually work. TRIBUNE CO: Judge Dismisses Claims Against Shareholders ------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that Tribune Co. shareholders are off the hook in multidistrict litigation accusing them of cashing out on billions of dollars in stock ahead of the company's bankruptcy. Southern District Judge Richard Sullivan dismissed claims against shareholders who cashed out in a 2007 leveraged buyout (LBO) that was quickly followed by the media giant's bankruptcy in 2008. The decision by the judge in In re Tribune Fraudulent Conveyance Litigation, 11-md-2296, prevents the Tribune's litigation trustee, Marc Kirschner, from clawing back some of the $8 billion paid to shareholders in exchange for their shares in the buyout orchestrated by Sam Zell and his Equity Group Investments. Sullivan held Mr. Kirschner failed to plausibly allege that Tribune directors who greenlighted the LBO acted with an intent to defraud creditors with bankruptcy looming. "The court is highly reluctant to infer scienter on the board's part simply because it entered a risky transaction at a time the Tribune was struggling," he said. Judge Sullivan is overseeing the multidistrict litigation -- the result of the 2011 consolidation of 74 federal and state cases filed across the country involving some 5,000 defendants consisting of Tribune directors, officers, financial advisers and shareholders. The company's reorganization plan was confirmed by the bankruptcy court in July 2012, and the unsecured creditors' claims were transferred to Mr. Kirschner. Judge Sullivan in 2013 dismissed individual creditors' state-law fraudulent conveyance -- a decision upheld by the U.S. Court of Appeals for the Second Circuit and currently the subject of a petition for a writ of certiorari. On the federal claims, Mr. Kirschner argued the Tribune board, which had designated a seven-member board of independent directors to assess the LBO, acted with fraudulent intent that could be imputed to shareholders. He also claimed the intent of individual officers, including Tribune CEO and chair of the seven-member board, Dennis FitzSimons, could be imputed to the corporation. But on Jan. 6, Judge Sullivan found Mr. Kirschner failed to plead sufficient facts to show the directors "possessed actual intent to hinder, delay or defraud Tribune's creditors" or that officers manipulated the board or controlled it on a key issue -- an evaluation of the company's solvency conducted for the Tribune by the company Valuation Research. "The trustee's multilayered imputation theory -- which is entirely contingent on the nonfeasance of both an unwitting intermediary, Valuation Research, and an arguably negligent but by no means supine board -- would undermine Congress' policy of protecting securities markets by introducing substantial uncertainty to the law governing fraudulent conveyance claims," he said. The trustee failed to adequately allege indications of fraud," and "failed to raise a plausible -- let alone strong-inference" the directors had a motive and opportunity to defraud the creditors or were guilty of "conscious misbehavior or recklessness." Mr. Kirschner is represented by attorneys with four law firms: Akin Gump Strauss Hauer & Feld; Friedman Kaplan Seiler & Adelman; Robbins, Russell, Englert, Orseck, Untereiner & Sauber; and Golenbock Eiseman Assor Bell & Peskoe. The shareholder defendants were represented by D. Ross Martin -- Ross.Martin@ropesgray.com -- and Joshua Sturm -- Joshua.Sturm@ropesgray.com -- of Ropes & Gray -- liaison counsel to the executive committee. TRUEVISIONS: May Face Lawsuit Due to Cancellations of TV Channels ----------------------------------------------------------------- The Bangkok Posts reports that while regulators continue to press TrueVisions to improve compensation to subscribers after cancelling six popular pay-TV channels, some customers have taken to an online "crowd-suing" platform in hopes in hopes of pursuing a class-action lawsuit. As of 5pm, January 7, more than 1,000 people had signed up to initiate the litigation against the pay-TV operator at Fongdi.com, which promises free service for class-action consumers. On its sign-up page, the law consultant startup said it was seeking to demand two things: fee cuts for subscribers who do not cancel and compensation for those who do. "TrueVisions cancelled the channels without informing the subscribers in writing 30 days before the change. This is in violation of the 2013 National Broadcasting and Telecommunications Commission (NBTC) regulation on pay-TV service standards," it said. "TrueVisions told its subscribers about the cancellations on Dec 29, 2016 while the channels were removed on Jan 1, 2017. The move took advantage of viewers. Besides, the notification was made through the media, not in writing to each customer." Most customers only learned of the change when an NBTC commissioner revealed it to the media. After reportedly failing to reach an agreement on higher fees sought by HBO, home to Game of Thrones and other popular fare, TrueVisions cancelled HBO and five affiliated channels: HBO Hits, HBO Signature, HBO Family, Red by HBO, and Cinemax. The cancellation notice took the form of a screen crawler, in the same format the company uses to inform viewers of routine maintenance outages. The cancelled channels were replaced with seven channels. Warner TV, Sony Channel, Paramount, Fox Action Movies, Celestial Classic Movies and Food Network HD went on the air on Jan 1 while True Films HD 2 will go live in March. To date, TrueVisions has offered an upgrade of the packages of 300,000 affected subscribers by one step for a month, and 1,000 True Reward bonus points to the most affected group, those on the Platinum package. Fongdi.com said the remedial measures offered by the operator were inadequate and unfair. "The seven substitute channels are of lower in quality than the six cancelled ones, which TrueVision had used to promote sales," it said. "The proposal to upgrade the package by one step for 30 days is also unfair because the operator has not reduced the service quality for just 30 days but until the remaining contract terms expire. "An offer of 1,000 True reward points to its Platinum package viewers is not what they want. If the service quality is lower, so should the fee." The website plans to demand fee reductions for subscribers in proportion to the value of lost channels, possibly 200 to 500 baht a month for the Platinum package. It will also seek to demand that TrueVisions pay a fine in the form of payments to subscribers who cancel, possibly the equivalent of one month's fees. Fongdi.com founder Peerapat Foithong told VoiceTV that the website was not set up for this case alone. "It was online before this case but this is the first one that affects many people, including me," he said. The NBTC, meanwhile, plans to meet with TrueVisions executives and customers on January 10 in hopes of reaching a multally acceptable solution. UBER TECHNOLOGIES: Suva Says Must Pay Social Security for Drivers ----------------------------------------------------------------- Chris Johnson, writing for Law.com, reports that Uber has been dealt another blow in its long-running battle over the employment status of its drivers, with a Swiss insurance agency ruling that the drivers are workers for which the company must pay social security. The mobile cab-hailing app company had argued that its drivers are freelance contractors, but Swiss public sector insurer Suva found that they should be classified as staff because they have to comply with Uber rules and have no control over prices or payment terms, broadcaster SRF reports. Uber has said that it may now contest the decision in the courts. Uber has faced multiple fines, legal and regulatory actions across the United States and Europe over its business model, and in October lost a landmark lawsuit brought by a U.K. trade union on behalf of two of its drivers. The London employment tribunal ruled that the drivers should be classified as workers, rather than self-employed, meaning they are now entitled to workers' rights, including paid vacation and rest breaks, and must also be paid the national minimum wage, which doesn't apply to freelancers. Uber, which was represented by DLA Piper, has said it will appeal the ruling. The San Francisco-based company is facing similar claims in the United States and agreed to pay up to $100 million to end a class action suit over the employment status of drivers. But the settlement was rejected by a federal judge in August. That dispute is now set for arbitration after Uber's U.S. legal team at Gibson, Dunn & Crutcher successfully appealed a 2015 ruling that voided the company's arbitration agreements. The decision was overturned by a federal appeals court in September. Uber is also currently involved in a hugely significant case before the European Court of Justice -- the EU's top court -- which will determine whether Uber is a transportation company or a digital service. If the court decides that Uber is a transportation company, it will be subject to much tighter regulation and could even see some of its services banned by certain EU countries. The company is being represented by Spanish firm Cuatrecasas, Goncalves Pereira. A ruling is not expected until March 2017 at the earliest. UBS FINANCIAL: FRCP Rule 23 Certification Requirements Analyzed --------------------------------------------------------------- Christopher Lazarini, Esq., of Bass, Berry & Sims PLC, in an article for JDSupra, analyzed a putative class action case that posed whether common questions of law or fact predominate on the reliance element of Plaintiffs' Section 10(b) claims. The court concluded that they do not, relying on the threshold requirements set forth in FRCP 23(a) and (b): numerosity, commonality, typicality, and superiority, each of which must exist for class certification. Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. Roman vs. UBS Financial Services, Inc. of Puerto Rico, No. 12-1663 (D. P.R., 11/22/16) *FRCP 23 (a) and (b) set out four threshold requirements for class certification: numerosity, commonality, typicality, and superiority, each of which must exist for class certification. **Where individual issues of reliance predominate over common issues, class certification should be denied. Following multiple procedural events in this putative class action involving UBS' Puerto Rico Bond Funds (the "Funds"), the Court adopted the Report and Recommendation of the Magistrate Judge that class certification should be denied because individual issues of reliance predominate over common ones. On Plaintiffs' motion for reconsideration, the Court explains its prior order. Plaintiffs alleged that UBS manipulated demand for the Funds, controlled the secondary market in which the Funds traded, and favored reducing its inventory of the Funds over the interests of its clients, all while UBS' financial advisors touted the Funds as safe. These fraud allegations, the Court explains, are based on alleged affirmative acts, as opposed to alleged "omissions" of material facts, and bring into focus whether common questions of law or fact predominate on the reliance element of Plaintiffs' Section 10(b) claims. The Court concludes that they do not. First, Plaintiffs conceded that they could not rely on the fraud-on-the-market presumption of reliance, because the Funds were not traded on a public exchange and did not trade in an efficient market. See Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 (2011) (see SLA 2015-45) and Halliburton v. Erica P. John Fund, Inc., 573 U.S. ___, 134 S. Ct. 2398 (2014) (see SLA 2014-24) (both discussing the fraud-on-the-market theory). Next, the Court rejects Plaintiffs' claimed entitlement to an Affiliated Ute presumption of reliance for Defendants' failure to disclose their alleged fraud. See Affiliated Ute Citizens of the State of Utah v. United States, 406 U.S. 128 (1972) (finding a presumption of reliance where defendants failed to disclose material facts in the face of a duty to disclose). The Court acknowledges that any fraudulent scheme involves some degree of concealment, but explains that courts have consistently limited Affiliated Ute to "omissions" cases so as not to allow the presumption to overwhelm the reliance requirement in cases involving affirmative acts. Here, the Court concludes, because Plaintiffs' theory of liability is built on Defendants' alleged affirmative acts, questions surrounding each putative class member's reliance -- based on his or her knowledge of and experience in the market, investment objectives, and information about the Funds obtained from his or her financial advisor -- overwhelm any common issues and require denial of the request for class certification. UMTH LAND: "Fannin" Suit Remanded to Delaware Court of Chancery --------------------------------------------------------------- District Judge Sue L. Robinson of the United States District Court for the District of Delaware granted Plaintiffs' motion to remand the case captioned, DAVID C. FANNIN, et al., Plaintiffs, v. UMTH LAND DEVELOPMENT L.P., et al., Defendants, and UNITED DEVELOPMENT FUNDING III L.P., Nominal Defendant, Case No. 16-641-SLR (D. Del.). Plaintiffs filed their complaint in the Court of Chancery of the State of Delaware on July 7, 2016. Plaintiffs assert their claims in their capacity as holders of units of limited partnership interests (LP Units) in United Development Funding III L.P., a Delaware limited partnership. Plaintiffs assert the following claims in their complaint: derivative and class claims for breach of fiduciary duty; a derivative claim for waste; derivative and class claims for breach of the operative partnership agreement (the UDF III Second Amended and Restated Agreement of Limited Partnership, or Partnership Agreement); and derivative and class claims for unjust enrichment for the profits obtained from the breaches of fiduciary duty and aiding and abetting breaches of fiduciary duty. On July 27, 2016, several of the defendants filed a notice of removal to the court based solely on the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1332(d). Plaintiffs filed the pending motion to remand on August 26, 2016 asserting that CAFA's grant of federal subject matter jurisdiction does not extend to the instant class action, because the action "'solely involves' claims that are within the plain meaning of two of the CAFA jurisdictional exceptions in 28 U.S.C. Section 1332(d)(9)" and should be remanded to the Court of Chancery. Defendants ground their opposition to remand on an overly broad reading of the complaint and an overly narrow interpretation of the exceptions. In her Memorandum dated December 2, 2016 available at https://is.gd/T6ADUr from Leagle.com, Judge Robinson concluded that it lacks jurisdiction over the action under CAFA because plaintiffs' class action solely involves claims that fall within the internal affairs and securities exceptions to CAFA. Lucille S. Fannin, et al. are represented by Robert J. Kriner, Jr., Esq. -- RobertKriner@chimicles.com -- A. Zachary Naylor, Esq. -- ZN@chimicles.com -- Tiffany Joanne Cramer, Esq. -- TiffanyCramer@chimicles.com -- and -- Vera Gerrit Belger, Esq. -- VeraGerrity@Chimicles.com -- CHIMICLES & TIKELLIS, LLP UMTH Land Development L.P., et. al are represented by Steven L. Caponi, Esq. -- steven.caponi@klgates.com -- K&L GATES LLP UTILIMAP CORP: Seeks 7th Cir. Review of Ruling in "Martinez" Suit ----------------------------------------------------------------- Defendant Utilimap Corp. filed an appeal from a court ruling in the lawsuit titled Cipriano Martinez, et al. v. Utilimap Corp., Case No. 3:14-cv-00310-JPG-DGW, in the U.S. District Court for the Southern District of Illinois. The appellate case is captioned as Cipriano Martinez, et al. v. Utilimap Corp., Case No. 16-4211, in the U.S. Court of Appeals for the Seventh Circuit. According to the briefing schedule in the Appellate Case, the Appellant's brief is due on or before January 31, 2017. District Judge J. Phil Gilbert of the United States District Court for the Southern District of Illinois granted the plaintiffs' motion to confirm the arbitration clause construction award and stayed the case in the case captioned, CIPRIANO MARTINEZ and PATRICIO DONES, on behalf of themselves and all others similarly situated, Plaintiffs, v. UTILIMAP CORP., Defendant, Case No. 3:14- CV-310-JPG-DGW (S.D. Ill.). Plaintiffs Cipriano Martinez and Patricio Dones worked as an at- will employee for Utilimap, a full-service utility inspection company, as an hourly laborer in the Ground Line Treatment Division for about two years. In their work for Utilimap, the plaintiffs dug around utility poles, inspected them and treated them with wood preservatives. They allege various wage and hour violations of Illinois, Maryland and/or federal law. The plaintiffs filed this lawsuit in March 2014, and in an order dated June 25, 2015, the Court compelled the parties to arbitrate pursuant to an arbitration agreement each plaintiff signed when he first started working for Utilimap. The parties ended up selecting Arbitrator Taren, who rendered a "Partial Final Clause Construction Award" on June 10, 2016. That award construed the arbitration agreement to include "an agreement to submit to binding arbitration, 'any claims, demand or actions based upon any claim for wages', including any class action wage claims and any collective action wage claims." The plaintiffs ask the Court to confirm the award, interpreting the arbitration agreement to cover class and collective disputes (for simplicity's sake, the Court will call these "class" disputes). For its part, Utilimap argues that it never agreed in the arbitration agreement to arbitrate class disputes and that Arbitrator Taren exceeded the scope of the authority given to him in the arbitration agreement by deciding the question, and deciding it wrongly, to boot. It further argues that whether the parties have agreed to class arbitration is a threshold question of arbitrability for a court, not an arbitrator, to decide. In his Memorandum and Order dated November 22, 2016 available at https://is.gd/fM3tcZ from Leagle.com, Judge Gilbert held that Arbitrator Taren appropriately looked to the agreement itself to glean the parties' intentions. His analysis reflected a dutiful interpretation of the arbitration agreement, whether it be right or wrong, and did not exceed his authority. Arbitrator Taren's interpretation is what the parties bargained for by entering into the agreement to have an arbitrator decide the question, and the Court will not frustrate those expectations by vacating his award. The case, according to the District Judge, is stayed until arbitration has been in accordance with the terms of the agreement and the Court ordered Martinez and Dones to file a status report in March 2017, and every September and March thereafter until the arbitration is complete, and to file a final status report within 30 days of the completion of the arbitration. Plaintiffs-Appellees CIPRIANO MARTINEZ, on behalf of themselves and all others similarly situated, and PATRICIO DONES are represented by: David I. Moulton, Esq. BRUCKNER BURCH PLLC Eight Greenway Plaza Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com Defendant-Appellant UTILIMAP CORP. is represented by: Gary M. Smith, Esq. LEWIS RICE LLC 600 Washington Avenue St. Louis, MO 63101 Telephone: (314) 444-7600 Facsimile: (314) 612-7623 E-mail: gsmith@lewisrice.com VANGUARD HOME: Appeals Ruling in "Davis" Overtime Suit ------------------------------------------------------ Tenet Healthcare Corporation, VHS of Illinois, Inc., Vanguard Health Systems, Inc. and Vanguard Home Care, LLC have taken an appeal from a court ruling in the case, SCHARMAINE DAVIS, on behalf of herself, individually, and on behalf of all others similarly situated, Plaintiff, v. VANGUARD HOME CARE, LLC, VHS OF ILLINOIS, INC., and VANGUARD HEALTH SYSTEMS, INC., Defendants, Case No. 16-CV-7277 (N.D. Ill.). The appeal was filed December 6, 2016, before the U.S. Court of Appeals for the Seventh Circuit. Appellant's brief are due January 17, 2017. Plaintiff Scharmaine Davis alleges in her class-action complaint that Defendants have systematically wrongly classified her and other similarly situated home health care clinicians as exempt from the overtime compensation requirements of the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL). Further, Davis alleges that Defendants failed to keep accurate records of the hours worked by Davis and other class members. Davis' complaint thus pleads a typical FLSA action. Before the court is Defendants' Motion to Dismiss and Compel Compliance with Open Door and Fair Treatment Process and Arbitration. According to the affidavit of Donna Sierzega McNally, provided in support of the Defendants' Motion, all Vanguard employees, including Davis, are subject to Vanguard's Tenet Employee Handbook, which includes an "independent Open Door and Fair Treatment Process (FTP)." McNally avers that Davis completed an internal training module on the Handbook, and electronically signed an acknowledgement statement on July 28, 2014. Plaintiff contends that the Seventh Circuit's decision in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016) is controlling and requires the denial of Defendants' Motion. Defendants Vanguard Home Care, LLC, VHS of Illinois, Inc., and Vanguard Health Systems, Inc. contend that Lewis is inapplicable because Davis does not challenge an arbitration clause alone (presumably Vanguard would concede that Lewis would control if that were the case) but challenges the entire Fair Treatment Process (FTP). Since Davis is attacking an entire dispute resolution contract and not just an arbitration provision, Vanguard argues, the court must grant the motion to dismiss in favor of arbitration, and Davis must make her arguments about the arbitration bar in Lewis before an arbitrator. In her Memorandum Opinion and Order dated November 22, 2016 available at https://is.gd/BXBCk0 from Leagle.com, District Judge Joan B. Gottschall of the United States District Court for the Northern District of Illinois granted in part Defendants' Motion. Judge Gottschall concluded that Davis' claims under Lewis need not be arbitrated for two reasons. First, unlike the contract in Buckeye Check Cashing, the FTP document in the record includes no delegation clause. Second, assuming for the sake of argument that the FTP is a standalone arbitration contract, Davis does not seek to invalidate the FTP process in its entirety by invoking Lewis. The Court stayed the IMWL claims pending resolution of FLSA claim. Scharmaine Davis is represented by: Ryan F. Stephan, Esq. Teresa M. Becvar Esq. STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Tel: (312)233-1550 Vanguard Home Care, LLC, et al. are represented by James N. Boudreau, Esq. -- boudreauj@gtlaw.com -- and - Tiffany S. Fordyce, Esq. -- fordycet@gtlaw.com - GREENBERG TRAURIG, LLP VICTORY LAB: "Diego" Suit Removed to S.D. Fla. ---------------------------------------------- Nabor Diego, Plaintiff, and others similarly situated individuals v. Victory Lab Inc., a Florida Profit Corporation, Defendant, was removed from the 11th Judicial Circuit Court, Case No. 16-030271- CA-01, to the U.S. District Court of Southern District of Florida (Miami) Case No. 1:17-cv-20063-FAM on January 6, 2017. The Plaintiffs accused the Defendant of violating the Fair Labor Standards Act. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre Remer & Georges-Pierre, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Tel: (305) 416-5000 Fax: (305) 416-5005 Email: agp@rgpattorneys.com VOLKSWAGEN AG: German Vehicle Owners Seek Emissions Compensation ---------------------------------------------------------------- Lawrenz Fares, writing for JURIST, reports that lawyers representing a German owner of a diesel-powered Volkswagen (VW) [corporate website] vehicle equipped with a software that could cheat emissions tests filed the first lawsuit seeking compensation for damages on Jan. 3. According to the Braunschweig district court, the German firm MyRight filed on behalf of only a single VW consumer effected by the scandal. Although VW has paid damages to 535,000 US-based consumers, they have refused to do so in European countries. They cite differences in regulations as the basis for this decision and have only offered technical remedies to European consumers. Because Germany does not allow for American-style class-action suits, the decision on the present case will serve as a model for future litigation concerning other consumers seeking damages against VW. Should the current plaintiff succeed in his individual suit, VW may see similar suits filed all over Europe. VW is facing legal difficulty around the world over the emissions scandal. South Korea announced in December that it plans to fine VW over false advertising. In October a Spanish court ordered Volkswagen to pay damages to a VW vehicle owner who purchased his car in 2011. A US judge approved a $14.7 billion settlement in October between VW and the US Department of Justice, the Federal Trade Commission, the state of California and car owners who filed a class action lawsuit over the company's emissions scandal. In September a German court said VW faces over USD $8.2 billion in damage claims from investors. That same month, the Australian Competition and Consumer Commission sued VW and its local subsidiary for misleading customers. In August a district court in Germany ruled that a collective complaint against VW may move forward. Like US-style class-action lawsuits, the collective complaint was launched on behalf of multiple investors who lost money following the diesel emissions cheating scandal. Last March the US FTC filed suit against VW for false advertising. VOLKSWAGEN AG: In Advanced Talks to Settle Emission Criminal Case ----------------------------------------------------------------- Tom Krisher and David McHugh, writing for The Associated Press, report that the imminent criminal plea deal between Volkswagen and U.S. prosecutors in an emissions-cheating scandal could be bad news for one group of people: VW employees who had a role in the deceit or subsequent cover-up. VW on Jan. 10 disclosed that it is in advanced talks to settle the criminal case by pleading guilty to unspecified charges and paying $4.3 billion in criminal and civil fines, a sum far larger than any recent case involving the auto industry. It's likely that VW will agree to cooperate in the probe, turning over documents and other information, said David M. Uhlmann, a former chief of the Justice Department's Environmental Crimes Section who is now a University of Michigan law professor. "Companies often face the dilemma of whether to protect their employees or cooperate with government investigations, but almost always end up deciding in the company's best interest to share what information they have," Mr. Uhlmann said. Although VW's communications with lawyers may be exempt, emails between employees and company executives should help prosecutors reach as far up VW's organizational chart as the scandal went, he said. Prosecutors now have three witnesses giving them information and have arrested Oliver Schmidt, VW's former head of U.S. environmental compliance who dealt with the EPA and California Air Resources Board after the scandal was uncovered. The cooperation of witnesses and the company should help investigators determine if the scandal went beyond VW's engineers, Mr. Uhlmann said. But extraditing any executives from Germany would be a problem. Volkswagen has admitted equipping diesel cars with sophisticated software that turned on emissions controls when engines were being tested by the Environmental Protection Agency, then turned them off during normal driving. The software, called a "defeat device" because it defeated the emissions controls, improved engine performance but spewed out harmful nitrogen oxide at up to 40 times above the legal limit. Volkswagen has reached a $15 billion civil settlement with environmental authorities and car owners in the U.S. under which it agreed to buy back up to 500,000 vehicles. The company also faces an investor lawsuit and criminal probe in Germany. In all, some 11 million vehicles worldwide were equipped with the software. The criminal investigation likely will continue into the administration of President-elect Donald Trump and attorney general nominee Sen. Jeff Sessions. Mr. Uhlmann, who served under Republican and Democratic attorneys general, doesn't think the new administration will back off from the VW prosecution. "All administrations want to be tough on crime, including corporate crime," he said. "I doubt the Trump administration will be any different." A draft of the VW settlement with the government calls for the appointment of an independent monitor to oversee compliance and control measures for three years. The draft still must be approved by Volkswagen's boards and U.S. courts. The scandal was revealed in September 2015, when West Virginia University tested on-road diesel emissions. The EPA issued a notice of violation, and VW apologized and brought in U.S. law firm Jones Day to investigate. If finalized, a $4.3 billion settlement would eclipse Toyota's $1.2 billion penalty over unintended acceleration problems as well as General Motors' $900 million payment to resolve a deadly ignition-switch scandal. VOLKSWAGEN AG: Ex-Compliance Head Arrested in Emissions Scandal --------------------------------------------------------------- Sue Reisinger and Celia Ampel, writing for Corporate Counsel, report that Oliver Schmidt, the head of Volkswagen Group's U.S. regulatory compliance office during its emissions cheating scandal, not only knew about the cheat device but told management executives in Germany about it and was directed to continue the scheme, according a complaint made public after Mr. Schmidt's arrest in Florida. The criminal complaint against him, unsealed in U.S. District Court in Detroit on Jan. 9, accuses him of taking part in a conspiracy to defraud the U.S., committing wire fraud, and violating the U.S. Clean Air Act. Mr. Schmidt, from Germany, is considered a flight risk and was held without bond after making an initial appearance on Jan. 9 in U.S. District Court in Miami. He was scheduled to face a hearing on Jan. 12 to remove him to Detroit where he can be fully arraigned, unless the two sides agree to his removal before then. He was represented at his court appearance on Jan. 9 by John Couriel of white-collar boutique Kobre & Kim, and David Massey of New York's Richards Kibbe & Orbe. Mr. Massey, who is leading Mr. Schmidt's defense, is a former assistant U.S. Attorney in Manhattan. Professor John James, founder and chairman emeritus of the Center for Global Governance, Reporting and Regulation at Pace University, says it is the first U.S. criminal charge he is aware of against a compliance officer outside the financial industry. Volkswagen has admitted that it lied about cheating on the emissions tests from around May 2006 to September 2015 for about 11 million diesel vehicles by using a software "defeat" device. It agreed in June to pay $14.7 billion to resolve the federal and California cases, but only the civil charges. So the criminal investigation into the scandal is still ongoing. One VW engineer pleaded guilty to criminal conspiracy in September in federal court in Detroit and is cooperating with prosecutors. According to the complaint, Mr. Schmidt joined VW in 1997 as a mechanical engineer. He served as general manager of VW's Engineering and Environmental Office in the U.S. from 2012 to 2015. In that role Mr. Schmidt was "responsible for ensuring that the vehicles built for sale within the U.S and Canadian markets fully comply with the past, present and future air quality and fuel economy government standards in both countries," according to an online bio. Mr. Schmidt learned of the emission problems in April 2014. The same day, according to the complaint, he emailed a colleague: "It should first be decided whether we are honest. If we are not honest, everything stays as it is." VW employees decided not to disclose the "defeat" device to U.S. regulators. A month later he emailed a VW executive and another employee about the emission problems, noting "possible consequences/risks," the complaint states, including "possible monetary penalties per vehicle of up to $37,500 from the EPA [U.S. Environmental Protection Agency]." In March 2015, Mr. Schmidt was promoted to principal deputy of an unnamed senior manager of VW, and he returned to VW headquarters in Wolfsburg, Germany, "where he played a direct role in VW's response to questions from U.S. regulators," according to a Justice Department statement. When U.S. regulators threatened not to certify VW vehicles for sale in the U.S. in 2016 because of emissions questions, the complaint says Schmidt and other employees met with unnamed members of VW's executive management on July 27, 2015, in Wolfsburg, Germany. Mr. Schmidt and others briefed the executive team on the defeat device and assured them that U.S. regulators didn't know about it. The executive team "authorized its continued concealment," the complaint states. It continues, "In the summer of 2015, Schmidt agreed to travel to the United States to participate in direct conversations with U.S. regulators in which he intended to, and did, deceive and mislead U.S. regulators by offering reasons for the discrepancy other than the fact that VW was intentionally cheating U.S. emissions tests, in order to allow VW to continue to sell diesel vehicles in the United States." Mr. Schmidt and other employees continued to lie about the emissions problems to regulators and to conceal the defeat device until one employee admitted it in a meeting with California regulators in September 2015, according to the document. It remains to be seen if other VW executives will be charged in the conspiracy. The arrest of Mr. Schmidt came as the New York Times reported the company was nearing a deal with the Justice Department to resolve the criminal investigation against it for a reported $2 billion. VOLKSWAGEN AG: Six Employees Indicted in Emissions Scandal ---------------------------------------------------------- Michael Biesecker, Tom Krisher and Dee-Ann Durbin, writing for The Associated Press, report that six high-level Volkswagen employees from Germany have been indicted in the U.S. in the automaker's emissions-cheating scandal as prosecutors made good on efforts to charge individuals in a corporate corruption case. But bringing them to trial in the U.S. is another matter. In announcing the federal charges and a corporate plea bargain by Volkswagen, Justice Department prosecutors on Jan. 11 detailed a large and elaborate scheme inside the German automaker to commit fraud and then cover it up, with at least 40 employees allegedly involved in destroying evidence. The company agreed to plead guilty to criminal charges and pay $4.3 billion -- by far the biggest fine ever levied by the government against an automaker. "Volkswagen obfuscated, they denied and they ultimately lied," Attorney General Loretta Lynch said. But prosecutors may have trouble bringing the executives to trial in the U.S. German law generally bars extradition of the country's citizens except within the European Union. Privately, Justice officials expressed little optimism that the five VW executives still at large will be arrested, unless they surrender or travel outside Germany. Still, the criminal charges are a major breakthrough for a Justice Department that been under pressure to hold individuals accountable for corporate misdeeds ever since the 2008 financial crisis. U.S. authorities are still investigating just how high the scheme went, and held out the possibility of charges against more VW executives. "We will continue to pursue the individuals responsible for orchestrating this damaging conspiracy," Ms. Lynch said. VW admitted installing software in diesel engines on nearly 600,000 VW, Porsche and Audi vehicles in the U.S. that activated pollution controls during government tests and switched them off in real-world driving. The software allowed the cars to spew harmful nitrogen oxide at up to 40 times above the legal limit. U.S. regulators confronted VW about the software after university researchers discovered differences in testing and real-world emissions. Volkswagen at first denied the use of the so-called defeat device but finally admitted it in September 2015. Even after that admission, prosecutors said, company employees were busy deleting computer files and other evidence. The fines easily eclipse the $1.2 billion penalty levied against Toyota in 2014 over unintended acceleration in its cars. VW also agreed to pay an additional $154 million to California for violating its clean air laws. The penalties bring the cost of the scandal to VW in the United States to nearly $20 billion, not counting lost sales and damage to the automaker's reputation. Volkswagen previously reached a $15 billion civil settlement with U.S. environmental authorities and car owners under which it agreed to repair or buy back as many as a half-million of the affected vehicles. Although the cost is staggering and would bankrupt many companies, VW has the money, with $33 billion in cash on hand. As for why the fine was so big, "the premeditation here was very significant and that was at a very high level in the company," said Leslie Caldwell, an assistant U.S. attorney general. "Lower-level people actually expressed concern along the way about the fact these defeat devices were being used and questioned whether they should be used. And higher-up people decided to use them," Ms. Caldwell said. "Volkswagen also lied to the regulators and the Department of Justice once our investigation had started. That's what distinguishes this." Volkswagen pleaded guilty to conspiracy, obstruction of justice and importing vehicles by using false statements. Under the agreement, VW must cooperate in the investigation and let an independent monitor oversee its compliance for three years. The six supervisors indicted by a federal grand jury in Detroit were accused of lying to environmental regulators or destroying computer files containing evidence. All six are German citizens, and five remained in Germany. The only one under arrest was Oliver Schmidt, who was seized in Miami during a visit to the U.S. Mr. Schmidt was in charge of VW's compliance with U.S. environmental regulations. Those indicted also included two former chiefs of Volkswagen engine development and the former head of quality management and product safety. Prosecutors said one supervised 10,000 employees. All six were charged with conspiracy to defraud the U.S. by making false statements to regulators and the public. Three were also charged with fraud and clean-air violations. VW also faces an investor lawsuit and a criminal investigation in Germany. In all, some 11 million vehicles worldwide were equipped with the software. Here are the executives' names, titles and any additional charges. Charged with conspiracy: -- Jens Hadler, 50. Head of Volkswagen engine development, 2007- 2011. Charged with wire fraud: -- Bernd Gottweis, 69. Head of quality management and product safety, 2007-2014. Charged with clean air violations: -- Richard Dorenkamp. 68; Head of VW engines' after-treatment department, 2003-2013. Led the team of engineers that developed the first diesel engine designed to meet U.S. emissions standards. Charged with wire fraud and clean air violations: -- Heinz-Jakob Neusser, 56. Head of Volkswagen engine development, 2011-2013; head of VW brand development, 2013-2015. -- Oliver Schmidt, 48. Head of VW's Engineering and Environmental Office in Michigan, 2012-2015. -- Jurgen Peter, 59. Engineer in the quality management and product safety group, 1990-present. WAL-MART STORES: Fails to Pay Employees OT, "Quiles" Suit Says -------------------------------------------------------------- Sundel Quiles, Victoria J. Martin, James M. Shea, Angela Cox, and George J. Bray Jr., individually and on behalf of all others similarly situated v. Wal-Mart Stores, Inc. d/b/a Walmart, Case No. 2:16-cv-09479-SDW-LDW (D.N.J, December 27, 2016), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants operate over 150 retail locations in New Jersey and New York. The Plaintiff is represented by: Joseph D. Monaco III, Esq. THE LAW OFFICE OF JOSEPH MONACO, PC 1317 Morris Avenue Union, NJ 07083 Telephone: (212) 486 4244 Facsimile: (646) 807-4749 E-mail: jmonaco@monaco-law.com - and - Charles Gershbaum, Esq. Marc S. Hepworth, Esq. David A. Roth, Esq. Rebecca S. Predovan, Esq. HEPWORTH, GERSHBAUM & ROTH, PLLC 192 Lexington Avenue, Suite 802 New York, NY 10016 Telephone: (212) 545-1199 Facsimile: (212) 532-3801 E-mail: mhepworth@hgrlawyers.com cgershbaum@hgrlawyers.com droth@hgrlawyers.com WATTS REGULATOR: Inks Settlements to Solve Floodsafe Suits ---------------------------------------------------------- Watts Regulator Co. and Plaintiffs announced two settlements to resolve nationwide class action lawsuits related to Watts Water Heater and FloodSafe brand connectors that allegedly could fail and cause water damage. Watts has stated that it believes there is nothing wrong with these connectors. The Classes include those that owned or leased a residence or other structure located in the United States containing a Watts Water Heater or FloodSafe connector after November 4, 2008. If the settlements are approved by the judge presiding over the lawsuits, a fund will be established that will be distributed to eligible Watts customers in the Classes. Customers who have experienced water damage from leaks will be able to make a claim to be reimbursed (from the fund) for up to 25% of their documented property damage. Customers whose connectors have not leaked may replace these Watts connectors and file a claim to be reimbursed $10 for up to four Watts connectors they replace. The total settlement amount of $14 million will pay class members for replacement of Watts Water Heater and FloodSafe connectors and reimbursement of water damage repairs, as detailed in the Settlement Agreements, and will cover notice, settlement administration expenses, and attorneys' fees and expenses as ordered by the Court. The Settlements are subject to court approval, which will be the subject of a hearing currently scheduled on April 12, 2017. Also, class members have until March 7, 2017, either to exclude themselves from the litigation or object to the Settlements. WELLS FARGO: Settles Race Discrimination Class Action for $35.5MM ----------------------------------------------------------------- Bruce Kelly, writing for Investment News, reports that Wells Fargo Advisors has reached a $35.5 million settlement with a group of African-American financial advisers who claimed the firm discriminated against them due to their race. The group of six brokers, with lead plaintiff Lance Slaughter, are joined by 325 confirmed African American brokers or trainees at the firm, said Linda Friedman, the attorney for the class plaintiffs. There could be another potential 200 class members, depending on how those advisers and trainees identify their race, she said. Federal judge Harry D. Leinenweber has to sign off on the agreement, which was filed on Dec. 30 in U.S. district court, the northern district of Illinois. Mr. Slaughter filed his claim in September 2013. "This is a very significant outcome, based on the number of people and the size of the fund," Ms. Friedman said. She said the amount each Wells Fargo adviser will eventually receive will not be based on a set formula but rather an assessment of individual claims. In the most recent amended complaint, the Wells Fargo advisers alleged that the firm provided widely different compensation and business opportunities to advisers based on their race. "African Americans are underrepresented both as financial advisers and in management and executive positions at Wells Fargo, and are paid substantially less than their counterparts who are not African American," according to the complaint. "These disparities result from Wells Fargo's systemic, international race discrimination and from policies and practices that serve no reasonable business purpose yet have a disparate impact on African Americans." "We do not agree with the claims in the lawsuit, but believe that putting this matter behind us is in the best interests of our team members, clients and investors," wrote Wells Fargo spokeswoman Helen Bow in a statement." Resolving this matter allows Wells Fargo Advisors to continue to focus on providing a diverse and inclusive work environment where all of our team members can thrive through industry leading recruiting, coaching, leadership and business development practices. We will also update our policies and procedures to provide greater opportunities for inclusiveness." Chief among the claims was that African American advisers at Wells Fargo have been denied access to potentially lucrative client account referrals because they were segregated from teams that typically land referred business. "Wells Fargo employs company-wide teaming, account distribution and territory and banking support assignment policies and practices that deny African Americans the same business opportunities as employees who are not African American," according to the complaint. "These policies and practices exclude African Americans from lucrative teams and client account distributions and segregate the firm's work force." Wells Fargo has 15,000 financial advisers in 1,375 offices in the United States. The settlement covers all African Americans advisers who are or were employees with the firm from September 2009 to the end of last year. Mr. Slaughter is based in the Washington, D.C., area and has been affiliated with Wells Fargo Advisors, and its predecessor, Wachovia Securities, since 2005. The brokerage industry over the past ten to 15 years has seen a steady stream of racial discrimination claims, most notably a long-running and highly publicized case that resulted in a $160 million settlement with Merrill Lynch in 2013. Along with payments to brokers, the settlement also calls for Wells Fargo to create a number of programs focused on African American advisers. Those include: recruiting, with the firm devoting resources with the primary goal of recruiting African American advisers and trainees; creating two coaching positions to work with those advisers and trainees; and establishing African-American focus group to provide feedback to leadership teams that will focus on ideas and initiatives to increase the number of African-American advisers along with their productivity, retention and opportunities for teaming. The settlement also calls for a $500,000 fund for African American advisers to fund business development events or activities over a four year period. WELLS FARGO: Hearing on $35MM Settlement Set for Jan. 24 -------------------------------------------------------- Janet Levaux, writing for The National Law Journal, reports that a $35.5 million settlement between Wells Fargo & Co. and a group of African-American brokers is set to go before a Chicago federal judge on Jan. 24. The plaintiffs alleged in the complaint, filed in 2013 in the U.S. District Court for the Northern District of Illinois, that Wells Fargo "substantially" underpaid African-American financial advisors in management and executive positions. The class-action settlement "provides comprehensive programmatic relief designed to increase the representation of and opportunities for African-American financial advisors and FA trainees, as well as substantial monetary relief for settlement class members," lawyers for the plaintiffs told the court last month. Suzanne Bish -- sbish@sfltd.com -- of Stowell & Friedman, a lawyer for the plaintiffs, told ThinkAdvisor that the amount "is larger than that of many other settlements, [since] these are high-paying good jobs and involved high rates of attrition and big gaps in pay -- with significant disparities in earnings between white and African-American financial advisors who had substantial economic losses." The advisors and licensed trainees affected by the suit include those employed by Wells Fargo's Private Client Group or WFA's bank-brokerage channel from September 2009 through December 2016. The number of advisors benefitting from the settlement could top 400 as more find out about it, Ms. Bish said. Wells Fargo said in a statement that the San Francisco-based bank disagrees with the claims in the suit "but believe that putting this matter behind us is in the best interests of our team members, clients and investors." "Resolving this matter allows Wells Fargo Advisors to continue to focus on providing a diverse and inclusive work environment where all of our team members can thrive through industry leading recruiting, coaching, leadership and business development practices," the Wells Fargo statement said. "We will also update our policies and procedures to provide greater opportunities for inclusiveness." Wells Fargo, according to the terms of the deal, will set up a $500,000 fund to support affected advisors over the next four years and help them grow their practices. Wells Fargo also said it will have a recruiting contact whose primary responsibility will be the recruitment of African American financial advisors and trainees. The company will create two coaching positions to help African American financial advisors build relationships and boost productivity. "There's always a need for success stories," Ms. Bish said. If the policies and procedures laid out by the Wells Fargo settlement work effectively, "they could catch on elsewhere." This would mean that organizations "would have the potential to have talent that is now underrepresented in the industry." A preliminary approval hearing is set for Jan. 24 in front of U.S. District Judge Harry Leinenweber. WELLS FARGO: "Varga" Suit Moved from Super. Ct. to C.D. Cal. ------------------------------------------------------------ The class action lawsuit titled Linda Moravec Varga, on behalf of herself and all others similarly situated, the Plaintiff, v. Wells Fargo Bank, N.A. and DOES 1 through 25, inclusive, the Defendant, Case No. BC641227, was removed from the Los Angeles County 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-09650 to the proceeding. Wells Fargo is a provider of banking, mortgage, investing, credit card, and insurance services. The Plaintiff appears pro se. WILLIAM HILL: Spanish Gamblers Mull Discrimination Class Action --------------------------------------------------------------- Gaming Intelligence reports that a consumer group representing Spanish gamblers is threatening to launch class action lawsuits against William Hill and bwin for discriminating against winning players. Consumer group Muebete claims that the operators target successful bettors through account closures and restrictions on their betting activity, simply for winning more often than they lose. It also accuses the Spanish gambling regulator of offering little or no protection to players who are "systematically discriminated against". WOODLAND DIRECT: Faces "Gamez" Suit in Central Dist. of Cal. ------------------------------------------------------------ A class action lawsuit has been filed against Woodland Direct Inc. The case is entitled as Joshua Gamez, individually, and on behalf of all others similarly situated, the Plaintiff, v. Woodland Direct Inc., a Michigan corporation, and DOES 1-10 Inclusive, the Defendant, Case No. 2:16-cv-09656 (C.D. Cal., Dec. 30, 2016). Woodland Direct is doing business in the hearth industry. The Plaintiff is represented by: Scott J Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Suite 800 Newport Beach, CA 92660 Telephone: (949) 706 6464 Facsimile: (949) 706 6469 E-mail: sferrell@pacifictrialattorneys.com WV AMERICAN: Efforts to Finalize Water Crisis Settlement Ongoing ---------------------------------------------------------------- Charleston Gazette Mail reports that attorneys for Kanawha Valley residents and businesses still are working with lawyers for West Virginia American Water Company and Eastman Chemical to finalize documents concerning the $151 million settlement of the class-action lawsuit over the January 2014 water crisis, according to the latest word from the federal judge presiding in the case. In a brief order filed on Jan. 6, U.S. District Judge John Copenhaver noted the "ongoing efforts to finalize details of the settlement agreement and commit the settlement protocol to writing for consideration by the court." The order was issued following the latest in a series of closed-door meeting between Judge Copenhaver and the lawyers in the case. The parties reached the settlement in late October, and provided the court with "term sheets" that summarized the related deals between residents and businesses affected by the water crisis and the defendants in the case, West Virginia American and Eastman Chemical. Because the settlement hasn't been finalized, the judge has kept a trial date for the case on his calendar, and the Jan. 6 order delayed that trial date again, from Jan. 10 until Feb. 7. The settlement is aimed at providing compensation to thousands of local residents and businesses who lost use of their drinking water for up to a week following the Jan. 9, 2014, chemical spill at Freedom Industries. Exact details of how the money will be distributed have not yet been announced, and those details are part of what will be included in the settlement documents yet to be submitted to Judge Copenhaver. Potential members of the class of residents and businesses will eventually have an opportunity to review the settlement, and to object to its terms or "opt out" of the deal. The settlement is not final until it is approved by Judge Copenhaver. XYTEX CORP: Judge Tosses Most Claims in Sperm Bank Donor Case ------------------------------------------------------------- Greg Land, writing for Daily Report, reports that a Fulton County judge who in 2015 tossed out a suit claiming a sperm bank had misled clients about the psychiatric, educational and criminal background of a sperm donor has dismissed the bulk of a similar suit filed in 2016, writing as he did before that the assertions of product liability, fraud, breach of warranty and other claims were all essentially claims for "wrongful birth" -- a tort not recognized under Georgia law. In a Dec. 15 order, Superior Court Judge Robert McBurney dismissed 10 of the 11 claims against Xytex Corp. over allegations that a donor touted as a Ph.D. in neuroscience with a 160 IQ was in fact a college dropout with a felony record and diagnosis of schizophrenia. The only surviving claim is a nondamages "specific performance" claim demanding that Xytex provide information about the donor -- information that Xytex has argued the plaintiffs allege they already have. The suit was one of at least a dozen Xytex is facing in the U.S. and Canada since the donor was identified as Chris Aggeles in 2014 and mothers of children he sired discovered the details of his background through online searches. None of the complaints in those cases indicate that, to date, any of the children have shown any signs of schizophrenia, but their attorneys have argued that such signs generally appear later in life. In addition to seeking relief for the emotional damages they have suffered after learning of Mr. Aggeles' background, parents have argued that they will be required to monitor their children for signs of mental abnormality and treat any such symptoms before they develop into schizophrenia. As he did in the earlier case, Judge McBurney seemed sympathetic to the claims of the two Jane Doe plaintiffs, writing that they "rightly highlight the public policy issues raised by this litigation case. Advancements in science have again -- as they always do -- outstripped advancements in the law." "An action for 'wrongful birth' arises when parents make a claim that, had they been fully informed of the fetus's condition, the birth would not have occurred," Judge McBurney wrote. While the plaintiffs "insist their suit is not for wrongful birth" but for the negligence and other claims, Judge McBurney wrote, "simply calling one tort by another name does not transform that tort into the other." On Dec. 28, Judge McBurney issued a certificate of immediate review, allowing the plaintiffs to seek an appeal at the Court of Appeals. FisherBroyles partner Ted Lavender -- ted.lavender@fisherbroyles.com -- who represents Xytex, declined to discuss the order in detail. "These are basically the same claims that were dismissed in the first case," said Mr. Lavender. "Judge McBurney has dismissed all the claims with money damages attached to them." A defense filing described the specific performance claim seeking information about Mr. Aggeles' background and medical history as an effort by the plaintiffs "to be told about purported information, even though the filing of the lawsuit proves they have already been made aware of the very information they claim to want to be told." The plaintiffs' local counsel, James McDonough III -- JMcdonough@hgdlawfirm.com -- and W. Lewis Garrison Jr. -- wlgarrison@hgdlawfirm.com -- of Henninger Garrison Davis, referred questions to San Francisco attorney Nancy Hersh, lead counsel in several of the Xytex cases, who did not immediately respond. The same lawyers represented the plaintiffs in the case Judge McBurney dismissed in 2015. The Court of Appeals declined to hear a challenge in that case because the notice of appeal was received too late. YAHOO! INC: Verizon Shareholders Raise Concern Over Data Breach --------------------------------------------------------------- Angelo Young, writing for Salon, reports that by the end of March, Yahoo is supposed to enter a new phase of its 23-year existence through its acquisition by wireless carrier Verizon. But last month's revelation that a billion Yahoo user accounts had their e- privacy compromised in what is being called the biggest-ever theft of personal data has raised questions about whether the $4.8 billion deal will actually go through. Even before Yahoo announced the security incident there were already reports Verizon was seeking a discount on the previously agreed-upon price after Yahoo disclosed in September a separate breach, news that raised concern among Verizon shareholders. So what now? "Verizon needs a major concession to placate its shareholders," John Colley, a professor of strategy and leadership at Warwick Business School in the U.K., told Salon by email. "However I suspect they are keen to persist with the original strategy despite much criticism from shareholders." If Verizon were to pull out of the deal, it's unclear who else would want Yahoo. Buyers, including private equity firms, generally avoid companies with potential legal liabilities, and Yahoo is facing the prospect of major class action lawsuits. Because of the sheer number of potential plaintiffs, the settlements could be huge. If the deal collapses, Mr. Colley says Yahoo would likely pivot to cost-cutting, much like Twitter, which announced layoffs and office closures in October, as the microblogging site struggles with anemic subscriber growth. Verizon didn't respond to Salon's request for comment about progress toward closing the deal, but Marni Walden, Verizon's executive vice president, was noncommittal during an event with investors on Jan. 5. "I can't sit here today and say with confidence one way or the other [whether the acquisition will go through] because we still don't know," she said, according to the Wall Street Journal. Tim Armstrong, head of Verizon subsidiary AOL, said on Jan. 5 on CNBC's "Squawk on the Street" he remains "hopeful" the deal will close. Verizon acquired AOL last year in a $4.4 billion deal. The carrier wants to buy Yahoo and then merge it with AOL (whose media assets include the Huffington Post, TechCrunch and Engadget) to create an enticing third option for digital advertisers, behind Google and Facebook. But that plan was potentially derailed after the security breaches were disclosed. Verizon executives reportedly feel that Yahoo's value has been diminished by the hacks, which could adversely impact future growth in user accounts. Yahoo said in December a massive data breach in 2013 exposed the private information of more than 1 billion user accounts, including names, dates of birth and passwords. The announcement came after Yahoo disclosed in September a separate breach of at least 500 million user accounts in 2014 by a "state sponsored actor." The breach announced in September was discovered during a broad security investigation that began a month earlier. The second breach was uncovered after Yahoo reviewed data files provided by law enforcement officials in November. Yahoo warned in its last quarterly report filed in November that Verizon "may seek to terminate . . . or renegotiate the terms" of the acquisition as a result of the security breach announced in September. "We are confident in Yahoo's value and we continue to work towards integration with Verizon," a Yahoo spokesperson told Salon by email, a stance the company has maintained since the second security breach was announced on Dec. 14. The breaches add to Yahoo CEO Marissa Mayer's woes. The former Google executive took command of Yahoo in 2012 with hopes she would revive the once dominant Internet search giant, which lost significant ground to Google over the years. But after four years at Yahoo's helm, Ms. Mayer has failed to improve the company's financial position and market share. S he's been lambasted for many of her decisions, including the $1 billion acquisition of blogging startup Tumblr, which after three years hasn't generated significant cash flow. It's unclear how much longer Mayer will remain at Yahoo's helm if the Verizon deal goes through -- or even if it doesn't. ZIMMER BIOMET: Khang & Khang Files Class Action Lawsuit ------------------------------------------------------- Khang & Khang LLP disclosed a class action lawsuit against Zimmer Biomet Holdings, Inc. Investors, who purchased or otherwise acquired shares between September 7, 2016 and October 31, 2016 inclusive (the "Class Period"), are encouraged to contact the Firm in advance of the January 31, 2017 lead plaintiff motion deadline. If you purchased shares of Zimmer during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. There has been no class certification in this case yet. Until certification occurs, you are not represented by an attorney. You may choose to take no action and remain a passive class member. The complaint states that during the Class Period, Zimmer made materially false and/or misleading statements, as well as failed to disclose material adverse facts about its business, operations, and prospects. The complaint alleges the following: that issues within the supply chain caused a decline in order fulfillment, particularly within the knee and hip portfolios; that, because of this, Zimmer would not realize its revenues and profit as expected and; that as a result of the above, the Company's statements regarding its business, operations, and prospects were false and misleading and/or lacked a reasonable basis. On October 31, 2016, the Company sent a press release reporting third quarter 2016 financial results. Zimmer reported net sales of $1.83 billion, and lowered guidance for the full year 2016 at $7.630 billion to $7.650 billion, a decline from the $7.68 billion to $7.715 billion estimated in July. Zimmer claims weak sales are due to a change in the supply chain, leading to a lack of available implants and instrument sets during the quarter. In a phone meeting with investors after the above release, the Company stated: "Third quarter revenue was below our expectations, primarily due to execution issues within our large joint supply chain, which led to a degradation in order fulfillment rates late in the quarter as well as our performance in dental . . . As a consequence, we underestimated demand for certain key cross-sell brands within our existing customer base, leading to a depletion of our safety stocks and also affecting our ability to capitalize on new customer opportunities." Shares of Zimmer fell $17.15 per share, or nearly 14%, to close on October 31, 2016 at $105.40 per share, causing investors harm. * DOL Initiative May Help Small Businesses Avert Legal Woes ----------------------------------------------------------- Jim Kendall, writing for Daily Herald, reports that remember the U.S. Department of Labor's initiative that would have changed overtime rules -- and costs -- in December if a federal judge in Texas had not halted implementation in late November? Although either a final court review or action from the Trump administration could kill the DOL initiative, attorney Jennifer Adams Murphy -- jemurphy@wesselssherman.com -- says the process so far may have saved small businesses from legal difficulties. "Many employers discovered they were not in compliance with existing (overtime) classification regulations when they sought counsel as to the DOL changes," Ms. Murphy emailed when I asked her about potential 2017 legal trouble spots. "Misclassification is a very costly mistake (with class action exposure) that can usually be avoided." Ms. Murphy is senior attorney and a shareholder at Wessel Sherman's St. Charles office. The classification issue -- new rules or old -- has to do with which employees are, or are not, eligible for overtime pay. Overtime isn't the only issue Ms. Murphy thinks could trip employers. Among the others: -- Sick leave. A new Illinois law effective January 1 requires that employers allow employees to use sick leave time not only for their own illnesses but also to care for their children, spouse, siblings, parents, in-laws, grandchildren, grandparents and stepparents. In addition, both Cook County and the city of Chicago passed ordinances, effective July 7, that require employees to be allowed to accrue paid sick leave beginning on the first day of employment at the rate of one hour for every 40 hours worked. There is an annual cap and some carry-over of unused hours. Don't ignore the sick leave accrual issue if your business is outside Cook or Chicago. "These laws may apply to employers located outside (Cook County or Chicago) with employees working in those areas for at least two hours in every two-week period, Murphy wrote. -- VESSA. The Victim's Economic Security and Safety Act requires that employers provide unpaid leave to employees who are victims of domestic or sexual abuse. Effective Jan. 1, even employers with only one employee are subject to VESSA. Businesses with up to 14 employees must allow employees covered by VESSA up to four weeks of unpaid leave to handle VESSA issues, Murphy emailed. Employers with 15-49 employees must allow eight weeks of leave; those with 50 or more employees must allow 12 weeks. -- Employee privacy. The Illinois legislature clarified employees' right to privacy pertaining to their personal online accounts. Among other points, Ms. Murphy noted, employers cannot require that an employee "access a personal online account in the presence of the employer" and cannot require an employee to join an online account established by the employer or require that an employee add the employer as a contact to the employee's online account or to a group affiliated with an employee's online account. With some restrictions, the changes do not limit an employer's right to monitor an employee's use of its email accounts and electronic devices. * Food Labeling-Related Class Actions Clogs Federal Courts ---------------------------------------------------------- Glenn G. Lammi of Washington Legal Foundation, in an article for Forbes, reports that in 2016, class-action lawsuits alleging that a processed food product or its labeling violated state consumer- protection laws continued to clog the federal courts, especially in California. The number of new food-related consumer class actions filed in 2016 nearly equaled the number filed in 2015, according to a report in Food Navigator USA. It's unclear whether these trends will hold in 2017, but there is one set of blatantly frivolous claims that should disappear this year: those that seek judicial regulation of products that contain partially hydrogenated oil (PHO), the main source of trans fat. A December 13, 2016 Southern District of California decision should frustrate such claims in the short term, and a forthcoming US Court of Appeals for the Ninth Circuit decision in a pending case may (and should) end them permanently. For the last several years, one law firm, The Weston Firm, has filed scores of class-action lawsuits on behalf of consumers aimed, as one judge put it, at "eradicat[ing] artificial trans-fat from foods." The lawsuits bear the hallmarks of lawyer-driven litigation, including cookie-cutter complaints and repeat plaintiffs. For instance, just two class representatives, Victor Guttmann and Shavonda Hawkins, have filed 8 trans-fat class actions. Their allegations that products with trace amounts of PHO are mislabeled "No Trans Fat" or "0 Grams Trans Fat" have failed because Food and Drug Administration (FDA) regulations expressly permit such claims. Courts have also consistently dismissed a second set of claims -- that food processors' use of PHO is unlawful under California's Unfair Competition Act (UCA) or breaches warranties. Standing squarely in the way of these "use" claims are a regulatory determination on PHO by FDA and a provision in the federal Consolidated Appropriations Act of 2016 clarifying the impact of that FDA action. On June 7, 2015, FDA determined that scientific evidence no longer supported a "Generally Recognized as Safe" (GRAS) designation for PHO and thus after June 18, 2018, food manufacturers would have to petition FDA for approval of PHO's use. The wording of FDA's declaration -- in particular its failure to emphasize that non- GRAS does not equal "unsafe" -- led WLF to warn in a June 18, 2015 post here on Forbes.com that the agency's action could inspire a PHO-litigation feeding frenzy. Many in Congress shared our concern. Hence, language was added to the 2016 appropriations bill, passed on December 18, 2015, saying that products sold prior to June 2018 are neither unsafe nor adulterated under federal law for containing PHO. Southern District of California Judge John Houston handed The Weston Firm its latest PHO "use"-claim defeat in one of Hawkins's suits, Hawkins v. Kellogg Company. Judge Houston's December 13, 2016 ruling echoed his November 8, 2016 order in another Hawkins/Weston Firm suit, Hawkins v. AdvancePierre Foods. Just as Judge Houston ruled in that case, he held that Hawkins could not allege that Kellogg's use of PHO is "unlawful" under UCA Sec 17200. He reasoned that FDA's final determination, bolstered by the appropriations bill language, means that PHO use is lawful until June 2018. As for Hawkins's other state-law claims, Judge Houston held that the remedy Hawkins seeks conflicts with federal law, and is thus preempted. Judge Houston pointedly stated that Hawkins's action to make PHO use under California law "'immediately unlawful' . . . is one of the frivolous lawsuits that Congress meant to preclude until 2018." Yet another Weston Firm/Hawkins case, Hawkins v. The Kroger Co., is currently on appeal to the Ninth Circuit. Hawkins claimed Kroger's mislabeling of breadcrumbs as containing "0g Trans Fat" and its unlawful use of PHO caused her physical and financial harm. Northern District of California Judge Jeffrey Miller held Hawkins could not establish standing to sue and dismissed the suit in March, 2016. Hawkins seeks reversal of the trial court's standing conclusion and reasserts her mislabeling and unlawful-use claims. In its November 16, 2016 answering brief, Kroger asks the Ninth Circuit to affirm Judge Miller, and in the process to rule that Hawkins's state-law claims are meritless. The Ninth Circuit takes an especially plodding approach to hearing arguments and issuing decisions. That has held true for class actions involving food ingredients and labeling, an area where the lower courts are in desperate need of appellate court guidance. Even worse, when the Ninth Circuit has gotten around to ruling on food cases, it has often released short "unpublished," i.e. non- precedential, decisions. Hawkins v. The Kroger Co. poses an issue of first impression for the Ninth Circuit, but certainly not one where the law is unclear or the outcome uncertain, especially with regard to the unlawful- use claim. The lower courts have unanimously held such claims lack merit. The Ninth Circuit can and should release a published decision that affirms Judge Miller's standing determination, and does so in such a way that clarifies federal preemption of PHO- related mislabeling and unlawful-use claims. A definitive, clear Ninth Circuit decision this year in Hawkins would remind the Food Court Bar that Congress and federal regulators are far better positioned to set rules for food products sold in a national marketplace than plaintiffs' lawyers, judges, or juries. * President-Elect Trump's Businesses May Become Legal Targets ------------------------------------------------------------- Chad Day and Bernard Condon, writing for The Associated Press, report that as a businessman, Donald Trump has kept the courts busy. That's hardly likely to change when he enters the Oval Office, creating an unusual and potentially serious problem for a sitting president. Only a handful of presidents have undergone legal depositions during their terms, and even fewer have become embroiled in private lawsuits. Trump is poised to join that small club. Just last week, the president-elect sat for a deposition in a lawsuit involving his Washington hotel, and he is still tied up in legal disputes that are to proceed after Inauguration Day. Trump is also under investigation by the New York attorney general over whether he used his charity for personal benefit. Those are only some of the pending matters. While Trump has said he will turn over management of his company to his adult sons, he has left open the possibility he will keep not only an ownership interest but the legal liability that accompanies it. He was expected to give more details about stepping away at a news conference on Wednesday, Jan. 11. The details are important because the closer Trump remains to his business while in office, the more he makes himself and the company targets for litigation. Those attacks could include lawsuits brought by deep-pocketed political opponents who could use the courts as one more battleground to fight his administration. "He is going to be not just a litigation magnet, but a litigation vortex that sucks in every political and personal adversary he has," said Norman Eisen, the Obama administration chief White House ethics counselor from 2009 through 2011. Mr. Eisen has encouraged Trump to sell his assets and put the cash in a blind trust to avoid conflicts of interest and legal pitfalls. Given the heated political climate, Mr. Eisen said Trump could end up on the other end of a strategy that one of his advisers, billionaire PayPal co-founder Peter Thiel, used in a civil privacy lawsuit against Gawker Media LLC: bankrolling someone else's lawsuit to further a personal or political agenda. Under constitutional immunity protections, Trump can't be sued over official acts in the Oval Office. But he could be named in lawsuits for personal actions or those involving his businesses. And the presidency may offer no protection from lawsuits that started before he took office. "Prior litigation related to his business will not be so easy to dismiss," said Jonathan Turley, a law professor at George Washington University. "Those types of cases are generally not covered by immunity rules." That raises the prospect of President Trump answering questions under oath in more depositions. Presidents and other high-ranking public officials aren't exempt from them, Mr. Turley said, as Bill Clinton discovered in the Paula Jones case that led to his 1998 impeachment by the House of Representatives. The danger for Trump is heightened given the sprawling nature of his business, the Trump Organization. The president-elect owns or controls some 500 companies involved in hotels, golf resorts, office buildings and condominium towers in several countries including Scotland, Ireland, Dubai and Indonesia. "We've had presidents before who were rich, but we're in some uncharted territory given Trump's wealth and his myriad of business interests," said Saikrishna Prakash, a professor at the University of Virginia School of Law who specializes in constitutional separation of powers. Mr. Prakash said Trump's businesses could also be tempting legal targets because potential plaintiffs may think he would be more likely to settle cases -- as he did with Trump University fraud lawsuits in the weeks after the election. Trump paid $25 million to settle three lawsuits alleging the real estate school misled students into paying as much as $35,000 a year for instruction of little value. Trump said he did nothing wrong and was only settling so he could focus on the presidency. The Trump Organization's general counsel, Alan Garten, rejects the idea that the company is now more willing to pay judgments to plaintiffs, noting that Trump sat for a deposition last week instead of settling. Mr. Garten said the Trump Organization faces dozens of lawsuits, but most are small -- personal injury lawsuits brought by visitors to Trump hotels and resorts, for example, or lawsuits brought by the company against guests who left without paying. He said no more than a dozen cases are significant. Mr. Garten also said he wasn't worried about future legal attacks funded by political opponents. "People will be wasting their time," he said. He added he will "zealously defend" the company. But that instinct to fight has sometimes led to Trump and his businesses dragging out cases. Trump has decided to pursue two lawsuits against chefs -- Jose Andres and Geoffrey Zakarian -- who pulled out of restaurant deals in his new Washington hotel after the candidate made disparaging comments during his campaign about Mexican immigrants in the U.S. illegally. The hotel may be facing additional legal entanglements. As The Washington Post recently reported, contractors have filed liens against the property in the past month, saying they are still owed money for their work. Mr. Garten said that contractors filing liens aren't unexpected given the hotel was such a big project, and that they aren't a big deal. Allegations of unpaid work are at the center of another pending dispute. In 2014, a Florida paint store filed a lien against Trump's Doral golf resort for $32,000 that it said it was owed for supplies during a renovation. Trump fought back and now, two years later, the store's fees for its lawyers have mounted and added to the bill. In October, a circuit court awarded more than $310,000 to the store, but the case is still pending on an appeal filed by Trump and likely to continue months longer, said store lawyer Daniel Vega of Taylor Espino Vega & Touron. Another tactic that may haunt Trump is his use of courts or private arbitration to attack the media, silence his critics and keep employees from talking. Throughout his campaign, Trump routinely threatened legal action against news outlets, including The Associated Press, for coverage he claimed was unfair. He sought $10 million in damages against a former adviser he accused of violating a non-disclosure agreement. The matter was settled after the adviser, Sam Nunberg, contested the proceeding in New York state court. Trump is also coming in with a state investigation into his charity hanging over his head. New York Attorney General Eric Schneiderman launched an investigation of The Donald J. Trump Foundation last year after news organizations revealed that Trump used the charity to settle lawsuits, make an illegal $25,000 political contribution to a group supporting Florida Attorney General Pam Bondi and purchase items such as a painting of himself that was displayed at one of his properties. In December, Trump said he would dissolve the charity to avoid conflicts of interest, but Mr. Schneiderman has said the charity cannot close while the investigation is going on. In an email to the AP, spokeswoman Amy Spitalnick said she couldn't say when the investigation will wrap up. Trump does not face the potential for criminal charges in that investigation, but he or the foundation could face fines and other civil penalties. Mr. Prakash said the litigation problem is so big that Congress should pass a law freezing any legal action against sitting presidents until after they leave office. Such a law, Mr. Prakash argued in a Los Angeles Times op-ed article, should also bar presidents from bringing personal or business lawsuits while in office. Obama ethics lawyer Mr. Eisen thinks the best solution is for Trump to divest his assets, as most recent presidents have done. The president-elect has given no indication he is considering such a move. "This is going to be a monumental distraction," Mr. Eisen said. Litigation facing the next president, he added, is likely to prove "embarrassing and damaging not just to Donald Trump but to the country." * Proskauer Rose's Oncidi Reviews California Employment Cases ------------------------------------------------------------- Anthony J Oncidi, Esq. -- aoncidi@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, reports that in Augustus v. ABM Sec. Servs., Inc., 2016 WL 7407328 (Cal. S. Ct. 2016), Jennifer Augustus filed this putative class action on behalf of all ABM security guards, alleging that ABM consistently failed to provide uninterrupted rest periods as required by state law. During discovery, ABM acknowledged that it required guards to keep their radios and pagers on, remain vigilant and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems and responding to emergency situations during their breaks. The trial court granted plaintiffs' motion for summary adjudication on their rest period claim on the ground that ABM's policy was to provide guards with rest periods subject to employer control and the obligation to perform certain work-related duties. The trial court subsequently awarded the class approximately $90 million in statutory damages, interest and penalties. The Court of Appeal reversed, but in this opinion, the California Supreme Court reversed the Court of Appeal and held, consistent with the trial court's judgment, that California law prohibits on-duty rest periods. "What [the law] require[s] instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties -- including the obligation that an employee remain on call." Security Guard Class Action Should Not Have Been Decertified Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926 (2016) Nivida Lubin, et al., filed this class action lawsuit against their employer for its alleged failure to provide Lubin and similarly situated employees (private security guards) with off- duty meal and rest breaks and for providing inadequate wage statements. The trial court initially certified a class of all non-exempt security officers employed by Wackenhut in California during the class period. Following the opinions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), the trial court granted Wackenhut's motion to decertify the class. The Court of Appeal reversed the decertification order, holding that "the only explanation articulated for providing an on-duty meal period was a staffing decision -- a client's preference for continuous coverage," which did not mean that individual issues predominated. The Court further held that the alleged invalidity of the on-duty meal agreements could be evaluated by statistical sampling or inspection of the agreements themselves and that the rest break and wage statement claims also were susceptible to class treatment. Discrimination Claims Against Media Company Are Not Barred By Anti-SLAPP Statute Wilson v. Cable News Network, Inc., 2016 WL 7217201 (Cal. Ct. App. 2016) Stanley Wilson alleged discrimination, retaliation, wrongful termination and defamation against CNN, et al., where he worked as a television producer before his employment was terminated following an audit of his work involving suspected plagiarism. Defendants answered the complaint and then filed a special motion to strike all causes of action pursuant to Cal. Code Civ. Proc. Sec. 425.16 (the "anti-SLAPP" statute) on the ground that all of their staffing decisions (including those involving Mr. Wilson) were acts in furtherance of CNN's right of free speech that were "necessarily 'in connection' with a matter of public interest -- news stories relating to current events and matters of interest to CNN's news consumers." The trial court granted CNN's anti-SLAPP motion and dismissed the lawsuit, but the Court of Appeal reversed, rejecting the characterization of defendants' allegedly discriminatory and retaliatory conduct as mere "staffing decisions" in furtherance of their free speech rights to determine who shapes the way they present news stories. See also Armin v. Riverside Community Hosp., 5 Cal. App. 5th 810 (2016) (physician's religious discrimination claims against hospital employer were not barred by the anti-SLAPP statute). Employee Could Proceed With Disability Discrimination And Wrongful Termination Claims Soria v. Univision Radio Los Angeles, Inc., 5 Cal. App. 5th 570 (2016) Sofia Soria worked as an on-air radio personality for Univision for approximately 14 years before her employment was terminated for alleged tardiness and lack of preparation for her show. In response to Ms. Soria's lawsuit for alleged disability discrimination, Univision argued it had no knowledge of Ms. Soria's alleged disability (a benign tumor) and that it had legitimate, nondiscriminatory reasons to terminate her employment. The trial court granted Univision's motion for summary judgment, but the Court of Appeal reversed, holding that the alleged discrimination was based on an ailment that limited a major life activity (work). The Court further held that despite the employer's assertion that it was not aware of Ms. Soria's alleged disability, Ms. Soria's testimony that she had orally notified her supervisor of her condition created a disputed issue of fact precluding summary adjudication. Similarly, the Court found triable issues of fact regarding Ms. Soria's claims that the employer violated the California Family Rights Act because Ms. Soria's statements concerning an alleged need to take time off from work for surgery were sufficient to trigger Univision's obligation to inquire further into the details of Ms. Soria's request. Employee Injured During "Mock Robbery" Was Not Limited To Workers' Compensation Remedy Lee v. West Kern Water Dist., 5 Cal. App. 5th 606 (2016) Kathy Lee, an employee of the water district, sued the district and four co-employees for assault and intentional infliction of emotional distress after the co-employees staged a "mock robbery" without Lee's knowledge and one of them (while wearing a mask) confronted her at the cashier's window with a note demanding money and saying he had a gun. The jury awarded Lee $360,000. The trial court granted the defendants' motion for a new trial, but the Court of Appeal reversed the order, holding that Lee was not limited to the exclusive remedy provided by workers' compensation because an exception exists when an employee's injury is caused by a "willful physical assault" as was the case here. See also Kesner v. Superior Court, 1 Cal. 5th 1132 (2016) (employers and premises owners have a duty to exercise ordinary care to prevent exposure by employee's household members to asbestos carried by the bodies and clothing of workers who are exposed to asbestos). On-Duty Meal Periods Were Permissible For Concrete Mixer Drivers Driscoll v. Graniterock Co., 2016 WL 6994923 (Cal. Ct. App. 2016) Brian Driscoll, et al., filed a putative class action against their employer, Graniterock, on behalf of 200 current and former concrete mixer drivers for its alleged failure to provide employees with off-duty meal periods and an additional hour of pay for meal periods during which the drivers opted to continue working. The class was certified, and the case was tried without a jury. The trial judge ruled in favor of Graniterock. The Court of Appeal affirmed the judgment, holding that there was "no evidence at trial that any mixer driver was ever denied an off- duty meal period . . . [and] the evidence showed that any concrete mixer driver who did not sign an On-Duty Meal Period Agreement, or revoked such agreement, was provided one hour of pay as required by law." The Court noted that Graniterock's policies regarding meal periods are particularly appropriate in the context of the ready mix concrete industry because mixer drivers manage a rolling drum of freshly batched concrete at various times throughout their work day. California Statute Targeting Three Specific Employers Opposed By A Union May Violate Equal Protection Fowler Packing Co. v. Lanier, 2016 WL 7321371 (9th Cir. 2016) In 2015, the California legislature passed Assembly Bill 1513 in response to two state appellate court decisions that exposed employers to significant and unexpected minimum wage liability for piece-rate workers. The statute created a "safe harbor" that gave employers an affirmative defense against the new claims so long as the employer made back payments under certain conditions. However, at the behest of the United Farm Workers of America union (the "UFW"), the legislature included specific "carve-outs" from the "safe harbor" for three or four specific employers who were involved in then-pending litigation against the UFW. Those employers (plaintiffs in this case) challenged the statute on the grounds that it violates the Bill of Attainder Clause and the Equal Protection Clause of the United States Constitution. The district court dismissed the employers' complaint, but the United States Court of Appeals for the Ninth Circuit reversed, holding that plaintiffs' claim under the Equal Protection Clause should not have been dismissed because "the only conceivable explanation for AB 1513's carve-outs is that they were necessary to procure the UFW's support in passing that legislation . . .[and] that justification would not survive even rational basis scrutiny." California Employment Law Notes: January 2017 Employee's FEHA Retaliation Claim Was Properly Dismissed Dinslage v. City & County of San Francisco, 5 Cal. App. 5th 368 (2016) David P. Dinslage is a former employee of the Recreation and Parks Department of the City and County of San Francisco. As a result of a large-scale restructuring of the Department, Dinslage's employment classification was eliminated and he was laid off. Mr. Dinslage alleged age discrimination and retaliation, among other things, under the California Fair Employment and Housing Act ("FEHA"). The trial court granted summary judgment in favor of the Department, and the Court of Appeal affirmed. Mr. Dinslage's retaliation claim was based on his belief that he suffered retaliation because of his opposition to Department actions that allegedly discriminated against disabled members of the general public. Therefore, the Court held that Mr. Dinslage had not engaged in any "protected activity" because his opposition was not directed at an unlawful employment practice. Employee's Wrongful Termination Claim Was Properly Dismissed, But Other Claims Survive Goonewardene v. ADP, LLC, 5 Cal. App. 5th 154 (2016) In her fifth amended complaint, Sharmalene Goonewardene alleged claims against her former employer (ADP) for wrongful termination, violation of the Labor Code, breach of contract, negligent misrepresentation and negligence. The trial court sustained ADP's demurrer to the complaint without further leave to amend, and the Court of Appeal affirmed in part and reversed in part, holding that only the wrongful termination and Labor Code claims were properly dismissed. The Court held that there were not sufficient facts alleged establishing an employment relationship between Ms. Goonewardene and ADP (the payroll company used by her employer, Altour International Inc.) and on that basis affirmed dismissal of the Labor Code and FLSA violation claims. Similarly, ADP was not liable as a matter of law for either discrimination or wrongful termination in violation of public policy because of the absence of an employment relationship. As for the breach of contract claim, the Court of Appeal held that Ms. Goonewardene and other Altour employees were third-party beneficiaries of an agreement between Altour and ADP. The Court also held that the negligent misrepresentation and professional negligence claims survived demurrer based on ADP's alleged failure to properly calculate wages owed to Ms. Goonewardene. Employee's Breach Of Contract Claim For Unpaid Stock Options Must Be Retried Ryan v. Crown Castle NG Networks, Inc., 2016 WL 7217274 (Cal. Ct. App. 2016) Patrick Ryan sued his former employer for breach of its alleged promise to grant him lucrative stock options as a condition of his employment. When Mr. Ryan tried to exercise the option to purchase 25,000 shares 11 months after his resignation, the company's general counsel responded that the attempted exercise was ineffective because he was required to exercise the options within 90 days of his separation from employment and because the options had not "performance-vested" at the time Mr. Ryan had left his employment with the company. Mr. Ryan sued for breach of contract and also asserted claims for fraud and negligent misrepresentation. Although the jury found in favor of Ryan on his breach of contract claims, it applied an incorrect measure of damages by, among other things, failing to value the options. The Court of Appeal held that the trial court erred by denying Mr. Ryan's motion for a new trial and ordered that Mr. Ryan be given an opportunity to choose between a new trial on all issues (not just damages) and reinstatement of the original judgment under review. "Going and Coming" Rule Barred Employer Liability For Accident Pierson v. Helmerich & Payne Int'l Drilling Co., 4 Cal. App. 5th 608 (2016) California Employment Law Notes: January 2017 Luis Mooney (an employee of Helmerich & Payne International Drilling ("H&P")) was involved in a traffic accident while returning home from work; Mr. Mooney was driving two other employees to a hotel where they were staying during the job. Brent Dale Pierson (the other driver) alleged that Mr. Mooney was acting in the course and scope of his employment with H&P at the time of the accident and sought to hold H&P liable for his injuries. The parties filed cross motions to establish whether Mr. Mooney was acting within the course and scope of his employment at the time of the accident. The trial court granted H&P's motion for summary judgment, concluding as a matter of law that the going and coming rule applied and, therefore, Mooney's operation of his vehicle at the time of the accident was not within the scope of his employment. The Court of Appeal affirmed, holding that the going and coming rule applied and that none of the exceptions (vehicle use, required vehicle, incidental benefit, special errand, etc.) applied. See also Khosh v. Staples Constr. Co., 4 Cal. App. 5th 712 (2016) (employee of an independent contractor could not recover tort damages for work-related injuries from the contractor's hirer). The Monetary Value Of Vacation Accrual Need Not Be Included In Wage Statement Soto v. Motel 6 Operating, L.P., 4 Cal. App. 5th 385 (2016) Lidia Soto sued her former employer, Motel 6 Operating, L.P., for violation of Labor Code Sec. 226(a) for failing to include the monetary value of accrued vacation pay in its employees' wage statements. Soto sued in her individual capacity and also on behalf of all aggrieved workers under the Private Attorney General Act of 2004 ("PAGA"). The trial court sustained the employer's demurrer without leave to amend, and the Court of Appeal affirmed, holding that Section 226(a) does not require employers to include the monetary value of accrued vacation time in employee wage statements until and unless a payment is due at the time of the termination of the employment relationship -- before that point, accrued but unused vacation time is not a quantifiable amount of wages. Lawyers In Putative Class Action Were Properly Disqualified Based Upon Representation Of Another Class Walker v. Apple, Inc., 4 Cal. App. 5th 1098 (2016) The trial court disqualified the attorneys for a putative class led by Stacey and Tyler Walker based upon the lawyers' concurrent representation of a certified class in another wage and hour class action (the Felczer class) pending against the same employer (Apple). In its disqualification motion, Apple asserted that in order to advance the interests of its clients in the Walker case, the lawyers would have to cross-examine one of their own clients from the Felczer class in an adverse manner. The Court of Appeal affirmed, holding that the trial court did not err in finding the firm represents the former store manager in the Felczer class action and that a disqualifying conflict exists between her interests and the Walkers' interests. $179,000 Penalty Upheld For Employer's Failure To Maintain Workers' Compensation Taylor v. Dep't of Industrial Relations, 4 Cal. App. 5th 801 (2016) Following an inspection, the Division of Labor Standards Enforcement ("DLSE") discovered that Aaron's Automotive ("Taylor") had been in operation since 2007 but had never acquired workers' compensation insurance coverage as required by Labor Code Sec. 3700. The DLSE issued a Penalty Assessment Order, assessing a penalty against Taylor in the amount of $179,329.60. The Court of Appeal rejected Taylor's construction of Labor Code Sec. 3722(b), involving the meaning of being uninsured during the calendar year preceding the determination and concluded that "even if Taylor's statutory interpretation is correct, the penalty assessed by the DLSE in this case would not be invalidated. Nor would the amount of the penalty imposed be any less." Union Member's Hostile Work Environment Claim Was Not Preempted By Federal Law Matson v. UPS, 840 F.3d 1126 (9th Cir. 2016) California Employment Law Notes: January 2017 Mary Matson, a member of the Teamsters Union, worked as a "combination worker" unloading and sorting packages at UPS's Boeing Field International hub in Seattle. During her employment, Ms. Matson allegedly complained that because of her gender she was subject to unfair and demeaning treatment in the workplace. UPS subsequently fired Ms. Matson for "proven dishonesty," relying upon results of an investigation into whether Ms. Matson had falsified delivery records. Ms. Matson filed a grievance, and a joint Teamsters/UPS labor panel affirmed her discharge. Ms. Matson then filed suit against UPS alleging that her termination was unlawfully motivated by race and gender discrimination and in retaliation for her prior complaints; that she was subjected to a gender-based hostile work environment -- a claim largely, but not exclusively, based on the way UPS assigned work; and that UPS had committed various common law torts. UPS removed the state court action to federal court and moved for summary judgment, which was granted on the merits, except with respect to Ms. Matson's gender discrimination, retaliation and gender-based hostile work- environment claim, which UPS asserted was preempted by Section 301 of the Labor Management Relations Act ("LMRA") on the grounds that the question of whether UPS assigned work based on factors other than gender required interpretation of the collective bargaining agreement (the "CBA"). The district court rejected UPS's LMRA preemption argument, and the case proceeded to trial. The jury sided with UPS on Ms. Matson's claims that her termination was motivated by gender and retaliation, but it awarded Ms. Matson $500,000 on the hostile work-environment claim. After UPS's post-trial motion, the district court ordered a new trial based on LMRA preemption of that part of the hostile environment claim related to the assignment of work -- i.e., accepting the argument that it had previously rejected. UPS won the second trial in which the jury considered whether there was proof of a hostile work environment based on conduct other than the assignment of work, and Ms. Matson appealed. In this opinion, the United States Court of Appeals for the Ninth Circuit reversed the judgment, holding that because Ms. Matson's hostile work- environment claim could be resolved without interpretation of the CBA, the LMRA did not preempt the claim. The Court of Appeals remanded for reconsideration of the amount of damages owed to Ms. Matson. See also Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644 (9th Cir. 2016) (amount in controversy requirement was satisfied where the potential cost of complying with injunctive relief was considered along with plaintiff's claim for damages). * Rule Changes Under Trump Expected to Hit Securities Litigation ---------------------------------------------------------------- Bradley W. Foster, writing for Texas Lawyer, reports that even prior to the presidential election, this had been an interesting and tumultuous year for securities litigators. The death of Justice Antonin Scalia in February 2016 left the U.S. Supreme Court with a 4-4 split and an uncertain future. In Delaware, there was a radical shift in merger litigation as the Chancery Court closed the door on nonmonetary disclosure-only settlements. The Securities and Exchange Commission brought a record number of enforcement proceedings and paid millions of dollars in whistleblower bounties, and the Department of Justice continued to target the individuals involved in corporate wrongdoing. The election of Donald J. Trump, however, overwhelms all other trends and developments. Trump's election was unanticipated by most experts, and it has created significant uncertainty. Almost daily, there are conflicting news reports concerning President- Elect Trump's presumed intentions and legislative priorities. Few things are certain, but we can reasonably expect a number of changes that will impact Wall Street, securities litigation, and regulatory enforcement: The Dodd-Frank Act. President-Elect Trump has vowed to dismantle the Dodd-Frank Act, which I described in 2010 as "the most sweeping financial legislation since the Great Depression." Dodd- Frank was enacted in response to the 2008 financial crisis, and its regulatory requirements have proven onerous and controversial, particularly for the banking industry. Steven Mnuchin, the proposed nominee for Treasury secretary, has stated that his "number one priority" is to "strip back" Dodd- Frank. The Trump administration's efforts to alter or repeal the Act are likely to find support from Congressional Republicans. Texas Congressman Jeb Hensarling, who has been linked to the new administration, sought to repeal the Act earlier this year, stating that it "has failed." Most Democrats would disagree with Congressman Hensarling's assessment, and they are likely to fight to preserve key aspects of the law. At this point, it is difficult to assess how much political capital the President-Elect is willing to expend in a battle over Dodd-Frank. At a minimum, we should expect rollbacks of restrictions on bank investment and lending activity, a slowdown in agency rule-making, and attempts to rein in or even eliminate the Consumer Financial Protection Bureau. The Supreme Court. Over the last decade, the Supreme Court has devoted considerable attention to securities cases. he Roberts Court has altered the landscape of federal securities jurisprudence in numerous respects: narrowing the jurisdictional reach of the securities laws, limiting claims against secondary actors, redefining pleading and class certification standards, and addressing questions of materiality, causation, and the statute of limitations. Justice Scalia authored many of the Court's important business law decisions, including securities cases such as Morrison v. National Australia Bank, which limited the extraterritorial reach of the Securities Exchange Act. More importantly, Scalia wrote the majority opinion in a number of sharply-divided business cases decided by a narrow 5-4 or 5-3 vote, including Wal-Mart Stores v. Dukes, which curtailed employment class actions, and AT&T Mobility LLC. v. Concepcion and American Express Co. v. Italian Colors Restaurant, both of which strictly enforced business arbitration agreements. In the aftermath of Justice Scalia's death, there is considerable uncertainty about the future direction of the Court, including its approach to business litigation. Most experts had anticipated a Democratic victory in the presidential election, and the assumption had been that the Court would move to the left. Trump's victory changes the calculus. Justice Scalia's replacement is likely to share many of his conservative viewpoints, and the Republicans will regain their 5-4 majority. The dramatic shift will come after the next vacancy. Who knows when that might occur -- Supreme Court justices are appointed for life, and there is a vacancy only when a justice retires or dies. But Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, and Stephen Breyer is 78. Sooner or later, there will be a second vacancy, and the real fight will begin. The Securities and Exchange Commission. On Nov. 14, 2016, Mary Jo White announced that she was stepping down as Chair of the SEC. White's tenure will be remembered for her aggressive "broken windows" enforcement style, her efforts to require companies to admit wrongdoing in connection with SEC settlements, and the rise of the SEC whistleblower program. Chair White also presided over extensive Dodd-Frank rule-making, which may or may not survive her tenure. White's departure is likely to bring significant changes to the SEC. Paul Atkins, a former Republican SEC commissioner and fierce Dodd-Frank critic, is reportedly leading Trump's transition team assessing the SEC and other financial regulators. If Mr. Atkins is appointed to replace White, we can expect a rollback of Dodd-Frank rule-making, even if the act itself survives. Mr. Atkins is an outspoken critic of corporate financial penalties, which he believes further punish the shareholders who have been victimized by corporate fraud. Mr. Atkins has expressed a preference for holding individual corporate actors accountable for their actions. In that regard, Mr. Atkins' prosecutorial preferences are consistent with those of the Obama Justice Department, which likewise has targeted individual wrongdoers engaged in corporate misconduct. In 2005, Mr. Atkins argued that if "someone in the company cooked the books," it is the individuals engaged in misconduct who should be held accountable. Ten year later, the Obama Justice Department announced new prosecution guidelines targeting individuals involved in corporate wrongdoing. Echoing Mr. Atkins' earlier argument, Deputy Attorney General Sally Yates stated that "as a matter of basic fairness, we cannot allow the flesh-and-blood people responsible for misconduct to walk away, while leaving only the company's employees and shareholders to pay the price." Perhaps there is common ground after all. Asbestos Litigation ASBESTOS UPDATE: DAP, Warren Pumps Lose Bid to Dismiss "Vesper" --------------------------------------------------------------- The case captioned GEORGE VESPER, Plaintiff, v. 3M COMPANY, et al., Defendants, Civil Action No. 1:15-cv-01322 (JBS/AMD)(D.N.J.), was filed by Plaintiff in New Jersey Superior Court against 31 named defendants, alleging that he was exposed to defendants' asbestos products at various worksites where the Plaintiff worked as machinist, pipe fitter, and electrician during the 1950s, 1960s, and 1970s. The case was subsequently removed to the District Court. Defendant Buffalo Pumps, Inc., argues that the Plaintiff has failed to offer any evidence that would tend to show that Plaintiff was exposed to asbestos as a result of any work with or around Buffalo equipment; Buffalo avers that there is no genuine issue of material fact as to whether Buffalo is responsible for Plaintiff's asbestos exposure and therefore for his subsequent injuries and that it is therefore entitled to summary judgment. The Plaintiff has not filed a response to Buffalo's motion. Judge Jerome B. Simandle of the United States District Court for the District of New Jersey finds that the Plaintiff has failed to offer evidence showing that there is a genuine issue of material fact as to whether exposure to any Buffalo equipment caused his alleged asbestosis, and Buffalo's motion for summary judgment will be granted. Defendant DAP, Inc., argues that the Plaintiff has not produced sufficient evidence to establish that he was exposed to asbestos as a result of working with a product manufactured by DAP. Judge Simandle finds that there is a genuine issue of material fact as to this Defendant, and DAP's motion for summary judgment will be denied. Defendant Sid Harvey Industries, Inc., argues that the Plaintiff has failed to proffer evidence sufficient to establish a genuine issue of material fact that he was exposed to asbestos due to any product or equipment manufactured, distributed, or sold by Sid Harvey. The Court finds that the Plaintiff has failed to offer evidence showing that there is a genuine issue of material fact as to whether any product made, supplied or distributed by this Defendant exposed Plaintiff to asbestos; Sid Harvey's motion for summary judgment will be granted. Defendant Warren Pumps argues that the Plaintiff has failed to present sufficient evidence to allow a reasonable finder of fact to conclude that the Plaintiff was exposed to asbestos attributable to Warren, or that such exposure was a proximate cause of his alleged injury. The Court finds that there is a genuine issue of material fact as to this Defendant, and Warren's motion for summary judgment will be denied. A full-text copy of the Opinion dated December 19, 2016, is available at https://is.gd/PpY0pZ from Leagle.com. GEORGE VESPER, Plaintiff, represented by MICHAEL S. NOONAN. GEORGE VESPER, Plaintiff, represented by WILLIAM L. KUZMIN, COHEN, PLACITELLA & ROTH, P.C.. BAYER CROPSCIENCE, INC., Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. CERTAINTEED CORPORATION, Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. COPES-VULCAN, INC., Defendant, represented by J. CHRISTOPHER HENSCHEL, CARROL MCNULTY & KULL. DAP, INC., Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. FOSTER WHEELER, LLC, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GENERAL ELECTRIC COMPANY, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP & DAVID SCHUYLER BLOW, SEDGWICK LLP. GEORGIA-PACIFIC, LLC, Defendant, represented by ALEXANDRA ELIZABETH OBER, LYNCH DASKAL EMERY LLP, SEBASTIAN A. GOLDSTEIN, MARKS, O'NEIL, O'BRIEN & COURTNEY & ALEXANDRA ELIZABETH OBER, LYNCH DASKAL EMERY LLP. GOULD PUMPS, INC., Defendant, represented by STEVEN FREDERIK SATZ, HOAGLAND LONGO MORAN DUNST & DOUKAS. HONEYWELL INTERNATIONAL INC., Defendant, represented by ETHAN D. STEIN, GIBBONS, PC. IMO INDUSTRIES INC., Defendant, represented by BENJAMIN BUCCA, JR. & JOSEPH IRA FONTAK, LEADER & BERKON LLP. UNION CARBIDE CORPORATION, Defendant, represented by ANTHONY JAMES CARUSO, CARUSO SMITH EDELL PICINI, RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. WARREN PUMPS, Defendant, represented by PAUL C. JOHNSON, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA. 3M COMPANY, Cross Claimant, represented by CATHERINE E. BRUNERMER, LAVIN O'NEIL CEDRONE & DISIPIO. CBS CORPORATION, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. COPES-VULCAN, INC., Cross Defendant, represented by J. CHRISTOPHER HENSCHEL, CARROL MCNULTY & KULL. CRANE PUMPS & SYSTEMS INC., Defendant, represented by LISA PASCARELLA, PASCARELLA DIVITA, PLLC & MICHAEL E. WALLER, K&L GATES LLP. DAP, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. FOSTER WHEELER, LLC, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GENERAL ELECTRIC COMPANY, Cross Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GEORGIA-PACIFIC, LLC, Cross Defendant, represented by ALEXANDRA ELIZABETH OBER, LYNCH DASKAL EMERY LLP & SEBASTIAN A. GOLDSTEIN, MARKS, O'NEIL, O'BRIEN & COURTNEY. GOULD PUMPS, INC., Cross Defendant, represented by STEVEN FREDERIK SATZ, HOAGLAND LONGO MORAN DUNST & DOUKAS. HONEYWELL INTERNATIONAL INC., Cross Defendant, represented by ETHAN D. STEIN, GIBBONS, PC. IMO INDUSTRIES INC., Defendant, represented by BENJAMIN BUCCA, JR.. SID HARVEY INDUSTRIES, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. UNION CARBIDE CORPORATION, Cross Defendant, represented by ANTHONY JAMES CARUSO, CARUSO SMITH EDELL PICINI. WEIL-MCLAIN COMPANY, Defendant, represented by JOEL R. CLARK, MCGIVNEY & KLUGER PC. IMO INDUSTRIES INC., Claimant, represented by BENJAMIN BUCCA, JR.. IMO INDUSTRIES INC., Cross Claimant, represented by JOSEPH IRA FONTAK, LEADER & BERKON LLP. 3M COMPANY, Cross Defendant, represented by CATHERINE E. BRUNERMER, LAVIN O'NEIL CEDRONE & DISIPIO. AMERICAN PREMIER UNDERWRITERS, INC., Defendant, represented by DINESH UTTAM DADLANI, SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD. & KEVIN WILLIAM TURBERT, SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD. BAYER CROPSCIENCE, INC., Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. BUFFALO PUMPS, INC., Defendant, represented by MICHAEL JOSEPH BLOCK, WILBRAHAM, LAWLER & BUBA. CBS CORPORATION, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. CERTAINTEED CORPORATION, Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. CONSOLIDATED RAIL CORPORATION, INC., Cross Defendant, represented by CONSOLIDATED RAIL CORPORATION, INC.. COPES-VULCAN, INC., Cross Defendant, represented by J. CHRISTOPHER HENSCHEL, CARROL MCNULTY & KULL. CRANE PUMPS & SYSTEMS INC., Defendant, represented by LISA PASCARELLA, PASCARELLA DIVITA, PLLC & MICHAEL E. WALLER, K&L GATES LLP. DAP, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. FOSTER WHEELER, LLC, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GENERAL ELECTRIC COMPANY, Cross Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GEORGIA-PACIFIC, LLC, Cross Defendant, represented by ALEXANDRA ELIZABETH OBER, LYNCH DASKAL EMERY LLP & SEBASTIAN A. GOLDSTEIN, MARKS, O'NEIL, O'BRIEN & COURTNEY. GOULD PUMPS, INC., Cross Defendant, represented by STEVEN FREDERIK SATZ, HOAGLAND LONGO MORAN DUNST & DOUKAS. HONEYWELL INTERNATIONAL INC., Cross Defendant, represented by ETHAN D. STEIN, GIBBONS, PC. INGERSOLL-RAND COMPANY, Defendant, represented by LISA PASCARELLA, PASCARELLA DIVITA, PLLC. SID HARVEY INDUSTRIES, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. UNION CARBIDE CORPORATION, Cross Defendant, represented by ANTHONY JAMES CARUSO, CARUSO SMITH EDELL PICINI, RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. GOULD PUMPS, INC., Cross Claimant, represented by STEVEN FREDERIK SATZ, HOAGLAND LONGO MORAN DUNST & DOUKAS. 3M COMPANY, Cross Defendant, represented by CATHERINE E. BRUNERMER, LAVIN O'NEIL CEDRONE & DISIPIO. ALCATEL-LUCENT USA, INC., Defendant, represented by GEORGE RUDOLPH TALARICO, LOCKE LORD LLP & AILEEN E. MCTIERNAN, Locke Lord LLP. AMERICAN PREMIER UNDERWRITERS, INC., Defendant, represented by DINESH UTTAM DADLANI, SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD. & KEVIN WILLIAM TURBERT, SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD. BAYER CROPSCIENCE, INC., Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. BUFFALO PUMPS, INC., Defendant, represented by MICHAEL JOSEPH BLOCK, WILBRAHAM, LAWLER & BUBA. CBS CORPORATION, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. CERTAINTEED CORPORATION, Defendant, represented by RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. CONSOLIDATED RAIL CORPORATION, INC., Cross Defendant, Pro Se. COPES-VULCAN, INC., Cross Defendant, represented by J. CHRISTOPHER HENSCHEL, CARROL MCNULTY & KULL. CRANE PUMPS & SYSTEMS INC., Defendant, represented by LISA PASCARELLA, PASCARELLA DIVITA, PLLC & MICHAEL E. WALLER, K&L GATES LLP. DAP, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. FOSTER WHEELER, LLC, Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GENERAL ELECTRIC COMPANY, Cross Defendant, represented by CHRISTOPHER J. KEALE, SEDGWICK LLP. GEORGIA-PACIFIC, LLC, Cross Defendant, represented by ALEXANDRA ELIZABETH OBER, LYNCH DASKAL EMERY LLP & SEBASTIAN A. GOLDSTEIN, MARKS, O'NEIL, O'BRIEN & COURTNEY. HONEYWELL INTERNATIONAL INC., Cross Defendant, represented by ETHAN D. STEIN, GIBBONS, PC. IMO INDUSTRIES INC., Defendant, represented by BENJAMIN BUCCA, JR. & JOSEPH IRA FONTAK, LEADER & BERKON LLP. MOTION CONTROL INDUSTRIES, Defendant, represented by RUSSELL A. PEPE, HARWOOD LLOYD. SID HARVEY INDUSTRIES, INC., Cross Defendant, represented by MARC J. WISEL, MCGIVNEY & KLUGER, P.C. & MATTHEW P. KESSLER, MCGIVNEY & KLUGER PC. UNION CARBIDE CORPORATION, Cross Defendant, represented by ANTHONY JAMES CARUSO, CARUSO SMITH EDELL PICINI, RICHARD DOMINICK PICINI, CARUSO SMITH EDELL PICINI, PC & NICHOLAS ALBANO, III, Caruso Pope Edell Picini, P.C.. WARREN PUMPS, Defendant, represented by PAUL C. JOHNSON, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA. ASBESTOS UPDATE: Bid to Remand "Abrogast" Denied ------------------------------------------------ Judge James K. Bredar of the of the United States District Court for the District of Maryland issued a memorandum and order dated January 4, 2017, a full-text copy of which available at https://is.gd/pPMx97 from Leagle.com, denying the motion to remand to state court the case captioned CHARLES LEMUEL ARBOGAST, JR., et al., Plaintiffs, v. A.W. CHESTERTON CO. et al., Defendants, Civil No. JKB-14-4049 (D. Md.), According to Judge Bredar, the Plaintiffs' remand motion was filed prior to the filing of third-party complaints by MCIC, Inc., and Georgia-Pacific, LLC. As now amended, those complaints invoke claims of contribution under the Federal Employers Liability Act, 45 U.S.C. Section 51 et seq., and the Locomotive Inspection Act, 49 U.S.C. Section 20701 et seq. Thus, despite the resolution of the claims upon which the case was removed -- i.e., claims against certain defendants who could rely upon the "federal officer defense" for federal jurisdiction, 28 U.S.C. Section 1442(a) -- the case still contains federal claims, and MCIC and Georgia- Pacific have chosen to assert those claims in this federal forum. Consequently, the Court's jurisdiction is not strictly "supplemental" under 28 U.S.C. Section 1367(a) as it would be over purely state claims remaining in the case. If it were so, then the Court could exercise its discretion to remand the case under Section 1367(c)(3). Since that is not the case, however, remand will be denied, Judge Bredar held. Barbara Arbogast, Plaintiff, represented by David M. Layton, Ashcraft and Gerel LLP. Barbara Arbogast, Plaintiff, represented by John Eugene Herrick, Motley Rice LLC & John E. Guerry, III, Motley Rice LLC. Barbara Arbogast as Personal Representative for the Estate of Charles L. Arbogast, Jr., Plaintiff, represented by David M. Layton, Ashcraft and Gerel LLP. Georgia-Pacific, LLC, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Goodrich Corporation, Movant, represented by John C. Ruff, DeHay and Elliston LLP. Georgia-Pacific, LLC, Cross Defendant, represented by Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. The Goodyear Tire & Rubber Company, Cross Claimant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Claimant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. MCIC, Inc., Cross Claimant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP, pro hac vice. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. Greene, Tweed & Co., Inc., Cross Defendant, represented by Thomas Peter Bernier, Goldberg Segalla. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond, Venable LLP & M. Elizabeth O. Neill, Hawkins Parnell Thackston and Young LLP. Georgia-Pacific, LLC, ThirdParty Plaintiff, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. CSX Transportation, Inc., ThirdParty Defendant, represented by Amy Estelle Askew, Kramon and Graham PA & Christopher C. Jeffries, Kramon & Graham, P.A.. MCIC, Inc., ThirdParty Plaintiff, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. CSX Transportation, Inc., ThirdParty Defendant, represented by Amy Estelle Askew, Kramon and Graham PA & Christopher C. Jeffries, Kramon & Graham, P.A.. Georgia-Pacific, LLC, ThirdParty Plaintiff, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage & James E. Hooper, Wheeler Trigg O'Donnell LLP. CSX Transportation, Inc., ThirdParty Defendant, represented by Amy Estelle Askew, Kramon and Graham PA & Christopher C. Jeffries, Kramon & Graham, P.A.. Georgia-Pacific, LLC, ThirdParty Plaintiff, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage & James E. Hooper, Wheeler Trigg O'Donnell LLP. CSX Transportation, Inc., ThirdParty Defendant, represented by Amy Estelle Askew, Kramon and Graham PA & Christopher C. Jeffries, Kramon & Graham, P.A.. ASBESTOS UPDATE: Widow Allowed To Correct Deficiencies in Suit -------------------------------------------------------------- Judge James K. Bredar of the United States District Court for the District of Maryland found, in ESTHER RHODES et al., Plaintiffs, v. MCIC, INC., et al., Defendants, Civil No. JKB-16-2459 (D. Md.), that the complaint filed by the Plaintiff is insufficient to state a claim for relief under Rule 8(a), as construed by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addition, the Plaintiffs have alleged no facts to satisfy the "frequency, regularity, proximity" test required under Maryland law to establish causation in asbestos claims, the judge finds. According to Judge Bredar, if the Plaintiffs are advancing causes of action based upon conspiracy and fraud, then their complaint also fails to state claims for relief under those theories. As to fraud, the Plaintiffs are required to plead that cause of action with particularity -- who, what, where, when, how, etc. -- pursuant to Rule 9(b). Accordingly, Judge Bredar ordered that the motions for judgment on the pleadings filed by Defendants Honeywell International, Incorporated, and Ingersoll Rand Company are granted. Judge Bredar, however, granted the Plaintiffs the opportunity to file an amended complaint that corrects the deficiencies. Any amended complaint must be filed on or before January 31, 2017. A full-text copy of the memorandum and order dated January 3, 2017, is available at https://is.gd/pf3iHu from Leagle.com. EstheRhodes, Plaintiff, represented by Michael Timothy Edmonds, Law Offices of Peter T. Nicholl. Esther Rhodes, Plaintiff, represented by Peter T. Nicholl, Law Office of Peter T. Nicholl & Teresa Epps Cummings, Law Offices of Peter T. Nicholl. Bette Rhodes Beachy, Plaintiff, represented by Michael Timothy Edmonds, Law Offices of Peter T. Nicholl, Peter T. Nicholl, Law Office of Peter T. Nicholl & Teresa Epps Cummings, Law Offices of Peter T. Nicholl. Cathy Joyce Varela, Plaintiff, represented by Michael Timothy Edmonds, Law Offices of Peter T. Nicholl, Peter T. Nicholl, Law Office of Peter T. Nicholl & Teresa Epps Cummings, Law Offices of Peter T. Nicholl. James Rhodes, Plaintiff, represented by Michael Timothy Edmonds, Law Offices of Peter T. Nicholl, Peter T. Nicholl, Law Office of Peter T. Nicholl & Teresa Epps Cummings, Law Offices of Peter T. Nicholl. Dale Rhodes, Plaintiff, represented by Michael Timothy Edmonds, Law Offices of Peter T. Nicholl, Peter T. Nicholl, Law Office of Peter T. Nicholl & Teresa Epps Cummings, Law Offices of Peter T. Nicholl. MCIC, Inc, Defendant, Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC & Thomas M. Hanna, McMahon Berger Hanna Linihan Cody McCarthy PC. Uniroyal, Inc., Defendant, Cross Defendant, Third Party Defendant, represented by John Stewart Cobb, North and Cobb PA. CBS Corporation of Delaware, Defendant, represented by Philip A. Kulinski, Evert Weathersby Houff & Clare Marie Maisano, Evert Weathersby Houff. General Refractories, Co., Defendant, represented by John Stewart Cobb, North and Cobb PA. E.L. Stebbings & Company, Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC & Thomas M. Hanna, McMahon Berger Hanna Linihan Cody McCarthy PC. Hampshire Industries, Inc., Defendant, represented by David W. Allen, Goodell DeVries Leech and Dann LLP, Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP. Georgia Pacific Corporation, Defendant, represented by Douglas B. Pfeiffer, Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC & Leianne S. McEvoy, Miles and Stockbridge PC. Foster Wheeler Corporation, Defendant, represented by Patrick C. Smith, Dehay and Elliston LLP, R. Thomas Radcliffe, Jr., Dehay and Elliston LLP & Steven J. Parrott, Dehay and Elliston LLP. Union Carbide Corporation, Defendant, represented by Thurman W. Zollicoffer, Jr., Whiteford Taylor and Preston LLP. Bayer Cropscience, Inc., Defendant, represented by Thurman W. Zollicoffer, Jr., Whiteford Taylor and Preston LLP. A.W. Chesterton Co., Defendant, represented by Thomas Peter Bernier, Goldberg Segalla & Scott J. McDowell, Goldberg Segalla LLP. Ingersoll-Rand Co., Inc., Defendant, represented by Joshua Franklin Kahn, Miles and Stockbridge PC, Michael Alan Brown, Miles and Stockbridge PC & Michael L. Haslup, Miles and Stockbridge PC. Warren Pumps, Inc., Defendant, represented by Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP. Honeywell International Inc., Defendant, represented by Matthew Thomas Wagman, Miles and Stockbridge PC, Alicia N. Ritchie, Miles and Stockbridge PC & Jonathan James Huber, Miles & Stockbridge P.C.. Schneider Electric USA, Inc., Defendant, represented by Neil Joseph MacDonald, MacDonald Law Group, LLC & Dawn Danielle Gile, MacDonald Law Group LLC. Cutler-Hammer, Inc., Defendant, represented by Warren N. Weaver, Whiteford Taylor and Preston LLP & Michelle Noorani, Whiteford Taylor and Preston LLP. General Electric Company, Defendant, represented by David J. Quigg, Meringer Zois and Quigg LLC & Donald S. Meringer, Meringer Zois and Quigg LLC. Pneumo Abex LLC., Defendant, represented by Patrick C. Smith, Dehay and Elliston LLP & R. Thomas Radcliffe, Jr., Dehay and Elliston LLP. The A. O. Smith Corporation, Defendant, represented by Thomas L. Doran, DeCaro Doran Siciliano Gallagher and DeBlasis LLP. GTE Products of Connecticut Corporation, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC. Wallace & Gale Asbestos Settlement Trust, Defendant, represented by Scott Mason Richmond, Venable LLP & Theodore F. Roberts, Venable LLP. Lloyd E. Mitchell, Inc., Defendant, represented by Helyna M. Haussler, Wilson Elser Moskowitz Edelman and Dicker LLP & Jason Richard Waters, Wilson Elser Moskowitz Edelman and Dicker. Crown, Cork and Seal, Co. Inc., Defendant, represented by Scott Mason Richmond, Venable LLP & Theodore F. Roberts, Venable LLP. Arvinmeritor, Inc., Defendant, represented by Thomas Peter Bernier, Goldberg Segalla & Scott J. McDowell, Goldberg Segalla LLP. Dana Corporation, Defendant, represented by Steven J. Parrott, Dehay and Elliston LLP. Crane Co., Defendant, represented by Neil Joseph MacDonald, MacDonald Law Group, LLC & Dawn Danielle Gile, MacDonald Law Group LLC. Foster Wheeler, LLC., Defendant, represented by Patrick C. Smith, Dehay and Elliston LLP. Warren Pumps, LLC, Defendant, represented by Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP. ASBESTOS UPDATE: Honeywell Dismissed as Defendant in "Sumner" ------------------------------------------------------------- Judge Richard F. Boulware, II, of the United States District Court for the District of Nevada approved the stipulation dismissing, without prejudice, the action styled GERALD SUMNER and SARAH SUMNER, his wife, Plaintiffs, v. BORGWARNER MORSE TEC, INC., as successor-by-merger to BORG-WARNER CORPORATION, CBS CORPORATION, a Delaware Corporation f/k/a VIACOM, INC., successor by merger to CBS CORP., a Pennsylvania Corp., f/k/a WESTINGHOUSE ELECTRIC CORP., CERTAINTEED CORPORATION, a Pennsylvania Corp, CRANE CO., a Connecticut Corp., CRANE CO., Individually and for its subsidiary, DIXIE-NARCO, INC., a Connecticut Corp., DAP, INC., a Maryland Corp., ELECTROLUX HOME PRODUCTS, INC., a Georgia Corp., ENVIRONMENTAL ASBESTOS & LEAD KLEAN-UP, a Nevada Corp., GENERAL ELECTRIC COMPANY, a Connecticut Corp., GEORGIA-PACIFIC CORPORATION, a Georgia Corp., GENUINE PARTS COMPANY OF NEVADA, a Nevada Corp.; HONEYWELL INTERNATIONAL, INC., a New Jersey Corp., METROPOLITAN LIFE INSURANCE COMPANY, a New York Corp., PNEUMO ABEX, LLC, a New Jersey Corp., SEARS, ROEBUCK & CO., a Illinois Corp., TRANE US, INC., f/k/a AMERICAN STANDARD, INC., a North Carolina Corp., UNION CARBIDE CORPORATION, a Texas Corp., WHIRLPOOL CORPORATION, Individually and as successor-in-interest to ADMIRAL, a Michigan Corp., WHIRLPOOL CORPORATION, Individually and as successor-in-interest to JENN-AIR, a Michigan Corp., WHIRLPOOL CORPORATION, Individually and as successor-in-interest to KITCHENAID, a Michigan Corp., WHIRLPOOL CORPORATION, Individually and as successor-in-interest to MAYTAG CORPORATION, a Michigan Corp., DOES 1 through XX, ROE CORPORATIONS XXI through XL, Defendants, Case No. 2:16-cv-00415-RFB-VCF (D. Nev.), against Honeywell International, Inc., without prejudice. A full-text copy of the Order dated December 5, 2016, is available at https://is.gd/saYjuE from Leagle.com. Gerald Sumner, Plaintiff, represented by Cliff W. Marcek, Cliff W. Marcek, P.C.. Gerald Sumner, Plaintiff, represented by Jordan C. Roberts, Sharder & Associates, pro hac vice. Sarah Sumner, Plaintiff, represented by Cliff W. Marcek, Cliff W. Marcek, P.C. & Jordan C. Roberts, Sharder & Associates, pro hac vice. Genuine Parts Company of Nevada, Defendant, represented by Matthew Q. Callister, Callister & Associates & Mitchell S. Bisson, Callister & Associates. Metropolitan Life Insurance Company, Defendant, represented by Jacqueline N. Walton, Reisman Sorokac & Joshua H. Reisman, Reisman Sorokac. Trane US, Inc., Defendant, represented by Robert R. McCoy, Kaempfer Crowell. Whirlpool Corporation, Defendant, represented by Curtis Busby, Bowman and Brooke & Greg W. Marsh, Law Offices of Greg W. Marsh. ASBESTOS UPDATE: Plaintiff Ordered to Take Action vs. 2 Companies ----------------------------------------------------------------- In JACK JUNIOR WAUGH, Plaintiff, v. ADVANCE AUTO PARTS, INC., et al., Defendants, Civil Case No. 1:16-cv-00310-MR-DLH (W.D.N.C.), Judge Martin Reidinger of the United States District Court for the Western District of North Carolina, Asheville Division, gave the Plaintiff until January 13, 2017, to file an appropriate motion or otherwise take further action with respect to the Defendants LG Electronics U.S.A., Inc. and RT Vanderbilt Holding Company, Inc., sued individually and as successor in interest to R.T. Vanderbilt Company, Inc. The Plaintiff is advised that failure to take further action within the time required will result in the dismissal of these Defendants. A full-text copy of the Order dated December 30, 2016, is available at https://is.gd/qBPEoj from Leagle.com. Jack Junior Waugh, Plaintiff, represented by Sabrina G. Stone, Dean Omar Branham, LLP, pro hac vice. Jack Junior Waugh, Plaintiff, represented by William M. Graham, Wallace & Graham. Advance Auto Parts, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Air & Liquid Systems Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Autozone, Inc., Defendant, represented by Timothy Peck, Smith Moore Leatherwood LLP. Bechtel Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Blackmer Pump Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Borg-Warner Morse TEC, Inc., Defendant, represented by David L. Levy, Hedrick Gardner Kincheloe & Garofalo LLP. BW/IP, Inc., Defendant, represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A.. CBS Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. CertainTeed Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Covil Corporation, Defendant, represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A.. Crane Co., Defendant, represented by Marla Tun Reschly&L Gates LLP & Rebecca L. Gauthier&L Gates. Dana Companies LLC, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Daniel International Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A.. Daniel International Corporation, Defendant, represented by Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice & Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Daniel International Corporation, Defendant, represented by W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Deere & Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Fluor Constructors International, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Constructors International, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Daniel Services Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Enterprises, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Ford Motor Company, Defendant, represented by Christopher Ray Kiger, Smith Anderson & Kirk Gibson Warner, Smith Anderson. General Electric Company, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Genuine Parts Company, Defendant, represented by Matthew Patrick McGuire, Alston & Bird LLP & Heather B. Adams, Alston & Bird LLP. Georgia-Pacific LLC, Defendant, represented by Kenneth Kyre, Jr., Pinto Coates Kyre & Bowers, PLLC. Goulds Pumps, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Grinnell, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Honeywell International, Inc., Defendant, represented by H. Lee Davis, Jr., Davis & Hamrick, L.L.P.. Metropolitan Life Insurance Company, Defendant, represented by Keith E. Coltrain, Wall, Templeton & Haldrup, PA. O'Reilly Automotive Stores, Inc., Defendant, represented by Eric T. Hawkins, Hawkins, Parnell, Thackston & Young. Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Pneumo Abex, LLC, Defendant, represented by Timothy W. Bouch, Leath Bouch Crawford & von Keller. Sequoia Ventures, Inc., Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Union Carbide Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Uniroyal, Inc., Defendant, represented by Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A.. Vanderbilt Minerals, LLC, Defendant, represented by Hatcher B. Kincheloe, Jr., Hedrick, Eatman, Gardner & Kincheloe & Gerald Anderson Stein, II. Viad Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett, Bennett & Guthrie, P.L.L.C.. Whirlpool Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. William Powell Company, Defendant, represented by David B. Oakley, Poole Brooke Plumlee PC. Yuba Heat Transfer, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. ASBESTOS UPDATE: GMS Inc. Faces 65 PI Injury Suits at Oct. 31 ------------------------------------------------------------- GMS Inc. faces 65 asbestos-related personal injury lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended October 31, 2016. The Company states: "The building materials industry has been subject to personal injury and property damage claims arising from alleged exposure to raw materials contained in building products as well as claims for incidents of catastrophic loss, such as building fires. As a distributor of building materials, we face an inherent risk of exposure to product liability claims in the event that the use of the products we have distributed in the past or may in the future distribute is alleged to have resulted in economic loss, personal injury or property damage or violated environmental, health or safety or other laws. Such product liability claims have included and may in the future include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability or a breach of warranties. In particular, certain of our subsidiaries have been the subject of claims related to alleged exposure to asbestos-containing products they distributed prior to 1979. Since 2002 and as of October 31, 2016, approximately 970 asbestos-related personal injury lawsuits have been brought and we vigorously defend against them. Of these, 873 have been dismissed without any payment by us, 27 are on deferred or inactive court dockets, 65 are pending and only 5 have been settled, which settlements have not materially impacted our financial condition or operating results." GMS, Inc. distributes wallboards, suspended ceilings systems, and complementary interior construction products in North America. ASBESTOS UPDATE: Joy Global Faces 3,652 Asbestos, Silica Cases -------------------------------------------------------------- Joy Global Inc. faces 3,652 asbestos and silica related cases, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 28, 2016. The Company states: "We and our subsidiaries are involved in various unresolved legal matters that arise in the normal course of operations, the most prevalent of which relate to product liability (including 3,652 asbestos and silica related cases), employment and commercial matters. We and our subsidiaries also become involved from time to time in proceedings relating to environmental matters and litigation arising outside the ordinary course of business." Joy Global Inc. -- http://www.joyglobal.com/-- is a manufacturer or underground mining equipment. ASBESTOS UPDATE: Deere & Co. Still Faces Asbestos Cases at Oct31 ---------------------------------------------------------------- Deere & Company and its subsidiaries (collectively, John Deere) continues to face asbestos-related liability, according to Deere & Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2016. John Deere is subject to various unresolved legal actions which arise in the normal course of its business, the most prevalent of which relate to product liability (including asbestos-related liability), retail credit, employment, patent, and trademark matters. John Deere believes the reasonably possible range of losses for these unresolved legal actions in addition to the amounts accrued would not have a material effect on its financial statements. Deere & Company -- https://www.deere.com/ -- manufactures and distributes a complete line of equipment used in agriculture, construction, forestry, and turf care. ASBESTOS UPDATE: Navistar Still Faces Asbestos Claims at Oct. 31 ---------------------------------------------------------------- Navistar International Corporation is subject to claims related to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, according to Duke Energy Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2016. The Company states: "We are subject to claims related to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, although some claims relate to the alleged presence of asbestos in our facilities. Numerous factors including tort reform, jury awards, and the number of other solvent companies identified as co-defendants will impact the number of claims filed against us. "We estimate the expected ultimate losses for claims and, consequently, the related reserve in our Consolidated Balance Sheets. The estimates related to asbestos claims are subject to uncertainty. Such uncertainty includes some reliance on industry data to project the future frequency of claims received by us, the long latency period associated with asbestos exposures and the types of diseases that will ultimately manifest, and unexpected future inflationary trends. Historically, actual damages paid out to individual claimants have not been material. Although we believe that our estimates and judgments related to asbestos related claims are reasonable, actual results could differ and we may be exposed to increases or decreases in our accrual that could be material. Asset Retirement Obligations "We have a number of asset retirement obligations in connection with certain owned and leased locations, leasehold improvements, and sale and leaseback arrangements. Certain of our production facilities contain asbestos that would have to be removed if such facilities were to be demolished or undergo a major renovation. The fair value of the conditional asset retirement obligations as of the balance sheet date has been determined to be immaterial. Asset retirement obligations relating to the cost of removing improvements to leased facilities or returning leased equipment at the end of the associated agreements are not material." Navistar International Corporation -- http://www.navistar.com/-- is a holding company whose subsidiaries and affiliates produce Internationalbrand commercial and military trucks, and IC Bus(TM) brand school and commercial buses. ASBESTOS UPDATE: Toro Co. Still Faces Asbestos Claims at Oct. 31 ----------------------------------------------------------------- The Toro Company continues to face litigation, administrative, and judicial proceedings with respect to claims involving asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2016. The Company states: "We are a party to litigation in the ordinary course of business. Litigation occasionally involves claims for punitive, as well as compensatory, damages arising out of the use of our products. Although we are self-insured to some extent, we maintain insurance against certain product liability losses. We are also subject to litigation, administrative, and judicial proceedings with respect to claims involving asbestos and the discharge of hazardous substances into the environment. Some of these claims assert damages and liability for personal injury, remedial investigations or clean-up, and other costs and damages. We are also typically involved in commercial disputes, employment disputes, and patent litigation cases in the ordinary course of business. To prevent possible infringement of our patents by others, we periodically review competitors' products. To avoid potential liability with respect to others' patents, we regularly review certain patents issued by the USPTO and foreign patent offices. We believe these activities help us minimize our risk of being a defendant in patent infringement litigation. We are currently involved in patent litigation cases, including cases by or against competitors, where we are asserting and defending against claims of patent infringement. Such cases are at varying stages in the litigation process." The Toro Company -- http://www.thetorocompany.com/-- is a manufacturer of lawn care products including mowers and irrigation systems. ASBESTOS ALERT: Vistra Energy Has 30,900 Claims at Dec. 22 ---------------------------------------------------------- Vistra Energy Corp., formerly TCEH Corp., faces approximately 30,900 asbestos claims since it petitioned for bankruptcy protection, according to the Company's Form S-1 filing with the U.S. Securities and Exchange Commission dated December 22, 2016. The Company states: "Holders of the substantial majority of pre- petition claims against the Debtors were required to file proofs of claims by the bar date established by the Bankruptcy Court. A bar date is the date by which certain claims against the Debtors must be filed if the claimants wish to receive any distribution in the Chapter 11 Cases. The Bankruptcy Court established a bar date of October 27, 2014 for the substantial majority of claims. In addition, in July 2015, the Bankruptcy Court entered an order establishing December 14, 2015 as the bar date for certain asbestos claims that arose or are deemed to have arisen before the Petition Date, except for certain specifically exempt claims. "Since the Petition Date and prior to the applicable bar dates (which have expired), the Debtors have received approximately 41,300 filed pre-petition claims, including approximately 30,900 in filed asbestos claims. The Debtors have substantially completed the process of reconciling all non-asbestos claims that were filed and have recorded such claims at the expected allowed amount. With respect to the claims related to the TCEH Debtors, as of November 14, 2016, most of those claims have been settled, withdrawn or expunged. The TCEH Debtors have approximately $40 million in escrow to allocate among and resolve the remaining claims, which consist primarily of trade payables and legal claims, including asbestos claims. The TCEH Debtors have up to 180 days from the Effective Date to resolve these claims. In September 2016, the TCEH Debtors filed with the Bankruptcy Court reports developed by independent experts that provide analysis and estimation of potential liabilities associated with asbestos-related claims. In connection with developing those reports, we recorded an adjustment to our estimated liability associated with those claims during the three months ended September 30, 2016. That estimated liability is subject to revisions, which may be material, as further information arises. Certain claims filed or reflected in the Debtors schedules of assets and liabilities were resolved on the Effective Dates of the Plan of Reorganization, including certain claims filed by holders of funded debt and contract counterparties. Claims that remain unresolved or unreconciled through the filing of this report have been estimated based upon management's best estimate of the likely claim amounts that the Bankruptcy Court will ultimately allow. "On the Effective Date, the TCEH Debtors (together with the Contributed EFH Corp. Debtors) emerged from the Chapter 11 Cases and discharged approximately $33.7 billion in liabilities subject to compromise (LSTC). Distributions for the settled claims related to the funded debt of the TCEH Debtors commenced subsequent to the Effective Date." Vistra Energy Corp. -- https://www.vistraenergy.com/ -- is a Texas-based energy company focused on the competitive energy and power generation markets. ASBESTOS UPDATE: Asbestos Found at Children's Hospital in Crumlin ----------------------------------------------------------------- Darragh McDonagh, writing for Dublin Live, reported that the cancer-causing building material asbestos has been discovered in three locations at Our Lady's Children's Hospital in Crumlin since 2012, according to records released under the Freedom of Information Act. The hazardous finds forced the children's hospital to spend almost EUR30,000 on the treatment or removal of the material by environmental waste management companies during a three-year period. Asbestos was used in the past for insulation or as a component in other building materials. Inhalation of the substance can cause a number of diseases, including cancer of the chest and lungs. Tesco employee Aoife Parle launches single in aid of Temple Street Children's Hospital Quantities of the material were discovered at two locations in the main hospital in December 2012 and May 2015, as well as in a laboratory on the hospital campus in November 2015. The issue of asbestos at the hospital, which is up to 60 years old in parts, was publicly raised by Dublin City Councillor and former board member, Ruair¡ McGinley in 2014. Speaking about the future of the Crumlin campus in the context of the hospital's planned amalgamation into the National Children's Hospital, Mr McGinley said that any changes to the site would involve "rectification costs" including those arising from issues with asbestos. Records released under the Freedom of Information Act show that a total of EUR28,324 was paid to environmental waste companies for the treatment or removal of asbestos by the hospital since December 2012. Brave tot who went through open heart surgery gets to spend first Christmas at home The majority of that money related to the discovery of asbestos at a location in the main hospital in 2012, which resulted in EUR20,549 being paid to IES Limited. The same company was paid a further EUR6,135 in respect of a second discovery of asbestos in the main hospital in May 2015. Cullen Environmental received payment of EUR1,640 from the hospital in November 2015 following another asbestos find in a lab elsewhere on the campus. There is no waste-disposal facility for asbestos in Ireland and the material must be shipped abroad -- often to Germany -- at a cost of between EUR400 and EUR500 a tonne. The Health and Safety Authority (HSA) has said the number of asbestos finds has increased by up to 80% in recent years as more building renovations are undertaken following the economic recovery. Accordingly, the National Cancer Registry recorded 20 cases of pleural mesothelioma (a lung cancer caused almost exclusively by inhalation of asbestos) in 2005; and 34 cases in 2014. The registry expects it to increase to 68 cases per year by 2020 as construction workers exposed to asbestos up to the 1980s, when use of the material ceased, begin to show symptoms. Neither Our Lady's Children's Hospital nor a public relations firm acting on the hospital's behalf provided a statement in relation to the asbestos discoveries prior to publication. ASBESTOS UPDATE: No Asbestos Found in South Australia Ash Cloud --------------------------------------------------------------- The Australian Associated Press reported that the ash blowing over Port Augusta from a closed power station does not contain asbestos, South Australia's environmental watchdog says. The Environmental Protection Authority SA analysed the fly ash over the weekend after a former power station worker raised concerns about it containing the harmful substance. EPA chief executive Tony Circelli announced the results of testing on several samples recently taken from the ash dam, saying no traces of asbestos were found. "We concluded that there are no asbestos fibres seen," Mr Circelli told reporters, adding that the full results of the testing would be released on Tuesday. The ash is a by-product of the coal-fired Northern Power Station, which was closed by Flinders Power last May, and it has recently been whipped up from a dam at the site and into the air. Meanwhile, the state government announced it will provide free health checks to Port Augusta locals who are worried about the ill effects of breathing the ash dust. Manufacturing Minister Kyam Maher said the government would foot the bill for the checks for now but he had asked Flinders Power for reimbursement since the company was responsible for managing the dust. "It's not good enough that these dust clouds are eventuating in Port Augusta and we understand that people are concerned about health issues with dust," he said in Adelaide. The minister said Port Augusta residents would able to arrange an appointment with a health professional using a hotline or see their own general practitioner for free. He said while there's no evidence the dust contains toxic or harmful materials, breathing any sort of dust could be problematic for people with asthma or respiratory problems. Opposition health spokesman Stephen Wade said local doctors were already under the pump and would not be able to cope with the influx of free checks. "People are experiencing adverse health effects now. They can't wait until the end of February or March to get an appointment with their GPs," he said. Mr Wade called for the government to establish clinics in the area with public health physicians to administer the checks. ASBESTOS UPDATE: Essex Companies Fined for Exposing Workers ----------------------------------------------------------- Two Essex-based companies have been fined after exposing workers to potentially deadly asbestos over a period of years, despite being alerted to the risks at their premises. Basildon Crown Court heard that asbestos was found in poor condition when Connect Packaging Ltd moved into industrial units in Manor Road Trading Estate, Benfleet in 2007, but that it failed to act to control risk. As a result, its employees were exposed to risk from airborne asbestos fibres. When Connect Packaging Ltd moved out of the units in January 2009, it sublet them to Creo Retail Marketing Ltd, another company within its group, but continued to exercise some control over maintenance and repair work at the premises. In 2014, Creo Retail Marketing Ltd undertook its own asbestos survey following the appointment of a new health and safety officer. This confirmed continuing risk of exposure to airborne asbestos fibres from sources including poorly-enscapsulated blue asbestos (crocidolite). Despite this, workers remained exposed to these risks while the companies debated their responsibility for its removal and failed to act effectively to prevent exposure. Health and Safety Executive (HSE) launched an investigation and its scientists found asbestos fibres at locations including the workers' clocking-in point, on rafters above work areas, and within a stationery cupboard. When asbestos fibres become airborne, they can be inhaled, and these tiny fibres are known to cause respiratory diseases and cancers which can be fatal. The court heard that workers at both companies were exposed to risk over an extended period of time. Connect Packaging Ltd, registered at 91 Soho Hill, Birmingham was fined œ65,000 and ordered to pay œ8,150.23 in costs after pleading guilty to a breach of Section 4 of the Health and Safety at Work etc Act 1974. Creo Retail Marketing Ltd, registered at 350 Euston Road, London, was fined œ150,000 and ordered to pay œ8,149.63 in costs after pleading guilty to breaches of Sections 2 and 3 of the Health and Safety at Work etc Act 1974. After the hearing, HSE Inspector Nikki Hughes said: "Connect Packaging Ltd is now under new ownership but while it held the tenants- repairing-lease on the rented units it had a legal duty to manage asbestos within these non-domestic premises, as did its sub-tenant, Creo Retail Marketing Ltd. "After this asbestos was identified, both companies should have acted promptly and effectively to control the potentially lethal risk to which their workers were exposed. Asbestos-related disease has a long latency period, so we cannot predict the consequences this failure to manage asbestos may have on their workers' health. "This prosecution should act as a reminder to all persons in control of the repair and maintenance of non-domestic premises of the need to ensure that the correct control measures are put in place to prevent exposure to asbestos, so far as is reasonably practicable." ASBESTOS UPDATE: DIY, Decorating Pose Asbestos Risk --------------------------------------------------- Mail Online reported that nearly half of Britons are unconcerned about the health risks posed when renovating or decorating their homes, research has found. The poll of 2,098 Brits found that 48% did not worry about their health when carrying out home improvements, despite the associated risks. Law firm Slater and Gordon, who carried out the research, warned that tasks such as painting, drilling, sawing and sanding could unknowingly be exposing people to "deadly asbestos". The now banned substance was used widely in the building industry, and is known to cause mesothelioma, a rare form of cancer. The law firm, who specialise in asbestos related disease, found that while 73% of those surveyed lived in a property that was 30 years old or more, just 6% had carried out an asbestos survey. Dominic Smith, from Slater and Gordon's industrial disease team, said: "With more and more people turning their hand to DIY, it's important they know the risks and take all possible precautions to protect themselves. "Having your home properly checked for asbestos is a simple measure to safeguard the health of you and your family and could even save your life." ASBESTOS UPDATE: Clean Slate in Orange's Tests for Asbestos ----------------------------------------------------------- Central Western Daily reported that hundreds of Orange properties have been tested in the NSW Government's loose-fill asbestos program as opposed to just a handful in Bathurst. Orange was one of the 28 Local Government Areas (LGA) identified as being affected by loose-fill asbestos when the government launched its Voluntary Purchase and Demolition Program in 2015. The program allows owners whose properties are found to be eligible to have the property sample-tested by a licensed asbestos assessor, free of charge. There were 2472 registrations in the Orange LGA as of December 20, 2016, according to NSW Fair Trading. 421 tests have been completed and none have confirmed the presence of loose-fill asbestos. Of those, 421 tests have been completed and none have confirmed the presence of loose-fill asbestos. A further 242 registrations will not proceed because they did not meet the eligibility criteria, the registration was withdrawn or it was a duplicate. Homeowners can still arrange their own testing using an asbestos assessor licensed by SafeWork NSW. If the test confirms the presence of loose-fill asbestos, the cost of the test will be refunded and the homeowner will be included in the program. "Eligible homeowners will have until July 31, 2017 to submit private testing results to NSW Fair Trading and be considered for inclusion in the program," the spokesperson said. ASBESTOS UPDATE: Fitter Launches Compensation Claim --------------------------------------------------- Katie Dickinson, writing for Chronicle Live, reported that a maintenance fitter suffering from asbestos-related cancer has taken legal action against his former employers. David Bennett, who is now retired and lives in Croxdale, County Durham, was diagnosed with mesothelioma in March 2016 - a cancer of the lung's linings usually caused by exposure to asbestos. The 63-year-old instructed lawyers at Irwin Mitchell to investigate how and where he was exposed to asbestos dust. Now his legal team have issued formal court proceedings against his former employers after they refused to admit liability for his illness. David is appealing for former colleagues who worked with him during 1969 and 1975, at Smart and Brown (Engineers) Limited and Smart and Brown Lighting Limited, which were subsidiaries of Thorn Domestic Appliances Ltd, a company which was subsequently sold to Electrolux PLC. The company was a major employer in the Spennymoor, County Durham area during 1969 to 1975, employing around 5,000 people. The firm manufactured domestic appliances, including washing machines, fridges and freezers. David, who has been married to Patricia for 39 years, said: "My mesothelioma diagnosis really did knock me back, and now I am worried about what the future holds for me and Patricia as my condition gets worse. "I instructed my legal team to investigate where exactly I was exposed to asbestos and if my former employers could have prevented my exposure to it by taking the appropriate safety measures." Roger Maddocks, a partner and expert industrial disease lawyer at Irwin Mitchell, said: "Mesothelioma is a rare and aggressive form of cancer that's caused by exposure to asbestos dust decades ago and it can cause a great deal of pain and suffering for victims like David. "It can take decades for symptoms to develop and often it is then difficult for victims to recall in detail how and where they were exposed. "We are committed to getting answers for David, and are assisting him by investigating conditions at his former employers. "We have been left with no choice but to issue legal proceedings in the High Court in the hope David, and his wife, Patricia, will get the answers they want." Anyone with information is asked to contact Sonia Akram 0191 279 0719 or email Roger.Maddocks@IrwinMitchell.com. Electrolux has been contacted for a comment. ASBESTOS UPDATE: Wash. AG Targets Local Asbestos Abatement Co. -------------------------------------------------------------- Mark Iandolo, writing for Legal Newsline, reported that Washington state Attorney General Bob Ferguson announced Dec. 29 that his office has filed charges against Timothy Powell and his business A1 Asbestos LLC, for allegations of providing false asbestos waste shipment records to an Okanogan County landfill. Additional charges include signature forgery on one of the documents and offering false statements to the Department of Labor and Industries. According to Ferguson's office, Powell and A1 Asbestos lied about the start dates of asbestos abatement work in an attempt to circumvent worksite safety inspections. Disposing of asbestos waste costs more than disposing of general construction waste. By allegedly falsifying documents, Powell was able to avoid some of the costs of asbestos disposal, Ferguson said. "Strict rules governing the disposal of asbestos waste exist to protect workers and the public, and they must be followed," Ferguson said. Assistant attorney general Josh Choate is handling the case for the state and Ferguson's office is working at the behest of the Chelan County Prosecutor's Office. Ferguson regards protecting the environment as a major priority. Since 2013, he has secured more than $900,000 in restitution orders from environmental cases. ASBESTOS UPDATE: Hidden Asbestos Drops $19K Bill on Homeowners -------------------------------------------------------------- Moira Donovan, writing for CBC News, reported that following an unexpected $19,000 bill related to their new house, a couple in Colchester County have a warning for other homebuyers: an inspection, even one that tests for asbestos, isn't a fail-safe. Last year, Sandra Taylor and her husband bought a Middle Stewiacke home built in 1966. They had it inspected prior to purchase and topically tested for asbestos, tests that came back negative. They couldn't open the walls for further examination as they didn't own the house yet. But once they did take possession and opened the walls for electrical rewiring, asbestos was found in the drywall and crack filler that would need to be removed. "We just got the bill [for removal] yesterday," Taylor told CBC Nova Scotia's Information Morning on Thursday. "It was $19,895." 'We're a little stuck' Asbestos isn't dangerous unless it's disturbed, and doesn't need to be removed in many houses that contain it. But the asbestos in Taylor's home had to be disturbed to complete the rewiring required to insure the house. Having only made three mortgage payments, Taylor and her husband faced a choice of either selling the house at a significant loss, as they would have to disclose the asbestos, or repair it at a substantial cost. "We're a little stuck between a rock and a hard place." Sandra Taylor house Taylor estimates the total cost of repairs, including abatement, rewiring and reconstruction, could be $30,000. (Sandra Taylor) A cautionary tale The couple chose to repair the home, although Taylor estimates the total cost of repairs, including the removal of asbestos, electrical rewiring and reconstruction, could total close to $30,000. "Everything [in the house] had to be taken down to the studs." Taylor said because the people she and her husband bought the house from say they weren't aware of the asbestos, and the company that returned the negative test were not contractually obligated to test for what was inside the walls, neither is liable for repairs. Meanwhile, their home insurance doesn't cover the costs. It only funds the removal of asbestos found because of another issue, such as water damage or a house fire. Taylor said they're also not eligible for provincial emergency repair grants, because those only cover homeowners who have owned their home for at least a year -- and in any case, those programs don't cover asbestos removal. "It's a very cautionary tale unfortunately," said Taylor. "And not a happy one." ASBESTOS UPDATE: Lung Biopsy Essential To Correct Diagnosis ----------------------------------------------------------- Ozge Ozkaya, writing for Mesothelioma Research News, reported that the possibility of cancer should be investigated in all cases of workplace asbestos exposure, researchers report in a case study. They also argue that a lung biopsy is essential to distinguish between mesothelioma and adenocarcinoma, so that the proper treatment can be given. According to Dr. Agripina Rascu and co-authors of the study, "Distinction between mesothelioma and lung adenocarcinoma based on immunohistochemistry in a patient with asbestos bodies in bronchoalveolar fluid -- case report," asbestosis, or chronic lung disease caused by the inhalation of asbestos, could be diagnosed using screening methods that detect asbestos bodies in the lungs, but cancer should also be systematically assessed. The study was published in the Romanian Journal of Morphology and Embryology. The authors report the case of a 61-year-old man who was admitted to the Clinic of Occupational Diseases at Clinical Hospital Colentina in Bucharest, Romania, in November 2014. He had chronic lung disease complicated by fluid accumulation in the space surrounding his right lung. Two years earlier, the man had been treated for tuberculosis, and almost a year after that, in December 2013, a chest X-ray detected a nodule measuring 3 cm in his right lung, but he refused further investigation at the time. Bronchoalveolar lavage, where salt water is injected into a lung section and then immediately sucked out to obtain cells from the air sacs, revealed the presence of asbestos bodies in his lungs. An analysis of the man's occupational history found that he worked in the asbestos-cement industry for 29 years, between 1978 and 2007. The retention time of the asbestos particles in his lungs was calculated as 36 years (from 1978 to 2014). Based on this information, the man was diagnosed with asbestosis and possible mesothelioma. Further analysis, however, revealed that the lung cancer was mucinous adenocarcinoma, a cancer that starts in the epithelial cells that line certain organs. The authors concluded that fluid retention in the space surrounding the lungs in patients with asbestos exposure may not be a sign of mesothelioma, and a careful evaluation of a lung biopsy sample is essential for accurate diagnosis. "Malignant mesothelioma development was initially suspected but immunohistochemistry examination of pleural samples established the positive diagnosis a lung adenocarcinoma with secondary malignant pleural effusion," they wrote. "Occupational cancer must be suspected in all cases with workplace asbestosis exposure." According to the World Health Organization (WHO), more than 100,000 people worldwide die of asbestos-related diseases every year, with lung cancer being the most common disease related to asbestosis. Workplace asbestos exposure is regulated in many countries, including Romania, but new cases caused by past exposure are still being diagnosed. ********* 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. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. 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 * * *