/raid1/www/Hosts/bankrupt/CAR_Public/170203.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 3, 2017, Vol. 19, No. 25
Headlines
ACTAVIS ELIZABETH: Castillo Sues Over Overpriced Propranolol
AETNA: Shareholders File Class Action Over Obamacare Exits
AETNA INC: March 27 Lead Plaintiff Motion Deadline Set
AMAZON: Delivery Drivers File Discrimination Class Action
AMERICAN REALTY: Faces Securities Class Action in Maryland
ANZ SECURITIES: Supreme Court to Review Statute of Repose Issue
BOOKOTRIP LLC: "Ahamed" Suit to Recover Overtime Pay
BP SOLAR: Settles Solar Panels Class Action for $67 Million
BROCADE COMMUNICATIONS: "Chuakay" Suit Hits Onerous Merger Deal
BT GROUP: Faces New Shareholder Suits After Italy Scandal
BT GROUP: March 27 Lead Plaintiff Motion Deadline Set
BUSINESS LAW: Faces "Trejo" Suit in Middle District of Florida
CALIFORNIA HORSE: Panel Overturns Suspension, Imposes $160K Fine
CANADA: BSE Class Action Trial Expected by End of Year
CANADIAN PACIFIC: March 17 Settlement Approval Hearing Set
CARIBBEAN CRUISE: To Pay Up to $76MM to Those Who Got Robocalls
CARPETORIUM INC: Faces "Cabrera" Suit in E.D.N.Y.
CHARTER COMMUNICATIONS: NY AG Sues Over Internet Speed Claims
CYNOSURE: Settles Fax TCPA Class Action for $16 Million
DOLLAR GENERAL CORP: "Carroll" Suit to Recover Overtime Pay
DOLLAR GENERAL: Robbins Arroyo Files Securities Class Suit
DOREL JUVENILE: Faces Suit Over Child Car Seat Quality
EGALET CORP: Faces Class Action, March 28 Lead Plaintiff Deadline
ELECTROLUX HOME: "Kukich" Suit Moved from D. Md. to M.D. Pa.
ENERGY TRANSFER: Faces Suit Over Proposed Merger with Sunoco
FACEBOOK INC: Eglet Prince Files Securities Class Action
FACEBOOK INC: Rosen Law Firm Files Securities Class Action
FIAT CHRYSLER: Concealed Defect on Valve Stem, Suit Alleges
FIRST ADVANTAGE: Faces "Combs" Suit in Eastern Dist. of Virginia
FORD MOTOR: Faces "Franco" Suit in Southern Dist. of California
GC SERVICES: Faces "Greenfeld" Suit in Eastern Dist. of N.Y.
GERMANY: Colonialism Reparation Supports Genocide Class Action
GIGAMON INC: Faces Class Action, March 28 Lead Plaintiff Deadline
HEWLETT-PACKARD: 9th Circuit Affirms Dismissal of Securities Suit
HISCALL INC: "Brown" Suit Seeks Unpaid Wages in Labor Suit
HOSPITAL MEDIA: Faces Class Action Over Unwanted Fax Ads
INDIANAPOLIS COLTS: Wants Class Action Moved to Indiana
INTERBLOCK: Class Action Targets Electronic Craps Commission
ISSUES & ANSWERS: Faces "Helm" Suit in District of Oregon
JUNG SIK DANG: Minimum Wage, Tips Sought in "Bobb" Labor Suit
L'OREAL USA: Faces "Price" Suit in Southern Dist. of New York
LA ENTERTAINMENT: Court Denies Class Certification Under Rule 23
LATTICE SEMICONDUCTOR: Rigrodsky & Long Files Class Action
LIVANOVA: Law Firm Investigates Potential Class Action
LOUISIANA: Walker Residents Meet with Law Firm to Discuss Case
MALLINCKRODT PLC: Shareholders Sue Over Acthar Gel
MANITOBA: First Nations Flood Evacuees Suit Can Proceed
MANULIFE FINANCIAL: Enters Into Class Action Settlement Agreement
NAT'L COLLEGIATE: Sued Over "Excessive" Prescription Drug Use
NAT'L COLLEGIATE: Circelli Walter & Young Files Concussion Suit
NATUS MEDICA: Robbins Geller Files Securities Class Action
NEW BALANCE: "Dashnaw" Suit Moved to S.D. Cal.
NISSAN NORTH AMERICA: Sued in Florida Over Defective Dashboards
ONEMAIN HOLDINGS: March 20 Lead Plaintiff Motion Deadline Set
OREGON: 5% of Taxing Districts Opt Out From Suit vs. DOF
PROMED & ASSOCIATED: "Awwad" Labor Case to Recover Overtime Pay
REGULUS THERAPEUTICS: April 3 Lead Plaintiff Motion Deadline Set
REMINGTON ARMS: Sends Out Reminders to Eligible Gun Owners
ROBERT HALF: 3rd Cir. Tosses Staffing Managers' Wage Class Action
SANOFI: Settles Class Action Over Vaccine Bundling
SANOFI: Faces Class Action Over Drug Price Inflation Scheme
SANOFI: PCMA Issues Statement on Insulin Drug Class Action
SCHAEFFLER GROUP: "Boring" Suit to Recover Overtime Pay
SIRTEX: Faces Class Action Over Sales Forecast Downgrade
SOUTHERN EDISON: Faces TCPA Class Action Over Solicitation Calls
STATE STREET: Faces Securities Class Action in California
TD BANK: "Dorsey" Sues over Excessive Overdraft Charges
TIME WARNER: Faces Class Action Over Privacy Violations
UNITED STATES: EPA Faces Class Action Over Flint Water Crisis
UNITED STATES: Lawsuits Over Trump Travel Ban Resolved
UNIVERSAL TRAVEL: June 6 Settlement Approval Hearing Set
VOLKSWAGEN AG: Settles U.S. Diesel Claims for $1.2 Billion
VOLKSWAGEN GROUP: 25,000 Vehicle Owners Launch Class Action
WESTERN UNION: March 27 Lead Plaintiff Motion Deadline Set
WHIRLPOOL CORP: Defective Dishwasher Component Hit in "Burch" Suit
YAHOO! INC.: March 27 Lead Plaintiff Motion Deadline Set
* Class Actions Show Plight of Arizona Dairy Industry
* Herzfeld & Rubin Attorney Discusses CPLR Article 9 Rulings
* M&A-Related Cases Drive Investor Class Action Spike in 2016
* McNees Wallace & Nurick Attorneys Discuss Post-Spokeo Standing
* Scores of TCCWNA-Related Class Actions Filed Against Businesses
Asbestos Litigation
ASBESTOS UPDATE: Court Junks Fraud Claims in "Sheppard
ASBESTOS UPDATE: Insurer Has No Duty to Defend Burns & Scalo
ASBESTOS UPDATE: Expert Reports in "McSwain" Due in March
ASBESTOS UPDATE: Order Denying Nash Bid to Dismiss "Krok" Upheld
ASBESTOS UPDATE: Rogers Dropped as Defendant in "Lineberger"
ASBESTOS UPDATE: Subcontractor Has No Duty to Defend KaiserKane
ASBESTOS UPDATE: AC&R Has No Duty to Warn, Maryland Court Rules
ASBESTOS UPDATE: ALL Partly Loses Bid to Junk Talc Exposure Suit
ASBESTOS UPDATE: WorkSafe Settles Dust on Asbestos Audit
ASBESTOS UPDATE: Family Demands Answer After Worker's Death
ASBESTOS UPDATE: Asbestos Dumped in Somerset Lane
ASBESTOS UPDATE: Asbestos Analyst Fined for Falsifying Docs
ASBESTOS UPDATE: Asbestos Litigation Isn't Going Away, Atty Says
ASBESTOS UPDATE: Asbestos Search in Warilla Sea Wall Continues
ASBESTOS UPDATE: Perrin Asbestos Conference Agenda Posted
ASBESTOS UPDATE: DEC Probing Dumping of Asbestos Waste
ASBESTOS UPDATE: Tough Penalties for Asbestos Offenses in WA
ASBESTOS UPDATE: Pa. Court Won't Revive Asbestos Suit
ASBESTOS UPDATE: Local Agencies Can Be Liable for Exposure
ASBESTOS UPDATE: Asbestos Found in James Bay Building
ASBESTOS UPDATE: Mr. Fluffy Crisis Threat to Mental Health
ASBESTOS UPDATE: BBC Boss' Bro Paid to Spy on Asbestos Campaign
ASBESTOS UPDATE: '70s Fort Work Blamed for Asbestos Problems
ASBESTOS UPDATE: Hundreds of North Wales Schools Have Asbestos
ASBESTOS UPDATE: B.C. Court of Appeal Overturns Asbestos Ruling
ASBESTOS UPDATE: EnPro Reports Progress in Asbestos Litigation
ASBESTOS UPDATE: Asbestos Discovered in N.C. Neighborhood
ASBESTOS UPDATE: EPA Fails to Tell of Montana Asbestos Danger
ASBESTOS UPDATE: Banned Asbestos Slipping Past Customs Officials
ASBESTOS UPDATE: Alcoa Units Still Face PI Suits at Jan. 18
*********
ACTAVIS ELIZABETH: Castillo Sues Over Overpriced Propranolol
------------------------------------------------------------
Cesar Castillo, Inc., individually and on behalf of all those
similarly situated, Plaintiff, v. Actavis Elizabeth, LLC,
Breckenridge Pharmaceuticals, Inc., Endo International PLC,
Heritage Pharmaceuticals Inc., Mylan Inc., Mylan Pharmaceuticals
Inc., Par Pharmaceuticals Holdings, Inc., Pliva, Inc., Teva
Pharmaceuticals USA, Inc., UDL Laboratories, Inc., and Upsher-
Smith Laboratories, Inc., Defendants, Case No. 1:17-cv-00078,
(S.D. N.Y., January 5, 2017), seeks to recover treble damages,
costs of suit and reasonable attorneys' fees resulting from
overcharging of generic propranolol in violation of the Sherman
Act and Clayton Act.
Propranolol is a beta-blocker, indicated to treat a variety of
heart and circulation conditions, including angina, hypertension,
tremors, heart attack prevention, heart rhythm disorders, and
other heart or circulatory conditions.
Cesar Castillo, Inc. is a corporation organized under the laws of
the Commonwealth of Puerto Rico, with its principal place of
business and headquarters located at Bo. Quebradas Arena, Rd. #1
Km. 26.0, Rio Piedras, Puerto Rico, 00926. Plaintiff purchased
clobetasol propionate topical ointment directly from one or more
Defendants at excessive prices.
Actavis Elizabeth, LLC is a Delaware limited liability company
with its principal place of business at 200 Elmora Ave.,
Elizabeth, NJ 07207. Actavis merged with Allergan, PLC and adopted
Allergan's name. In August 2016, Teva purchased the Actavis
Generics business.
Teva Pharmaceuticals Curacao N.V. develops, manufactures and
distribute generic pharmaceutical products.
Pliva, Inc. is a New Jersey corporation with its principal place
of business at 72 Deforest Ave, East Hanover, NJ 07936. Pliva is a
subsidiary of Teva Pharmaceutical Industries, Ltd.
Endo International PLC is an Irish corporation with its principal
place of business located at First Floor, Minerva House,
Simmonscourt Road, Ballsbridge, Dublin 4, Ireland.
Par Pharmaceuticals Holdings, Inc. is a Delaware corporation with
its principal place of business at One Ram Ridge Road, Chestnut
Ridge, NY 10977. In September 2016, Endo International completed
an acquisition of Par at which time it created a combined U.S.
Generics segment that included Par and Qualitest, naming the
segment Par Pharmaceutical, an Endo International Company.
Breckenridge Pharmaceuticals, Inc. is a Delaware corporation with
its principal place of business at 1 Passaic Ave, Fairfield, NJ
07004.
Heritage Pharmaceuticals Inc. is a Delaware corporation with its
principal place of business at 12 Christopher Way #300, Eatontown,
NJ 07724
Upsher-Smith Laboratories, Inc. is a Minnesota corporation with
its principal place of business at 6701 Evenstad Drive, Maple
Grove, MN 55369.
These companies sold Propranolol capsules throughout the United
States.
Mylan Inc. is a Pennsylvania corporation with its principal place
of business at 1000 Mylan Blvd., Canonsburg, PA 15317. It sold
Propranolol tablets and capsules through its subsidiaries, Mylan
Pharmaceuticals Inc. and UDL Laboratories, Inc.
UDL Laboratories, Inc. is an Illinois corporation with its
principal place of business at 1718 Northrock Ct, Rockford, IL
61103. UDL is a subsidiary of Mylan, Inc.
Plaintiff is represented by:
Linda P. Nussbaum, Esq.
NUSSBAUM LAW GROUP, P.C.
570 Lexington Avenue, 19 Fl.
New York, NY 10022
Tel: (212) 722-7053
Email: lnussbaum@nussbaumpc.com
- and -
Juan R. Rivera Font, Esq.
JUAN R. RIVERA FONT LLC
Ave. Gonzalez Giusti #27, Suite 602
Guaynabo, PR 00968
Tel: (787) 751-5290
Email: juan@riverafont.com
AETNA: Shareholders File Class Action Over Obamacare Exits
----------------------------------------------------------
Susan Morse, writing for Healthcare Finance, reports that as Aetna
is about release its fourth quarter earnings on Jan. 31, some of
the company's shareholders have filed a class action lawsuit
against the insurer seeking reimbursement for their share of the
more than $1 billion they said was lost when Aetna left portions
of the exchange market to better its argument for a merger with
Humana.
Securities holders in the lawsuit claim Aetna misled investors
that action taken to withdraw from the Affordable Care Act market
in 17 counties in Florida, Georgia and Missouri was a business
decision, rather than what the court ruling showed was an attempt
by Aetna to lessen antitrust concerns, according to the Jan. 25
lawsuit filed in Connecticut.
In July the Department of Justice denied Aetna's proposed $37
billion merger with Humana on antitrust grounds. After a bench
trial in December, United State District Court Judge John D. Bates
ruled against the merger.
Aetna said it was considering whether to appeal the decision.
The insurer had no update on Jan. 30 on an appeal and said it did
not comment on pending litigation.
In his Jan. 23 ruling against the merger, the judge said Aetna
withdrew its participation in 11 of its 15 state public exchanges
beginning in 2017, including in 17 counties in Florida, Georgia
and Missouri, to counter Department of Justice concerns that the
proposed merger would lead to a loss of competition in those areas
where Aetna and Humana both compete.
"This announcement paved the way for Aetna to argue in court that
there was currently no competition between it and Humana in the 17
complaint counties," the lawsuit states.
However, Aetna executives tried to conceal the reasoning behind
their recommendation to withdraw, according to the ruling and the
lawsuit. Aetna told investors the withdrawal was purely a
business decision, aimed at reducing financial losses, the
investors said in the lawsuit.
On Jan. 23, the day the judge ruled against Aetna and released
information about its motive for leaving the Affordable Care Act
market in the 17 counties, Aetna's stock price dropped $3.33 per
share, or 2.7 percent, wiping out $1.17 billion on the company's
market capitalization, the lawsuit said.
On Jan. 24, Aetna's stock price dropped an additional $1.59 per
share, wiping out an additional $558 million, according to the
federal securities class action lawsuit.
Aetna never assessed the profitability of its individual business
in the 17 counties, according to the lawsuit. Aetna's on-exchange
business in Florida was the company's third most profitable in
2015 and the first half of 2016, the lawsuit said.
The lawsuit was filed against Aetna's chairman and CEO Mark
Bertolini and CFO and Executive Vice President Shawn Guertin, by
the Westchester Putnam Counties Heavy and Highway Laborers Local
60 Benefits Fund, and others.
It was filed on behalf of all persons and entities who purchased
Aetna securities between Aug. 15 and Jan. 20, 2017.
The plaintiffs want class damages in an amount proven at trial and
interest, along with attorney fees.
AETNA INC: March 27 Lead Plaintiff Motion Deadline Set
------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP, on Jan. 31
disclosed that a shareholder class action lawsuit has been filed
against Aetna Inc. (AET) ("Aetna" or the "Company") on behalf of
purchasers of the Company's securities between August 15, 2016 and
January 20, 2017, inclusive (the "Class Period").
Investors who purchased Aetna securities during the Class Period
may, no later than March 27, 2017, petition the Court to be
appointed as a lead plaintiff representative of the class. For
additional information or to learn how to participate in this
action please visit https://www.ktmc.com/new-cases/aetna-inc#join
Aetna shareholders who wish to discuss this action and their legal
options are encouraged to contact Kessler Topaz Meltzer & Check,
LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O.
Bell, Esq.) at (888) 299-7706 or at info@ktmc.com.
Aetna is one of the largest health care benefit companies in the
United States. In July 2015, Aetna entered into a definitive
agreement to acquire the health care benefit company Humana Inc.
("Humana"). In July 2016, the U.S. Department of Justice (the
"DOJ") and others filed a complaint against Aetna and Humana in
Federal Court maintaining that the proposed Humana acquisition
would violate antitrust laws, and seeking a permanent injunction
to prevent the acquisition from closing.
On January 23, 2017, Judge John D. Bates of the U.S. District
Court for the District of Columbia entered a Memorandum Opinion
enjoining the proposed merger between Aetna and Humana after
finding that, among other things, Aetna "tried to leverage its
participation in the exchanges for favorable treatment from DOJ
regarding the proposed merger" by threatening to reduce its Public
Exchange participation in 2017 and beyond if the "DOJ sues to
enjoin the transaction."
On this news, shares of Aetna's stock declined $3.33 per share, or
2.7%, to close on January 23, 2017 at $119.20 per share, on heavy
trading volume. The following day the Company's shares declined
an additional $1.59 per share, to close on January 24, 2017 at
$117.61 per share.
The complaint alleges that Aetna and certain of its executive
officers violated the Securities Exchange Act of 1934 by making
false and/or misleading statements and/or failing to disclose
that: (1) the Company and its senior executives attempted to
leverage Aetna's participation in the Public Exchanges for
favorable treatment from regulators regarding the Humana
acquisition; (2) the Company threatened to limit its participation
in public health insurance exchanges if the DOJ attempted to block
the merger; (3) Aetna did not withdraw from certain public health
insurance exchanges for business reasons as Defendants claimed,
but to follow through on its threat of leaving the marketplace
once the DOJ filed suit and to improve its litigation position;
(4) Aetna withdrew from public health insurance exchanges that
were profitable for the Company; and (5) as a result of the
foregoing, Defendants' statements about Aetna's business,
operations, and prospects were false and misleading and/or lacked
a reasonable basis.
Aetna shareholders may, no later than March 27, 2017, petition the
Court to be appointed as a lead plaintiff representative of the
class through Kessler Topaz Meltzer & Check or other counsel, or
may choose to do nothing and remain an absent class member. A
lead plaintiff is a representative party who acts on behalf of all
class members in directing the litigation. In order to be
appointed as a lead plaintiff, the Court must determine that the
class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class in the action. Your ability to share in any recovery is not
affected by the decision of whether or not to serve as a lead
plaintiff. For additional information, or to learn how to
participate in this action, please visit https://www.ktmc.com/new-
cases/aetna-inc#join
Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes
class actions in state and federal courts throughout the country.
Kessler Topaz Meltzer & Check is a driving force behind corporate
governance reform, and has recovered billions of dollars on behalf
of institutional and individual investors from the United States
and around the world. The firm represents investors, consumers
and whistleblowers (private citizens who report fraudulent
practices against the government and share in the recovery of
government dollars). The complaint in this action was not filed
by Kessler Topaz Meltzer & Check.
AMAZON: Delivery Drivers File Discrimination Class Action
---------------------------------------------------------
Dan Adams, writing for Boston Globe, reports that eight former
Massachusetts Amazon delivery drivers filed class-action
discrimination complaints against the online retailer on Jan. 31,
alleging they were unfairly fired because of an overly strict
background check policy that disproportionately disqualified black
and Latino workers.
Civil rights advocates at the Lawyers' Committee for Civil Rights
and Economic Justice had publicized the firings last year, hoping
public pressure would prompt Amazon to change how it uses
background checks. But they said Amazon did not reverse its
actions, so the former employees filed formal complaints with the
Massachusetts Commission Against Discrimination, a required first
step before suing a company in court.
Until last August, the drivers worked for eCom Delivery Services,
a subsidiary of Miller's Express that Amazon hired to deliver
packages around Boston. According to attorneys for the drivers,
they were fired that month after Amazon instructed the firm to
immediately "deactivate" anyone whose background check didn't meet
the company's requirements.
The attorneys for the drivers said they were performing their jobs
without issue and had only minor offenses on their records.
More important, the attorneys argued, Amazon's edict to dismiss
everyone who fell below a certain threshold -- without considering
their individual circumstances or reviewing the accuracy of the
background checks -- is an example of a "bright line" standard
that is prohibited under federal employment rules. And because
black and Latino people in the United States are arrested and
convicted at higher rates than other groups, the policy is
essentially a form of discrimination, the advocates said.
"Amazon's decision to fire them had nothing to do with their
ability to perform the job, but was based solely on an overly
strict background check policy," said Oren Sellstrom, the
litigation director for the lawyers' committee, in a statement.
An Amazon spokesman declined to comment specifically on the
discrimination complaints, but said that the company's background
check protects customer safety and does not consider "race,
gender, ethnicity, religion, or other protected characteristics."
One of the fired drivers, Matthew Soler, said he was fired because
of a long-ago suspension of his driver's license, even though the
license had been reinstated four years earlier. He said he had
been working up to 70 hours a week for Amazon's delivery
contractor prior to his dismissal and had been trusted to train
new drivers.
While employers are generally permitted to run background checks
on current and prospective workers, guidelines issued by the US
Equal Employment Opportunity Commission prohibit companies from
using the results in a way that "disproportionately screens out"
people of a certain race or other protected group. The agency
says companies must demonstrate their standards for hiring or
dismissal are "job-related . . . and consistent with business
necessity" and must individually review the circumstances of each
worker.
It's not clear what threshold Amazon used, the lawyers said. But
regardless, they argued, the fired drivers should have been given
a chance to put any past incidents in context.
AMERICAN REALTY: Faces Securities Class Action in Maryland
----------------------------------------------------------
A class action lawsuit has been filed in the United States
District Court for the District of Maryland (the "Court") (Civil
Action No. 1:17-cv-00132-CCB) on behalf of shareholders of
American Realty Capital - Retail Center of America, Inc. ("RCA" or
the "Company").
The Complaint alleges that RCA and certain of its officers and
directors, in violation of Section 14(a) the Securities Exchange
Act of 1934, are soliciting RCA shareholders' approval of a
proposed merger with American Finance Trust, Inc. ("AFIN") through
a materially false and misleading proxy statement, and in breach
of their fiduciary duties. Named as defendants are the Company,
RCA's directors, AFIN and AR Global Investments LLC.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from January 31, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiffs' counsel Jeffrey S.
Abraham at (212) 279-5050, or via e-mail at info@aftlaw.com or
jabraham@aftlaw.com or Lynda J. Grant at 212-292-4441 or
lgrant@grantfirm.com. Any member of the putative class may move
the Court to serve as lead plaintiff through the counsel of their
choice, or may choose to do nothing and remain an absent class
member.
The plaintiffs are represented by Abraham, Fruchter & Twersky, LLP
and TheGrantLawFirm, PLLC, which have extensive experience in
shareholder and securities class action cases.
ANZ SECURITIES: Supreme Court to Review Statute of Repose Issue
---------------------------------------------------------------
Brian R. Noethlich, Esq. -- bnoethlich@bakerlaw.com -- at
BakerHostetler, in an article for Mondaq, reports that on January
13, 2017, the Supreme Court granted certiorari in California
Public Employees' Retirement System v. ANZ Securities, Inc., No.
16-373 (ANZ Securities), to resolve whether the filing of a
putative class action tolls the statute of repose for individual
class members' claims brought under Section 13 of the Securities
Act.
The California Public Employees' Retirement System (CalPERS or
Petitioner) was a member of a putative class action in the
Southern District of New York alleging securities fraud in
connection with stock losses prior to the bankruptcy of Lehman
Brothers Holdings Inc. Before the district court had ruled on
class certification, CalPERS filed an individual action in the
Northern District of California, which later consolidated with the
class action. See MDL Transferred In, Cal. Pub Emps.'s Ret. Sys.
v. Fuld, No. 3:11-cv-01281-LAK (S.D.N.Y. Feb. 25, 2011). After the
parties to the class action reached a settlement and the district
court preliminarily certified the class, CalPERS opted out,
deciding to pursue its individual claim. But because CalPERS had
filed its individual action "more than three years after the
securit[ies] [at issue] [were] offered to the public," the
district court dismissed its suit as beyond the Securities Act's
three-year statute of repose. The Second Circuit affirmed, ruling
that the putative class action did not toll the Securities Act's
statute of repose for CalPERS's individual suit. See In re Lehman
Bros. Sec. & ERISA Litig., No. 15-1879, slip op. at 6 (2nd Cir.
July 8, 2016), ECF No. 102. In doing so, it acknowledged that
circuits are divided on this tolling question, noting a conflict
between itself and the Tenth Circuit, based upon the rule in
American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974).
In American Pipe, the Supreme Court considered whether a timely
filed putative class action tolled the statute of limitations for
actions brought by individual class members after the class was
decertified and the statute of limitations period had run. The
Court answered in the affirmative, holding that "the commencement
of a class action suspends the applicable statute of limitations
as to all asserted members of the class who would have been
parties had the suit been permitted to continue as a class
action." But American Pipe did not address whether its rule
applied to statutes of repose.
Circuit split between the Second and Tenth circuits
In ANZ Securities, the Second Circuit noted the Supreme Court's
distinction between statutes of limitations and statutes of
repose: the latter are "fixed" and their "expiration will not be
delayed by estoppel or tolling." The Second Circuit stated that
American Pipe tolling is either grounded in equity or establishes
a legal tolling principle under Fed. R. Civ. P. 23 (Rule 23). If
grounded in equity, then it cannot alter the substantive right
granted by a statute of repose. And if American Pipe tolling
establishes a legal right under Rule 23, then applying tolling to
Section 13's statute of repose would violate the Rules Enabling
Act by permitting a procedural rule to abridge the substantive
rights created by statutes of repose.
The Tenth Circuit reached a different result in Joseph v. Wiles,
223 F.3d 1155 (10th Cir. 2000). The Wiles court found that, in a
class action alleging Securities Act claims, American Pipe
operated to save a class member's individual claim filed before
the class was certified but after the statute of repose had
expired. The Tenth Circuit reasoned that filing a putative class
"commenced" the litigation for all class members for both statute
of limitations and statute of repose purposes. The Tenth Circuit
also saw no conflict with the Rules Enabling Act, reasoning that
its interpretation of American Pipe serves the purposes of Rule 23
by "encourage[ing] judicial economy by eliminating the need for
potential class members to file individual claims" and upholding
the purposes of Rule 23(c)(2)'s notice opt-out provision.
Practical consequences
Whether filing putative class actions tolls statutes of repose for
class members' individual suits has important practical
consequences. For example, Petitioner argues that the Second
Circuit rule increases "the cost of class litigation" because each
potential opt-out plaintiff will have to incur "the additional
expense to retain counsel, file a[]. . . complaint, and then
monitor . . . the entire litigation." Petitioner argues that less-
sophisticated or resourced class members "will forfeit their
claims if class certification is denied." Respondents counter that
Petitioner's "dire predictions" have not materialized and accuse
Petitioner of acting opportunistically in an attempt to secure a
larger award through an individual claim after opting out of the
class when it was on notice that its individual suit would be
dismissed under Second Circuit precedent.
BOOKOTRIP LLC: "Ahamed" Suit to Recover Overtime Pay
----------------------------------------------------
Imthiyas Ahamed, and all others similarly situated Plaintiffs, v.
Riya Travel & Tours, Inc., Bookotrip LLC, Trip Brands LLC, Samuel
Benson and Ani Benson, Defendants, Case No. 4:17-cv-00018, (S.D.
Tex., January 5, 2017), seeks to recover unpaid overtime and other
wages, equitable relief, compensatory and liquidated damages,
attorney's fees, all costs of the action and post-judgment
interest as required by the Fair Labor Standards Act.
Defendants employed Mr. Ahamed as a travel agent at their travel
agency located in Sugar Land, Texas. He claims to be denied
overtime pay and have his pay subjected to illegal deductions.
Plaintiff is represented by:
Salar Ali Ahmed, Esq.
ALI S. AHMED, P.C.
One Arena Place
7322 Southwest Frwy., Suite 1920
Houston, TX 77074
Telephone: (713) 223-1300
Facsimile: (713) 255-0013
Email: aahmedlaw@gmail.com
BP SOLAR: Settles Solar Panels Class Action for $67 Million
-----------------------------------------------------------
Attorney Robert J. Nelson of the national plaintiffs' law firm
Lieff Cabraser Heimann & Bernstein, LLP, on Jan. 30 announced the
settlement of consumer claims relating to allegedly defective
solar panels manufactured and sold by BP Solar and Home Depot. The
Settlement has been well-received: close to 900 claims have been
filed since preliminary approval was granted in September 2016,
and no class member has objected to the Settlement terms.
Information on the settlement is available on the BP Solar Panel
settlement website.
Plaintiffs alleged that the BP solar panels at issue were
substantially certain to fail within their warranted lives due to
an inherent defect in the junction box, the small casing on the
back of the panel where soldered output cable connections are
housed. Settlement Class Members with certain higher failure rate
models, or with high failure rates in their arrays, will be
eligible for complete replacement of their solar panels. Others
will receive replacement of failed panels and a new inverter with
advanced safety technology. Owners of large, non-residential
systems will be entitled to a mediated commercial negotiation with
BP, with extended opt-out rights. The Settlement thus helps
eliminate any danger associated with these panels -- either the
allegedly faulty panels are removed or a state-of-the art inverter
is installed.
"We are very pleased that after extensive litigation and strenuous
negotiations, the parties were able to reach a settlement that
provides significant and substantial relief valued at more than
$67 million," said Mr. Nelson, who helped negotiate the deal.
"The Settlement eliminates all the uncertainty and risk in this
complex class action matter, extends relief to a nationwide class,
and provides that meaningful relief now, rather than the mere hope
of relief many years in the future."
Plaintiffs are represented by:
Richard M. Heimann
Robert J. Nelson
Nimish R. Desai
John T. Spragens
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
David M. Birka-White
Mindy M. Wong
Birka-White Law Offices
65 Oak Court
Danville, CA 94526
About Lieff Cabraser
Recognized as "one of the nation's premier plaintiffs' firms" by
The American Lawyer, Lieff Cabraser Heimann & Bernstein, LLP --
http://www.lieffcabraser.com-- is a seventy-attorney law firm
with offices in San Francisco, New York, Nashville, and Seattle.
We are committed to achieving justice for consumers, employees,
patients, investors, and business owners; promoting safer products
and fair competition; protecting our environment; assisting
individuals blow the whistle on fraud; safeguarding the rights of
patent and copyright holders; and remedying violations of the
civil rights of citizens worldwide.
BROCADE COMMUNICATIONS: "Chuakay" Suit Hits Onerous Merger Deal
---------------------------------------------------------------
Elizabeth Chuakay, on behalf of himself and all others similarly
situated, Plaintiff, v. Brocade Communications Systems, Inc.,
Lloyd A. Carney, Judy Bruner, Renato A. Dipentima, Alan L.
Earhart, John W. Gerdelman, Kim C. Goodman, David L. House, L.
William Krause, David E. Roberson and Sanjay Vaswani, Defendants,
Case No. 4:17-cv-00058, (N.D. Cal., January 5, 2017), seeks, under
the Securities and Exchange Act of 1934, to enjoin a merger, and
to recover damages resulting from violations of fiduciary duties.
Brocade is a supplier of networking hardware, software, and
services, including Storage Area Networking solutions and Internet
Protocol Networking solutions, for businesses and organizations of
various types and sizes.
Brocade's Board of Directors entered into an agreement and plan of
merger with Broadcom where shareholders of Brocade will receive
$12.75 in cash for each share of Brocade common stock owned. The
deal allegedly was one-sided in favor of Broadcom and eliminated
all other possibilities of better offers.
Plaintiff is a stockholder of Brocade.
Lloyd A. Carney, Judy Bruner, Renato A. Dipentima, Alan L.
Earhart, John W. Gerdelman, Kim C. Goodman, David L. House, L.
William Krause, David E. Roberson and Sanjay Vaswani are member of
the board of directors of Brocade.
Plaintiff is represented by:
Rosemary M. Rivas, Esq.
FINKELSTEIN THOMPSON LLP
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 398-8700
Facsimile: (415) 398-8704
Email: rrivas@finkelsteinthompson.com
- and -
Donald E. Enright, Esq.
Elizabeth K. Tripodi, Esq.
LEVI & KORSINSKY LLP
1101 30th Street NW, Suite 115
Washington, DC 20007
Tel: (202) 524-4290
Fax: (202) 337-1567
Email: denright@zlk.com
BT GROUP: Faces New Shareholder Suits After Italy Scandal
---------------------------------------------------------
Jonathan Stempel at Reuters reports BT Group Plc has been hit by
at least two shareholder lawsuits in the United States, after one-
fifth of the telecommunications company's market value was wiped
out on January 24, due in part to an accounting scandal in Italy.
The lawsuits accusing the British company and three top executives
of securities fraud were filed on January 25 in the U.S. District
Courts in Manhattan and in nearby Newark, New Jersey, on behalf of
BT investors over the last few years.
Both lawsuits were brought by individuals seeking class-action
status, and also name Chief Executive Gavin Patterson, his
predecessor Ian Livingston, and Finance Director Tony Chanmugam as
defendants.
A spokesman for BT said: "These cases are standard procedure in
the US. Our position will, of course, be defended robustly."
BT had launched an internal probe into its Italian business after
a whistleblower flagged concerns.
The price of BT's shares in London and American depositary
receipts in New York fell nearly 21 percent on Tuesday.
This came after BT boosted an expected writedown tied to its
Italian division to 530 million pounds from 145 million pounds,
with Patterson expressing disappointment with the "inappropriate
behavior" uncovered.
BT also reported slowing demand from government and corporate
customers following last June's vote by Britons to leave the
European Union. It said that slowdown, together with the
accounting problems, would weigh on results for two years.
The lawsuits accuse BT of having concealed or made misleading
statements about the accounting practices in Italy, causing it to
inflate earnings and its stock price.
Both lawsuits seek unspecified damages.
The New York case was brought on behalf of investors in ADRs,
while the New Jersey case also covers other securities.
BT GROUP: March 27 Lead Plaintiff Motion Deadline Set
-----------------------------------------------------
Goldberg Law PC disclosed the filing of a class action lawsuit
against BT Group plc. Investors who purchased or otherwise
acquired BT Group shares between May 23, 2013, and January 23,
2017, inclusive, are encouraged to contact the firm in advance of
the March 27, 2017 lead plaintiff deadline.
If you purchased or otherwise acquired BT Group shares and would
like more information regarding the class action lawsuit, we
encourage you to contact Michael Goldberg or Brian Schall, of
Goldberg Law PC, 1999 Avenue of the Stars Suite 1100, Los Angeles,
CA 90067, at 800-977-7401, to discuss your rights without cost to
you. You can also reach us through the firm's website at
http://www.Goldberglawpc.com,or by email at
info@goldberglawpc.com.
On January 24, 2017, BT Group released a profit warning and
revealed that it was lowering its guidance for 2017 and 2018, in
regards to an investigation into the accounting practices at its
Italian company.
When this information was revealed to the investing public, the
value of BT Group declined, causing investors severe harm.
If you have any questions concerning your legal rights, please
immediately contact Goldberg Law PC at 800-977-7401, or visit our
website at http://www.Goldberglawpc.com,or email us at
info@goldberglawpc.com.
Goldberg Law PC represents shareholders around the world and
specializes in securities class actions and shareholder rights
litigation.
BUSINESS LAW: Faces "Trejo" Suit in Middle District of Florida
--------------------------------------------------------------
A class action lawsuit has been filed against Business Law Group,
P.A. The case is captioned as Louis Trejo, individually and on
behalf of all others similarly situated, the Plaintiff, v.
Business Law Group, P.A.; and The Enclave at Richmond Place
Condominium Association, Inc., a Florida Not for Profit
Corporation, the Defendants, Case No. 8:17-cv-00204-SCB-MAP (M.D.
Fla., Jan. 26, 2017). The case is assigned to Hon. Judge Susan C
Bucklew.
Business Law has attorneys with experience in complex litigation,
construction defect litigation, insurance claim litigation, and
real estate.
The Plaintiff is represented by:
Bryant Dunivan, Jr., Esq.
OWEN & DUNIVAN, PLLC
330 Pauls Dr., Ste. 104
Brandon, FL 33511
Telephone: (813) 502 6768
Facsimile: (813) 330 7924
E-mail: bdunivan@owendunivan.com
CALIFORNIA HORSE: Panel Overturns Suspension, Imposes $160K Fine
----------------------------------------------------------------
Metropolitan News-Enterprise reports that the Court of Appeal for
this district on January 26 overturned a 38-month suspension and
$160,000 fine imposed by the California Horse Racing Board on an
award-winning trainer whose horses tested positive for a banned
substance.
Justice Elwood Lui, writing for Div. One, agreed with attorneys
for Jose De La Torre, who trained the Quarter Horses of the Year
in 2012 and 2013, that the board exceeded its authority by
extending its temporary ban of the previously approved
bronchodilator Clenbuterol.
The Daily Racing Form reported at the time of the penalty that it
may have been the most severe ever imposed by the board. It quoted
board Chair Chuck Winner as saying the board was seeking to
"protect not only the health of the horse but the integrity of the
sport for all participants."
The ALJ had recommended a two-year suspension and $100,000 fine.
The board said De La Torre, who trained champions Horses One
Dashing Eagle in 2012 and Last to Fire in 2013, has 13 Clenbuterol
positives in the state over a six-year period.
Lui, noted that the drug was legal in California until August
2011, when the board ordered its use suspended at Los Alamitos
Race Course for 12 months, commencing in October of that year. The
following year, the board voted to extend the ban statewide for 12
months commencing in July 2012, and to extend the existing ban at
Los Alamitos through the same date.
In 2013, the Los Alamitos ban was extended for yet another year,
to July 2014.
Lui, however, said the penalty imposed on De La Torre was invalid
because it was for conduct occurring more than 12 months after the
original ban had expired. He cited Title 4, Section1844.1 of the
California Code of Regulations, which says that a temporary ban on
a previously authorized substance "shall not exceed 12 months."
The rule, Lui declared, does not allow the board to extend or
reenact a ban.
The principle of great judicial deference to administrative
agencies, he said, does not apply here because the issue is not
the validity of the regulation, but its interpretation. And the
board's interpretation of the rule as allowing continuous renewals
of the ban is inconsistent with the repeated use of the words
"temporary" and "temporarily" throughout that part of the code,
the jurist noted.
There would have been no purpose, "apart from creating more work
for the board," to having a 12-month limit if the board could
simply reenact the ban every time it was set to expire, Lui wrote.
"Moreover, a repeatedly reenacted or extended suspension, such as
that of Clenbuterol shown in this case, can hardly be called a
'temporary' one," he continued.
Justice Victoria Chaney concurred in the opinion. Presiding
Justice Frances Rothschild concurred separately, saying the 2012
statewide suspension of Clenbuterol, following the previous
suspension limited to Los Alamitos, may have been valid, but that
it was unnecessary to decide the issue because the 2013 extension,
and the ensuing penalty imposed on De La Toree, were certainly
invalid.
Attorneys on appeal were Darrell J. Vienna and Carlo Fisco for De
La Torre and Deputy Attorney General Jennie M. Kelly --
jennie.kelly@doj.ca.com -- for the board.
The case is De La Torre v. California Horse Racing Board, B268289.
CANADA: BSE Class Action Trial Expected by End of Year
------------------------------------------------------
Alexis Kienlen, writing for Alberta Farmer, reports that it's been
more than a decade since it started, but a class-action suit
against the federal government for damages incurred as a result of
BSE could be going to trial by the end of the year.
"We had the first round of discoveries for 2015 and various
questions arose from that, that there were outstanding for the
government to get back to us," said Duncan Boswell, a senior
partner with Gowling WLG in Toronto, and one of the lawyers in
charge of the class-action suit.
The lawsuit is seeking $8 billion in damages stemming from the BSE
crisis from 2003 to 2005. It has been filed in four provinces,
but the legal battle will be first waged in an Ontario court.
"The thought process here is that if the class action proceeds, if
it goes to trial in Ontario, the results of that would be
influential across the other provinces," said Mr. Boswell.
The lawsuit against the federal government centres around cattle
imported from the U.K. and Ireland from 1982 to 1990, when Ottawa
banned the importation of live cattle from countries with BSE. The
suit alleges that despite promising to monitor an estimated 198
cattle imported during that time, at least 80 of those animals
were "potentially rendered . . . and then entered the cattle feed
system." It was known that the prions that cause BSE could be
transmitted via feed, the lawsuit says, and the federal government
was negligent because it didn't prevent the imported cattle from
being used for feed ingredients.
"It comes down to basically 200 cows that had been imported into
Canada prior to the ban in 1990," said Mr. Boswell. "The
government recognized the issue of BSE and recognized that it had
an obligation to prevent BSE from coming to Canada, so it
implemented a ban in 1990."
But the government should have done much more, the suit alleges.
It says Britain banned using bovine meat and bone meal in feed in
1988 to prevent the spread of BSE, but federal officials didn't do
the same until 1997 (even though a purebred cow imported from the
U.K. in 1987 was diagnosed with BSE).
"Why that didn't happen earlier -- that's up to the government to
answer, which is the lawsuit," said Mr. Boswell.
The suit alleges 80 of the 198 imported U.K. cattle -- "at least
10 of which came from herds known to have BSE" -- entered the
animal food chain between 1990 and 1994 and were the "most likely
source of the first generation of BSE in Canadian cattle."
The government was negligent in allowing that to happen and for
not warning producers about the risk of using feed containing meat
and bone meal, it says.
The class-action suit has been dragging since April 2005 when
lawyers from Alberta, Saskatchewan, Ontario, and Quebec filed
class-action claims on behalf of all Canadian cattle producers.
Boswell and another class-action specialist (Malcolm Ruby, also of
Gowling WLG), were brought in by Ontario lawyer Cameron Pallett to
manage the lawsuit for the original plaintiff, a cattle producer
from Ontario.
Contaminated feed
The class action now includes all ranchers and dairy farmers from
May 2003 (when the first case of BSE was confirmed and the U.S.
border abruptly closed to Canadian cattle) until July 2005 (when
export of live cattle under the age of 30 months to the U.S. was
again allowed).
"We focused on damages in that time frame," said Mr. Boswell. "It
had a devastating impact on the farmers. There have been lost
farms, tragic circumstances, and personal circumstances for a
variety of these farmers. It was complete devastation to the
industry."
In a 2009 statement of defence, federal government lawyers argued
the government consistently took appropriate steps over the years.
At first, there was only "minimal understanding" of BSE following
its discovery in 1986.
"When BSE came to the world's attention, the prevalent theory was
that the vector for BSE transmission was contaminated sheep
material in cattle feed," the statement of defence says. "However,
scientific experts working on the disease could not rule out the
possibility that the original occurrence of the disease was
spontaneous, or that the disease was spread by other means."
Even when it was recognized that meat and bone meal used in cattle
feed could be a means of transmitting BSE, it was believed that
this "did not represent a risk of transmission if the animal did
not show signs of being infected at the time it was slaughtered,"
the lawyers argued in the statement of defence.
It was only in 1996 that the World Health Organization recommended
banning the use of animal protein in livestock feed and Ottawa did
just that the following year, despite opposition from cattle
organizations, the statement says. However, the imported British
cattle weren't considered an issue because all but 10 had died,
been exported, or came from herds with no history of BSE.
Moreover, the feed-manufacturing system in North America is so
complex, it would have been impossible to monitor everything and
ensure there was zero cross-contamination, the statement adds.
"Even if a feed ban had gone into effect prior to 1997, it is
likely there would have been an indigenous case of BSE of U.K.
origin," says the statement. "The only way the introduction of
BSE from that source could have been prevented would have been to
completely ban the import of U.K. cows in 1980 or earlier. There
was no reason to do so, nor where (sic) there any grounds to do
so."
End in sight?
Dealing with the lawsuit has taken so long because there were a
number of motions at the beginning of the process certifying it as
a class action, and a number of appeals.
"By the time that all resolved itself, you had to deal with the
heavy lifting of marshalling the facts and doing the discoveries
and getting the documents from the government going forward," said
Mr. Boswell. "It took from 2015 to get the discoveries to occur.
We've been told by the government that an extremely large volume
of further documents will be coming our way.
"It is a very massive case and it takes a long time to gather the
documents, review the documents, figure out questions you need to
ask, and ask them."
Although the class-action suit was filed on behalf of
"representative ranchers" in Alberta, Saskatchewan, Ontario, and
Quebec, all producers with beef or dairy cattle during the 2003-05
period will get a share of the proceeding if the suit is
successful.
"Provided we are successful on the lawsuit, we will be involving
and publicizing to the ranchers about how they would be able to
come and collect," said Boswell.
While the government is providing documents for the case, Boswell
said he is hopeful either a trial or settlement will happen this
year.
"I've had discussions with counsel for government and we have
agreed it would be beneficial to try to complete the discoveries
by early spring or summer if at all possible, with the game plan
of trying to set the matter down for trial by the end of the
year," he said.
Feed maker Ridley Inc. was also named in the original suit, but
the company settled in 2008. Ridley agreed to pay $6 million to a
trust fund, which has been used to fund the case against the
federal government. Ridley was sued for having manufactured
infected feed fed to a cow later diagnosed with BSE.
For more information on the lawsuit and court documents, see
bseclassaction.ca.
CANADIAN PACIFIC: March 17 Settlement Approval Hearing Set
----------------------------------------------------------
Klym Law on Jan. 31 disclosed that a tentative settlement has been
reached in Windsor et al. v. Canadian Pacific Railway Ltd. In
Court of Queen's Bench Action No. 0501-00241. Please read the
notice below:
NOTICE OF SETTLEMENT APPROVAL HEARING
READ THIS NOTICE CAREFULLY. IT MAY AFFECT YOUR RIGHTS.
This notice is directed to the following "Class Members": all
persons and entities who on or after January 7, 2003, own or owned
properties located within the following geographic area: east of
18 Street S.E., south of 68 Avenue S.E., west of Ogden Road S.E.,
and north of RiverGlen Dr. S.E., and including those properties
located east of Ogden Road S.E., south of 68 Avenue S.E., north of
74 Avenue S.E., and west of Ogden Dale Road S.E. This geographic
area is referred to as the "Class".
In January, 2005, the Plaintiffs, David Windsor and Agnes Windsor
commenced a class action lawsuit (the Class Action) against
Canadian Pacific Railway (CP) in the Court of Queen's Bench of
Alberta (the Court). The Class Action alleged that a subsurface
migration of trichloroethylene (TCE) and other substances from
CP's Ogden Yards adversely affected the value of properties within
the Class.
On June 23, 2008, the Court certified the Class Action, thereby
allowing it to proceed to trial as a class proceeding.
Certification by the Court is not a decision on the merits of the
class action and the Class Action has not proceeded to trial.
On October 13, 2016, the parties to the Class Action executed a
Settlement Agreement (the Settlement Agreement), subject to the
approval of the Court. Under the Settlement Agreement, CP has
agreed to:
(a) Continue the voluntary, annual payments it has made to those
Class Members who have one or more Sub-Surface Depressurization
Units (SSD) installed in their property (SSD Subclass Members),
for a maximum of ten (10) years (the Settlement Amount) and as
modified by the Settlement Agreement. Payments to SSD Subclass
Members may consist of two parts:
First, every SSD Subclass Member will receive a payment reflecting
the actual cost of operating the SSD unit (the Operating
Reimbursement); and
Second, those SSD Subclass Members who have lived in their
properties before the SSD unit was installed and continue to live
in the property as their primary residence (Original Owners) will
receive an additional payment, being a pro rata share of the Net
Settlement Amount remaining after payment of the Operational
Reimbursement.
The payment to each SSD Subclass member from the Net Settlement
Amount will depend upon: (i) the number of SSD's installed on the
SSD Property and, (ii) the number of Original Owners of SSD
Properties who submit a claim for compensation to the
Administrator. It is therefore not possible to predict what any
individual SSD Subclass member's share of the Net Settlement
Amount will be.
If and when an SSD is removed or otherwise decommissioned from a
property, the obligation of CP to contribute an SSD Payment to the
Settlement Amount in respect of that property ends, such that the
Settlement Amount may reduce over time, up to its termination
after 10 years.
(b) Contribute $162,944.00 to satisfy the obligations of the
Representative Plaintiffs under the Bridgepoint Agreement.
BridgePoint Global Litigation Services Limited Partnership III
(BridgePoint) provided the Representative Plaintiffs with
litigation financing and agreed to indemnify the Representative
Plaintiffs against adverse cost awards (the Bridgepoint
Agreement). BridgePoint would not receive payment unless the
Action was successful or a settlement was reached. BridgePoint
has agreed to accept $162,944.00 in full payment of their fees,
disbursements and all applicable taxes, subject to approval of the
Court.
(c) Contribute $37,056 to Class Counsel in partial compensation of
Class Counsel Fees. In addition, Class Counsel will be entitled
to an additional $162,944.00 to be paid as a first priority from
the Settlement Amount. The total amount paid to Class Counsel as
Class Counsel Fees is $200,000.00.
(d) Commit to continue the intensive Remediation Program that CP
voluntarily implemented prior to the commencement of the Class
Action and which CP has been conducting continuously since
implementation.
In exchange for the commitments of CP in the Settlement Agreement,
the Class Action will be dismissed and the claims of Class Members
will be fully and finally satisfied and released.
The Settlement Agreement is a compromise of disputed claims and is
not an admission of liability, wrongdoing or fault on the part of
CP, who has denied, and continues to deny, the allegations against
it.
A settlement approval hearing will be held on March 17, 2017, at
10:00 am, at the Calgary Courts Centre, 601-5 Street SW, Calgary,
Alberta (the Settlement Approval Hearing). The settlement must be
approved by the Court before it can be implemented and Class
Members may, but are not required to, attend the Settlement
Approval Hearing.
Class Members who approve of or do not oppose the settlement do
not need to appear at the Settlement Approval Hearing or take any
other action at this time.
At the Settlement Approval Hearing, Klym Law (Class Counsel) will
seek the Court's approval of its contingency fee agreement plus
disbursements and applicable taxes (Class Counsel Fees). Class
Counsel will also seek the appointment of Canadian Pacific Railway
Company as Administrator for the settlement. CP has agreed to
waive its right to collect fees as the Administrator, and has
agreed to not seek reimbursement of any other costs related to the
administration of the settlement, such as the costs of approval,
notification, implementation and administration of the settlement
(the Administration Expenses).
If the Court approves the settlement, Class Members may
participate in the Settlement by filing a claim for compensation.
If the settlement is approved, another notice to Class Members
will be published which will provide instructions on how to make a
claim to receive compensation from the settlement.
Copies of the Settlement Agreement and the proposed Plan of
Allocation may be found on the website of Class Counsel or by
contacting Class Counsel at the contact information provided
below.
Class Members May Object to the Settlement
Class Members who wish to comment on or object to the settlement
must do so in writing. All objections must be received by Class
Counsel (contact details below) no later than March 7, 2017. Class
Counsel will file all such submissions with the Court. You may
attend at the Settlement Approval Hearing on March 17, 2017. If
you have not submitted a written objection, you can only be heard
if the allows it.
A written objection must use the heading "Ogden Class Action", and
must include: (i) the Class Member's name, address, telephone
number, fax number (where applicable) and email address; (ii) a
brief statement outlining the nature of, and reasons for, the
objection; and (iii) a statement as to whether the objector
intends to appear at the settlement approval hearing in person or
through a lawyer and, if through a lawyer, the name, address,
telephone number, fax number and email address of the lawyer.
Questions related to this Notice should NOT be addressed to the
Court of Queen's Bench for Alberta.
DISTRIBUTION OF THIS NOTICE HAS BEEN AUTHORIZED BY THE COURT OF
QUEEN'S BENCH OF ALBERTA
For further information, please contact Class Counsel at:
Klym Law
William Klym
Telephone: 403-530-3320
Fax: +1-587-535-9015
E-mail: william.klym@klymlaw.com
Web site: http://www.calgarylitigation.com
CARIBBEAN CRUISE: To Pay Up to $76MM to Those Who Got Robocalls
---------------------------------------------------------------
Diane Lee at WAPA reports that here's a 7News Consumer Watch that
could make you money, and we're not talking small change.
You know those annoying robocalls offering you a free cruise? If
you got any on your cell or landline you could get $500 per call.
It's all part of a class action lawsuit. But time is running out
to file a claim.
The Cruise Call Class Action Lawsuit is forcing Caribbean Cruise
Line and two co-defendants to pay up to $76 million to people who
got the calls.
Janice Kopek, the Do Not Call Program Coordinator with the Federal
Trade Commission explains why.
"If you're getting a robocall where somebody is sending you a pre-
recorded message and is trying to sell you something, that call is
illegal unless you gave that person or company specific prior
written consent to make that call."
In fact the FTC says most of the robocalls you get are against the
law with a few exceptions like political, emergency, school and
charity calls.
As for the Cruise Call Settlement, your take depends on how many
calls you got. Each one is another $500 in your pocket.
FreeCruiseCallClassAction.net allows you to check your number
against a database, but don't stop there.
"We have tried to provide people notice, but we don't have a
complete list of everyone, so it's important that people submit
documents if they believe that they got these calls," said class
action attorney Chris Dore.
If the thought of $500 a call inspires you to check your records
(beyond just the Attorney list), you'll want to look for in-bound
calls between August 2011 and August 2012.
And you don't have to go it alone. You can contact your cell
provider directly or call 866-286-6755 for help. But you must do
this all before the deadline February 1st.
This class action suit also speaks to the importance of reporting
any illegal robocalls to the government. You can file a complaint
by calling: 1-888-382-1222.
CARPETORIUM INC: Faces "Cabrera" Suit in E.D.N.Y.
-------------------------------------------------
A class action lawsuit has been filed against Carpetorium, Inc.
The case is styled as Luis Cabrera, on behalf of himself,
individually, and on behalf of all others similarly-situated, the
Plaintiff, v. Carpetorium, Inc., and Hamid Elayni, the Defendant,
Case No. 1:17-cv-00437 (E.D.N.Y., Jan. 26, 2017).
Carpetorium is engaged in commercial construction business.
The Plaintiff appears pro se.
CHARTER COMMUNICATIONS: NY AG Sues Over Internet Speed Claims
-------------------------------------------------------------
The Associated Press reports that New York's attorney general has
filed a lawsuit against Charter Communications alleging the cable
and internet provider failed to deliver on promised internet
speeds and reliability.
Charter's subsidiary, Spectrum, was previously known as Time
Warner Cable. The company has 2.5 million customers in New York
state.
The lawsuit filed on Jan. 31 claims that since 2012, the company
failed to address network problems that led to internet speeds
that were up to 70 percent slower than the speeds advertised in
the company's "premium" plan. Eric Schneiderman's suit claims Wi-
Fi speeds also were slower than promised, with some subscribers
getting speeds more than 80 percent slower than promised
"The allegations in the lawsuit confirm what millions of New
Yorkers have long suspected -- Spectrum-Time Warner Cable has been
ripping you off," Mr. Schneiderman said on Feb. 1.
In a statement, Charter said it is "disappointed"
Mr. Schneiderman chose to sue the company over promises made by
Time Warner before the acquisition.
"Charter has already made substantial investments in the interest
of upgrading the Time Warner Cable systems and delivering the best
possible experience to customers," the company said.
Mr. Schneiderman's office alleges Charter "continues to
underserve" customers by failing to take steps, including network
upgrades and replacement of "deficient" customer modems and
routers.
The lawsuit is filed in state Supreme Court in Manhattan.
CYNOSURE: Settles Fax TCPA Class Action for $16 Million
-------------------------------------------------------
David O. Klein, Esq. -- dklein@kleinmoynihan.com -- of Klein
Moynihan Turco LLP, in an article for Lexology, reports that on
Jan. 26, the parties in ARcare, Inc. v. Cynosure, Inc., an action
concerning the Telephone Consumer Protection Act ("TCPA"), filed a
motion for preliminary approval of a class action settlement of
plaintiff's fax TCPA claims. Specifically, the named plaintiff
alleged that it received multiple unsolicited fax advertisements
from the defendant which were sent without the prior express
written consent of the plaintiff. In addition, the plaintiff
alleged that the defendant's unsolicited fax advertisements were
sent without the requisite opt-out notice mandated by the TCPA.
The parties' settlement, according to the recitals contained in
the settlement agreement and release, was spurred in part by the
United States Court of Appeals for the D.C. Circuit's review of
the Federal Communications Commission rule requiring opt-out
notices on fax advertisements.
What are the Terms of the Fax TCPA Class Action Settlement?
According to the parties' motion for preliminary approval of the
fax TCPA settlement, plaintiff's counsel contends that Cynosure,
Inc. ("Cynosure") attempted to send its fax advertisements to
approximately 76,567 different fax numbers between July 27, 2012
and August 2, 2016. Additionally, plaintiff's counsel estimated
that upwards of 800,000 total fax transmittals appear to have been
attempted in that time period.
Under the proposed settlement agreement, Cynosure will create a
settlement fund of up to $16 million. Class notification will be
sent on or about February 14, 2017, with April 17, 2017 being the
deadline for proposed class members to file objections. The Court
has yet to schedule a final settlement approval hearing.
Protect Against a Fax TCPA Lawsuit
The continued rise in fax TCPA litigation, and the substantial
costs of both defending and resolving such lawsuits, underscores
the importance of consulting with competent counsel before
engaging in any fax marketing campaign.
DOLLAR GENERAL CORP: "Carroll" Suit to Recover Overtime Pay
-----------------------------------------------------------
Tikki Carroll, on behalf of herself and others similarly-situated,
Plaintiff, v. Dollar General Corporation, Defendant, Case No.
6:17-cv-00009, (Ed. Tex., January 5, 2017), seeks overtime pay,
damages, and legal and equitable relief for breach of contract
and for violation of the Fair Labor Standards Act.
Dollar General is a Tennessee corporation which owns and operates
discount retail stores nationwide. Plaintiff worked for Defendant
from about September 2015 through September 2016 as an assistant
manager and acting store manager at their store in Tyler, Texas.
Carrol claims to have been denied overtime pay for hours rendered
in excess of 40 per work week.
Plaintiff is represented by:
Charles W. Branham, III, Esq.
Corinna Chandler, Esq.
DEAN OMAR & BRANHAM, LLP
3900 Elm Street
Dallas, TX 75201
Tel: (214) 722-5990
Fax: (214) 722-5991
Email: tbranham@dobllp.com
cchandler@dobllp.com
DOLLAR GENERAL: Robbins Arroyo Files Securities Class Suit
----------------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP disclosed that a
class action complaint was filed against Dollar General
Corporation in the U.S. District Court for the Middle District of
Tennessee, Nashville Division. The complaint is brought on behalf
of all purchasers of Dollar General securities between March 10,
2016 and November 30, 2016, for alleged violations of the
Securities Exchange Act of 1934 by Dollar General's officers and
directors. Dollar General, a discount retailer, provides various
merchandise products in the southern, southwestern, midwestern,
and eastern United States.
Dollar General Accused of Lying About Its Declining Financial
Condition
According to the complaint, Dollar General's core customers are
from low and fixed income households, a significant percentage of
which qualify for the Supplemental Nutrition Assistance Program
("SNAP"), a federal food stamp benefits program. Notably, at least
20 states were planning to re-implement a limitation on SNAP
benefits to become effective in April 2016. Dollar General
officials nonetheless projected earnings per share growth of 10-
15% for fiscal 2016, and annual same-store sales improvement of 2-
4%. In addition, during a conference call with investors, Dollar
General's Chief Executive Officer downplayed the significance of
SNAP payments to the company and any impact the SNAP reductions
would have on the company's sales. The complaint alleges that in
so doing, Dollar General officials did not disclose that the SNAP
limitations would have a negative effect on the company's
financial performance because 56% of Dollar General stores are
located in states that re-implemented the SNAP limitations.
The truth regarding the impact that SNAP reductions were having on
Dollar General's business began to surface on August 25, 2016,
when the company announced disappointing second quarter 2016
results. Dollar General attributed the decline in part to "a
reduction in both SNAP participation rates and benefit levels."
Then, on December 1, 2016, the company announced that its third
quarter 2016 results fell far short of market expectations, and
included a reduction in same-store sales, despite the company's
earlier prediction of annual same-store sales growth at 2-4%. The
company finally acknowledged the true extent to which SNAP
reductions were having on its sales, stating that the benefit
reductions "affect about 56% of our store base . . . And those
states that have had the reduction or elimination, they are
approximately 100-basis-point worse in comp." On this news, Dollar
General's stock declined nearly 5%, to close at $73.48 per share
on December 1, 2016.
Dollar General Shareholders Have Legal Options
Concerned shareholders who would like more information about their
rights and potential remedies can contact attorney Darnell R.
Donahue at (800) 350-6003, DDonahue@robbinsarroyo.com, or via the
shareholder information form on the firm's website.
Robbins Arroyo LLP is a nationally recognized leader in
shareholder rights law. The firm represents individual and
institutional investors in shareholder derivative and securities
class action lawsuits, and has helped its clients realize more
than $1 billion of value for themselves and the companies in which
they have invested.
Darnell R. Donahue, Esq.
Robbins Arroyo LLP
Tel: (619) 525-3990
Toll Free: (800) 350-6003
Email: DDonahue@robbinsarroyo.com
DOREL JUVENILE: Faces Suit Over Child Car Seat Quality
------------------------------------------------------
Wadi Reformado at Legal Newsline reports a California woman is
suing a child car seat manufacturer, alleging breach of implied
warranty, negligent misrepresentation and unjust enrichment.
Arriane Henryhand of Northridge filed a class action complaint,
individually and on behalf of a class similarly situated, Jan. 9
in U.S. District Court for the Central District of California
against Dorel Juvenile Group, Inc. alleging false claims regarding
the weight of a child that the defendant's car seat can support.
According to the complaint, Henryhand suffered monetary damages
from being deceived into purchasing a juvenile car seat that was
falsely advertised. The plaintiff alleges Dorel Juvenile refused
to fix its product despite having several complaints from
consumers stating that the car seat could not properly support a
child who is well below the advertised maximum height and weight.
Henryhand seeks trial by jury, compensatory, exemplary, and
statutory damages plus interest, disgorgement, all legal fees plus
interest and any other equitable relief. She is represented by
attorneys Lee A. Cirsch -- Lee.Cirsch@CapstoneLawyers.com --
Robert K. Friedl -- Robert.Friedl@CapstoneLawyers.com -- and
Trisha K. Monesi -- Trisha.Monesi@CapstoneLawyers.com -- of
Capstone Law APC in Los Angeles.
U.S. District Court for the Central District of California Case
number 2:17-cv-00180-SJO-AGR
EGALET CORP: Faces Class Action, March 28 Lead Plaintiff Deadline
-----------------------------------------------------------------
Goldberg Law PC on Jan. 30 announced the filing of a class action
lawsuit against Egalet Corporation ("Egalet" or the "Company")
(Nasdaq: EGLT). Investors who purchased or otherwise acquired
Egalet shares between December 15, 2015, and January 9, 2017,
inclusive (the "Class Period"), are encouraged to contact the firm
in advance of the March 28, 2017 lead plaintiff deadline.
If you purchased or otherwise acquired Egalet shares and would
like more information regarding the class action lawsuit, we
encourage you to contact Michael Goldberg or Brian Schall, of
Goldberg Law PC, 1999 Avenue of the Stars Suite 1100, Los Angeles,
CA 90067, at 800-977-7401, to discuss your rights without cost to
you. You can also reach us through the firm's website at
http://www.Goldberglawpc.com,or by email at
info@goldberglawpc.com.
On January 9, 2017, Egalet released a statement regarding approval
for its product Arymo ER. The same day, the U.S. Federal Drug
Administration stated that a competitor product MorphaBond "has
marketing exclusivity for labeling describing the expected
reduction of abuse of single-entity extended-release morphine by
the intranasal route due to physicochemical properties."
Due to MorphaBond's exclusivity within this market, "no other
single-entity extended-release morphine product submitted in an
abbreviated new drug application or 505(b)(2) application can be
approved for that use at this time."
When this information was revealed to the investing public, the
value of Egalet declined, causing investors severe harm.
If you have any questions concerning your legal rights, please
immediately contact Goldberg Law PC at 800-977-7401, or visit our
website at http://www.Goldberglawpc.com,or email us at
info@goldberglawpc.com.
Goldberg Law PC represents shareholders around the world and
specializes in securities class actions and shareholder rights
litigation.
ELECTROLUX HOME: "Kukich" Suit Moved from D. Md. to M.D. Pa.
------------------------------------------------------------
The class action lawsuit titled Alex Kukich, Individually and on
behalf of all others similarly situated, the Plaintiff, v.
Electrolux Home Products, Inc., the Defendant, Case No. 1:16-cv-
03412, was transferred from the U.S. District Court for the
District of Maryland, to the U.S. District Court for the Middle
District of Pennsylvania (Williamsport). The District Court Clerk
assigned Case No. 4:17-cv-00149-MWB to the proceeding. The case is
assigned to Hon. Matthew W. Brann.
Electrolux Home Products manufactures and markets home appliances
in North America.
The Plaintiff is represented by:
Andrew N Friedman, Esq.
Robert Joseph Barton, Esq.
Sally M Handmaker, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave NW, Suite 500 East
Washington, DC 20005-3964
Telephone: (202) 408 4600
Facsimile: (202) 408 4699
E-mail: afriedman@cohenmilstein.com
jbarton@cohenmilstein.com
shandmaker@cohenmilstein.com
- and -
Charles J Kocher, Esq.
Simon Bahne Paris, Esq.
SALTZ, MONGELUZZI,
BARRETT & BENDESKY, P.C.
One Liberty Plance, 52nd Floor
1650 Market Street
Philadelphia, PA 19103
Telephone: (215) 575 3985
Facsimile: (215) 496 0999
E-mail: ckocher@smbb.com
sparis@smbb.com
- and -
Daniel E Gustafson, Esq.
Raina Borrelli, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333 8844
E-mail: dgustafson@gustafsongluek.com
rborrelli@gustafsongluek.com
The Defendant is represented by:
Eric Christopher Rusnak, Esq.
K&L GATES LLP
1601 K St NW
Washington, DC 20006
Telephone: (202) 778 9000
Facsimile: (202) 778 9100
E-mail: eric.rusnak@klgates.com
- and -
Richard James Mitchell, Esq.
OFFICE OF THE INSPECTOR GENERAL
U.S. DEPT. VETERANS AFFAIRS
801 I St NW
Washington, DC 20001
E-mail: Richard.Mitchell2@va.gov
ENERGY TRANSFER: Faces Suit Over Proposed Merger with Sunoco
------------------------------------------------------------
Notice is given that Faruqi & Faruqi, LLP has filed a class action
lawsuit in the United States District Court for the District of
Delaware, case no. 1:17-cv-00069, on behalf of the holders of the
common units of Energy Transfer Partners, L.P. ("ETP" or the
"Partnership") (ETP) for violations of Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 (the "Exchange Act") in
connection with the Partnership's proposed merger with Sunoco
Logistics Partners L.P. ("SXL").
On November 21, 2016, the Company announced it had entered into an
Agreement and Plan of Merger ("Merger Agreement") under which SXL
will acquire all of the outstanding units of ETP through SXL's
newly formed wholly-owned Delaware company, SXL Acquisition Sub
LLC (the "Proposed Transaction").
Pursuant to the terms of the Merger Agreement, ETP unitholders
will receive 1.5 SXL common units for each of their ETP common
units held, and holders of ETP Series A Cumulative Convertible
Preferred Units (the "Series A units") will receive an equal
number of SXL preferred units. Based on the closing price of ETP's
common units on November 18, 2016, the last trading day before the
Merger Agreement was announced, the implied merger consideration
is approximately $39.29 per unit.
The complaint alleges that the Form S-4 Registration Statement
(the "S-4") filed with the Securities and Exchange Commission
("SEC") on December 19, 2016 provides materially incomplete and
misleading information about the Partnership and the Proposed
Transaction, in violation of Sections 14(a) and 20(a) of the
Exchange Act. The S-4 fails to provide ETP's unitholders with
material information concerning the financial and procedural
fairness of the Proposed Transaction.
Take Action
Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with
extensive experience in prosecuting class actions, and significant
expertise in actions involving corporate fraud. Faruqi & Faruqi,
LLP, was founded in 1995 and the firm maintains its principal
office in New York City, with offices in Delaware, California, and
Pennsylvania.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from today. Any member of the putative class
may move the Court to serve as lead plaintiff through counsel of
their choice, or may choose to do nothing and remain an absent
class member. If you wish to discuss this action, or have any
questions concerning this notice or your rights or interests,
please contact:
Nadeem Faruqi, Esq.
James Banko, Esq.
Faruqi & Faruqi, LLP
685 3rd Avenue, 26th Floor
New York, NY 10017
Telephone: (877) 247-4292
(212) 983-9330
E-mail: nfaruqi@faruqilaw.com
jbanko@faruqilaw.com
FACEBOOK INC: Eglet Prince Files Securities Class Action
--------------------------------------------------------
Robert Eglet, Esq., Senior Partner at the Eglet Prince law firm,
has proven to be an effective advocate for his clients, having
successfully obtained over $1.5 billion in verdicts in the past
decade.
The firm is known for its case preparation, trial strategy and
Eglet's efficacy in connecting to jurors on a one-on-one basis.
Eglet Prince has filed a class action lawsuit against Facebook,
seeking in excess of $5 million in damages. The suit was filed
after Facebook, a leading advertising medium worldwide, admitted
for the first time that it used faulty metrics to measure the
duration that viewers watched paid advertisements distributed on
the social media platform.
In an article published by The Wall Street Journal (Sept. 24-25,
2016), the Journal's Suzanne Vranica and Mike Shields reported
that Facebook executives admitted that Facebook did not include
views of less than 3 seconds when measuring average viewing time.
The Journal reported that Facebook's error "likely overestimated
average time spent viewing videos by 60 percent to 80 percent."
"That's like a professional ballplayer getting to discount all of
his strikeouts," Mr. Eglet said. "On paper, it makes him look
like a hero. In reality, it tears apart the integrity of the
measurement. It makes it completely worthless. In this case,
advertisers were grossly misled about just how much of their
advertising dollars were going to waste."
Several firms from around the country were quick to jump on the
bandwagon, essentially repeating the claims in Mr. Eglet's suit.
Mr. Eglet's lawsuit states: "Facebook's wrongful business
practices alleged herein constituted a continuing course of unfair
competition since, throughout the Class Period, Facebook marketed
and sold its advertising products in a manner that offends public
policy and/or in a fashion that is immoral, unethical, oppressive,
unscrupulous and/or substantially injurious to its customers."
The suit seeks general and special damages; punitive damages;
attorney fees and litigation costs; and interest.
The idea that one of the world's largest advertising companies
grossly misrepresented its impact to advertisers is shocking
enough, but what Mr. Eglet alleges happened behind the scenes with
top Facebook executives is even more damning.
In a parallel lawsuit, Eglet Prince alleges in late 2015, Facebook
board members began implementing a plan to liquidate a large
amount of their Facebook stock while also maintaining majority
voting power via a 3-to-1 stock split. On Sept. 30, 2016,
Facebook filed a quarterly earnings statement that did not include
any mention of the ad metric miscalculation nor its likely effect
on ad revenue -- which comprised approximately 97 percent of
Facebook's 2016 revenue. On Nov. 3, 2016, Facebook announced it
expected a significant decrease in ad revenue and growth in the
coming year. Immediately following the announcement, the value of
Facebook stock fell approximately $4 billion. Once the truth
regarding the ad metrics was revealed to the public, stock prices
continued to drop significantly.
The lawsuit also alleges that CEO Mark Zuckerberg sold millions of
Facebook shares during this period, COO Sheryl Sandberg sold
hundreds of thousands of shares, and other board members sold
large numbers of shares.
Anyone who owned common stock in Facebook between April 1, 2015,
and November 16, 2016, may be entitled to compensation and/or the
right to be appointed as a lead plaintiff. You can contact Eglet
Prince at 702-450-5400.
About Eglet Prince
Eglet Prince has successfully represented thousands of clients.
The firm is best known for its multimillion-dollar verdicts,
including two verdicts in excess of $500 million against a
pharmaceutical company. The attorneys at Eglet Prince are
experienced trial lawyers and have successfully handled complex
litigation, mass tort litigation and class actions. Eglet Prince
is located at the Robert T. Eglet Advocacy Center at 400 South 7th
Street in downtown Las Vegas, Nevada 89101.
FACEBOOK INC: Rosen Law Firm Files Securities Class Action
----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Jan. 27
disclosed that it has filed a class action lawsuit on behalf of
purchasers of Facebook, Inc. securities (NASDAQ:FB) from May 5,
2014 through December 9, 2016, both dates inclusive (the "Class
Period"). The lawsuit seeks to recover damages for Facebook
investors under the federal securities laws.
To join the Facebook class action, go to
http://www.rosenlegal.com/cases-1040.htmlor call Phillip Kim,
Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) Facebook's metrics to calculate the average time users
spent watching videos was overestimated by between 60% and 80%;
(2) Facebook provided inaccurate statistics to advertisers
regarding the amount of activity their ads received on the
Website; and (3) as a result, the Defendants' public statements
were materially false and misleading at all relevant times. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
March 28, 2017. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-1040.htmlor to discuss your
rights or interests regarding this class action, please contact
Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-
3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com.
Follow us for updates on LinkedIn:
https://www.linkedin.com/company/the-rosen-law-firm or on Twitter:
https://twitter.com/rosen_firm.
Rosen Law Firm -- http://www.rosenlegal.com-- represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
FIAT CHRYSLER: Concealed Defect on Valve Stem, Suit Alleges
-----------------------------------------------------------
Seven consumers from four states (NY, NJ, OH, MI) have
collectively filed a putative class action lawsuit against Fiat
Chrysler Automobiles (FCA) over an alleged defect in some of their
vehicle's tire pressure monitoring system (TPMS). The suit, filed
in the United States District Court for the Eastern District of
New York on behalf of all potentially affected owners in the four
states, alleges that FCA has "concealed a known safety defect from
its customers."
The plaintiffs named in the suit contend that a defective valve
stem in the TPMS can corrode and fail without warning. The lawsuit
alleges that when the valve fails it can cause the tire to
suddenly lose significant pressure while in motion "akin to a tire
blow out." Several of the plaintiffs claim that their tires
suddenly lost air while they were driving, causing them to lose
control of their vehicle.
The lawsuit claims that all seven plaintiffs "suffered harm as a
result of Chrysler's decision not to disclose the TPMS defect."
The faulty valve stems have allegedly been found in several of
FCA's 2010 model year vehicles, including the Chrysler Town &
Country, the Jeep Liberty, the Dodge Grand Caravan, and the Dodge
Journey. The lawsuit states that more than 160 complaints of
corroding valve stems in Chrysler vehicles can be found on the
National Highway Transportation Safety Administration (NHTSA)
database going back at least six years. But despite these numerous
defect complaints, the lawsuit alleges that the automaker
"actively concealed and/or failed to notify the public of the
existence and nature of said defect."
The suit also contends that the replacement valves, integral to
the TPMS, have "often been on nationwide backorder" due to the
commonality of this problem. When working properly, the TPMS is
supposed to relay real time tire pressure information back to the
driver. After the massive Firestone tire recall two decades ago,
which led to more than 100 deaths, a federal law was put into
place guaranteeing a TPMS in every vehicle less than 10,000 pounds
by the end of 2008. The lawsuit alleges that FCA has "recognized
the risk" by replacing many corroded valve stems with "a new
rubberized part that was less likely to corrode," yet no recall
has ever been made.
FCA is also facing additional class action lawsuits brought over
their alleged violations of the Clean Air Act. On the heels of
VW's massive diesel emissions scandal, the EPA accused FCA of
similar acts. And despite the automaker's firm denials, class
action lawsuits have been filed in both U.S. and Canadian courts
over their 3.0-liter diesel engines found in 2014 to 2016 Jeep
Grand Cherokees and 2014 to 2016 Dodge Ram 1500 pickup trucks.
Authorities believe that more than 100,000 vehicles could be
affected, which could cost FCA more than $4 billion in fines from
the EPA alone.
As for the valve stem class action lawsuit, in addition to damages
the plaintiffs want FCA to inspect and replace all failed valve
stems in their four states.
FIRST ADVANTAGE: Faces "Combs" Suit in Eastern Dist. of Virginia
----------------------------------------------------------------
A class action lawsuit has been filed against First Advantage
Background Services, Corp. The case is entitled as Ernestine
Combs, on behalf of herself and all others similarly situated, the
Plaintiff, v. First Advantage Background Services, Corp., the
Defendant, Case No. 3:17-cv-00082-REP (E.D. Va., Jan. 26, 2017).
The case is assigned to Hon. District Judge Robert E. Payne.
First Advantage offers a complete range of pre-employment
screening services including federal, state, and county criminal
searches.
The Plaintiff is represented by:
Christopher Colt North, Esq.
751-A Thimble Shoals Blvd.
Newport News, VA 23606
Telephone: (757) 873 1010
E-mail: cnorthlaw@aol.com
FORD MOTOR: Faces "Franco" Suit in Southern Dist. of California
---------------------------------------------------------------
A class action lawsuit has been filed against Ford Motor Company.
The case is captioned as Silvia Franco, individually and on behalf
of all others similarly situated, the Plaintiff, v. Ford Motor
Company, the Defendant, Case No. 3:17-cv-00161-GPC-MDD (S.D. Cal.,
Jan. 26, 2017). The case is assigned to Hon. Judge Gonzalo P.
Curiel.
The Ford Motor Company is an American multinational automaker
headquartered in Dearborn, Michigan, a suburb of Detroit. It was
founded by Henry Ford and incorporated on June 16, 1903.
The Plaintiff is represented by:
Timothy Gordon Blood, Esq.
BLOOD HURST & O'REARDON LLP
701 B Street, Suite 1700
San Diego, CA 92101
Telephone: (619) 338 1100
Facsimile: (619) 338 1101
E-mail: tblood@bholaw.com
GC SERVICES: Faces "Greenfeld" Suit in Eastern Dist. of N.Y.
------------------------------------------------------------
A class action lawsuit has been filed against GC Services Limited
Partnership. The case is styled as Hemda Greenfeld, on behalf of
herself and all other similarly situated consumers, the Plaintiff,
v. GC Services Limited Partnership, the Defendant, Case No. 1:17-
cv-00448 (E.D.N.Y., Jan. 26, 2017).
GC Services is a privately-held outsourcing provider of call
center management and collection agency services in North America.
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone: (516) 668 6945
E-mail: fishbeinadamj@gmail.com
GERMANY: Colonialism Reparation Supports Genocide Class Action
--------------------------------------------------------------
Colonialism Reparation supports the class action lawsuit filed by
Herero and Nama to get reparations for their genocide and calls
for Germany to present as soon as possible apologies and
compensations for the crimes committed.
The Congress Restorative Justice after Genocide was held in
Berlin, capital of Germany, from 14 to 16 October 2016 with the
participation of about fifty Ovaherero and Nama delegates. The
congress ended with the approval of the Berlin Resolution 2016,
declaring critical debate about the genocide a global task and a
subject for society as a whole, besides the demands for an
official recognition of the genocides, a sincere apology by the
German Parliament and Government and negotiations on reparations
with the Ovaherero and Nama representatives from Namibia and their
diaspora.
On January 5, 2017 the Ovaherero Paramount Chief Vekuii Rukoro and
the Chairman of the Nama Traditional Authorities Association David
Frederick, after having repeatedly petitioned the German
Government to include them in the ongoing discussions without
success, have filed a class action lawsuit in the Federal court in
New York to get collective reparations and the right to be present
at the ongoing negotiations between the German and Namibian
Government. The news has had great diffusion, as well as in
Germany and Namibia, also at international level (Al Jazeera, BBC,
Daily Sabah, Deutsche Welle, Il Post, Jeune Afrique, Le Monde,
Reuters, Russia Today, Sky, Sputnik, The Guardian, etc.).
Colonialism Reparation -- http://www.colonialismreparation.org--
supports the class action lawsuit filed by Herero and Nama to get
reparations for their genocide and calls for Germany to present as
soon as possible apologies and compensations for the crimes
committed involving the victims people in the negotiations.
GIGAMON INC: Faces Class Action, March 28 Lead Plaintiff Deadline
-----------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Jan. 30
announced the filing of a class action lawsuit on behalf of
purchasers of Gigamon Inc. securities (GIMO) from October 27, 2016
through January 17, 2017, inclusive (the "Class Period"). The
lawsuit seeks to recover damages for Gigamon investors under the
federal securities laws.
To join the Gigamon class action, go to
http://rosenlegal.com/cases-1041.htmlor call Phillip Kim, Esq. or
Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, throughout the Class Period Defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about Gigamon's
business, operations, and prospects, including that: (1) Gigamon
was experiencing reduced product bookings in its North America
West region; (2) several of Gigamon's significant customers were
deferring purchasing decisions into 2017; (3) Gigamon failed to
properly include these trends in its financial guidance; and (4)
as a result, Defendants' statements about Gigamon's business,
operations, and prospects, including statements about its revenue
guidance, were false and misleading and/or lacked a reasonable
basis. When the true details entered the market, the lawsuit
claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
March 28, 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, go to
http://rosenlegal.com/cases-1041.htmlor to discuss your rights or
interests regarding this class action, please contact Phillip Kim,
Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767-
3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
HEWLETT-PACKARD: 9th Circuit Affirms Dismissal of Securities Suit
-----------------------------------------------------------------
Anthony Sallah at JD Supra Business Advisor reports that the Ninth
Circuit affirmed the dismissal of a shareholder class action
lawsuit alleging securities fraud violations, arising out of
Hewlett-Packard's former CEO's alleged misrepresentations about
HP's ethical compliance. In a case of first impression, the Ninth
Circuit held that there was no actionable securities fraud claim
where a CEO violates the corporation's corporate code of ethics,
even after publicly touting the corporation's high standards for
ethics and compliance.
In Retail Wholesale, HP's Board initiated an investigation of its
CEO and his relationship with a former independent contractor
after allegations of sexual harassment. During the investigation,
the CEO lied to the Board and investigators, and doctored expense
reports to hide their relationship. After his subsequent
resignation in 2010, HP's stock dropped, resulting in an alleged
loss of $10 billion.
HP shareholders brought a class action lawsuit alleging violations
of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of
1934. The shareholders alleged that in 2006, the CEO had publicly
touted HP's high standards for ethics and compliance, and that HP
made other various public statements promoting its ethics
standards, which in light of the CEO's conduct were
misrepresentations.
"The district court dismissed the shareholders' class claims for
failure to adequately allege materiality and falsity, and the
Ninth Circuit agreed. The Ninth Circuit first held that the
shareholders failed to establish that HP made a material
misrepresentation, because representations regarding a "code of
ethics" or ethical compliance are not objectively verifiable and
are "inherently aspirational." Each one of HP's statements relied
on by the shareholders, the Ninth Circuit held, were not capable
of objective verification. Underscoring the Ninth Circuit's
decision was that a contrary interpretation could turn all
noncompliance with an ethical code into securities fraud.
Second, the Ninth Circuit agreed with the district court that HP's
alleged failure to disclose the CEO's noncompliance was not
actionable under Section 10(b) and Rule 10b-5. HP did not have a
duty to disclose the CEO's activities, even in light of HP's
statements regarding its high ethical compliance, because HP "did
not reasonably suggest that there would be no violations" of its
ethical code. These affirmative statements simply did not create
an impression of complete compliance, and so the shareholders
could not hold HP liable under a material omission theory.
The case is Retail Wholesale & Dep't. Store Union Local 338 Ret.
Fund v. Hewlett-Packard Co., No. 14-16433 (9th Cir. Jan. 19,
2017).
HISCALL INC: "Brown" Suit Seeks Unpaid Wages in Labor Suit
----------------------------------------------------------
Kevin Brown, on behalf of himself and all others similarly
situated, Plaintiff, v. Hiscall, Inc., Hiscall Telecommunications,
Inc. and Hiscall Technologies, Inc., Defendants, Case No. 3:17-cv-
00011, (M.D. Tenn., January 5, 2017), seeks compensation for all
unpaid and underpaid wages, prejudgment interest, liquidated
damages, litigation costs, expenses and attorneys' fees and such
other and further relief under the Fair Labor.
Hiscall, Inc., Hiscall Telecommunications, Inc. and Hiscall
Technologies, Inc. are Tennessee corporations headquartered at
1001 Gentry Circle, Dickson, Tennessee, 37055. They jointly own
and operate a telecommunications company that, among other things,
installs, manages, and repairs telephone, data networking, audio
visual, and cable systems.
Plaintiff worked for Defendants from 2009 until in or around May
2016 as a system technician, installing, maintaining and
troubleshooting telecommunications equipment.
Plaintiff is represented by:
David W. Garrison, Esq.
Timothy L. Miles, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN &GARRISON, LLC
Bank of America Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
Email: dgarrison@barrettjohnston.com
tmiles@barrettjohnston.com
jfrank@barrettjohnston.com
HOSPITAL MEDIA: Faces Class Action Over Unwanted Fax Ads
--------------------------------------------------------
Robert Storace, writing for The Connecticut Law Tribune, reports
that a Stratford doctor has filed a prospective class action
federal lawsuit against a digital media company for sending
unauthorized and unwanted fax advertisements promoting its health-
related television programming to doctors' offices.
In his 11-page lawsuit, filed on Jan. 30 in U.S. District Court in
New Haven, Dr. Kenneth A. Thomas said that Darien-based Hospital
Media Network (HMN) has caused him and others "actual harm,
including the aggravation and nuisance of receiving such faxes,
the loss of use of their fax machines during the receipt of such
faxes, increased labor expenses, and the loss of any ink and paper
used to print them." Dr. Thomas claims that none of the faxes
contains the requisite "opt-out notices" mandated by federal law.
Hospital Media Network is also known as Health Media Network
The lawsuit states that the number of people covered in the class
action "is unknown and unavailable to the plaintiff at this time,"
but adds it can cover all "persons and entities" who received a
telephone fax advertisement from HMN without prior consent over
the past four years.
It is not clear from the lawsuit how many times Thomas was
solicited by HMN, but the suit notes an incident last August. HMN
was promoting its digital programming services and sent a fax that
contained a contract form for recipients to complete and return in
order to secure its services, according to the complaint.
"Thomas had no prior business relationship with HMN, and had never
provided it with consent to receive advertisements through any
medium let alone facsimiles," the lawsuit states. "HMN created
the content of the fax advertisement, and transmitted it to
[Thomas] with the intention of generating sales and increasing its
revenue. The fax failed to contain the required opt-out notice."
Sending fax advertisements to individuals or businesses to which
it has no prior relationship and without permission or consent
violates the federal Telephone Consumer Protection Act, according
to the lawsuit.
Dr. Thomas is seeking an injunction requiring the company to
"cease all unauthorized fax-based marketing activities." The suit
also seeks "actual and statutory damages . . . along with
reasonable attorneys' fees" to Dr. Thomas and those that would
join in the class action suit.
Dr. Thomas is represented by Jonathan M. Shapiro of the Middletown
and Stamford-based Shapiro Law Offices LLC and by Benjamin H.
Richman -- brichman@edelson.com -- of the Chicago-based Edelson
PC. Shapiro referred all comment to Mr. Richman, who was not
available for comment.
An attorney was not assigned to represent HMN as of Jan. 31, and
no one from the company was available for comment.
The case has been assigned to Judge Jeffrey A. Meyer.
On the same day he filed the prospective class action against HMN,
Dr. Thomas also filed prospective class actions against two other
companies for allegedly sending unauthorized and unwanted fax
advertisements. Those companies are Fairfax, Virginia-based
Bariatrix Nutrition Corp., which sells weight and management
solutions; and Irvine, California-based Practice Builders LLC, a
health care marketing and consulting firm offering services to
medical, dental and health care practices as well as hospitals.
INDIANAPOLIS COLTS: Wants Class Action Moved to Indiana
-------------------------------------------------------
Linn Freedman, Esq. -- lfreedman@rc.com -- of Robinson+Cole, in an
article for JDSupra, reports that the Indianapolis Colts mobile
app is alleged by a putative class to record fans' private
conversations. In the putative class action, the named plaintiff
alleges that the mobile app secretly activates the smart phone's
microphone to determine the fan's location and then listens and
records all audio within range, which includes personal
conversations without consent. He alleges that this alleged
feature violates the Electronic Communications Privacy Act.
The problem is that he sued the Colts in Massachusetts District
Court. Why, you ask? Because the app developer is located in
Massachusetts.
According to briefs recently filed, the Colts want the case moved
to Indiana, where the Colts reside, and the named plaintiff
resides. According to the Colts, the Commonwealth and the people
of Massachusetts should not have to decide this case that really
has no bearing on Massachusetts.
Really, it is about being the home team wanting to play in the
home stadium. After all, the Patriots are in the Super Bowl and
Gillette Stadium is just down the road. And, well, you know the
Colts-Patriots rivalry is one of the most famous in the NFL. Could
that be another reason for the Colts to want to get out of the
Commonwealth?
INTERBLOCK: Class Action Targets Electronic Craps Commission
------------------------------------------------------------
Steven Stradbrooke at CalviAyre reports gaming device maker
Interblock is being sued in Florida by players convinced that the
company's electronic craps machines are taking too big a
commission.
On January 20, a class action lawsuit was filed in a South Florida
federal court against Interblock and the Isle Casino and Racing in
Pompano Beach, the Isle of Capri Casinos venue at which the three
plaintiffs played the Interblock craps game in question.
At the heart of the matter is the house commission charged by the
Interblock machines. The machine advertises that it takes a 5% cut
of player stakes on winning wagers, whereas it actually takes a 5%
cut of player winnings on certain 'buy' bets, which means the
machine's commission can be as high as 10% of the stake. Some
other types of bets carry an actual commission of 7.5%.
The plaintiffs' attorney, Cristina Pierson with Kelley Uustal Law
Office, told the Miami Herald the only reason the glitch was
noticed was because "someone did the math." Pierson said her
research on similar Interblock machines in other casinos detected
the same flawed payout structure.
Interblock has yet to comment on the claims made in the lawsuit
but the Isle casino closed its Interblock dice game after the suit
was filed. The lawsuit notes that the casino would have been the
beneficiary of the fiscal miscalculation and Pierson suggested the
casino could use player reward card data to determine the scale of
the erroneously collected commission.
FLORIDA FLOORS IT ON GAMING BILL
Meanwhile, Florida's new gaming legislation was steamrolled
through a Senate committee hearing on Wednesday. The Regulated
Industries Committee had scheduled four hours to consider the SB 8
legislation -- which covers everything from the state's new gaming
compact with the Seminole Tribe, daily fantasy sports and new
slots and banked card games in some counties -- yet managed to
wrap things up via unanimous vote in just 60 minutes.
The bill now heads to the Appropriations committee, its last stop
before SB 8 can be debated on the Senate floor when the 60-day
2017 legislative session commences on March 7. However, the bill
is expected to get a much tougher ride when it moves to the more
conservative House.
While SB 8 contains a 'pari-mutuel reduction program' that would
permit the state to buy back unwanted gaming licenses, House
Commerce Committee chairman Jose Felix Diaz told local media that
the House version of SB 9 would be "a conservative approach to
gaming that will put contraction front and center." That said,
Diaz cautioned that the details are "still being worked out."
ISSUES & ANSWERS: Faces "Helm" Suit in District of Oregon
---------------------------------------------------------
A class action lawsuit has been filed against Issues & Answers
Network, Inc. The case is captioned as Linda Helm, individually
and on behalf of all others similarly situated, the Plaintiff, v.
Issues & Answers Network, Inc., and Does 1 through 10, inclusive,
and each of them, the Defendants, Case No. 2:17-cv-00136-SU (D.
Or., Jan. 26, 2017). The case is assigned to Hon. Magistrate Judge
Patricia Sullivan.
Issues and Answers Network is an independent global marketing
research firm providing scalable research services.
The Plaintiff is represented by:
Joshua R. Trigsted, Esq.
TRIGSTED LAW GROUP, P.C.
5200 SW Meadows Rd., Ste 150
Lake Oswego, OR 97035
Telephone: (503) 376 6774 Ext. 216
Facsimile: (866) 927 5826
E-mail: jtrigsted@attorneysforconsumers.com
JUNG SIK DANG: Minimum Wage, Tips Sought in "Bobb" Labor Suit
-------------------------------------------------------------
David Bobb, on behalf of himself and on behalf of other similarly-
situated individuals, Plaintiff, v. Jung Sik Dang, Corp., d/b/a
Jungsik and Jung Sik Yim, in his professional and individual
capacities, Defendants, Case No. 1:17-cv-00090, (S.D. N.Y.,
January 5, 2017), seeks recovery of minimum wages and withheld
tips, pre-judgment and post-judgment interest, reasonable
attorneys' fees and costs and disbursements in this action
pursuant to the Fair Labor Standards Act and New York Labor Laws.
Jung Sik Yim operate a Korean restaurant, Jungsik, located in
TriBeCa, New York City where Bobb worked as a waiter. He claims to
be paid below the minimum wage and had his tips withheld.
Plaintiff is represented by:
Douglas H. Wigdor, Esq.
Tanvir H. Rahman, Esq.
WIGDOR LLP
85 Fifth Avenue
New York, NY 10003
Telephone: (212) 257-6800
Facsimile: (212) 257-6845
Email: dwigdor@wigdorlaw.com
trahman@wigdorlaw.com
L'OREAL USA: Faces "Price" Suit in Southern Dist. of New York
-------------------------------------------------------------
A class action lawsuit has been filed against L'Oreal USA, Inc.
The case is titled as Brandi Price and Christine Chadwick, on
behalf of themselves and all other similarly situated, the
Plaintiff, v. L'Oreal USA, Inc. v. Matrix Essentials, LLC, the
Defendant, Case No. 1:17-cv-00614-LGS (S.D.N.Y., Jan. 26, 2017).
The case is assigned to Hon. Judge Lorna G. Schofield.
L'Oreal USA manufactures and markets cosmetics for consumer and
professional markets. It provides skincare, haircare, makeup, and
perfume products.
The Plaintiffs are represented by:
Jason Travis Brown, Esq.
Patrick Sidney Almonrode, Esq.
JTB LAW GROUP, LLC
155 2nd Street, Suite 4
Jersey City, NJ 07302
Telephone: (212) 725 7272
Facsimile: (212) 488 4848
E-mail: jtb@jtblawgroup.com
patalmonrode@jtblawgroup.com
LA ENTERTAINMENT: Court Denies Class Certification Under Rule 23
----------------------------------------------------------------
Greg Mersol, Esq. -- gmersol@bakerlaw.com -- of BakerHostetler, in
an article for JDSupra, reports that a recent case reflects that
some courts will look not only to the presence or absence of
conflicts or litigation misconduct but also to the plaintiffs'
counsel's experience in other class action cases.
In Goers v. L.A. Entertainment Group, Inc., Case No. 2-15-dv-412-
FtM-99CM (M.D. Fla., Jan. 9, 2017), the plaintiffs described
themselves as former exotic dancers who worked at an adult night
club in Fort Myers, Florida. They claimed that they, the other
exotic dancers and possibly other club employees were
misclassified as independent contractors and thus failed to
receive the minimum wage and overtime. They sought to certify a
class under state law under federal Rule 23, and also sought
certification of a collective action under section 16(b) of the
Fair Labor Standards Act.
The district court initially refused to certify the class due to
the conflicts between having a Rule 23 class and a section 16(b)
collective in the same case. After the court issued that opinion,
however, the Eleventh Circuit determined in a different case,
Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016), that the two
were not incompatible, and the case was remanded for further
consideration.
On remand, the district court in Goers found that the class did
satisfy the requirement of superiority under Rule 23(b)(3). It
found, however, that the plaintiffs had failed to demonstrate the
adequacy of class counsel under Rule 23(a)(4). More specifically,
the court reviewed the considerations for adequacy of counsel
under Rule 23(g)(1)(A), which were:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel's experience in handling class actions and other
complex litigation and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources counsel will commit to representing the
class.
The court also noted that it could, under Rule 23(g)(1)(B),
consider "any . . . matter pertinent to counsel's ability to
fairly and adequately represent the interests of the class."
The court found several of these factors wanting. It reviewed the
plaintiffs' counsel's past experience and found that they were
relative newcomers to class action practice, having filed most of
their class action claims only within the prior two years. It
noted their failure to comply with certain court deadlines and an
apparent disconnect between the class definition in the complaint
and the class for which certification was sought. It also cited
questions about the resources the plaintiffs' counsel could bring
to bear on the case. Combining these factors, the court concluded
that the attorneys were not adequate class representatives and
denied certification under Rule 23.
Goers is an example of a court taking the requirements of adequacy
of representation seriously, and it likely points up the need for
plaintiffs' counsel to demonstrate the requisite experience and
focus. Notably, however, the court also found that as adequacy is
not a factor under FLSA section 16(b), its finding did not affect
the collective action allegations. Thus, the same lawyers could
still continue to pursue the FLSA section 16(b) collective,
although it would presumably be a significantly narrower case
given the opt-in requirement and different functioning of the
statute of limitations rules.
The bottom line: Adequacy of representation under Rule 23 may
require examination of plaintiffs' counsel's skill and experience
in handling the present and prior class litigation.
LATTICE SEMICONDUCTOR: Rigrodsky & Long Files Class Action
----------------------------------------------------------
Rigrodsky & Long, P.A. on Jan. 30 disclosed that it has filed a
class action complaint in the United States District Court for the
District of Oregon on behalf of holders of Lattice Semiconductor
Corporation ("Lattice") (NASDAQ GS:LSCC) common stock in
connection with the proposed acquisition of Lattice by Canyon
Bridge Capital Partners, Inc. and its affiliates (collectively,
"Canyon Bridge") announced on November 3, 2016 (the "Complaint").
The Complaint, which alleges violations of the Securities Exchange
Act of 1934 against Lattice, its Board of Directors (the "Board"),
and Canyon Bridge, is captioned Parshall v. Lattice Semiconductor
Corp., Case No. 3:17-cv-00035-SI (D. Or.).
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at
Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington,
DE 19803, by telephone at (888) 969-4242; by e-mail at info@rl-
legal.com; or at: http://rigrodskylong.com/investigations/lattice-
semiconductor-corporation-lscc/.
On November 3, 2016, Lattice entered into an agreement and plan of
merger (the "Merger Agreement") with Canyon Bridge. Pursuant to
the Merger Agreement, Lattice shareholders will receive $8.30 per
share in cash (the "Proposed Transaction").
The Complaint alleges that, in an attempt to secure shareholder
support for the Proposed Transaction, on December 28, 2016,
defendants issued materially incomplete disclosures in a
Preliminary Proxy Statement (the "Proxy Statement") filed with the
United States Securities and Exchange Commission. The Complaint
asserts that the Proxy Statement, which recommends that Lattice
stockholders vote in favor of the Proposed Transaction, omitted
material information necessary to enable shareholders to make an
informed decision as to how to vote on the Proposed Transaction,
including material information with respect to Lattice's financial
projections, the opinions and analyses of Lattice's financial
advisor, and the background of the Proposed Transaction. The
Complaint seeks injunctive and equitable relief and damages on
behalf of holders of Lattice common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 31, 2017. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the proposed class may move the Court
to serve as lead plaintiff through counsel of their choice, or may
choose to do nothing and remain an absent class member.
With offices in Wilmington, Delaware and Garden City, New York,
Rigrodsky & Long, P.A. regularly prosecutes securities class,
derivative and direct actions, shareholder rights litigation, and
corporate governance litigation, on behalf of shareholders in
states and federal courts throughout the United States.
LIVANOVA: Law Firm Investigates Potential Class Action
------------------------------------------------------
Chimicles & Tikellis LLP, with offices in Haverford, Pennsylvania
and Wilmington, Delaware, is investigating a potential class
action lawsuit on behalf of hospitals and healthcare providers
that purchased heater-cooler devices manufactured by LivaNova
(formerly the Sorin Group). Heater-cooler devices use
temperature-controlled water to heat or cool a patient's body
during cardiothoracic, open-heart and other surgeries. While the
water itself does not come into direct contact with the patient,
there exists the potential for contaminated water to transmit
bacteria through the air.
The Food and Drug Administration (FDA) has recently stated that it
is "aware that the use of heater-cooler devices has been
associated with Nontuberculous Mycobacteria (NTM) infections,
primarily in patients undergoing cardiothoracic surgical
procedures." NTM infections can cause serious health
complications, including death. In October of 2015, the FDA sent
a notice to hospitals and healthcare providers to provide them
with "heightened awareness about infections associated with
heater-cooler devices and steps health care providers and health
facilities can take to mitigate risks to patients."
In October 2016, the Centers for Disease Control and Prevention
released a Health Alert Network Advisory that instructed hospitals
to notify patients who underwent surgery where a Sorin 3T System
was utilized of their increased risk of infection. It has been
reported that at least sixteen hospitals in ten states have
identified NTM infections among patients exposed to the heart
surgery device. These incidents may subject these and other
hospital systems to significant liability.
C&T is investigating whether hospitals and healthcare providers
that purchased these machines have a cause of action against
LivaNova to recover damages, including the costs associated with
purchasing a replacement device, notifying patients of their
potential exposure to infection, providing patient or medical
monitoring, maintaining and cleaning the devices, and defending
lawsuits filed against hospitals and healthcare providers by
patients who were exposed to NTM. C&T successfully prosecuted a
similar class action lawsuit on behalf of hospitals and healthcare
providers that had to purchase replacement medical devices in
light of their uncertain status before the FDA. In that case,
Physicians of Winter Haven LLC, d/b/a Day Surgery Center v. STERIS
Corporation, No. 1:10-cv-00264 (N.D. Ohio), C&T obtained a
settlement valued at approximately $20 million on behalf of
hospitals and surgery centers that purchased a sterilization
device from STERIS that allegedly did not receive the required
pre-sale authorization from the FDA.
Any hospitals or healthcare providers that purchased a Sorin 3T
System can learn more about C&T's investigation by contacting the
attorneys below.
CHIMICLES & TIKELLIS LLP
Nicholas E. Chimicles
Benjamin F. Johns
Jessica L. Titler
One Haverford Centre
361 West Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
Facsimile: (610) 649-3633
E-mail: BFJ@chimicles.com
JT@chimicles.com
LOUISIANA: Walker Residents Meet with Law Firm to Discuss Case
--------------------------------------------------------------
WAFB reports that on Jan. 30, Walker residents got a firsthand
look at the options they have in regards to joining a recent class
action lawsuit filed against the state.
One of the law firms helping with the lawsuit was at Walker City
Hall during the meeting to provide information to people wanting
to join. The cities of Walker and Denham Springs, in addition to
the Livingston Parish School Board, have already joined the suit,
asking for the Department of Transportation and Development to
remove a concrete barrier along I-12 that city officials blame for
the severity of the flooding in August.
MALLINCKRODT PLC: Shareholders Sue Over Acthar Gel
--------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP disclosed that a
class action complaint was filed against Mallinckrodt plc in the
U.S. District Court for the District of Columbia. The complaint is
brought on behalf of all purchasers of Mallinckrodt securities
between November 25, 2014 and January 18, 2017, for alleged
violations of the Securities Exchange Act of 1934 by
Mallinckrodt's officers and directors. Mallinckrodt develops,
manufactures, markets, and distributes branded and generic
specialty pharmaceutical products and therapies in the United
States, Europe, the Middle East, Africa, and internationally.
Among Mallinckrodt's drug portfolio is a medication known as
Acthar Gel ("Acthar"), which is the only approved therapeutic
preparation of adrenocorticotropic hormone in the United States,
and is approved as a treatment for 19 different conditions.
Mallinckrodt acquired Questcor Pharmaceuticals, Inc. on August 14,
2014.
Mallinckrodt Accused of Downplaying Its Reliance on Medicare and
Medicaid Programs
According to the complaint, Questcor, and later Mallinckrodt, used
its monopoly status to repeatedly increase the price of Acthar by
85,000%, from $40 per vial in 2001 to over $34,000 per vial in
2017. Acthar became an important revenue source for Mallinckrodt,
representing 34% of the company's overall sales in 2016. On an
October 6, 2015 conference call with investors, Mallinckrodt's
Chief Executive Officer, Mark Trudeau, stated that the company's
combined revenues for Medicare and Medicaid constituted roughly
25% of the company's total revenues and that the proportion of
Acthar revenues attributable to Medicare and Medicaid was "a
little higher than that." However, the complaint alleges that
Mallinckrodt officials failed to disclose that Acthar's monopoly
status was the product of unlawful anticompetitive practices. In
addition, Mallinckrodt allegedly failed to disclose that its
increasing reliance on Medicare and Medicaid meant that the
company was highly exposed to changes in reimbursement levels for
these programs.
On November 16, 2016, Citron Research published a report accusing
Mallinckrodt of securities fraud in connection with Trudeau's
prior statements which downplayed the company's reliance on
Medicare and Medicaid for Acthar revenue. The report revealed that
Medicare paid approximately $504 million and Medicaid paid $144.6
million for Acthar in 2015, and these payments amounted to 61.32%
of Mallinckrodt's total Acthar revenue in 2015. During a
conference call on November 29, 2016, Trudeau admitted that
"Acthar now represents a significantly greater proportion of our
operating income than one-third." On January 18, 2017, the Federal
Trade Commission ("FTC") announced that Mallinckrodt had agreed to
pay $100 million in connection with a joint settlement with the
FTC and several states. On this news, Mallinckrodt's stock
declined by 5.85% to close at $46.53 per share on January 18,
2017.
Mallinckrodt Shareholders Have Legal Options
Concerned shareholders who would like more information about their
rights and potential remedies can contact attorney Darnell R.
Donahue at (800) 350-6003, -- DDonahue@robbinsarroyo.com -- or via
the shareholder information form on the firm's website.
Robbins Arroyo LLP is a nationally recognized leader in
shareholder rights law. The firm represents individual and
institutional investors in shareholder derivative and securities
class action lawsuits, and has helped its clients realize more
than $1 billion of value for themselves and the companies in which
they have invested.
Darnell R. Donahue
Robbins Arroyo LLP
Tel: (619) 525-3990
(800) 350-6003
E-mail: DDonahue@robbinsarroyo.com
MANITOBA: First Nations Flood Evacuees Suit Can Proceed
-------------------------------------------------------
Alexandra Paul at Winnepeg Free Press reports that Manitoba's
highest court has ruled First Nations evacuees from the 2011 flood
can proceed with their class-action suit against the province.
The unanimous ruling from three Justices of Manitoba's Court of
Appeal on January 25 said a class-action lawsuit makes the most
sense given the central question is whether the province's actions
to fight the 2011 flood caused the massive Interlake flooding that
affected thousands of people.
"The goal of access to justice favours certification in this case.
A proceeding that allows the class of plaintiffs, many of whom
have lost their homes due to flooding and have been displaced for
lengthy periods of time, to share the costs of one common-issues
lawsuit will help improve access to justice for them," Justices
Barbara Hamilton, Christopher Mainella and Jennifer Pfuetzner
wrote in their joint ruling.
"The alternative would be for each plaintiff to bear the
significant cost of an individual proceeding or, more
realistically, be unable to bring any proceeding at all."
The basis of the class-action lawsuit will be to provide evidence
the province's actions caused the flooding that forced the
evacuations in 2011, the justices said.
If the case proves the province flooded out the reserves, as many
as 3,500 to 4,000 people who were affected by the flood stand to
gain possible compensation for their losses, as well as damages.
Evacuees and their lawyers hailed the decision.
"We're delighted, of course. The members of the reserves are going
to get their day in court after a long, four-year struggle," said
William Jenkins, a lead lawyer for the plaintiffs.
Jenkins is a retired justice with the Supreme Court of Ontario who
is a member of the litigation department with the London, Ont.,
law firm McKenzie Lake.
"I can't remember a stronger certification decision... than this
one," Jenkins said.
Manitoba responded to the 2011 flood by diverting floodwaters from
the Assiniboine River system to Lake Manitoba, sparing the urban
south from the brunt of the damage.
The First Nations of Pinaymootang (Fairford), Little Saskatchewan,
Lake St. Martin and Dauphin River have long argued the province
saved Winnipeg at the expense of flooding them out, but the
province has always denied the charge.
Thousands of people were evacuated, mostly to Winnipeg, where they
lived for months in hotel rooms. Four years later, there were
still nearly 2,000 evacuees living in Winnipeg apartments and
rentals.
The cost of accommodations to the federal government topped $90
million by 2014.
The ruling opens the door to three possibilities for the province:
the case could proceed to trial, the province could seek an out-
of-court settlement over how it handled the 2011 flood, or it
could appeal the ruling to the Supreme Court of Canada.
By late January 26, the province said it was reviewing the ruling
and had yet to determine its next step.
At least one plaintiff pleaded publicly on January 26 for the
province to do the right thing.
"My first feeling when I heard was there is finally going to be
some justice for us. It's been a long process, going on since
2011, and this year it will be six years since the flood. Finally,
something is going to be happening about it," said Clifford
Anderson of Pinaymootang First Nation, about 240 kilometres north
of Winnipeg.
"I hope the province does the right thing and does not appeal, but
we'll have to wait and see," Anderson said.
Anderson was in charge of flood protection in 2011 for
Pinaymootang.
He recalled on January 26 by phone the province revised its flood
forecasts three times that summer, ordering dikes to be built
higher each time.
"If they had forecasted right off the bat how much water to
expect, then maybe we would have had a chance of saving some of
the houses," Anderson said.
MANULIFE FINANCIAL: Enters Into Class Action Settlement Agreement
-----------------------------------------------------------------
Manulife Financial Corporation ("Manulife") on Jan. 31 disclosed
that the parties to pending class action lawsuits in Ontario and
Quebec against Manulife and certain of its former officers have
entered into an agreement to settle the proceedings. The
settlement is subject to court approval. The proceedings are
based on allegations that Manulife failed to meet its disclosure
obligations related to its exposure to market price risk in its
segregated funds and variable annuity guaranteed products. The
claims are unproven, and the settlement is made without any
admission of liability.
The entire settlement amount will be fully funded by insurance.
The agreement provides for a total settlement payment of $69
million for distribution to eligible class members in accordance
with a plan of allocation to be approved by the courts, less
court-approved fees for class counsel and other expenses
(including the litigation funder's fees).
Manulife continues to firmly believe that its disclosure satisfied
applicable disclosure requirements and defended itself vigorously
in these actions. The agreement to settle the Ontario and Quebec
class actions avoids the potential cost of two separate trials and
brings to an efficient conclusion the remaining disclosure
litigation. Given these circumstances, Manulife believes the
settlement is fair, reasonable and in the best interests of the
Class.
The agreement contains no admission of wrongdoing by Manulife or
any of its former officers, nor are Manulife or any of its former
officers acknowledging any liability, wrongdoing or violation of
laws by entering into the settlement agreement. The U.S. Federal
Court for the Southern District of New York dismissed a proposed
class action against Manulife involving allegations similar to
those asserted in the Ontario and Quebec proceedings. In
April 2011, Manulife disclosed that staff of the Ontario
Securities Commission (OSC) informed Manulife that it would not be
seeking any orders from the OSC in connection with the enforcement
notice delivered in June 2009.
Even if Manulife was wholly successful in the litigation, which it
believes it would be, it is the nature of large class action
litigation that the company would incur substantial legal and
other out-of-pocket costs, a significant portion of which we
anticipate would not be recoverable even with a successful
outcome. As well, the litigation would require significant
attention from management, the cost of which is intangible but
could be substantial. This settlement allows Manulife to ensure
that litigation costs are limited to those incurred to date.
The proposed settlement is subject to conditions, including court
approval. Details regarding the proposed settlement will be
provided to potential class members. At this time, there can be
no assurance that the conditions to effect the settlement will
receive the required court approval. Dates have not yet been set
for settlement approval hearings.
NAT'L COLLEGIATE: Sued Over "Excessive" Prescription Drug Use
-------------------------------------------------------------
Ben Rohrbach, writing for Yahoo Sports, reports that The
Associated Press obtained court documents from a proposed class-
action lawsuit by almost 2,000 ex-players claiming NFL medical and
training staffs encouraged them to abuse painkillers, among other
health risks, and key evidence points to one of the teams
scheduled to play in the Super Bowl.
An email chain that climbed the Atlanta Falcons ladder from
director of sports medicine (and then head trainer) Marty Lauzon
to general manager Thomas Dimitroff, president Rich McKay and
ultimately owner Arthur Blank reveals the team's shocking
dependence on painkillers as recently as 2009.
An independent SportPharm review of the team's medical practices
revealed Atlanta spent $81,000 on prescription drugs for players
in 2009 -- almost three times the league average, per the AP.
New to the job in January 2010, Mr. Lauzon passed the results of
that review up the chain of command, warning "within the first few
days on the job, I was informed that we barely missed a DEA
investigation."
The following are SportPharm's major concerns as laid out in the
email from Mr. Lauzon to Mr. Dimitroff:
1. High inventory of medication on-site which can lead to high
return of unused medication, poor control, excessive dispensation,
unnecessary increase in budget.
2. High dispensation of narcotics and regular medication
compared to other clubs; this creates culture of dependency and
goes against healthy lifestyles and care, even for an NFL player.
My concern is also with these players at the end of their careers
going through medical issues, and also with the ease of access to
media outlets that can provide them the opportunity to say they
abused or are now addicted to a number of medications.
3. After (then-director of player benefits) Mary Anne Fleming
reviewed our issues with SportPharm, her recommendations were to
start clean on all levels including new team physician, new head
trainer, and new pharmacy account number.
4. Overspending in regards to medication. We were informed on
average an NFL team spends about 30k per year on player
prescriptions. We spent 81k in 2009 between two pharmacies. In
comparing our new medication process to 2009, we spent $700 on
players prescriptions in April in 2010, compared to $8,700 in 2009
while improving our quality of care for the players.
The email chain, which also featured the NFL's controversial
concussion "expert," Dr. Elliott Pellman, included concern about
keeping the information confidential, contention over Fleming's
suggestion the team replace its medical staff and fear "players at
the end of their careers going through medical issues" might "say
they abused or are now addicted to a number of medications."
Those concerns became realized, when the email chain was submitted
as part of the potential class-action lawsuit in California. Ex-
players first filed a class-action lawsuit against the league over
excessive painkiller prescriptions in 2014. A federal judge
dismissed that suit, citing the collective bargaining agreement's
own resolution measures, and the former players have appealed.
Meanwhile, the new lawsuit proposed targets individual teams, and
it just so happens the Falcons are front and center in the case
the same week they are set to play in the Super Bowl.
NAT'L COLLEGIATE: Circelli Walter & Young Files Concussion Suit
---------------------------------------------------------------
Vindy.com reports that the NCAA and helmet maker Riddell are
defendants in separate class-action lawsuits alleging they failed
to protect football players from long-term head injuries and
didn't educate them about the risks.
The lawsuits were filed on Jan. 30 in federal courts in
Indianapolis and San Francisco and seek damages for health care
costs, lost wages and other personal injury damages. Riddell
called the called the claims "meritless" and "sensationalized
allegations."
The Big 12 Conference was listed as co-defendant with the NCAA.
Named plaintiffs are former players Cory Brandon (Oklahoma),
Kelvin Chaisson (Oklahoma), Derrick Cherry (Texas Tech), Jarrod
Blake Roberts (TCU) and Joe Walker (Texas).
The suits were filed by the firm Circelli, Walter & Young of Fort
Worth, Texas. The firm said it plans to file additional suits
naming other college conferences as defendants.
The Riddell lawsuit alleges the helmet maker misrepresented the
safety of its helmets. The firm said all plaintiffs in the cases
suffer from some degree of traumatic brain injuries from multiple
concussions or serious jolts to the head that don't meet the
diagnosis of concussion and all were incurred while playing
football.
NATUS MEDICA: Robbins Geller Files Securities Class Action
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Jan. 30
announced that a class action has been commenced on behalf of
purchasers of Natus Medical Incorporated ("Natus") (BABY) common
stock during the period between October 16, 2015 and April 3, 2016
(the "Class Period"). This action was filed in the Northern
District of California and is captioned Badger v. Natus Medical
Incorporated, et al., No. 17-cv-00458.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from January 31, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Darren
Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via
e-mail at djr@rgrdlaw.com. If you are a member of this class, you
can view a copy of the complaint as filed at
http://www.rgrdlaw.com/cases/natus/. Any member of the putative
class may move the Court to serve as lead plaintiff through
counsel of their choice, or may choose to do nothing and remain an
absent class member.
The complaint charges Natus and certain of its officers and
directors with violations of the Securities Exchange Act of 1934.
Natus designs, manufactures and markets newborn care and neurology
healthcare products and services worldwide.
On October 16, 2015, Natus announced that its Argentinian
subsidiary had entered into a three-year supply contract with the
Ministry of Health of Venezuela (the "Ministry of Health")
pursuant to which the Company would receive $232.5 million,
including $69 million in prepayments "expected" during the first
quarter of 2016 (the "Supply Contract"). Thereafter, on October
21, 2015, Natus issued a press release in which it increased its
revenue and earnings guidance for its fiscal year ending December
31, 2015.
The complaint alleges that during the Class Period, defendants
issued false and misleading statements and/or failed to disclose
adverse information regarding the Company's business and
prospects, including, among other things, that: (i) the Venezuelan
government had failed to make tens of millions of dollars in
prepayments to Natus, which were required to have been paid
beginning in October 2015; (ii) Natus had no means to effectively
enforce its rights under the Supply Contract, as Venezuela was the
exclusive forum for dispute resolution; (iii) Natus's receipt of
revenues pursuant to the Supply Contract was contingent on the
outcome of Venezuelan elections; and (iv) as a result of the
foregoing, Natus was not on track to achieve the increased
guidance provided by defendants and such guidance lacked a
reasonable basis. As a result of defendants' false and misleading
statements, Natus stock traded at artificially inflated prices
during the Class Period, reaching prices above $50 per share, and
certain of the Company's senior executives were able to cash in
$14.5 million worth of their personally held Natus shares at
artificially inflated prices.
On January 11, 2016, Natus revealed that it expected to fall short
of its fourth quarter and fiscal year 2015 guidance. The Company
also disclosed that "[t]he guidance provided by the Company in
October for the fourth quarter of 2015 included expected revenue
of approximately $4 million under the new Venezuelan Ministry of
Health contract," but "[t]he Company was not able to ship product
on the anticipated schedule because the prepayment under the
contract was delayed." On this revelation, the price of Natus
common stock declined almost $5 per share, or 11%. On February
29, 2016, Natus filed its Annual Report on Form 10-K for fiscal
year 2015 with the SEC, which disclosed that elections in
Venezuela and Argentina and Venezuela's "highly inflationary
economy and recessionary economic conditions" "may impact the
likelihood of the Venezuelan Ministry of Health's following
through with orders under the agreement, and [Natus's Argentinian
subsidiary] ha[d] not yet received any prepayments under the
agreement and no products or services ha[d] been shipped or
provided." The Company attached a copy of the Supply Contract to
the 10-K, which disclosed that $69 million in prepayments had been
due by the end of 2015 and not the first quarter of 2016, as
defendants had represented, and revealed that the Supply Contract
was governed solely by Venezuelan law, meaning the Venezuelan
government could unilaterally renege on all aspects of the
agreement.
NEW BALANCE: "Dashnaw" Suit Moved to S.D. Cal.
----------------------------------------------
The class action lawsuit titled Sheila Dashnaw, Sherryl Jones, and
William Meier, individually, and on behalf of all others similarly
situated, the Plaintiffs, v. New Balance Athletics, Inc., a
corporation, Does 1 through 50 Inclusive, the Defendants, Case No.
37-02016-00040461-CU-AT-CTL, was removed from the Superior Court
of California, County of San Diego, to the U.S. District Court for
the Southern District of California (San Diego). The District
Court Clerk assigned Case No. 3:17-cv-00159-L-JLB to the
proceeding. The case is assigned to Hon. Judge M. James Lorenz.
New Balance, best known as simply New Balance, is an American
multinational corporation based in the Brighton neighborhood of
Boston, Massachusetts.
The Plaintiffs are represented by:
Jason H Kim, Esq.
O'MELVENY AND MYERS
400 South Hope Street
Los Angeles, CA 90071-2899
Telephone: (213) 430 6000
The Defendant is represented by:
Garrett K Sakimae, Esq.
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
Telephone: (858) 678 4336
Facsimile: (858) 678 4099
E-mail: sakimae@fr.com
NISSAN NORTH AMERICA: Sued in Florida Over Defective Dashboards
---------------------------------------------------------------
Jenie Mallari-Torres, writing for Florida Record, reports that a
Naples man alleges the dash installed in his Nissan is defective
and melts because of exposure to sunlight.
Neil Heuer filed a complaint on behalf of himself and all others
similarly situated on Jan. 4 in the U.S. District Court for the
Southern District of Florida against Nissan North America Inc.
citing the Florida Deceptive and Unfair Trade Practices Act.
According to the complaint, the plaintiff alleges that the
dashboards in Nissan GT-Rs do not withstand exposure to sunlight,
melt and emit a chemical smell. The plaintiffs hold Nissan North
America Inc. responsible because the defendant allegedly failed to
correct the defective dashboards, failed to disclose the dashboard
defect to potential customers, and failed to provide free
dashboard repairs.
The plaintiff request a trial by jury and seek judgment against
the defendant, certify proposed class, appoint class
representative and counsel, actual damages, restitution,
disgorgement, disclose and repair the dashboard defect, interest,
attorneys' fees, costs of suit, expert witness fees, and further
relief as the court may deem just. He is represented by Emily
Komlossy -- eck@komlossylaw.com -- of Komlossy Law PA in
Hollywood, Catherine E. Anderson
-- canderson@gslawny.com -- of Giskan Solotaroff & Anderson LLP in
New York and Cory L. Zajdel of Z Law LLC in Timonium, Maryland.
U.S. District Court for the Southern District of Florida Case
number 0:17-cv-60018
ONEMAIN HOLDINGS: March 20 Lead Plaintiff Motion Deadline Set
-------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of OneMain Holdings, Inc. (NYSE:OMF) between March 3,
2015 and November 7, 2016.
You are hereby notified that a securities class action lawsuit has
been commenced in the USDC for the Southern District of Indiana.
To get more information go to:
http://www.zlk.com/pslra/onemain-holdings-inc
or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com
or by telephone at (212) 363-7500, toll-free: (877) 363-5972.
There is no cost or obligation to you.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements and/or failed to
disclose material information regarding the projected net income
for OneMain following, and as a result of, the combination of
OneMain Financial with Springleaf and the purported synergies
achieved by the combined company. The complaint alleges that
following a November 7, 2016 press release announcing the
Company's third quarter results and a November 8, 2016 conference
call lowering guidance for the full-year 2016 and 2017, the value
of OneMain shares declined significantly.
If you suffered a loss in OneMain you have until March 20, 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 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.
OREGON: 5% of Taxing Districts Opt Out From Suit vs. DOF
--------------------------------------------------------
Alex Paul at Albany Democrat-Herald reports that a handful of
taxing districts have opted out of a $1.4 billion breach of
contract class action lawsuit against the Oregon Department of
Forestry filed in Linn County Circuit Court in March by Linn
County.
In November, Circuit Court Judge Daniel Murphy set a deadline of 5
p.m. on January 25 for 15 counties and 150 total taxing districts
potentially affected by the lawsuit. Taxing entities -- including
counties, school districts, fire districts, library districts and
others in counties containing the forst trust lands --
automatically became part of the class action lawsuit, unless they
opted out in writing.
Counties and other taxing districts could also notify the court
and the county's attorney, John DiLorenzo of Davis Wright Tremaine
in Portland, by mail with a proper postmark, so it may be a few
days before a complete list of those that opted out of the lawsuit
is available
Late January 25, Nyquist said the Benton Soil & Water Conservation
District, Clatsop County, the Port of Portland, the Clackamas Soil
& Water Conservation District and the Tualatin Valley Fire &
Rescue District had notified DiLorenzo of their desire to opt out
of the lawsuit.
"We believe 95 percent of the taxing districts will remain in this
class action," said Roger Nyquist, chairman of the Linn County
Board of Commissioners. "We think between six and nine taxing
districts will opt out."
Nyquist said that losing only 5 percent of the potential districts
is an indicator that the lawsuit "speaks to the seriousness of the
issue. They accept the fact that we are taking a path that needs
to be taken to resolve this breach of contract."
Nyquist said the action is similar to the breach of contract by
Pepsico that generated millions of dollars for the city of Albany.
"We are determined, very determined to get a resolution to this
matter," Nyquist said. "We have been trying for 15 years to work
within the system and to redirect the conversation, but the more
we talked to them the worse it got."
DiLorenzo said he will file a report with the court next week. An
early 2018 trial date is anticipated.
Linn County could receive up to $90 million if it prevails in
court. The county shares more than 47,000 acres of the Santiam
State Forest with Marion and Clackamas counties.
Benton County has only about 8,000 acres of state forest lands.
The Benton County Board of Commissioners voted 2-1 to remain in
the lawsuit, with a potential payout of $30 million.
The Benton County Soil & Water Conservation District was the first
district to officially opt out and Clatsop County was the first
county to do so.
Clatsop County has 147,000 acres of state forest lands and the
decision to opt out could mean a loss of as much as $100 million
if the breach of contract is upheld in court. The county's
commissioners were concerned that the lawsuit would lead to
increased timber harvesting on state forests at the expense of
other values such as water quality, recreation and riparian
habitats.
On January 24 evening, Washington County commissioners, on a 2-2
tie vote, decided to stay in the lawsuit. A 3-2 margin was needed
to opt out, but Commissioner Roy Rogers recused himself from
voting because his accounting firm does auditing work for Linn
County, creating a potential for a conflict of interest.
Washington County is one of the bigger players in the lawsuit, and
could collect as much as $200 million.
DiLorenzo notified the state in January that Linn County planned
to file the lawsuit, which was done in March. The lawsuit alleges
the Oregon Department of Forestry has diminished payments to the
taxing districts based on income from nearly 700,000 acres of
state forest lands.
Counties in which state forest trust lands are located are Linn,
Benton, Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine,
Klamath, Lane, Lincoln, Marion, Polk, Tillamook and Washington.
Oregon's state forests are: Clatsop State Forest: 136,000 acres in
Clatsop and Columbia counties; Elliott State Forest: 93,000 acres
in Coos and Douglas counties; Gilchrest State Forest: 70,000 acres
in Klamath County; Santiam State Forest: 47,971 acres in Linn,
Marion and Clackamas counties; Sun Pass State Forest: 21,317 acres
near Klamath Falls; Tillamook State Forest: 364,000 acres in
Washington, Yamhill, Tillamook and Clatsop counties.
The monetary total sought is based on an estimated $35 million per
year the suit claims the forest trust land counties should have
received but did not, beginning in 1998, when the state's
management plan was altered beginning in 1998.
That totals $528.6 million, plus another $25.6 million in
interest. The plaintiffs also seek another $881 million in
perpetuity based on a 4 percent revenue stream.
The lawsuit is a breach-of-contract case arguing that state
managers failed in their duty to generate as much revenue as
possible from the state forest lands, mainly logged-over or fire-
damaged properties that were acquired by counties through tax
foreclosures beginning in the late 1920s and then turned over to
the state for management.
A 1939 law says these lands must be managed for "the greatest
permanent value to the state."
Linn County believes "greatest permanent value" means maximizing
timber harvesting sustainably, along with grazing and recreation
fees; a portion of that revenue flows back to the counties.
But the over the last two decades, other values such as water
quality, recreation and riparian issues have been given greater
weight in determining timber sale numbers, the lawsuit contends,
decreasing payments to counties.
The North Coast State Forest Coalition -- a group of environmental
groups -- has opposed the lawsuit from its start, saying timber
sales should not be the main consideration of the contract. The
group believes there is great value to recreation, riparian zones
and water quality issues for the long-term benefit of the general
public.
PROMED & ASSOCIATED: "Awwad" Labor Case to Recover Overtime Pay
---------------------------------------------------------------
Feras Awwad, individually and on behalf of all similarly situated
persons, Plaintiffs, v. Promed & Associated, Inc. d/b/a United
Ambulance and Mega Care EMS, Inc., Defendants, Case No. 4:17-cv-
00015, (S.D. Tex., January 5, 2017), seeks to recover unpaid
overtime compensation, liquidated damages, and attorney's fees
owed pursuant to the Fair Labor Standards Act.
Feras Awwad was employed by the Defendants from January of 2016
until December of 2016 as a paramedic, previously as an emergency
medical technician. He regularly worked more than 40 hours a week
throughout his employment but was not paid premium pay for hours
worked over 40.
Plaintiff is represented by:
Josef F. Buenker, Esq.
Vijay A. Pattisapu
THE BUENKER LAW FIRM
2030 North Loop West, Suite 120
Houston, TX 77018
Tel: (713) 868-3388
Fax: 713-683-9940 Facsimile
Email: jbuenker@buenkerlaw.com
vijay@buenkerlaw.com
REGULUS THERAPEUTICS: April 3 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------------
Pomerantz LLP on Jan. 31 disclosed that a class action lawsuit has
been filed against Regulus Therapeutics Inc. ("Regulus" or the
"Company") (NASDAQ:RGLS) and certain of its officers. The class
action, filed in United States District Court, Southern District
of California, is on behalf of a class consisting of all persons
or entities who purchased or otherwise acquired Regulus securities
between January 21, 2016 and June 27, 2016, both dates inclusive
(the "Class Period"), seeking to recover compensable damages
caused by defendants' violations of the Securities Exchange Act of
1934.
If you are a shareholder who purchased Regulus securities during
the Class Period, you have until April 3, 2017 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and number of shares purchased.
Regulus is a biopharmaceutical company that focuses on the
discovery and development of drugs that target microRNAs to treat
and prevent various diseases, including hepatitis C infections,
cardiovascular, fibrosis, oncology, immune-inflammatory, and
metabolic diseases. One of its main clinical development products
is RG-101, a GalNAc-conjugated anti-miR targeting miR-122 to treat
patients with hepatitis C virus infection.
The Complaint 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) patients treated with RG-101 were at increased risk of
contracting jaundice; (ii) consequently, the Company had
overstated RG-101's approval prospects and/or commercial
viability; and (iii) as a result of the foregoing, Regulus's
public statements were materially false and misleading at all
relevant times.
On June 27, 2016, post-market, Regulus announced that it had
received verbal notice from the U.S. Food and Drug Administration
("FDA") that the FDA had placed RG-101 on clinical hold after a
second serious adverse event of jaundice was reported in a patient
treated with the drug.
On this news, Regulus's share price fell $2.47, or more than 49%,
to close at $2.54 on June 28, 2016.
With offices in New York, Chicago, Florida, and Los Angeles, The
Pomerantz Firm -- www.pomerantzlaw.com -- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
REMINGTON ARMS: Sends Out Reminders to Eligible Gun Owners
----------------------------------------------------------
Daniel Terrill at Guns.com reports by court order, Remington Arms
issued a reminder to owners of certain types of Remington rifles
of the benefits they can receive as a result of a settlement
agreement.
According to the announcement, the settlement allows owners of
Remington models 700, Seven, and related models to have their
trigger replaced free of charge, among other benefits.
The agreement covers two classes: owners of rifles that use a
trigger connector, and owners of firearms that use the X-Mark Pro
trigger mechanism.
The subject of the case was a defect in the trigger designs that
allowed the firearm to discharge a round without the pull of a
trigger. Although Remington is adhering to the court orders by
recalling the products, the company continues to deny the
allegation.
According to the settlement website, if owners do nothing they
will be bound by the Court's decisions. The deadline to object to
the settlement or opt out and reserve the right to sue the gun
maker was Nov. 18, 2016.
ROBERT HALF: 3rd Cir. Tosses Staffing Managers' Wage Class Action
-----------------------------------------------------------------
David Gialanella, writing for New Jersey Law Journal, reports that
in a case that previously yielded a precedential ruling on whether
it's up to courts or arbitrators to decide the issue of class
arbitrability, a federal appeals panel has declined to read an
authorization to arbitrate on a classwide basis into a contract
presented to employees of placement firm Robert Half.
"Even assuming arguendo that class arbitration may be permitted
without express authorization in an arbitration clause, plaintiffs
have set forth nothing suggestive of any implicit intent to permit
class arbitration here," Judge Luis Felipe Restrepo wrote for the
U.S. Court of Appeals for the Third Circuit in Opalinski v. Robert
Half International.
The plaintiffs -- David Opalinski and James McCabe, former Robert
Half staffing managers who worked in New Jersey -- brought an
action in 2010 on behalf of themselves and others who claimed they
were improperly classified as exempt and denied overtime pay in
violation of the Fair Labor Standards Act. Both signed employment
contracts containing provisions requiring any dispute arising out
of their employment to be submitted to arbitration. The agreements
do not mention classwide arbitration, according to court
documents.
The attorney for Messrs. Opalinski and McCabe, Shannon Liss-
Riordan of Lichten & Liss-Riordan in Boston, said she's
considering a motion for rehearing en banc and called the decision
"a perfect example of how employers use arbitration when it suits
them -- in order to prevent themselves from being held accountable
for their violations of the wage laws that affect many employees."
"Robert Half asked to have this case decided in arbitration,"
Ms. Liss-Riordan said in an email. "An arbitrator then decided we
could pursue a class action. Not liking that result, Robert Half
then argued that a court should have made that decision. The court
decided we couldn't have a class action. Now the Third Circuit has
affirmed that ruling."
Robert Half's counsel, Richard Alfred of Seyfarth Shaw in Boston,
declined to comment on the ruling through an assistant.
The matter already has been before the Third Circuit.
In 2011, U.S. District Judge Faith Hochberg of the District of New
Jersey granted Robert Half's motion to compel arbitration of the
individual claims of Opalinski and McCabe, and held that the
arbitrator would decide whether the arbitration would encompass
the entire class or just the two individual plaintiffs. The
arbitrator ruled that the employment agreements permitted class
arbitration. Robert Half moved before Hochberg to vacate the
arbitrator's ruling, but she denied it.
Robert Half then brought an appeal, requiring the Third Circuit to
sort out whether the availability of classwide arbitration is a
matter for an arbitrator or a judge to decide.
In a July 2014 precedential ruling, a panel led by Judge Thomas
Ambro said that decision belongs to the courts. A certiorari
petition with the U.S. Supreme Court was denied.
On remand, U.S. District Judge Madeline Cox Arleo took over for
Hochberg, who retired. In November 2015, Judge Arleo granted
Robert Half's motion to dismiss, holding that the employment
contracts at issue did not provide for arbitration on a classwide
basis.
In its Jan. 30 affirmance, Judge Restrepo, joined by Third Circuit
Judges Joseph A. Greenaway Jr. and Michael Chagares, relied in
part on the 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds
International holding, "the Supreme Court has made clear that 'a
party may not be compelled . . . to submit to class arbitration
unless there is a contractual basis for concluding that the party
agreed to do so.'"
The panel noted that the Fifth, Sixth, Seventh, Eighth and Ninth
circuits have held that a document's silence on class arbitration
means it isn't authorized.
The court dispensed with the plaintiffs' arguments that assent to
class arbitration is implied in the Robert Half contracts --
including an argument that the contracts' reference to "any
dispute" would necessarily be broad enough to include class
disputes.
The plaintiffs also pointed out that the Robert Half contracts
referred to numerous statutes -- such as the Civil Rights Act and
Americans with Disabilities Act -- that provide for class claims.
But that argument, too, failed.
"The statutes listed -- like many statutes and common law causes
of action -- allow for both class and individual claims, so the
agreement's reference to them sheds no more light on the parties'
intent to arbitrate class claims than the 'any dispute' language,"
Judge Restrepo wrote.
The panel declined to consider the rule of "contra proferentem"
under New Jersey law, which requires ambiguous provisions in
contracts of adhesion to weigh against the document drafter.
Judge Restrepo said that doctrine "should only be employed as a
'last resort,' after a court has already examined the contract's
terms, exhausted other accepted methods of contract construction,
and it still cannot determine the meaning of an ambiguous term.
"That is not the case here, where there is no textual support in
the employment agreements for plaintiffs' suggested interpretation
and there is ample case law suggesting class arbitration is
inappropriate in these circumstances," he wrote.
SANOFI: Settles Class Action Over Vaccine Bundling
--------------------------------------------------
Eric Sagonowsky, writing for FiercePharma, reports that Sanofi's
vaccines unit has settled up with class-action plaintiffs that
claimed the company leveraged its heavyweight status in the field
to knock aside a rival meningococcal jab from Novartis.
After fighting the allegations for years, Sanofi Pasteur agreed to
pay $61.5 million to wrap up the lawsuit, which claimed the
company's pediatric vaccine marketing stifled competition and
"artificially inflated" prices on meningococcal vaccines.
According to the lawsuit, Sanofi sold its meningococcal vaccine
Menactra in bundles with other key pediatric vaccines. The
bundles included discounts that were not available to purchasers
that chose to buy Novartis' Menveo instead, the documents claim.
Composed of roughly 25,000 physician practices, 1,000 hospitals,
2,000 pharmacies, and 100 wholesalers, the plaintiff class argued
that Sanofi used the bundles "to enhance and maintain its monopoly
power," instead of "competing through lower prices or improved
quality," according to a court brief.
A Sanofi spokesperson said the company "has vigorously denied and
continues vigorously to deny the plaintiffs' claims and any
allegation of wrongdoing." The settlement does not require Sanofi
to admit fault.
Buyers in exclusive contracts for Sanofi vaccine bundles faced a
penalty if they used Menveo instead of Menactra, the suit claimed.
The penalty -- ranging from 15.8% to 34.5% -- would then apply to
all the Sanofi vaccines a particular customer bought. The vaccines
Sanofi put in those bundles included its Hib vaccines Pentacel and
ActHIB, "for which there are no reasonably adequate medical
substitutes," the suit claimed.
Sanofi defended its bundled sales approach in court documents,
however. The company's "contracting and pricing practices did not
constitute anticompetitive bundling," Sanofi said in a court
filing. Instead, the bundles helped competition and "benefited
consumers by, among other things, lowering vaccine prices." Sanofi
also argued that Novartis was "both a profitable and successful
competitor."
The class action, on the other hand, said the practice "unfairly"
hurt Novartis' ability to compete with its meningococcal entrant,
according to the complaint.
As part of the proposed settlement, Sanofi will pay $61.5 million.
That figure represents about 14% of an estimated $439 million in
Menactra overpayments, according to a court brief.
"Despite Sanofi's strong defenses, [our company] recognizes that
continued litigation is likely to be extraordinarily expensive and
time-consuming and thus has agreed to enter into this Settlement
Agreement to avoid the further expense, inconvenience, risk and
distraction of burdensome and protracted litigation," according to
a statement.
The class-action plaintiffs originally filed the case in 2011. The
next year, Sanofi hit back with a counterclaim, arguing that the
class "engaged in unlawful collective action through membership"
in physician buying groups, according to a brief, "purportedly
causing vaccine prices to fall below competitive levels."
Sanofi has agreed to abandon its counterclaim as part of the
settlement. The settlement deal requires final court approval.
Novartis has exited vaccines through a multibillion-dollar asset
swap with GlaxoSmithKline and a sale of its flu assets to CSL.
SANOFI: Faces Class Action Over Drug Price Inflation Scheme
-----------------------------------------------------------
People living with diabetes have filed a groundbreaking class-
action lawsuit against the three makers of analog insulin drug
products -- Sanofi, Novo Nordisk and Eli Lilly -- for
exponentially raising consumer insulin prices in an organized
scheme to drive up prices at the expense of patients who need
insulin drugs to live, according to Hagens Berman.
The lawsuit states that in the last five years alone, Sanofi, Novo
Nordisk and Eli Lilly have raised the sticker or "benchmark"
prices on their drugs by more than 150 percent. Some plaintiffs
now pay almost $900 dollars per month just to obtain the drugs
they need, according to the firm.
This first-of-its-kind lawsuit details several accounts from
patients resorting to extreme measures to survive rising insulin
prices, including starving themselves to control their blood
sugars, under-dosing their insulin, and taking expired insulin.
Other class members have intentionally allowed themselves to slip
into diabetic ketoacidosis -- a potentially fatal blood syndrome
caused by lack of insulin in the body -- so that they can obtain
insulin samples from hospital emergency rooms.
"People living with diabetes are practically imprisoned under the
price hikes and sadly are resorting to extreme measures to afford
the medication they need to live," said Steve Berman, managing
partner of Hagens Berman, which represents the patients.
According to the lawsuit, filed Jan. 30, 2017, in the U.S.
District Court for the District of Massachusetts, the three
companies have exploited the drug-pricing system in a way that
ensures higher profits for drug manufacturers and other players,
leaving those living with diabetes crippled by high insulin costs.
These acts, says the lawsuit, constitute a RICO enterprise, and
violate the Racketeer Influenced and Corrupt Organizations Act and
various state consumer protection laws.
The manufacturers of insulin even admit that their price hikes are
unrelated to any jump in production or research and development
costs, the suit explains.
Insulin Sticker Shock
The complaint states that this once affordable drug is now out of
reach for many patients due to a behind-the-scenes quid pro quo
arrangement: "increased benchmark prices are the result of a
scheme and enterprise among each defendant and several bulk drug
distributors. In this scheme, the defendant drug companies set
two different prices for their insulin treatments: a publicly-
reported, benchmark price and a lower, real price that they offer
to certain bulk drug distributors."
The most important of these bulk drug distributors are entities
known as pharmacy benefit managers (PBMs). These entities serve
as middlemen between health insurers and drug manufacturers,
negotiating medicine prices with drug companies on behalf of
health insurers. The PBMs also design drug formularies for their
health insurer clients, ranking drugs based on efficacy and cost,
the suit states. These formularies allow health insurers to
funnel patients towards one brand of drug over others. Because
the analog insulin products of the big three insulin manufacturers
are largely interchangeable, these drugs companies fight for
preferential placement on the PBMs' formularies, offering PBMs
"rebates" off their benchmark prices, according to the complaint.
The lawsuit explains that as compensation for their role as
negotiator, PBMs pocket a percentage of the difference between the
reported benchmark price and the undisclosed real price they are
able to secure. This difference in prices is known as the
"spread." The larger the spread, the higher the PBMs' profits.
"The drug manufacturer with the largest spread between benchmark
and real price is more likely to secure a PBM's preferred
formulary position, and, as a result, the business of that PBM's
clients," the suit states. "Where two or more drug manufacturers
make largely interchangeable products, those companies would, in
an ideal world, continuously drop their real prices to undercut
the prices offered by their competitors." But because of this
two-faced public and private system, drug companies instead choose
to hike their publicly reported, benchmark prices, while
maintaining constant (or only slightly lowering) the real prices
they offer to PBMs, the suit states. Instead of competing for PBM
business based on significant real price decreases, the drug
manufacturers have decided to compete based on significant
benchmark price increases.
The lawsuit calls this trend of one-sided price increases "an arms
race," as each of the three defendants -- Sanofi, Novo Nordisk and
Eli Lilly -- has raised its benchmark price in "perfect lock step"
with its competitors to ensure that the large PBMs keep its drug
in rotation. The lawsuit alleges that in a January 2017
statement, Eli Lilly admitted to the benchmark price -- a net
price scheme.
The figures in the lawsuit illustrate this behavior. There are
two types of analog insulin: long-acting and rapid-acting. Novo
Nordisk's Levemir and Sanofi's Lantus compete in the long-acting
category, and Eli Lilly's Humalog and Novo Nordisk's Novolog
compete in the rapid-acting category.
The firm says this arms race hurt patients -- the plaintiffs here
-- who must pay for a high percentage of their drugs out-of-
pocket. Uninsured patients and patients in high-deductible health
plans, plans with high coinsurance rates, and Medicare Part D
plans have been seriously injured by Sanofi, Novo Nordisk and Eli
Lilly's benchmark price hikes, according to the complaint.
"Insulin, in one form or another, has been available for more than
a century, and it was formerly an affordable drug,"
Mr. Berman said. "The only thing that has changed is the
insatiable desire of Big Pharma to profit from sickness hand over
fist."
"It is our hope that this suit not only reclaims losses for the
millions of U.S. patients struggling to survive with diabetes
right now, but that it also shines a spotlight on an egregious
scheme perpetrated by these defendants. It's time to break up the
Insulin Racket, and that is the objective of this case," he added.
The lawsuit seeks to represent a nationwide class of consumers who
have purchased analog insulin at recently skyrocketing prices, to
reclaim economic losses in an amount to be determined at trial and
to put in place an injunction halting this behavior.
About Hagens Berman
Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a
consumer-rights class-action law firm with offices in 10 cities.
The firm served as lead counsel in historic settlements involving
inflated benchmark drug prices, including Average Wholesale Price
MDL and a class-action lawsuit against McKesson Corp., one of the
nation's largest drug wholesalers, recovering more than $500
million for plaintiffs.
SANOFI: PCMA Issues Statement on Insulin Drug Class Action
----------------------------------------------------------
The Pharmaceutical Care Management Association (PCMA) issued the
following statement on the new class-action lawsuit against three
makers of insulin drug products:
"While we're still reviewing the details of the lawsuit -- in
which pharmacy benefit managers (PBMs) are not named as defendants
-- it inexplicably attacks prescription drug rebates, long used to
reduce costs in public programs like Medicaid and in the
commercial market.
While none of America's largest, most sophisticated health
purchasers -- including Fortune 500 companies, health plans, and
Medicare Part D plans -- are required to use the services of a
PBM, almost all choose to because they reduce costs and improve
the quality of benefits."
PCMA -- https://www.pcmanet.org/ -- is the national association
representing America's pharmacy benefit managers (PBMs). PBMs
administer prescription drug plans for more than 266 million
Americans who have health insurance from a variety of sponsors
including: commercial health plans, self-insured employer plans,
union plans, Medicare Part D plans, the Federal Employees Health
Benefits Program (FEHBP), state government employee plans, managed
Medicaid plans, and others.
SCHAEFFLER GROUP: "Boring" Suit to Recover Overtime Pay
-------------------------------------------------------
Creg Boring, on behalf of himself and all others similarly
situated, Plaintiff, v. Schaeffler Group USA, Inc. and Luk USA
LLC, Defendants, Case No. 1:17-cv-00038, (N.D. Ohio, January 5,
2017), seeks actual damages for unpaid wages, liquidated damages
equal in amount to the unpaid wages found due, pre- and post-
judgment interest, attorneys' fees, costs and disbursements and
additional relief for violation of the Fair Labor Standards Act
and the Ohio Minimum Fair Wage Standards Act.
Defendants are Delaware corporations that manufacture products for
the automotive, industrial and aerospace industry. LuK USA LLC is
a wholly-owned subsidiary of Defendant Schaeffler Group. Plaintiff
was employed by Defendants as a CNC operator at Defendants'
manufacturing facility in Wooster, Ohio between approximately
September 2013 and October 2016. Boring claims to have his hours
shaved, paid only during actual operation and not pre-shift and
post-shift work which constitute overtime.
Plaintiff is represented by:
Anthony J. Lazzaro, Esq.
Chastity L. Christy, Esq.
Lori M. Griffin, Esq.
THE LAZZARO LAW FIRM, LLC
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Phone: (216) 696-5000
Facsimile: (216) 696-7005
Email: anthony@lazzarolawfirm.com
chastity@lazzarolawfirm.com
lori@lazzarolawfirm.com
SIRTEX: Faces Class Action Over Sales Forecast Downgrade
--------------------------------------------------------
Brian Robins, writing for Brisbane Times, reports that cancer
treatment company Sirtex has become the latest target of a class
action lawsuit, the third company to be hit within a week.
The legal action follows a forecast of double-digit sales of its
cancer treatment to investors last August, which has proven to be
wildly optimistic. Following weak December-half sales, it has
slashed the full-year forecast to just 5-11 per cent.
Ahead of the downgrade, the company's then chief executive, Gilman
Wong, sold shares in the company, which led to his sacking in
December after an investigation into the sales by external legal
advisers.
With more than $100 million in cash sitting on its balance sheet,
a class action legal suit was thought to be only a matter of time
after the downgrade.
Bellamy's Australia was hit with a class action, as was Spotless.
Sirtex said it has received "a letter from a law firm
foreshadowing the commencement of a representative proceeding
against the company based on alleged breaches of its continuous
disclosure obligations, and alleged misleading and deceptive
conduct, arising out of a statement made by the company on
August 24, 2016 that the company would achieve 'double-digit dose
sales growth' in FY17.
"The board is considering the foreshadowed claim, and taking legal
advice, but considers that the claim is material to the company."
SOUTHERN EDISON: Faces TCPA Class Action Over Solicitation Calls
----------------------------------------------------------------
Wadi Reformado, writing for Northern California Record, reports
that an individual has filed a class-action lawsuit against
Southern California Edison over allegations it contacted her
without her permission to solicit the California Solar Initiative.
Michele Hunt filed a complaint on behalf of all others similarly
situated on Jan. 17 in the U.S. District Court for the Central
District of California against Southern California Edison alleging
violation of the Telephone Consumer Protection Act.
According to the complaint, the plaintiff alleges that beginning
in September 2016, the defendant called her seven times to solicit
its services for a solar energy program. The plaintiff holds
Southern California Edison responsible because the defendant
allegedly kept on calling the plaintiff despite her request to
stop calling her, called her using an automatic dialing system and
did not have her permission to call her.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, injunctive relief, $1,500 in treble damages, and any
other relief as the court deems just. She is represented by
Ronald A. Marron, Alexis Wood, and Kas Gallucci of Law Office of
Ronald A. Marron in San Diego.
U.S. District Court for the Central District of California Case
number 2:17-cv-00355-BRO-JC
STATE STREET: Faces Securities Class Action in California
---------------------------------------------------------
Gainey McKenna & Egleston on Jan. 30 disclosed that a class action
lawsuit has been filed against State Street Corp. ("State Street"
or the "Company") (NYSE:STT) in the United States District Court
for the Central District of California on behalf of persons or
entities who purchased or otherwise acquired State Street stock
between February 27, 2012 and January 18, 2017, inclusive (the
"Class Period"), seeking to recover compensable damages caused by
defendants' violations of the Securities Exchange Act of 1934.
The Complaint alleges that Defendants made false and/or misleading
statements and/or failed to disclose that: (1) State Street
engaged in a scheme to defraud a number of its clients by secretly
applying commissions to billions of dollars of securities trades;
(2) State Street's billing practices relied on unsustainable
methodologies; (3) over an 18-year period, approximately $240
million or more of expenses may have been incorrectly invoiced to
State Street's asset servicing clients; (4) from June 2010 until
September 2011, State Street charged clients "substantial" mark-
ups without their consent; and (5) as a result, Defendants' public
statements were materially false and misleading at all relevant
times. When the true details entered the market, the lawsuit
claims that investors suffered damages.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 28, 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.
TD BANK: "Dorsey" Sues over Excessive Overdraft Charges
-------------------------------------------------------
Shaina Dorsey, individually and on behalf of all other persons
similarly situated, Plaintiffs, v. TD Bank, N.A., Defendant, Case
No. 3:17-cv-00714 (D.N.J., January 5, 2017), seeks damages,
attorneys' fees, costs and relief for violation of the National
Bank Act.
Dorsey maintains a checking account with TD Bank in New Haven,
Connecticut. She claims that TD Bank charges her account with a
"Sustained Fee for Overdrawn Accounts," which allegedly exceeds
the permissible limit under the National Bank Act.
TD Bank, N.A. is a national banking association chartered by the
Office of the Comptroller of the Currency with principal place of
business in Cherry Hill, New Jersey.
Plaintiff is represented by:
Jeff M. Ostrow, Esq.
Robert C. Gilbert, Esq.
KOPELOWITZ OSTROW FERGUSON WElSELBERG GILBERT
One W. Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Tel: (954) 525-4100
Fax: (954) 525-4300
Email: ostrow@kolawyers.com
gilbert@kolawyers.com
- and -
Stephen DeNittis, Esq.
DENITTIS OSEFCHEN PRINCE P.C.
525 Route 73 North Suite 410
Marlton, NJ 08053
Tel: (856) 797-9951
Fax: (856) 797-9978
Email: sdenittis@denittislaw.com
TIME WARNER: Faces Class Action Over Privacy Violations
-------------------------------------------------------
Linn Freedman, Esq., of Robinson+Cole, in an article for JDSupra,
reports that a Time Warner customer filed a putative class action
suit against it alleging that it violated the Cable Communications
Privacy Act because it stored personal information of customers
improperly. In particular, he alleged that Time Warner kept his
information for eight years after he no longer was a customer, in
violation of the Cable Communications Privacy Act.
The 7th Circuit has disagreed, stating that the lead plaintiff was
unable to plausibly allege that his personal data was at risk as a
result of the improper storage. Although the Court agreed that
there may have been a risk that his data may have been disclosed
or obtained by an unauthorized individual, the plaintiff did not
allege that "Time Warner has ever given away or leaked or lost any
of his personal information or intends to give it away or is at
risk of having the information stolen from it." Further it stated
that he has not alleged any plausible risk of harm to himself
because of the conduct, and therefore, had no cause of action.
UNITED STATES: EPA Faces Class Action Over Flint Water Crisis
-------------------------------------------------------------
Ann Pierret and Randy Conat, writing for WJRT, report that the
class action lawsuit says the EPA knew something was up with the
water and they pushed the complaints aside.
Jan Burgess was one of the first to reach out to the EPA. She
filed a claim for damages, and after several months, when she
didn't get a response, she sued.
"I've developed some very severe thyroid problems, part of my
esophagus is wearing away, I have trouble swallowing,"
Ms. Burgess said. "Now, I can't say that all of this is because
of the water, you just can't, you know, but I didn't have these
problems before."
Plus, Ms. Burgess says, the water emergency has caused the value
of her $180,000 house to dramatically decline.
"It's not that I'm greedy, it's just that I'm not willing -- it
seems like we've given so much. I'm just not willing to give them
that too," she said.
The more than 1,700 people who joined the lawsuit say they're
dealing with the same issues due to the contaminated water. They
agree the EPA is to blame.
"The EPA had oversight authority and responsibility and had they
done their job, they could've actually prevented any of this from
happening," said Attorney Trachelle Young.
She and a team of Michigan lawyers are suing the EPA for $722.4
million.
"And if you ask us, it's not enough because what value can you put
on someone's health? You can't give them good health back. So
whatever money they can get to help them enjoy the quality of life
that they have, they deserve it," Ms. Young said.
She tells ABC12 News this fight is personal.
"We were here, we were exposed to the water. You know, I still
live in Flint, but I haven't bathed or showered in my own home in
two years. And I still won't because they haven't changed the
pipes yet," Ms. Young said.
She says even if it takes years to see the legal process through,
she and her team aren't giving up.
"We just gotta wait until they exhaust all their appeals, but
we're not going away. That's all we want these defendants to
know. We just want justice, you know. We're not asking for too
much," Ms. Young said.
The EPA is now required to file a response and then Young says
they'll go from there.
If you'd like more information on the lawsuit or would like to
join the plaintiffs, you can visit www.flintwaterclassaction.com.
On Jan. 30, more than 1,700 people filed a class action suit
against the Environmental Protection Agency.
They're asking for $722.4 million, saying the EPA didn't do its
job protecting the people of Flint from lead in the water.
The suit says because of the EPA's negligence, the people exposed
to the contaminated water have spent money out of pocket to handle
health issues and their property values have declined.
UNITED STATES: Lawsuits Over Trump Travel Ban Resolved
------------------------------------------------------
The Associated Press reports that lawsuits filed by two Chicago
residents saying they were unlawfully prevented from re-entering
the U.S. by President Donald Trump's executive order have been
resolved.
Attorneys for Dr. Amer Al Homssi and an Iranian native who filed a
John Doe lawsuit say federal authorities acknowledged on Feb. 1
neither traveler should have been barred from re-entering the
country based on the president's executive order, and both would
be coming home.
Al Homssi is a Syrian citizen and legal resident of the United
Arab Emirates. The internal medicine resident says his U.S. visa
was canceled as he tried to board a flight to Chicago from the UAE
where he got married.
The second man traveled to Iran to care for his sick mother. A
ticketing agency refused to issue him a ticket to Chicago.
UNIVERSAL TRAVEL: June 6 Settlement Approval Hearing Set
--------------------------------------------------------
The Rosen Law Firm, P.A. on Jan. 30 disclosed that the United
States District Court for the District of New Jersey has approved
the following announcement of a proposed class action settlement
that would benefit purchasers of common stock of Universal Travel
Group, Inc. (OTCBB:UTRA):
SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT
TO: If you bought the publicly-traded common stock of Universal
Travel Group, Inc., from March 12, 2009, through and including
April 11, 2011, you could get a payment from a class action
settlement.
A settlement has been proposed in a class action lawsuit brought
on behalf of investors in Universal Travel Group, Inc. ("UTG")
common stock. The settlement will pay $4,075,000 to pay claims of
investors who bought UTG stock between March 12, 2009 and April
11, 2011, both dates inclusive. If you qualify, you may send in a
claim form to get benefits, or you can exclude yourself from the
settlement, or object to it. The United States District Court for
the District of New Jersey authorized this notice. Before any
money is paid, the Court will have a hearing to decide whether to
approve the settlement.
WHO'S INCLUDED?
You are a Class Member and could get benefits if you bought UTG
common stock between March 12, 2009 and April 11, 2011. You are a
Class Member if you bought shares of UTG stock individually and
not simply through a mutual fund. UTG, its employees, and their
family members are not Class Members. Contact your broker to see
if you had shares of UTG stock. If you're not sure you are
included, you can get more information, including a detailed
notice, at www.strategicclaims.net or by calling toll free 866-
274-4004.
WHAT'S THIS ABOUT?
The lawsuit claims that UTG and certain of its officers and
directors made public false statements overstating UTG's revenues
and income, falsely claimed that UTG owned its subsidiaries,
falsely claimed that UTG sold poorly performing business assets at
a profit, and misled investors about the use of proceeds from
several offerings. The lawsuit claims that UTG's auditor falsely
claimed that it conducted its audit in accordance with applicable
professional standards. Defendants deny that they did anything
wrong. The Court did not decide which side was right. But both
Defendants and Plaintiffs agreed to the settlement to resolve the
case and get benefits to investors. Plaintiffs and Defendants
disagree on what the outcome of a trial would have been and how
much money could have been won if the investors had won at a
trial.
WHAT DOES THE SETTLEMENT PROVIDE?
Defendants agreed to create a fund of $4.075 million to be divided
among all Class Members who send in valid claim forms. A
Stipulation of Settlement, available at www.strategicclaims.net,
describes all of the details about the proposed settlement.
Your share of the fund will depend on the number of valid claim
forms that Class Members send in, how many shares of UTG stock you
bought, and when you bought and sold them. Generally, if you
bought more shares and have more Recognized Losses (as explained
in the detailed notice), you will get more money. If you bought
fewer shares and have fewer Recognized Losses, you will get less.
All of the $4.075 million will be paid out.
If every eligible Class Member sends in a valid claim form, the
average payment will be $0.205 per share for each share of UTG
stock outstanding as of April 11, 2011, before deduction of
attorneys' fees and expenses, and approximately $0.132 per share
after deduction of attorneys' fees and expenses. The number of
claimants who send in claims varies widely from case to case. If
less than 100% of the Class sends in a claim form, you will get
more money.
HOW DO YOU ASK FOR A PAYMENT?
A detailed notice and claim form package contains everything you
need. Just call 866-274-4004 or visit www.strategicclaims.net to
get one. To qualify for a payment, you must send in a claim form.
Claim forms are due by March 18, 2017.
WHAT ARE YOUR OTHER OPTIONS?
If you don't want to be legally bound by the settlement, you must
exclude yourself by May 16, 2017, or you won't be able to sue or
continue to sue Defendants about the legal claims in this case.
If you exclude yourself, you can't get money from this settlement.
If you stay in the settlement, you may object to it by May 16,
2017. The detailed notice explains how to exclude yourself or
object.
The Court will hold a hearing in this case (Snellink v. Universal
Travel Group, Inc., Case No. 11-cv-2164) on June 6, 2017, to
consider whether the approve the settlement and a request by the
lawyers representing all Class Members (The Rosen Law Firm, P.A.,
of New York, NY) for attorneys' fees of not more than one-third of
the Settlement Amount (or $1,358,333), reimbursement of total
litigation expenses of no more than $80,000, and an award to the
Class Plaintiffs not to exceed $20,000 (or $4,000 for each of the
five Class Plaintiffs). Collectively, the attorneys' fees and
expenses are estimated to average $0.073 per share of UTG Stock.
You may ask to appear at the hearing, but you don't have to. For
more information, call toll-free 866-274-4004 visit the website at
www.strategicclaims.net., or write to Universal Travel Group, Inc.
Litigation, c/o Strategic Claims Services, 600 N. Jackson St.,
Ste. 3, P.O. Box 230, Media, PA 19063.
VOLKSWAGEN AG: Settles U.S. Diesel Claims for $1.2 Billion
----------------------------------------------------------
The Associated Press' David McHugh and Auto Writer Tom Krisher
report that Volkswagen has agreed to pay at least $1.2 billion in
buybacks and compensation to settle claims from U.S. owners of
cars with larger diesel engines that the company rigged to cheat
on emissions tests.
And the German automaker could pay even more -- as much as $4
billion -- if it can't repair many of the cars in a way that
satisfies regulators.
The proposed settlement filed on Jan. 31 before Judge Charles R.
Breyer in U.S. District Court in San Francisco covers owners of
some 78,000 Audi, Volkswagen and Porsche cars with 3.0-liter
diesel engines.
Volkswagen has already agreed on a $15 billion settlement with
owners of some 500,000 smaller, 2.0-liter diesel engines.
Volkswagen has now settled most U.S. consumer claims as it tries
to repair a tarnished reputation. "All of our customers with
affected vehicles in the United States will have a resolution
available to them," Hinrich J. Woebcken, head of Volkswagen Group
of America, said in a statement.
The company still faces lawsuits from fewer than 5,000 owners of
2.0-liter diesels who opted out of the settlement, as well as some
shareholder suits and numerous lawsuits filed by states for
violating pollution laws.
VW also has settled a U.S. criminal investigation by agreeing to
pay $4.3 billion, but a probe of employee behavior continues with
seven people charged in the U.S. In all, VW will pay more than
$20 billion to settle civil and criminal claims in the U.S. alone.
Also pending is whether VW can adequately fix some older 2.0-liter
engines. If it can't, VW will have to buy back all vehicles with
the smaller diesel engines. A March 3 deadline is approaching.
Legal issues also remain in Europe. Former CEO Martin Winterkorn
and 36 others are under criminal investigation in Germany, where
investors also are suing the company. Volkswagen shares plunged
after the scandal broke in September of 2015.
Under the Jan. 31 proposed settlement, owners of 20,000 older 3.0-
liter models dating back to 2009-2012, which cannot be fixed to
meet pollution standards, will be offered buybacks or trade-ins.
In addition, they will receive compensation ranging from $7,755 to
$13,880, according to a statement from owners' attorneys.
People who bought 58,000 newer cars from model years 2013-16,
which can be fixed, will get compensation of $7,039 to $16,114.
Volkswagen says those cars can be made to comply with pollution
limits. If VW can't fix the newer cars to regulators'
satisfaction, then the owners' attorneys will go back to court to
seek buybacks.
VW's proposed repair must win approval from U.S. environmental
authorities by an agreed deadline. If not, buybacks could push the
cost as high as the $4.04 billion laid out in court documents.
The deal must still get court approval to take effect. Volkswagen
said final approval would take at least until May.
Also on Jan. 31, parts supplier Robert Bosch GmbH agreed to pay
$327.5 million to settle claims from consumers and dealers
regarding 2.0-liter and 3.0-liter engines, while not accepting it
was at fault. Typical 2.0-liter owners will get $350 in addition
to what they get from VW, while 3.0-liter owners will get about
$1,500, said Elizabeth Cabraser, lead attorney for the owners.
Bosch made the so-called "defeat device" that enabled the
cheating.
Bosch CEO Volkmar Denner said the company settled so it could
focus on its business.
Ms. Cabraser said she's confident that the VW settlements will be
completed even if President Donald Trump cuts personnel at the
EPA, which has to review all of the engine repairs, noting that
Breyer and the California Air Resources Board are still involved.
The former head of Trump's transition team at the agency has said
he expects significant budget and staff cuts.
Wolfsburg-based Volkswagen has admitted it equipped diesel engines
with software that detected when the vehicle was being tested and
turned the emissions controls off during every day driving. The
result was cars that emitted some 40 times the U.S. limits of
nitrogen oxides, a pollutant that can harm people's health. Some
11 million cars worldwide have the deceptive software.
VOLKSWAGEN GROUP: 25,000 Vehicle Owners Launch Class Action
-----------------------------------------------------------
Jim Holder, writing for Autocar, reports that more than 25,000
owners of Volkswagen Group cars affected by the diesel emissions
scandal have begun proceedings for a class action lawsuit
demanding around GBP3000 each in compensation.
The number has grown from 10,000 people earlier in January, with
the case entering the High Court on Jan. 30. Volkswagen is
expected to issue a statement after the proceedings.
To date, VW has not offered compensation to UK owners of affected
cars, which are powered by EA189-designated diesel engines built
between 2009 and 2015, arguing that its cars didn't breach the
laxer European emissions regulations.
Around 1. 2million Audis, Seats, Skodas and VWs are affected by
the scandal in the UK. If the legal bid is successful it could
cost VW GBP30m initially, will the potential to cost up to GBP3.6
billion.
VW's stance in the UK is in contrast to its position in the US,
where affected cars were in clear breach of the tougher
regulations. In the US, the firm reached a GBP12bn settlement
with owners, with some receiving payouts of up to GBP8000.
In the UK, the legal action is being coordinated by legal firm
Harcus Sinclair UK on behalf of a consortium of applicants.
Damon Parker, head of litigation at Harcus Sinclair, told the
Daily Mail that drivers felt they had "no choice but to take legal
action".
"The group action aims to ensure that, if VW is found to have
misled consumers about the environmental damage caused by their
cars, they are penalised accordingly so as to discourage this sort
of behaviour from happening again," he said.
VW's stance in the UK and the rest of Europe has previously come
under fire from Labour MP Louise Ellman, who chairs the Transport
Select Committee.
"Volkswagen's evidence to us was just not credible, but the
government has lacked the will to hold VW accountable for its
actions," she said last year.
"There is a real danger that VW will be able to get away with
cheating emissions tests in Europe if regulators do not act."
A statement from VW in response to the action read: "We have been
notified that Harcus Sinclair intends to bring proceedings against
Volkswagen on behalf of 77 claimants in the English High court in
relation to the NOx emissions issue. As we have previously said,
we intend to defend such claims robustly.
"Technical measures have already been developed by the Volkswagen
Group for vehicles affected by the NOx emissions issue and
approved in principle by the relevant certifying authorities.
Final approvals have also been provided by the authorities in
respect of the vast majority of the affected models. The
technical measures have already been implemented in a large number
of our UK customers' vehicles.
"Importantly, for the vast majority of model variants for which
final approval has already been provided, the relevant certifying
authorities have confirmed that implementation of the technical
measures has no impact on MPG, CO2 emissions, engine performance,
maximum torque and noise emissions. Furthermore, as a number of
independent bodies (including motoring publications and used car
values specialists) have noted, we expect no decline in the
residual values of the affected vehicles as a result of this
issue.
"As a consequence, we have made it clear that we do not anticipate
that any of our UK customers will in fact have suffered any loss
as a result of the NOx emissions issue and that it is premature
for claims to be brought in the UK.
"Given that litigation has now commenced, it would be
inappropriate for us to comment any further at this stage."
WESTERN UNION: March 27 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------
The securities litigation law firm of Brower Piven, A Professional
Corporation, on Jan. 31 disclosed that a class action lawsuit has
been commenced in the United States District Court for the
Southern District of New York on behalf of purchasers of The
Western Union Company (WU) ("Western Union" or the "Company")
securities during the period between February 24, 2012 and January
19, 2017, inclusive (the "Class Period"). Investors who wish to
become proactively involved in the litigation have until March 27,
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 Western Union securities during the Class Period.
Members of the Class will be represented by the lead plaintiff and
counsel chosen by the lead plaintiff. No class has yet been
certified in the above action.
The complaint accuses the defendants of violations of the
Securities Exchange Act of 1934 by virtue of the defendants'
failure to disclose during the Class Period that the Company's
fraud prevention efforts did not comply with applicable laws; it
knowingly failed to maintain an effective anti-money laundering
program; it aided and abetted wire fraud, for at least five years;
it knew of agents structuring transactions designed to avoid the
reporting requirements of the Bank Secrecy Act; it was not
compliant with its regulatory responsibilities, between 2004 and
2012; it violated U.S. laws by processing transactions for its
agents and others involved in an international consumer fraud
scheme; and it knew of, but failed to take corrective action,
against its agents involved in or facilitating fraud-related
transactions.
According to the complaint, following a January 19, 2017 article
that the Company agreed to pay $586 million to resolve criminal
and civil charges and a U.S. Department of Justice announcement
that the Company admitted that it failed to maintain an effective
anti-money laundering program and aided and abetted wire fraud,
the value of Western Union shares declined significantly.
If you have suffered a loss in excess of $100,000 from investment
in Western Union securities purchased on or after February 24,
2012 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.
WHIRLPOOL CORP: Defective Dishwasher Component Hit in "Burch" Suit
------------------------------------------------------------------
Warren Burch, individually and on behalf of all others similarly
situated, Plaintiff, v. Whirlpool Corporation, Defendant, Case No.
1:17-cv-00018, (W.D. Mich., January 5, 2017), seeks damages,
injunctive relief by requiring Whirlpool to issue corrective
actions for rack adjuster failures in their dishwashers,
declaratory, reasonable attorneys' fees, costs and expenses and
such further and other relief resulting from breach of express and
implied warranty, fraudulent concealment and unjust enrichment.
Whirlpool manufactures and sells dishwashers under the KitchenAid,
Kenmore and Whirlpool-brand. Whirlpool dishwashers share similar
components and parts including the rack adjuster, the purpose of
which is to connect the top nylon rack that holds dishes to the
upper rail and wheel system in the dishwasher. The rack adjuster
thus allows the rack to slide in and out of the dishwasher.
However, their rack adjusters are made out of brittle plastic that
routinely fail, causing the top nylon racks in the dishwasher to
collapse or become immovable within the first few months of
purchase.
Plaintiff is represented by:
Edward A. Wallace, Esq.
Amy E. Keller, Esq.
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
Email: eaw@wexlerwallace.com
aek@wexlerwallace.com
- and -
R. Brent Irby, Esq.
S. Brett Holsombeck, Esq.
McCallum, Hoaglund, Cook & Irby, LLP
905 Montgomery Highway, Suite 201
Vestavia Hills, AL 35216
Telephone: (205) 824-7767
Facsimile: (205) 824-7768
Email: birby@mhcilaw.com
bholsombeck@mhcilaw.com
YAHOO! INC.: March 27 Lead Plaintiff Motion Deadline Set
--------------------------------------------------------
Hagens Berman Sobol Shapiro LLP alerts investors in Yahoo! Inc. to
the securities class action lawsuit filed in the U.S. District
Court for the Northern District of California and to the March 27,
2017 Lead Plaintiff deadline.
If you purchased or otherwise acquired securities of YHOO and
suffered losses contact Hagens Berman Sobol Shapiro LLP. For more
information visit: https://www.hbsslaw.com/cases/YHOO or contact
Reed Kathrein, who is leading the firm's investigation, by calling
510-725-3000 or emailing YHOO@hbsslaw.com.
On September 22, 2016, Defendants disclosed that hackers stole
information in late 2014 on more than 500 million user accounts.
This news drove the price of Yahoo shares down over 3%. Then, on
December 14, 2016, Defendants disclosed that in August 2013
hackers stole information on more than 1 billion user accounts.
This news drove the price of Yahoo shares down over 6%.
More recently, the Wall Street Journal reported that the SEC has
opened an investigation into the timing of Yahoo's disclosures
regarding the data breaches, stating "The SEC requires companies
to disclose cybersecurity risks as soon as they are determined to
have an effect on investors."
"We're evaluating management's knowledge of both security
incidents and when disclosures should have been made to
investors," said Hagens Berman partner Reed Kathrein.
Whistleblowers: Persons with non-public information regarding
Yahoo! Inc. should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new SEC whistleblower program, whistleblowers who
provide original information may receive rewards totaling up to 30
percent of any successful recovery made by the SEC. For more
information, call Reed Kathrein at 510-725-3000 or email
YHOO@hbsslaw.com
About Hagens Berman
Hagens Berman is a national investor-rights law firm headquartered
in Seattle, Washington with offices in 10 cities. The Firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the Firm and its successes can be
found at www.hbsslaw.com. For the latest news visit our newsroom
or follow us on Twitter at @classactionlaw
* Class Actions Show Plight of Arizona Dairy Industry
-----------------------------------------------------
Charlie Clark, writing for Cronkite News, reports that
Jim Boyle's family history is intertwined with Arizona dairy. His
grandfather had 50 cows. His dad had 500. And now the Boyle
family has 6,000 at three dairies.
Mr. Boyle said the family business grew organically along with
Phoenix's population, and they now have two dairies in Mesa and
one in Casa Grande. His business mirrors the growth of others in
Arizona.
"Everyone has expanded to keep up with demand," he said. "And
Arizona -- outside of the summer months -- is really good
environment for dairy cows."
Arizona may be more known for its cattle, citrus and vegetables,
but dairies and dairy farmers produce the state's No. 1 commodity
with nearly 200,000 cows producing more than $750 million worth of
milk, according to the Arizona Department of Agriculture's fiscal
2016 report.
The dairy industry has recently made headlines because of a
nationwide class-action lawsuit and settlement.
Arizona residents who bought dairy products any time since 2003
had until the end of the day on Jan. 31 to file a claim for a cash
settlement.
Although the exact amount will depend on how many people apply, it
could bring each Arizona applicant $40 to $70.
The lawsuit was filed against the National Milk Producers
Federation in 2011. It involved 15 states.
The suit alleged that members of the federation engaged in a
massive price-fixing scheme during the economic downturn. It
involved dairy cooperatives paying farmers above market prices to
prematurely retire hundreds of thousands of cows and send them to
slaughter.
During the Great Recession, milk producers faced some of the
lowest milk prices since 1970, according to the United Dairymen of
Arizona. Here in Arizona, dairy farmers were losing about $1 per
cow, per day, and the average Arizona herd ranges upwards of 2,000
cows.
So Cooperatives Working Together, a program developed by National
Milk Producers, offered to buy cows to pay farmers extra for
sending cows to beef and for some, Mr. Boyle said that money made
enough sense for them to get out.
"Our farmers had to make tough decisions on whether to tough it
out and stay in business or to shut down their dairy at the risk
of losing more money," according to a statement by the United
Dairymen of Arizona.
Ultimately, the federation settled for $52 million without making
an admission of wrongdoing.
United Dairymen of Arizona, the state's large dairy cooperative
consisting of more than 90 Arizona farms, is part of the National
Milk Producers Federation.
Products exporter and job creator
High temperatures and a lack of rain make it easy to forget that
agriculture in Arizona is massive. For fiscal 2016, agriculture's
impact on the Arizona economy was about $17.1 billion and more
than 77,000 jobs, according to the agriculture department.
But when it comes to dairy farming in particular, the industry is
sometimes overlooked.
"Most people don't realize just how big this industry is and what
it means to our state," Arizona Department of Agriculture Director
Mark Kilian said.
Mr. Kilian added that the dairy industry supports thousands of
jobs throughout the state and is a significant exporter as well,
typically exporting dairy products in the forms of cheese or
powders.
Additionally, Arizona dairy promotes jobs in other agriculture
sectors because of the feed requirements of the herds.
Thriving in the heat
In the past 20 years, Mr. Kilian said dairy has grown dramatically
with the advancements in technology, and Arizona has drawn dairy
farmers from other states.
He said that high-quality alfalfa and Saudi Arabian-style dairy
barns -- which often utilize misters and fans in open-sided barns
to keep cows cool, according to CNN -- has contributed to high
milk production in cows and made Arizona an attractive farming
space.
Arizona's proximity to California and Mexico is also a plus.
With the ability to easily export to other major markets, a
growing local population, a kinder regulatory market and lower
labor costs, Arizona provides a good alternative for milk
producers and processing plants that might otherwise go to
California, Boyle said.
Farming in the heat is not the only thing that sets Arizona dairy
apart.
While Arizona farmers may not have as many cows compared to
California or Wisconsin, herd sizes here are much bigger, said Bob
Collier, a University of Arizona professor and expert in the field
of dairy sciences.
In fact, the average herd in Arizona is between 2,500 and 3,000
cows. In the upper Midwest, Mr. Collier said it is probably
between 250 to 500 cows.
Collier said the larger facilities can help reduce overhead.
Challenges facing industry
Although responsible for bolstering the dairy industry, Arizona's
continued growth is somewhat of a double-edged sword.
Urban growth and expansion in the Valley means there is less
available farmland, but Mr. Boyle said many dairies have been able
to stay ahead of development and move south.
But there is only so much farmland. The farther away you get from
the major cities, the farther away you get from milk processing
plants and the consumer population and the more you increase the
expense of your haul.
In the long term, Mr. Boyle said the industry also will face
challenges with the availability of water, and farmers will need
to find the balance between water and feed availability.
The proximity of dairies to cities brings environmental issues as
well, and cash receipts for dairy products in 2016 have declined.
Despite those factors, Mr. Collier said he has an optimistic
outlook.
"It is a very healthy and vibrant industry. I think it is going
to do well," Mr. Collier said. "It is in a very good position to
grow slowly with demand, but still to grow."
* Herzfeld & Rubin Attorney Discusses CPLR Article 9 Rulings
------------------------------------------------------------
Thomas A. Dickerson, Esq., of Herzfeld & Rubin, in an article for
New York Law Journal, reports that a number of exciting trial
court and appellate court decisions were rendered in 2016
interpreting CPLR Article 9, New York state's class action
statute. In addition to those decisions discussed last September
the courts dealt with a variety of issues including the premature
evaluation of the merits of a proposed "disclosure only"
settlement, the approval, preliminarily, of the Metropolitan
Museum of Art's "Pay what you wish, but you must pay something"
class action, the certification of a tenant's class action
alleging improper deregulation of apartments notwithstanding the
landlord's receipt of J-51 tax benefits and the decertification,
in part, of a class action brought by credit card terminal lessees
alleging unreasonable fees and a failure to reveal the full terms
of the lease.
'Disclosure Only' Settlements
After a proposed merger or acquisition is announced it is not
uncommon for shareholders to file one or more class actions
alleging breach of fiduciary duty by corporate officers in, inter
alia, failing to disclose necessary information and/or failing to
achieve a greater purchase price and seeking to enjoin the merger.
Shortly thereafter a settlement may be proposed which, in exchange
for a general release to the corporations and their corporate
officers, one or more of the participating corporations will
disclose additional information to allow shareholders to make a
more informed decision in approving or disapproving the merger or
acquisition. These "disclosure only" settlements have on occasion
been strongly criticized.
In City Trading Fund v. Nye the trial court, preliminarily,
rejected a proposed settlement noting:
In sum, when the original alleged omissions and supplemental
disclosures are closely scrutinized, it is clear that they are not
only immaterial, they are grossly immaterial. None of the
supplemental disclosures 'significantly altered the total mix of
information made available' . . . It is no secret that when a
public company announces a merger, lawsuits follow . . . However,
the ubiquity and multiplicity of merger lawsuits, colloquially
known as a 'merger tax,' has caused many to view such lawsuits
with a certain degree of skepticism . . . The defendant
corporation's cost-benefit calculus almost always leads the
company to settle. Even a slight (chance) of an adverse outcome
will induce a company to rationally settle given the costs . . .
Yet, notwithstanding the current climate of merger litigation,
this case still stands out. It stands out for its downright
frivolity.
On appeal, however, the Appellate Division, First Department
reversed and remanded noting that the "additional disclosures
reflected in the supplemental proxy statement . . . were arguably
beneficial (and) [t]he motion court's finding otherwise was, at
the very least, premature and should have awaited a fairness
hearing during which opposition from shareholders could have been
expressed."
In addition, the Appellate Division noted that "on the record
before us, the evidence of the tactics of the named plaintiffs and
their counsel is not sufficient to warrant denial of preliminary
class certification and preliminary approval of the settlement."
Generally, the standards for approval of a proposed settlement are
lower at the preliminary approval stage than at the final approval
stage.
'Pay What You Wish'
In Saska v. Metropolitan Museum of Art the trial court
preliminarily approved a proposed settlement on behalf of a
settlement class of "All persons who . . . from March 5, 2007 to
the date of final approval . . . purchased either (1) admission to
the exhibition halls . . . using any form of payment or (2) a
[museum] membership." The essence of the proposed settlement
focuses on the manner in which the museum advertises a "pay what
you wish" admissions policy but encourages visitors when they
arrive to pay substantial suggested prices. The settlement seeks
to increase the visibility of the option to pay as little as $.01,
i.e., "pay what you wish" as opposed to the suggested prices.
In addition to increasing the number and visibility of signage,
referred to as "pay what you wish disclosures," of its admissions
policy, plainly visible as visitors approach the ticket cashiers
and on-site ticket kiosks, the "museum will include a provision in
its contracts (with third-party vendors) CityPass, New York Pass,
Explorers Pass and NYCitAll Pass . . . that each . . . shall
disclose the museum's 'pay what you wish' admissions policy."
Furthermore, museum staff will be retrained in new procedures
which require that each cashier either asks how much the visitor
would like to pay or state that visitors may pay any amount they
choose, and that, in accordance with training procedures in place,
"visitor services staff working as 'line-busters' (will) explain
to visitors that they may pay less than the full suggested
admission amount at the cashier's desk if they continue waiting in
line."
In preliminarily approving the proposed settlement the court noted
that a trial court should preliminarily approve a proposed
settlement which "'appears to be the product of serious, informed
non-collusive negotiations, has no obvious deficiencies, does not
improperly grant preferential treatment to class representatives
or segments of the class and falls within the reasonable range of
approval.'"
J-51 Carve Out
In Gerard v. Clermont York Assoc. the Appellate Division, First
Department, affirmed the certification of a class of tenants
seeking rent refunds at an apartment building where "rent-
stabilized apartments were deregulated even though the building
owner was receiving J-51 tax abatement benefits." In addition,
the Appellate Division found that a 17-day delay in filing "after
a stipulated deadline" was fully explained and did not prejudice
defendant. Subsequently, the plaintiffs moved to dismiss several
affirmative defenses and for a declaratory judgment on the issue
of regulatory status and "determining which methodology should be
used for calculating damages."
The J-51 program encourages landlords to perform certain
rehabilitations and major capital improvements such as asbestos
removal and residential conversions by offering tax exemptions or
abatements. In 1993 the legislature enacted the Rent Regulation
Reform Act (RRRA) providing for luxury deregulation of certain
rent-stabilized apartments. A carve out from the RRRA were
buildings receiving J-51 benefits as interpreted by the Court of
Appeals in Roberts v. Tishman Speyer Properties,13 and the
Appellate Division, First Department, in Gersten v. 56 7th
Avenue.14
The parties "tacitly agree[d]" that Clermont improperly
deregulated but disagreed as to the proper methodology for
determining any overcharges. After careful consideration the
court held that "in the absence of allegations of fraud or
wilfulness" the plaintiff failed to present any "compelling policy
concerns justifying their preferred methodology for overcharge
calculation." Hence, the Clermont's assertion that rent
overcharges should be calculated from "the base date four years
prior to the filing of this action" was accepted by the court.
Credit Card Terminal Leases
In Pludeman v. Northern Leasing, a consumer class action
vigorously litigated over the past six years,16 a certified class
of credit card terminal lessees claimed that they were never
provided with the full terms and conditions of the defendant's
leases and challenging the reasonableness of the "loss and
destruction waiver (LDW) fee for those lessees whose leases
provided for an LDW fee of 'price in effect' and who were charged
a LDW fee of up to $4.95."
In modifying the trial court's order decertifying the class
action, the Appellate Division, First Department agreed that
certification of the claims that the lease was never fully made
available to plaintiffs was inappropriate since, inter alia, "two
of four plaintiffs testified that they were not rushed to sign the
leases; three testified that they had an opportunity to read the
leases, but simply failed to do so . . . and one testified that he
was apprised of additional lease pages and the LDW charge." This
testimony fails to support the plaintiff's claims of the existence
of a "routine practice by (defendant's) sales people of obscuring
all but the first page of the lease." However, the class action
would not be decertified regarding the issue of the reasonableness
of the LDW charge.
* M&A-Related Cases Drive Investor Class Action Spike in 2016
-------------------------------------------------------------
Jessica Dye, writing for The Financial Times, reports that class
action lawsuits filed by investors in US federal courts hit their
highest level in 20 years in 2016, propelled by a fourfold
increase in complaints related to mergers and acquisitions.
Last year, 270 securities class actions, in which a shareholder
claims to represent all the investors in a similar position, were
filed in federal courts. That is 82 more than were filed a year
earlier and a 44 per cent boost above the 1997-2015 historical
average, according a report issued by Cornerstone Research and the
Stanford Law School Securities Class Action Clearinghouse.
Overall, the number of securities class action filings against
foreign issuers rose last year to 42 compared with the historical
average of 23, the report showed, despite a drop-off in cases
brought against Chinese companies, which had been a popular target
of securities litigation in recent years. The number of cases
against European companies hit 15 last year against six in 2015,
the report said.
M&A related filings, in which investors complain about disclosure
or the price paid during a deal, shot up to 80, the highest level
since 2009, when the report started separately identifying those
filings. Much of the increase was driven by shift of deal-related
cases from Delaware state court, where many have traditionally
been filed, to federal court, the report said.
The shift was driven by the Delaware Chancery Court's January 2016
decision in In re Trulia Stockholder Litigation, which said the
court would more carefully scrutinise and in certain cases reject
so-called disclosure only settlements that offer payments to
lawyers but no economic benefits to investors.
That prompted some class action attorneys to file their cases in
federal court instead, said John Gould, Cornerstone Research
senior vice-president.
The statistics provide "empirical evidence that the game is moving
into federal court," said Sean Griffith, director of the Fordham
Corporate Law Center and a securities law expert.
It is not clear whether the federal courts will be any friendlier
to plaintiffs' attorneys. The US Circuit Court of Appeals for the
seventh circuit, which covers Chicago and several Midwestern
states, over the summer that endorsed the reasoning in Trulia.
"The question will be what federal courts do when they confront
these issues," Mr Griffith said.
Companies in the financial sector faced more than double the
number of cases compared with a year earlier, with the number of
filings rising to 34 in 2016 from 17 in 2015. The healthcare
sector found itself the subject of particular scrutiny, the report
showed, with the number of cases involving biotech, pharmaceutical
and healthcare companies hitting 80, an 86 per cent rise from the
previous year.
* McNees Wallace & Nurick Attorneys Discuss Post-Spokeo Standing
----------------------------------------------------------------
Devin Chwastyk, Esq. -- dchwastyk@mcneeslaw.com -- of McNees
Wallace & Nurick, in an article for The Legal Intelligencer,
reports that federal courts have varied widely in their
interpretation of standing for plaintiffs in consumer protection
class actions since last year's U.S. Supreme Court decision in
Spokeo v. Robins , __ U.S. __, 136 S.Ct. 1540 (May 16, 2016).
The 'Spokeo' Ruling
In Spokeo, the U.S. Supreme Court addressed standing under the
"case and controversy" requirement of Article III of the U.S.
Constitution and the Fair Credit Reporting Act, 15 U.S.C. Sections
1681, et seq. Plaintiff Thomas Robins, on behalf of a putative
class, alleged that the defendant, an online "people search"
engine and aggregator of personal information, had violated the
FCRA by including inaccurate information in his online profile.
The court's decision attempted to clarify the Article III
constitutional requirement that a civil plaintiff allege an
"injury-in-fact" that is both "concrete and particularized" in
order to establish federal jurisdiction over a case. The court's
decision focused particularly on the appropriate application of
the "concreteness" prong of this test.
Initially, the court noted that a cognizable injury must be
concrete but need not be "tangible." Here, the court referenced
constitutional claims, such as free speech cases, over which
federal courts have traditionally asserted standing despite the
absence of tangible injuries. The court also found that the "risk
of a real harm" can satisfy the requirement of concreteness even
without allegations of immediate harm, i.e., in cases of slander
per se.
Examining the FCRA, Judge Samuel Alito's 6-2 majority opinion
further held that Congress "is well positioned to identify
intangible harms that meet minimum Article III requirements." The
court held, nevertheless, that a mere statutory violation is
insufficient to create federal jurisdiction in the absence of any
concrete harm.
The Supreme Court then remanded the case to the U.S. Court of
Appeals for the Ninth Circuit to make a determination of whether
the plaintiff in Spokeo had adequately alleged a concrete injury.
In December, the Ninth Circuit heard arguments in the remanded
case. Counsel for the parties, despite the Supreme Court's
guidance, continued the debate over whether the statutory
violation alleged by Robins was sufficient to show a concrete
injury entitling him to standing in federal court.
The Aftermath of 'Spokeo'
If the Spokeo holding recounted above seems to you less than a
model of clarity, your response is akin to that of counsel and
courts who have struggled to apply the Supreme Court's reasoning
in the wake of the decision.
The obliqueness of the decision suggests the court merely kicked
the can down the road to allow lower courts and litigants
additional opportunities to develop appropriate theories for
standing in consumer class actions.
Unsurprisingly, the results of court decisions applying Spokeo to
date have been nearly as mixed as the varied reactions to the
decision. Around the country, defendants to consumer class
actions subsequently have succeeded arguing that Spokeo raises the
bar for plaintiffs. For example, In Myers v. Nicolet Restaurant of
De Pere, __ F.3d. __, No. 16-2075 (7th Cir. Dec. 13, 2016), the
Seventh Circuit threw out a claim that failure to truncate payment
card expiration dates on payment receipts provided standing to
assert a violation of the Fair and Accurate Credit Transactions
Act, 15 U.S.C. Section 1681(c)(g)(1). The court found that the
exposure merely of an expiration date did not increase the risk of
identity theft or cause other actual harm of the type that
Congress intended FACTA to address, see also Hancock v. Urban
Outfitters , 830 F.3d 511 (D.C. Cir. 2016) (requests for
disclosure of zip codes did not create standing under District of
Columbia consumer protection laws); Braitberg v. Charter
Communications , 836 F.3d 925, 926 (8th Cir. 2016), (without
allegation of data breach, the defendant's retention of the
customers' personally identifiable information did not provide
standing to assert violation of the federal Cable Communications
Policy Act).
By contrast, rulings by local federal courts interpreting Spokeo
have been relatively favorable to plaintiffs. Those decisions
have been guided by the Third Circuit's opinion in In re
Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir.
2016), which interpreted Spokeo to mean that "what a plaintiff
cannot do is treat a bare procedural violation that may result in
no harm as an Article III injury-in-fact." The court stated, "in
some cases an injury-in-fact may exist solely by virtue of
statutes creating legal rights, the invasion of which creates
standing." The Third Circuit therefore permitted privacy claims
to proceed on behalf of a plaintiff class of children whose
internet browsing habits had been collected by the defendants.
In Hartman v. Medicredit , __ F.Supp.2d __, No. 15-1596 (W.D.Pa.
Dec. 20, 2016), the plaintiff alleged on behalf of a putative
class that the defendant's mailing of collection letters that
included personally identifiable information on the outside of the
envelopes had violated the Fair Debt Collection Practices Act, 15
U.S.C. Section 1692, et seq. Applying Nickelodeon , the court
refused to dismiss the claim for lack of standing, finding that
debtors have a substantive right to be free from harmful debt-
collection practices, and so a violation of the FDCPA constitutes
a concrete injury, see also Blaha v. First Nat'l Collection
Bureau, Inc. , __ F.Supp.2d __, No. 16-2791 (D.N.J. Nov. 10,
2016).
The Future of Standing
The further development of the "concrete harm" analysis set forth
in Spokeo will be determinative of the viability going forward of
consumer protection lawsuits, including individual claims and
class action lawsuits. Certainly, lawyers on both sides of such
cases will continue to contest the proper application of that
case, until and unless the Supreme Court takes the opportunity in
the future to clarify its ruling.
The application of Spokeo may determine whether federal plaintiffs
need only allege a bare violation of a consumer protection
statute, or must allege some actual financial loss to proceed in
federal court. This issue is particularly relevant in consumer
protection class actions, where the award of even modest statutory
damages to a putative class, together with attorney's fees,
creates strong incentives for defendants to settle cases that
survive dismissal and certification proceedings. Meanwhile,
defense counsel are pressing the same analysis in nonstatutory
cases, including data breach class actions, where plaintiffs
allege that they face some risk of future injury, such as identity
theft, but do not allege present financial harm, as in Galaria v.
Nationwide Mutual Insurance , __ F.3d ___, No. 15-3386 (6th Cir.
Sept. 12, 2016), (reversing dismissal of data breach class action
and finding Spokeo standing based on the plaintiff's
nonspeculative allegations of continuing risk of fraud).
An attorney representing Robins in his continuing lawsuit against
Spokeo has opined that the Supreme Court's decision will lead
lower courts to dismiss weaker privacy claims, but will have
little impact on the viability of stronger cases.
To that point, perhaps the most cogent interpretation of Spokeo to
date is from the U.S. Court of Appeals for the Second Circuit.
That court interpreted the Supreme Court's decision as instructing
"that an alleged procedural violation can by itself manifest
concrete injury where Congress conferred the procedural right to
protect a plaintiff's concrete interests," but "a plaintiff may
fail to demonstrate concrete injury where violation of the
procedure at issue presents no material risk of harm to that
underlying interest," as in Strubel v. Comenity Bank , 842 F.3d
181 (2d Cir. 2016).
This interpretation would have federal courts continue to open
their doors to substantive claims that advance the policy
interests underlying consumer protection statutes, while limiting
the success of suits rooted in purely technical violations, which
may be filed largely in pursuit of potential awards of fees to the
plaintiffs' counsel.
Importantly, the Spokeo "concreteness" analysis speaks only to a
plaintiff's standing to bring a claim in federal court.
Accordingly, claims that may not survive a Spokeo analysis in
federal court nonetheless still can be brought in state court,
subject to jurisdictional limitations set by state laws, as in
Dittman v. The University of Pittsburgh Medical Center , __ A.2d
__, No. 971-WDA-2015 (Pa. Super. Jan. 12) (affirming dismissal of
negligence claims in data breach class action based upon
Pennsylvania's economic loss doctrine). See also Medellin v. Ikea
U.S.A. West , __ F.Supp.2d. __, No. 15-55174 (9th Cir. Jan. 13).
Under this reasoning, the plaintiffs can use Spokeo to defeat
defendant's removal efforts, or even to avoid adverse federal
rulings by seeking remand to state court for lack of subject-
matter jurisdiction. In Medellin, the defendant removed a
California consumer protection law claim to federal court. After
the district court decertified the class, the plaintiff appealed
and, creatively, conceded that there had been no allegation of
cognizable harm under Spokeo but only of bare procedural
violations. The Ninth Circuit vacated the decertification ruling,
holding the district court instead should have dismissed the case
for lack of Article III standing, as held in Mocek v. Allsaints
USA , __ F.Supp.2d. __, No. 16-C-8484 (N.D.Ill. Dec. 7, 2016)
(remanding to state court and awarding attorney fees to the
plaintiff after the defendant removed case from state court and
then argued the federal court lacked Article III jurisdiction).
* Scores of TCCWNA-Related Class Actions Filed Against Businesses
-----------------------------------------------------------------
Christopher Dalton, Esq. -- christopher.dalton@bipc.com -- and
Jinkal Pujara, Esq. -- jinkal.pujara@bipc.com -- of Buchanan
Ingersoll & Rooney, in an article for The Legal Intelligencer,
report that enacted over three decades ago, New Jersey's Truth-in-
Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 to -
18 (TCCWNA), sat largely unnoticed by the plaintiffs bar until
recently. But in the past couple of years, scores of putative
class actions have been filed alleging violations of TCCWNA
against a broad array of businesses such as Wal-Mart, Target, J.
Crew, Select Comfort, Burlington Coat Factory, Toys "R" Us, Bed
Bath & Beyond, TGI Friday's, Johnston & Murphy, Whirlpool, and
Bob's Discount Furniture. TCCWNA's broad reach has been found to
encompass nearly every form of written consumer contract,
warranty, notice, advertisement or sign that is displayed,
offered, or entered into with a consumer or potential consumer --
from restaurant menus to in-store displays to website terms and
conditions of use. And the statute's penalty of at least $100 per
violation, coupled with its fee-shifting provision, makes it
attractive for the class-action bar and dangerous for businesses
with substantial customer contacts, since alleged damages could
rapidly rise into the millions or tens of millions of dollars.
Whether it's a brick-and-mortar retailer in New Jersey or an
internet business marketing to New Jersey consumers, TCCWNA could
be a pricey trap for unwary enterprises. New Jersey state and
federal courts, the U.S. Court of Appeals for the Third Circuit
and courts elsewhere are grappling with novel issues arising under
TCCWNA, and potentially important decisions are pending.
What TCCWNA Prohibits
This short little statute -- its five sections would take up less
than a page of text -- prohibits two general categories of
conduct. Section 15 prohibits sellers from offering, displaying
or entering into "any written consumer contract . . . warranty,
notice or sign . . . which includes any provision that violates
any clearly established legal right of the consumer or
responsibility of a seller . . . as established by a state or
federal law." Consequently, businesses need to be aware that
restricting or undermining any clearly established independent
right of consumers, or obligation of sellers, could violate
TCCWNA. Sources of clearly established legal rights are as broad
as the mind can imagine, but the plaintiff must identify which
clearly established legal right has been violated; a plaintiff
cannot pursue a TCCWNA claim unless she can show both a clearly
established legal right and its violation, as in McGarvey v.
Penske Auto Group , 486 Fed. Appx. 276 (3d Cir. 2012) and in
Perrotta v. LG Electronics USA, (D.N.J. Aug. 15, 2013). Notably,
TCCWNA doesn't create any new rights; rather, it's a means of
enforcing other existing consumer rights, as in Watkins v.
DineEquity, 591 F. App'x 132 (3d Cir. 2014).
Section 16 prohibits sellers from providing a contract, notice or
sign containing "any provision by which the consumer waives his
rights under" TCCWNA or which states "that any of its provisions
is or may be void, unenforceable or inapplicable in some
jurisdictions without specifying which of those provisions are or
are not void, unenforceable or inapplicable within the State of
New Jersey." (Importantly, Section 16 does not apply to warranties
and, therefore, most sellers' standard language informing
consumers that some warranty provisions may not be applicable in
their jurisdiction is not subject to attack under TCCWNA.) A
seller thus needs to explain the differences in a consumer's
rights or the seller's responsibilities that may exist under
clearly established law in New Jersey, which can be daunting if a
consumer contract, notice, or sign appears in multiple
jurisdictions, as in Walters v. Dream Cars National, (N.J. Super.
Ct. Law Div. March 07). Businesses operating in New Jersey --
either actually or virtually -- need to keep abreast of
developments in New Jersey consumer-protection law.
TCCWNA differs from other New Jersey consumer-protection statutes
in several respects. First, TCCWNA's definition of "consumer"
broadly encompasses "any individual who buys, leases, borrows, or
bails any money, property or service, which is primarily for
personal, family or household purposes." Moreover, the statute
applies to both actual and prospective consumers, so (in theory,
at least) a plaintiff need not have any contractual relationship
with the defendant to sue under TCCWNA. Second, TCCWNA has been
held applicable to almost any entity involved in producing,
distributing, or selling consumer goods, as in Smith v. Vanguard
Dealer Services, (N.J. Super. Ct. App. Div. Dec. 21, 2010). Third,
TCCWNA has been applied to almost every sort of written material
that might be offered or shown to or seen by a consumer or
prospective consumer -- such as sales contracts, website terms and
conditions, notices, advertisements, in-store displays, restaurant
menus, and rental agreements. Finally, TCCWNA allows an
"aggrieved consumer" to recover "a civil penalty of not less than
$100 or actual damages, or both at the election of the consumer,
together with reasonable attorney's fees and court costs." Some
courts have held that a TCCWNA claim can proceed even without
actual damages, essentially making TCCWNA a "per-se" liability
statute, as in Weinberg v. Sprint , 173 N.J. 233, 250 (2001);
Barrows v. Chase Manhattan Mortgage , 465 F. Supp. 2d 347 (D.N.J.
2006).
How TCCWNA Has Been Applied
Courts in New Jersey (and elsewhere) often emphasize that TCCWNA's
remedial nature favors applying it expansively, as in S helton v.
Restaurant.com , 214 N.J. 419 (2015); Walters; Barbarino v.
Paramus Ford, (N.J. Super. Ct. Law Div. Sept. 11, 2015).
Nevertheless, courts have begun to limit the expansive reach of
TCCWNA and to provide guidance about what language passes muster.
Section 15
Under Section 15, the violation of another statute or law will
support a claim under TCCWNA. For example, in Johnson v. Wynn's
Extended Care, 635 Fed. Appx. 59 (3d Cir. 2015), the Third Circuit
held that a complaint alleging that a service contract contained a
waiver of attorney fees stated a cognizable claim because such
clauses are impermissible when mandated by statute -- such as
under TCCWNA. Several courts have held that contractually reduced
limitations periods for asserting counterclaims or raising
affirmative defenses restrict consumers' rights under the Federal
Rules of Civil Procedure or the New Jersey Court Rules and
therefore violate TCCWNA, as in Gomes v. Extra Space Storage,
(D.N.J. Mar. 31, 2015); Martinez-Santiago v. Public Storage, 38 F.
Supp. 3d 500 (D.N.J. 2014). On the other hand, at least one court
has approved a contractually-reduced one-year limitations period
for either party to bring a claim, as in Bowen v. Hyundai Motor
America, (D.N.J. June 22, 2016).
Section 16
At least one New Jersey trial court has concluded that language
such as "unless prohibited by law" does not offend Section 16. In
Barbarino, the court found that a provision in a motor-vehicle
lease under which the consumer agreed "to pay, unless prohibited
by law, any such sales, use or occupational taxes imposed" did not
violate TCCWNA. The court reasoned that TCCWNA only applies
"where an agreement states that the provision is void in 'some
jurisdictions' without specifying its enforceability or lack
thereof in New Jersey." However, Barbarino is on appeal, and the
Appellate Division has not yet ruled.
A New Jersey federal trial court held that a standard severability
clause did not violate Section 16. In Castro v. Sovran Self
Storage, 114 F. Supp. 3d 204, 213 (D.N.J. 2015), the district
court found that a severability clause -- "[i]f one or more of the
provisions of this rental agreement are deemed to be illegal or
unenforceable" -- was permissible because the agreement applied to
New Jersey rentals only, obviating the need to clarify
enforceability in New Jersey. New Jersey courts generally appear
to agree that declarative statements, as opposed to conditional
ones, indicating which provisions are invalid in New Jersey, are
acceptable under Section 16, as in Gomes, see also Martinez-
Santiago, 38 F. Supp. 3d at 511 (provision stating that terms of
agreement "may be invalid or prohibited in the state in which the
premises were located" violated TCCWNA; while it did not
"expressly state, in a simple, declarative sentence, that some
provisions may be invalid under state law," it implied such
consequence with references to the location of the premises);
Greenberg v. Mahwah Sales & Services, (N.J. Super. Ct. Law Div.
Jan. 8) (phrase "unless prohibited by law" following a provision
did not violate TCCWNA because it did not "declaratively or
impliedly state that the provisions are or may be void,
enforceable or inapplicable in a particular jurisdiction, without
specifying enforceability in New Jersey").
Section 17
Businesses that violate TCCWNA are "liable to the aggrieved
consumer" for their violation. Several New Jersey federal court
cases last year addressed the question of who is an "aggrieved
consumer," as in Spade v. Select Comfort, Case No. 3:15-cv-01826;
Wenger v. Bob's Discount Furniture, Case No. 3:14-cv-07707;
Russell v. Croscill Home, Case No. 3:16-cv-01190. Spade and Wenger
involved consumers who alleged that defendants' contracts failed
to comply with furniture-delivery regulations enacted by the New
Jersey Division of Consumer Affairs; the plaintiff in Russell
alleged that certain of the terms of sale on the defendant's
website violated clearly-established law. None of those consumers
alleged any sort of monetary loss. The consumers in Spade and
Wenger received their furniture when promised; the consumer in
Russell had no problems with the item he purchased. In each case,
the court found that the consumers were not "aggrieved" under
TCCWNA. Those cases are on appeal, and the Third Circuit
consolidated Spade and Wenger. Significantly, the Third Circuit
in late November 2016 certified to the New Jersey Supreme Court
two questions relevant to Spade/Wenger:
-- "Is a consumer who receives a contract that does not comply
with the Furniture Delivery Regulations, but has not suffered any
adverse consequences from the noncompliance, an 'aggrieved
consumer' under the TCCWNA?" and
-- "Does a violation of the Furniture Delivery Regulations
alone constitute a violation of a clearly established right or
responsibility of the seller under the TCCWNA and thus provides a
basis for relief under the TCCWNA?"
The New Jersey Supreme Court has not yet responded to the Third
Circuit's petition, but how it does could affect the scope and
nature of TCCWNA actions.
What Should Businesses Do?
Out-of-state businesses may be able to insulate themselves with a
non-New Jersey choice-of-law clause -- at least one federal court
has found that a California choice-of-law provision was
enforceable, defeating a TCCWNA claim, as in Palomino v. Facebook,
No. 16-cv-04230 (N.D. Cal. Jan. 9, 2017). But if invoking another
state's law isn't possible, businesses should review and revise
their consumer contracts, warranties, and notices, both "real
world" and online, to make sure they don't violate TCCWNA or run
the risk of paying $100 in statutory damages per violation to a
class of thousands of plaintiffs. Businesses also need to keep on
top of developments in consumer-protection law and update their
contracts, warranties, notices, advertisements, or terms and
conditions applicable to New Jersey consumers as new "clearly-
established legal rights" protected by TCCWNA develop.
Asbestos Litigation
ASBESTOS UPDATE: Court Junks Fraud Claims in "Sheppard
------------------------------------------------------
Jesse Frank Sheppard originally filed in the Civil District Court
for the Parish of Orleans a lawsuit against Mosaic Global Holdings
Inc., alleging that he was exposed to asbestos "[o]n a daily
basis" as an employee of Mosaic's predecessor company, Freeport
Sulphur Company. This exposure allegedly caused Sheppard to
develop asbestos-related cancer, lung cancer, and/or mesothelioma.
Although Sheppard stopped working for Freeport in the early- to
mid-1990s, Sheppard's asbestos-related ailments were first
diagnosed in October 2015. Mosaic removed the action to the
United States District Court for the Eastern District of Louisiana
on March 22, 2016.
In addition to Freeport/Mosaic, Sheppard sues several defendants
involved in the manufacture, distribution, and sale of asbestos-
containing products that Sheppard allegedly encountered in the
course of his work. Sheppard also brings claims against insurance
companies that allegedly provided coverage to defendants for
asbestos-related claims and withheld information from Sheppard
about the danger of asbestos.
Mosaic moves to dismiss Sheppard's fraud claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Because the Court finds that Sheppard has failed to plead with
adequate specificity what information was withheld, Mosaic's
motion is granted, according to Judge Sarah S. Vance of the United
States District Court for the Eastern District of Louisiana in an
order and reasons dated January 24, 2017, a full-text copy of
which is available at https://is.gd/3WBm68 from Leagle.com.
Judge Vance pointed out that Sheppard alleges that Mosaic knew
that asbestos was hazardous at the time of Sheppard's exposure.
But to do so, Sheppard relies almost entirely on allegations that
the hazards of asbestos were generally known at that time. For
instance, Sheppard alleges that "[s]tandards regarding the proper
handling of asbestos have been in existence since at least the
early 1950s" and that "asbestosis was listed as a compensable
occupational disease under the Louisiana Worker's Compensation Act
of 1952." Sheppard further alleges that "[t]he health hazards of
asbestos have been recognized by those in the business for two
thousand years," and attributes knowledge of this danger to
Strabo, the ancient Greek geographer, and Pliny the Elder, the
Roman historian. Finally, Sheppard alleges that, by the time he
began working with asbestos "virtually every state in the Unite[d]
States recognized asbestosis as compensable claims under workers'
compensation laws." Information promulgated by legislators and
other public sources is not unique to Mosaic, and could be learned
through the exercise of due diligence, and therefore does not
support a claim for fraudulent concealment, Judge Vance said.
Judge Vance finds Sheppard's attempts to attribute unique
knowledge of asbestos dangers to Mosaic are comparatively slim.
These allegations center around Mosaic's membership in a group
called the National Safety Council. According to Sheppard, the
NSC "would publish information to its members regarding hazards in
the workplace, including asbestos." Members of the NSC,
therefore, "would have had access to information about the hazards
of asbestos and the means to control those hazards relating to
asbestos-containing materials by even the early 1940s." Sheppard
includes no allegations of what specific information was conveyed
from the NSC to Mosaic, or how the NSC's information compared to
generally-available information on asbestos danger, the judge
noted. In other words, Sheppard fails to allege any specific
information concerning the danger of asbestos that was, at the
time of Sheppard's exposure, both: (1) known to Mosaic; and (2)
not generally known such that it could not have been obtained by
Sheppard though reasonable diligence, the judge said.
Accordingly, Sheppard's fraud claim against Mosaic must be
dismissed.
The case is JESSE FRANK SHEPPARD, v. LIBERTY MUTUAL INSURANCE
COMPANY, ET AL., Civil Action No. 16-2401 (E.D. La.).
Jesse Frank Sheppard, Plaintiff, represented by Gerolyn Petit
Roussel, Roussel & Clement.
Jesse Frank Sheppard, Plaintiff, represented by Benjamin Peter
Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel &
Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph
Roussel, Jr., Roussel & Clement.
Liberty Mutual Insurance Company, Defendant, represented by Leigh
Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC,
Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC,
Lori Allen Waters, Kuchler Polk Schell Weiner & Richeson, LLC,
Magali Ann Puente-Martin, Frilot L.L.C., Skylar B. Rudin, Kuchler
Polk Schell Weiner & Richeson, LLC & Thomas A. Porteous, Kuchler
Polk Schell Weiner & Richeson, LLC.
Louisiana Insurance Guaranty Association, Defendant, represented
by Edwin Scott Hackenberg, Henchy, Verbois & Hackenberg LLC.
Reilly-Benton Company, Inc., Defendant, represented by Thomas L.
Cougill, Willingham Fultz & Cougill, Jamie M. Zanovec, Willingham
Fultz & Cougill, Jeanette Seraile-Riggins, Manion Gaynor Manning
LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill & Jennifer
D. Zajac, Willingham Fultz & Cougill.
Taylor-Seidenbach, Inc., Defendant, represented by Christopher
Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Edward
J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard
J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale.
Union Carbide Corporation, Defendant, represented by Deborah
DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC,
McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson,
LLC, Ernest G. Foundas, Kuchler Polk Schell Weiner & Richeson,
LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner &
Richeson, LLC, Melissa M. Desormeaux, Kuchler Polk Schell Weiner &
Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner &
Richeson, LLC, Milele N. St. Julien, Kuchler Polk Schell Weiner &
Richeson, LLC, Perrey S. Lee, Kuchler Polk Schell Weiner &
Richeson, LLC, Samuel L. Burk, Kuchler Polk Schell Weiner &
Richeson, LLC, pro hac vice & Trevor Matthew Cutaiar, Mouledoux,
Bland, Legrand & Brackett, LLC.
Montello, Inc., Defendant, represented by McGready Lewis Richeson,
Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G. Foundas,
Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier
deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, Milele
N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC, Perrey
S. Lee, Kuchler Polk Schell Weiner & Richeson, LLC & Samuel L.
Burk, Kuchler Polk Schell Weiner & Richeson, LLC, pro hac vice.
Riley Power, Inc., Defendant, represented by Jennifer E. Adams,
Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan
LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Marc John
Bitner, Deutsch Kerrigan LLP & William Claudy Harrison, Jr.,
Deutsch Kerrigan LLP.
General Electric Company, Defendant, represented by John Joseph
Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C.,
James H. Brown, Jr., Frilot L.L.C., John Willard Elder, Paine
Bickers LLP, pro hac vice, John A. Heller, Sidley Austin, LLP,
Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C.
& Peter R. Tafaro, Frilot L.L.C..
Uniroyal Holding, Inc., Defendant, represented by Mary Reeves
Arthur, Forman, Watkins, & Krutz, LLP, Jason K. Elam, Forman,
Watkins & Kurtz LLP & Katherine Weatherly Emma Trotter, Forman,
Watkins & Krutz LLP.
Chevron Phillips Chemical Company, LP, Defendant, represented by
Diana Cole Surprenant, Adams & Reese, LLP, Kathleen F. Drew, Adams
& Reese, LLP, Alex E. Cosculluela, Adams & Reese, LLP & David M.
Stein, Adams & Reese, LLP.
Liberty Mutual Insurance Company, Defendant, represented by H.
Minor Pipes, III, Barrasso,Usdin, Kupperman, Freeman & Sarver,
LLC, Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson,
LLC, Kimberly R. Silas, Barrasso,Usdin, Kupperman, Freeman &
Sarver, LLC, Skylar B. Rudin, Kuchler Polk Schell Weiner &
Richeson, LLC & Susan Muller Rogge, Barrasso,Usdin, Kupperman,
Freeman & Sarver, LLC.
ASBESTOS UPDATE: Insurer Has No Duty to Defend Burns & Scalo
------------------------------------------------------------
National Fire Insurance Company of Hartford and Transportation
Insurance Company filed a civil action under the Declaratory
Judgment Act, seeking a determination regarding insurance
coverage, and related rights and duties, if any, for the defense
and/or indemnification owed to Burns & Scalo Roofing Company in a
related state court action.
In the related state court action filed by Carl and Lori Bremer
against Burns & Scalo, Carl Bremer contends that during the summer
months of the years 1973 through 1976, he was employed by the
Defendant, was exposed to asbestos dust and fibers during his
employment and, as a result of this exposure, developed malignant
mesothelioma. In the complaint, his wife, Lori Bremer, pled a
claim for loss of consortium. The state court complaint
incorporated, by reference, allegations and causes of action
asserted in a master long form complaint filed as In re Asbestos
Litigation in Philadelphia Court of Common Pleas, No. 8610-0001
("the Master Long Form Complaint"), including, inter alia, an
allegation in Count VII that the Dr. Bremers' injuries resulted
from Defendant's intentional tortious conduct as Bremer's
employer. The nine-paragraph state court complaint contains very
little by way of factual allegations. However, it explicitly
alleges that Dr. Bremer was employed by the Defendant, and that
his exposure to asbestos dust and fiber during the course of his
employment with the Defendant was the proximate cause of his
injuries.
In the state court matter, the Defendant sought a defense and
indemnification from the Plaintiffs consistent with the provisions
of the general liability insurance occurrence policies issued to
the Defendant between the years 1988 and 1992. The Policies,
which contained identical provisions, essentially provide for a
defense and indemnification in any lawsuit seeking damages for
"bodily injury" that occurs during the policy coverage period.
The Policies defined the term "bodily injury" as "bodily injury,
sickness or disease sustained by a person, including death
resulting from any of these at any time."
In the civil action, National Fire filed a motion for summary
judgment pursuant to Federal Rule of Civil Procedure, requesting
judgment in their favor and a declaration that the Plaintiffs do
not owe a further duty to defend and/or indemnify the Defendant in
the state court action.
Judge Nitza I. Quinones Alejandro of the United States District
Court for the Eastern District of Pennsylvania granted the
Plaintiffs' motion for summary judgment, holding that, based upon
the Court's review of the allegation of the state court complaint
and the exclusionary provision of the Polices, it is patently
clear that the allegations in the state court complaint fall
within the Exclusion provisions and, therefore, outside the scope
of any insurance coverage. The judge noted that the factual
averments pled give no indication, as the Defendant so advances,
that Dr. Bremer was exposed to asbestos while working for another
employer, or that he was anything other than the Defendant's
employee. Nothing in the state court complaint supports an
interpretation of the facts other than the one advanced by the
Plaintiffs, the judge pointed out.
The case is NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and
TRANSPORTATION INSURANCE COMPANY, Plaintiffs, v. BURNS & SCALO
ROOFING COMPANY, Defendant, Civil Action No. 15-6028 (E.D. Pa.).
A full-text copy of the Judge Quinones Alejandro's Memorandum
Opinion dated January 26, 2017, is available at
https://is.gd/rTSyws from Leagle.com.
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Plaintiff,
represented by SHANE R. HESKIN, Esq. --
heskins@whiteandwilliams.com -- WHITE & WILLIAMS LLP.
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Plaintiff,
represented by CRAIG O'NEILL, Esq. -- oneillc@whiteandwilliams.com
-- WHITE & WILLIAMS LLP.
TRANSPORTATION INSURANCE COMPANY, Plaintiff, represented by SHANE
R. HESKIN, WHITE & WILLIAMS LLP & CRAIG O'NEILL, WHITE & WILLIAMS
LLP.
BURNS & SCALO ROOFING COMPANY, Defendant, represented by JOHN M.
HAGAN, K&L GATES LLP, pro hac vice, MARY L. THIBADEAU, K&L GATES
LLP, pro hac vice, PAUL E. DELVECCHIO, K&L GATES LLP, pro hac vice
& JOHN M. SYLVESTER, KIRKPATRICK & LOCKHART.
BURNS & SCALO ROOFING COMPANY, Counter Claimant, represented by
JOHN M. HAGAN, K&L GATES LLP, pro hac vice, MARY L. THIBADEAU, K&L
GATES LLP, pro hac vice, PAUL E. DELVECCHIO, K&L GATES LLP, pro
hac vice & JOHN M. SYLVESTER, KIRKPATRICK & LOCKHART.
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Counter Defendant,
represented by SHANE R. HESKIN, WHITE & WILLIAMS LLP & CRAIG
O'NEILL, WHITE & WILLIAMS LLP.
TRANSPORTATION INSURANCE COMPANY, Counter Defendant, represented
by SHANE R. HESKIN, WHITE & WILLIAMS LLP & CRAIG O'NEILL, WHITE &
WILLIAMS LLP.
ASBESTOS UPDATE: Expert Reports in "McSwain" Due in March
---------------------------------------------------------
Magistrate Judge Dennis L. Howell of the United States District
Court for the Western District of North Carolina, Asheville
Division, issued an order granting a Joint Motion for
Reconsideration of a previous order denying a Joint Motion for
Extension of Time of Scheduling Order Deadlines in the case
captioned MINERVA McSWAIN, individually and as executrix of the
Estate of Buren Edward McSwain, Plaintiff, v. AIR & LIQUID SYSTEMS
CORPORATION, et al., Defendants, No. 1:15cv130 (D. W.D.N.C.).
The Court denied the motion because the parties failed to set
forth sufficient grounds for extending the deadline at issue. The
parties now jointly request reconsideration of that Order and
request that the Court extend the expert report deadlines. Upon a
review of the motion and the record, the Court finds that the
parties have now set forth sufficient grounds for extending the
expert report deadlines in this case. Accordingly, the Court
grants the motion for reconsideration and extends the expert
report deadlines for the Plaintiff until March 3, 2017, and for
Defendants until March 17, 2017.
A full-text copy of Magistrate Howell's Order dated January 26,
2017, is available at https://is.gd/0Dn01d from Leagle.com.
Minerva McSwain, Plaintiff, represented by Jonathan M. Holder,
Esq. -- jholder@dobllp.com -- Dean Omar Branham LLP, pro hac vice,
Sabrina G. Stone, Esq. -- sstone@dobllp.com -- Dean Omar Branham,
LLP, pro hac vice,
Minerva McSwain, Plaintiff, is also represented by:
Mona Lisa Wallace,Esq.
W. Marlowe Rary, II, Esq.
William M. Graham, Esq.
WALLACE & GRAHAM
525 N. Main Street
Salisbury, NC 28144
Tel: 704.633.5244
Air & Liquid Systems Corporation, Defendant, represented by John
T. Holden, Esq. -- jholden@dmclaw.com -- Dickie, McCamey &
Chilcoat P.C., Tracy Edward Tomlin, Nelson, Mullins, Riley &
Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley &
Scarborough LLP & William M. Starr, Nelson, Mullins, Riley &
Scarborough, LLP.
Airgas USA, LLC, Defendant, represented by John T. Holden, Dickie,
McCamey & Chilcoat P.C. & Joseph Lawrence Nelson, Esq. --
jnelson@dmclaw.com -- Dickie, McCamey & Chilcote, PC.
Aurora Pump, 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.
BW/IP Inc., Defendant, represented by Daniel Bowman White, Esq. --
dwhite@gwblawfirm.com -- Gallivan White & Boyd, P.A., pro hac vice
& James M. Dedman, IV, Esq. -- jdedman@gwblawfirm.com -- Gallivan,
White, & Boyd, P.A..
CBS Corporation, Defendant, represented by Jennifer M. Techman,
Esq. -- jmtechman@ewhlaw.com -- Evert Weathersby Houff.
Carboline 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.
Crane Co., Defendant, represented by Richard A. Farrier, Jr., K&L
Gates LLP, pro hac vice & Marla Tun Reschly, K&L Gates LLP.
Crane Co. -- Cochrane and Chapman Valve Co., Defendant,
represented by Marla Tun Reschly, K&L Gates LLP & Richard A.
Farrier, Jr., K&L Gates LLP.
Crane Co. -- Chempump, Defendant, represented by Marla Tun
Reschly, K&L Gates LLP & Richard A. Farrier, Jr., K&L Gates LLP.
Daniel International Corporation, Defendant, represented by
Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A.,
Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E.
Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner,
Haynsworth, Sinkler, Boyd P.A..
Fisher Controls International, LLC., Defendant, represented by
Daniel Bowman White, Gallivan White & Boyd, P.A., pro hac vice &
James M. Dedman, IV, Gallivan, White, & Boyd, P.A..
Flowserve Corporation -- Anchor/Darling Valve 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.
Flowserve Corporation -- Byron Jackson Pump Company, Defendant,
represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A..
Fluor Daniel Services Corporation, Defendant, represented by
Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A.,
Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E.
Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner,
Haynsworth, Sinkler, Boyd P.A..
Foster Wheeler Energy Corporation, Defendant, represented by
Jennifer M. Techman, Evert Weathersby Houff.
General Electric Company, Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Goodyear Tire & Rubber Company, Defendant, represented by Kelly B.
Jones, Womble Carlyle Sandridge & Rice, PLLC.
Goulds Pumps, Inc.;, Defendant, represented by Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP, William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP & Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP.
Grinnell LLC, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP.
Grinnell LLC, Defendant, represented by Travis Andrew Bustamante,
Nelson Mullins Riley & Scarborough LLP.
Grinnell LLC, Defendant, represented by William M. Starr, Nelson,
Mullins, Riley & Scarborough, LLP.
Ingersoll Rand Company, Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
ITT 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.
Linde LLC, Defendant, represented by Jennifer M. Techman, Evert
Weathersby Houff.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
Owens-Illinois, Inc., Defendant, represented by Robert O.
Meriwether, Nelson, Mullins, Riley & Scarborough, LLP.
SEPCO Corporation, Defendant, represented by Teresa E. Lazzaroni,
Hawkins Parnell Thackston & Young LLP.
J.R. Clarkson Company, Defendant, represented by Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP & Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP.
J.R. Clarkson Company, Defendant, represented by William M. Starr,
Nelson, Mullins, Riley & Scarborough, LLP.
The Sherwin-Williams Company, Defendant, represented by John T.
Holden, Dickie, McCamey & Chilcoat P.C..
Trane U.S. Inc., Defendant, represented by Timothy Peck, Smith
Moore Leatherwood LLP.
Uniroyal, Inc., Defendant, represented by Charles Monroe Sprinkle,
III, Haynsworth Sinkler Boyd, P.A. & Scott E. Frick, Haynsworth,
Sinkler, Boyd P.A..
United Conveyor Corporation, Defendant, represented by Timothy
Peck, Smith Moore Leatherwood LLP.
Velan Valve Corporation, Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
Weir Valves & Controls USA 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.
Crosby Valve, 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.
Fluor Enterprises, Inc., Defendant, represented by Charles Monroe
Sprinkle, III, Haynsworth Sinkler Boyd, P.A..
ASBESTOS UPDATE: Order Denying Nash Bid to Dismiss "Krok" Upheld
----------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, unanimously affirmed the order entered by the Supreme
Court, New York County, on April 12, 2016, which denied defendant
Nash Engineering Company's motion for summary judgment dismissing
the complaint as against it.
The Defendant, according to the Appellate Division, failed to
establish prima facie that the plaintiff's decedent could not have
been exposed to its products or the asbestos contained in the case
(see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575 [1st Dept
2016]). Its reliance on the decedent's inability to identify its
product as a source of his exposure to asbestos is misplaced (see
id.; Salerno v Garlock Inc., 212 A.D.2d 463 [1st Dept 1995]), the
Appellate Division said. In any event, the plaintiffs raised an
issue of fact by submitting evidence that the defendant's
asbestos-containing pumps were present on the ship to which the
decedent was assigned as a boiler tender fireman, the Appellate
Division added.
The case is IN RE NEW YORK CITY ASBESTOS LITIGATION relating to
SUSAN KROK AS ADMINISTRATRIX FOR THE ESTATE OF RAYMOND J. KROK,
SR., ETC., Plaintiff-Respondent, v. AERCTO INTERNATIONAL, INC., ET
AL., Defendants, THE NASH ENGINEERING COMPANY, Defendant-
Appellant, 2903, 190272/14 (N.Y. App. Div.).
A full-text copy of the dated is available at https://is.gd/AXt6ez
from Leagle.com.
McGivney & Kluger, P.C., New York (Kerryann M. Cook of counsel),
for appellant.
Weitz & Luxenberg, P.C., New York (Chris Romanelli of counsel),
for respondent.
ASBESTOS UPDATE: Rogers Dropped as Defendant in "Lineberger"
------------------------------------------------------------
Judge Martin Reidinger of the United States District Court for the
Western District of North Carolina, Asheville Division, ordered
that the parties' Joint Motion to Dismiss is granted, and the
Plaintiffs' claims against Defendant Rogers Corporation are
dismissed without prejudice, in the case captioned TOMMY WILLIAM
LINEBERGER and spouse MARCELLA WILSON LINEBERGER, Plaintiffs, v.
CBS CORPORATION, et al., Defendants, Civil Case No. 1:16-cv-00390-
MR-DLH (D. W.D.N.C.).
A full-text copy of Judge Reidinger's Order dated January 25,
2017, is available at https://is.gd/e8psHv from Leagle.com.
Tommy William Lineberger, Plaintiff, represented by William M.
Graham, Wallace & Graham.
Marcella Wilson Lineberger, Plaintiff, represented by William M.
Graham, Wallace & Graham.
CBS Corporation, Defendant, represented by Jennifer M. Techman,
Evert Weathersby Houff.
CNA Holdings, Inc., Defendant, represented by Stephen B.
Williamson, Esq. -- swilliamson@vwlawfirm.com -- Van Winkle, Buck,
Wall, Starnes & Davis, P.A..
Durez Corporation, Defendant, represented by John S. Slosson,
Nelson Mullins Riley & Scarborough, LLP, Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP & William M. Starr,
Nelson, Mullins, Riley & Scarborough, LLP.
Eaton Corporation, Defendant, represented by Laura Erb Dean,
Cranfill, Sumner & Hartzog, LLP & Richard T. Boyette, Cranfill,
Sumner & Hartzog, L.L.P..
General Cable Industries, Inc., Defendant, represented by Timothy
Peck, Esq. -- tim.peck@smithmoorelaw.com -- Smith Moore
Leatherwood LLP.
General Electric Company, Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Georgia Pacific LLC, Defendant, represented by Kenneth Kyre, Jr.,
Pinto Coates Kyre & Bowers, PLLC.
Gould Electronics, Inc., Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Graybar Electric Co, Defendant, represented by Stephen B.
Williamson, Van Winkle, Buck, Wall, Starnes & Davis, P.A..
International Paper Company, Defendant, represented by Mark Andrew
Leach, Orbock Ruark & Dillard.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
Occidental Chemical Corporation, Defendant, represented by John S.
Slosson, Nelson Mullins Riley & Scarborough, LLP, Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP & William M. Starr,
Nelson, Mullins, Riley & Scarborough, LLP.
Plastics Engineering Company, Defendant, represented by Amy C.
Drayton, Dean and Gibson.
Rockwell Automation, Inc., Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
Schnieder Electric USA, Inc., Defendant, represented by Janice
Holmes, Gallivan White & Boyd, P.A..
Sears, Roebuck and Co., Defendant, represented by Kelly B. Jones,
Womble Carlyle Sandridge & Rice, PLLC.
Siemens Corp, Defendant, represented by Curtis J. Shipley, Ellis &
Winters LLP, Jon A. Berkelhammer, Ellis & Winters LLP & Joseph D.
Hammond, Ellis & Winters LLP.
Union Carbide 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, W. David
Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice & Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A..
ASBESTOS UPDATE: Subcontractor Has No Duty to Defend KaiserKane
---------------------------------------------------------------
In 2010, Hitham Abuhouran filed a federal lawsuit against
KaiserKane, Inc., selected by the federal Bureau of Prisons to
serve as general contractor for a project to replace the rooves on
three buildings at the Federal Correctional Institution Fort Dix;
North American Roofing Services, Inc., a subcontractor selected by
KaiserKane; and Briggs Contracting Services, Inc., an asbestos
removal and abatement service provider, alleging that he was a
prisoner at FCI Fort Dix during the relevant reroofing period and
that KaiserKane, NARS, and Briggs were negligent in the removal
and abatement of asbestos as a part of that project. Thereafter,
the Middle District of Pennsylvania transferred the Abuhouran
litigation to the District of New Jersey under 28 U.S.C. Section
1404.
On September 12, 2012, the U.S. District Court for the District of
New Jersey dismissed the Abuhouran federal court litigation
without prejudice under Federal Rule of Civil Procedure 12(b)(7)
for failure to join an indispensable party. Mr. Abuhouran then
re-filed his lawsuit against KaiserKane, NARS, Briggs, and other
defendants in New Jersey state court. KaiserKane, NARS, Briggs,
and the other named defendants answered the state court complaint
of Mr. Abuhouran, denied Mr. Abuhouran's allegations against them,
and asserted cross-claims against one another. KaiserKane's
cross-claims in the Abuhouran state court litigation alleged that:
(a) NARS owed it contractual indemnity under the Parties'
Subcontract Agreement; and (b) KaiserKane was a third-party
beneficiary of any contractual claim for indemnity that NARS may
have against Briggs under their agreement.
During the Abuhouran state court litigation, NARS filed and served
a motion for summary judgment seeking dismissal of the plaintiff's
claims. Mr. Abuhouran did not timely respond to NARS's motion for
summary judgment. On August 22, 2014, the New Jersey state court
granted the motion, dismissed Mr. Abuhouran's action with
prejudice, and dismissed the cross-claims that KaiserKane and the
other defendants had brought against one another. Subsequently,
Mr. Abuhouran filed a motion to reinstate his claims and alleged
in an affidavit that he had changed his residence, did not receive
timely notice of NARS's motion for summary judgment and,
therefore, did not have an opportunity to file a timely response.
The New Jersey state court granted Mr. Abuhouran's motion and
reinstated his claims. Shortly thereafter, KaiserKane moved to
have its cross-claims reinstated so they could be litigated as a
part of the pending Abuhouran state court litigation, but the New
Jersey state court denied that motion and refused to allow
KaiserKane to reinstate its cross-claims.
KaiserKane then brought a diversity action against NARS.
KaiserKane's Complaint includes three causes of action: Count I --
breach of contract; Count II -- specific performance; and Count
III -- declaratory judgment. In short, KaiserKane requests
damages, a declaration regarding the parties' rights under the
indemnification portions of their contract, an affirmative
injunction requiring NARS to comply with its purported contractual
obligations to defend and indemnify KaiserKane, and costs.
Judge Martin Reidinger of the United States District Court for the
Western District of North Carolina, Asheville Division, concludes
as a matter of law that the parties' contract contains no duty
requiring NARS to defend KaiserKane against the claims made by Mr.
Abuhouran in his New Jersey action. The parties' agreement does,
however, provide KaiserKane the right of indemnity under certain
circumstances, Judge Reidinger finds. Since the presence of these
circumstances cannot be determined until after a final judgment is
entered in the New Jersey litigation, this matter will be stayed
pending the entry of that judgment, Judge Reidinger says.
Accordingly, Judge Reidinger ordered that the summary judgment
motions filed by both the NARS and KaiserKane are granted in part
and denied in part.
The parties' contract: (1) contains no duty requiring NARS to
defend KaiserKane against the claims made by Mr. Abuhouran in his
New Jersey action; and (2) provides KaiserKane the right to be
indemnified by NARS with regard to the Abuhouran litigation for
any claim therein that is based on KaiserKane being derivatively
liable for any wrongdoing on the part of NARS or Briggs, Judge
Reidinger holds.
The judge also ordered that this matter is stayed pending entry of
final judgment in Mr. Abuhouran's New Jersey state court action.
The parties will jointly file reports with the Court every six
months following the entry of the Order advising the Court of the
status of that action.
The case is KAISERKANE, INC., Plaintiff, v. NORTH AMERICAN ROOFING
SERVICES, INC., Defendant, Civil Case No. 1:15-cv-00189 (D.
W.D.N.C.).
A full-text copy of Judge Reidinger's Memorandum of Decision,
Order, Declaration dated January 13, 2017, is available at
https://is.gd/0d9fNj from Leagle.com.
KaiserKane, Inc., Plaintiff, represented by Brady James Fulton,
Northup, McConnell & Sizemore.
North American Roofing Services, Inc., Defendant, represented by
John T. Holden, Dickie, McCamey & Chilcoat P.C. & Joseph Lawrence
Nelson, Dickie, McCamey & Chilcote, PC.
ASBESTOS UPDATE: AC&R Has No Duty to Warn, Maryland Court Rules
---------------------------------------------------------------
The Court of Appeals held in Georgia Pacific, LLC v. Farrar, 432
Md. 532 (2013), that a manufacturer/distributor of a product
containing asbestos did not owe a duty to warn the household
member of a worker-bystander who was present at facilities where
the asbestos-containing product was installed prior to 1972 and
where protective clothing, changing rooms, and safe laundering
were not available at the work sites, because there was no
practical way that the manufacturer/distributor's warning to the
worker-bystander could have avoided the danger to the household
member.
As in Farrar, Daniel Hiett is the household member of a former
work-place bystander (his father) who brought asbestos-laden
clothes into his home prior to 1972. After Daniel was diagnosed
with malignant mesothelioma, he and his wife, Jessica Hiett, filed
a multi-count complaint in the Circuit Court for Baltimore City
against multiple defendants, including Appellee, AC&R Insulation
Co., Inc. -- a business that installed and distributed products
containing asbestos during the relevant time period. Mr. Hiett
premised his negligence and strict liability claims on a failure
to warn, as did the household member in Farrar.
On appeal from the circuit court's grant of AC&R's motion for
summary judgment, Appellants Daniel and Jessica Hiett contend that
their claim advanced several material facts that distinguished the
circumstances in their case from those presented in Farrar and
that should have precluded summary judgment. Those facts include
that (1) AC&R had actual knowledge of the health risks caused by
take-home exposures to asbestos based primarily on AC&R's
subscription to a trade magazine that discussed the potential
take-home dangers as early as July 1968; and (2) AC&R could
implement an effective warning because, (a) changing rooms were
available at the father's work sites, (b) AC&R was an installer of
its product so the company was present on the work sites, and (c)
a commercial laundry facility existed in the area, which the
father would have used if AC&R had warned him about the danger to
his household members.
The Court of Special Appeals of Maryland determined that the facts
the Appellants advance do not distinguish this case from Farrar to
the extent that imposition of a duty to warn is warranted.
Accordingly, the Court of Special Appeals hold that the Appellants
failed to demonstrate that AC&R owed a duty to warn Daniel Hiett,
the household member of a worker-bystander who was present at
facilities where AC&R installed asbestos-containing products prior
to 1972, because, even if AC&R had actual knowledge of the dangers
of such exposure, there was no practical way that any warning
given to the worker-bystander could have avoided the danger to the
household member in this case. The circuit court correctly
granted summary judgment, the Court of Special Appeals concluded.
The case is DANIEL E. HIETT, et ux., v. AC&R INSULATION CO., INC.,
No. 2564, September Term, 2015 (Md. Spec. App.).
A full-text copy of the Opinion dated January 27, 2017, is
available at https://is.gd/OEI1xV from Leagle.com.
ASBESTOS UPDATE: ALL Partly Loses Bid to Junk Talc Exposure Suit
----------------------------------------------------------------
In IN RE NEW YORK CITY ASBESTOS LITIGATION, LESLIE FOGEL and
CATHERINE FOGEL, Plaintiffs, v. AMERICAN INTERNATIONAL INDUSTRIES
FOR CLUBMAN et al., Defendants, Docket No. 1900093/2016, Motion
Seq. No. 001 (N.Y. Sup.), the Plaintiffs sued multiple defendants,
including defendant American International Industries, as the
successor to Neslemur Company, the manufacturer of Clubman brand
talc. All moves for summary judgment dismissing all claims and
cross-claims against it on the basis that the plaintiff alleges
exposure to talc during the period 1958-1986, but the defendant
did not have any involvement with Clubman talc until it purchased
the brand in 1987. To support the motion, the defendant submits
the affidavit Charles Loveless, defendant's Executive Vice
President, who has been with the company for approximately 25
years.
The Plaintiffs maintain that summary judgment must be denied
because under an Asset Purchase Agreement, the defendant assumed
tort liability pertaining to the use or sale of Clubman products
prior to the defendant's purchase of the brand in 1987. The
Plaintiffs also maintain that summary judgment should be denied
because as a result of the sale, a de facto merger occurred. The
Plaintiffs further maintain that the defendant's purchase of the
Clubman brand constituted a mere continuation of Neslemur's
business subjecting defendant to liability as a successor. The
Plaintiffs also assert that Charles Loveless' affidavit is
conclusory and is not based on personal knowledge, and, that
issues of fact exit for trial. Furthermore, the plaintiffs
maintain that the motion is premature because no discovery has
been conducted on the successor liability issue.
The Supreme Court, New York County, granted the Defendant's motion
to the extent of dismissing the plaintiffs' claim against the
defendant for successor liability predicated on the Agreement, but
otherwise denied the defendant's motion with leave to renew upon
completion of discovery on the issue of successor liability.
A full-text copy of the Decision penned by Judge Peter H. Moulton
dated January 18, 2017, is available at https://is.gd/jIetTa from
Leagle.com.
ASBESTOS UPDATE: WorkSafe Settles Dust on Asbestos Audit
--------------------------------------------------------
PS News reported that the findings of the Auditor-General into the
management processes associated with the Mr Fluffy demolitions
have been welcomed by Work Safety Commissioner, Greg Jones.
Mr Jones said the audit findings supported WorkSafe's continuing
improvement of administrative processes.
"To date more than 530 demolitions of houses affected by loose-
fill asbestos insulation have occurred safely in Canberra,
equating to more than 200,000 hours of demolition and remediation
work," Mr Jones said.
He said on any day there were up to 120 workers on Mr Fluffy sites
across the ACT.
"The community can have confidence these works are occurring
safely, with WorkSafe Inspectors on sites each day across the ACT
ensuring compliance with health and safety regulations," Mr Jones
said.
Commissioner welcomes Fluffy findings
He said WorkSafe also acknowledged the importance of clearly
documented processes, frameworks and record-keeping around its
regulation activities and took a continuous improvement approach.
He said action was being taken on improvements recommended in the
audit report.
"As an Agency we have stepped up and responded to this
unprecedented and important program of works with an experienced
team of dedicated inspectors," the Commissioner said.
"The demolition and remediation work being undertaken is not only
highly visible, but complex, and we have been working to ensure we
are present at key stages of the works."
Mr Jones said the Agency had also been taking a very effective
educative approach with industry while ensuring strict compliance
with requirements.
He said the audit process and findings focused on processes and
record-keeping practices, and WorkSafe had already made
significant improvements in its record management and other
paperwork associated with the successful demolition works.
"We welcome the review outcomes as they confirm processes and
improvements already in place are on the right track," Mr Jones
said.
"Many of the improvements being made will exceed the audit's
recommendations."
ASBESTOS UPDATE: Family Demands Answer After Worker's Death
-----------------------------------------------------------
Alex Grove, writing for North-West Evening Mail, reported that the
family of a deceased shipyard worker have launched a fresh appeal
for information after an inquest revealed that the retired joiner
died from years of dangerous exposure to asbestos.
Douglas Newby, who worked in the Vickers-Armstrong shipyard in the
1950s and 60s, died in June last year following a battle with lung
cancer.
The 79-year-old worked in the joiners' shop where he built
furniture for the ships in the yard, but also spent time on board
ships building cabins, fitting them out with walls and partitions
and installing furniture.
During that time asbestos was used as insulation on board the
ships and Mr Newby recalled everyone's work clothes being covered
in dangerous asbestos dust.
In 1960 he came into direct contact with a product called marinite
when he worked in a confined space to build toilets and a cinema
on the ocean liner, the SS Oriana. His clothes would often be
covered in white asbestos dust from the material during the
working day.
When he was diagnosed with cancer in September 2015, he found out
that Marinite contained asbestos.
An inquest held at Barrow Town Hall on January 11 concluded that
Mr Newby died from malignant mesothelioma -- an industrial disease
caused by exposure to asbestos.
Mr Newby's step-daughter, Gillian Beer, said: "Dougie hadn't
managed to get out of the house for a year, and for a man that
liked to go for walks and the outdoors this was cruel. He took his
diagnosis like a man and he was very brave, even towards the end."
Speaking at the time of his appeal for former colleagues to come
forward in April 2016, Mr Newby said: "We were not told that
asbestos could be harmful, something which I now think is
criminal.
"We had no masks to wear and with the name of the product,
Marinite, not having any reference to asbestos, we did not know it
had any connection to asbestos. We just thought it was another
product we were using."
To fight his case, the great-grandfather acquired the help of
industrial disease lawyers, Hodge Jones & Allen.
The firm are now acting on behalf of the family who are keen to
find new witnesses willing to speak out about the working
conditions in the shipyard in the 1950s and 60s.
Isobel Lovett, head of industrial disease at Hodge Jones & Allen
solicitors, said: "Prior to developing this illness, Douglas had
been an independent family man who enjoyed spending time with his
grandchildren and great-grandchildren and doing DIY and gardening.
"Unfortunately, he was robbed of his precious retirement time
because his employer exposed him to asbestos at work and failed to
protect him from the deadly dust.
"It is clear that Vickers-Armstrong have questions to answer from
Douglas's family, but now also potentially from his former
colleagues."
Anyone with information that may help Mr Newby's family is asked
to contact Isobel Lovett at Hodge Jones & Allen on 020 7874 8502
or email ilovett@hja.net.
ASBESTOS UPDATE: Asbestos Dumped in Somerset Lane
-------------------------------------------------
Daniel Mumby, writing for Somerset Live, reported that a quantity
of asbestos has been dumped in a Somerset country lane -- right
next to a sign ordering people not to fly-tip.
Somerton resident and former town councillor Clive Wilson came
across the fly-tipping on January 22 while out for a walk.
He reported the incident to South Somerset District Council's
Street Scene team, and a specialist contractor was dispatched to
Black's Moor Hill Lane to remove the dangerous material.
In light of the incident, the Somerset Waste Partnership (SWP) has
issued guidance for the public about reporting fly-tipping, while
urging them not to approach such hazardous materials.
The asbestos was dumped near a sign warning people not to fly-tip
A spokesman said: "If you see fly-tipping, take no risks: you
should not touch anything fly-tipped as it may contain sharp or
hazardous materials.
"Nor do we recommend you approach or challenge fly-tippers.
Instead, when it is safe, contact the district council with any
details.
"This can include: the amount fly-tipped, possible contents from a
visual check only, the location, time and date, whether it is in
or near water, and information about those who may be responsible,
such as vehicle type, colour and registration number."
Asbestos was widely used as a building material until the second
half of the 20th century, as growing medical evidence demonstrated
that exposure could cause mesothelioma, a form of cancer.
The Somerset Waste Partnership has removed the materials via a
specialist contractor
The UK banned the import and use of blue and brown asbestos in
1985, before curtailing the use of white asbestos in 1992 and
finally banning the use of all forms in 1999.
Companies around the UK are regularly called in to eliminate
asbestos from existing homes or workplaces, and there are strict
rules about the material can be disposed of once it has been
safely removed.
A spokesperson for the SWP said: "Everyone has a duty of care to
ensure their waste is properly handled by licensed traders and
sent to a place that can legally take the materials. Failure to do
this can lead to prosecution and fines.
"Ask any trader taking waste -- from builders to man-with-van
operators -- for their waste carrier licence and where the refuse
will go.
"Never pay by cash; get a receipt with full contact details, and
note the registration number and description of vehicles and
people taking away your waste.
"Take particular care in using social media to get waste removed.
If you know about those who fly-tip, inform your district council
immediately."
ASBESTOS UPDATE: Asbestos Analyst Fined for Falsifying Docs
-----------------------------------------------------------
Lauren Applebey, writing for SHP Online, reported that an asbestos
analyst has been fined after he falsified an asbestos air
clearance certificate, following licensed asbestos removal in
Manchester.
Greater Manchester Magistrates' Court, sitting at Manchester and
Salford Court House, heard how, on 19 November 2015, Mr Barrie
Lyons, a well-trained asbestos analyst with 29 years of
experience, was contracted to carry out the final inspection and
air testing, following asbestos removal at a construction site in
central Manchester.
Mr Lyons' task included a thorough examination of the area where
asbestos had been removed from, within the defined enclosure
itself and the areas surrounding it. He also had a series of air
samples to collect and evaluate, to ensure that the air was
substantially free of asbestos.
The investigation by the Health and Safety Executive (HSE)
revealed that Mr Lyons had failed to carry out a suitable
inspection of the site and had not carried out the correct amount
of air sampling, despite his report to his employer and the client
indicating that he had. In effect, Mr Lyons had deliberately
falsified his report and so his published results could no longer
be relied upon. The asbestos removal contractor had no option but
to have a second clearance test carried out which incurred
significant delays and additional expense.
HSE inspector Matthew Greenly said after the hearing: "Asbestos
analysts play a vital role in ensuring that areas are safe to
enter after asbestos is removed. Mr Lyons sadly chose on this
occasion to falsify his records which was a massive abuse of the
trust placed in him by the client.
"This deliberate act increased the risk of numerous people
potentially being exposed to asbestos, a risk Mr Lyons would be
very well aware of from his experience, all to save a little time
and finish the job early.
"It is hoped that the industry uses this case as a reminder that
anyone involved in asbestos removal must do everything reasonable
to protect people from a material which causes around 4000 deaths
per year in the UK."
Mr Barrie Lyons, of Bishops Stortford, Hertfordshire, pleaded
guilty to breaching Section 7(a) of the Health and Safety at Work
etc. Act 1974 and was fined GBP2000 and ordered to pay costs of
GBP3905.73
ASBESTOS UPDATE: Asbestos Litigation Isn't Going Away, Atty Says
----------------------------------------------------------------
Kenneth Gorenberg, Esq. -- kenneth.gorenberg@btlaw.com. -- at
Barnes & Thornburg LLP, in an article for the National Law Review,
wrote that "despite what you may have heard, your company probably
continues to face asbestos litigation risk, and it may even be on
the increase. Consider the following:
"Long Latency Period for Mesothelioma: Mesothelioma, a terminal
cancer that can be caused by asbestos exposure, has a latency
period that typically ranges from 20 to 40 years. That means most
cases filed today allege exposures dating back to the 1970s
through the1990s. Is it possible that your company or an alleged
predecessor used asbestos in its products, premises or work in the
distant past?
"Increasing Mesothelioma Rates: During the 10-year period from
2001 to 2010, more than 26,000 people died of mesothelioma in the
United States and the yearly totals increased almost 10 percent
from 2,509 in 2001 to 2,745 in 2010. Every mesothelioma diagnosis
can lead to a lawsuit.
"Ongoing Asbestos Use: Asbestos is still used legally in the
United States. Almost 360 tons of asbestos was used in the U.S. in
2015, down dramatically from its peak of 803,000 tons in 1973.
Asbestos use in other parts of the world actually increased as
U.S. consumption declined.
"Rising Take-Home and Foreign Exposure Cases: In recent years,
more cases have alleged that take-home exposures caused
mesothelioma in the spouse or now-grown child of someone who
encountered asbestos in the workplace. There also has been an
increase in claims from plaintiffs who now live in the U.S., but
maintain they were exposed during childhood or work in foreign
countries.
"Ongoing Search for Target Defendants: Dozens of asbestos
defendants have gone into bankruptcy. Plaintiff lawyers are always
looking for new defendants to sue, and they are willing to assert
new or untested legal and factual theories.
These are just some of the reasons to expect asbestos litigation
to remain an ongoing risk for businesses. We will follow up with
suggestions for companies now confronting that risk, perhaps for
the first time."
ASBESTOS UPDATE: Asbestos Search in Warilla Sea Wall Continues
--------------------------------------------------------------
Illawara Mercury reported that a section of the Warilla beach sea
wall is undergoing further checks after bonded asbestos was found
last week.
Consultants engaged by Shellharbour City Council discovered
bonded non-friable asbestos in building material in some crevices
of the 50-year-old rock wall last Friday.
A council spokeswoman said bonded asbestos was considered the most
sound of all material containing asbestos as it was less likely to
become airborne. She said air monitoring tests had found no
asbestos particles, while staff had safely removed any pieces that
could be accessed and fenced off the area on Saturday.
"It appears that the dirt and small rocks have been washed away
during large seas last year has revealed this building material
between rocks in part of the wall," Mayor Marianne Saliba said.
"Council staff have responded quickly to address the situation,
assess and minimise any risk to the safety of the community.
"We are now waiting for the advice of independent consultants to
remediate the wall as promptly as possible."
ASBESTOS UPDATE: Perrin Asbestos Conference Agenda Posted
---------------------------------------------------------
Perrin Conferences, the established leader in joint plaintiff and
defense litigation conferences, is proud to present its 7th annual
Cutting-Edge Issues in Asbestos Litigation Conference on March 6-
7, 2017 in Beverly Hills, CA. View agenda, conference details, and
register at http://www.perrinconferences.com.
The 1.5 day Cutting-Edge Issues in Asbestos Litigation Conference
draws in hundreds of the nation's top industry professionals with
an extensive lineup providing balanced perspectives and updates on
the hottest topics in asbestos and toxic tort litigation. The
carefully designed agenda includes renowned plaintiff and defense
attorneys, in-house counsel, insurance professionals, judges and
industry experts.
Conference Chairs:
John D. Cooney, Esq.
Cooney & Conway
Chicago, IL
Timothy L. Krippner, Esq.
Segal McCambridge Singer & Mahoney, Ltd.
Chicago, IL
Lisa L. Oberg, Esq.
Dentons
Oakland, CA
Jeffrey B. Simon, Esq.
Simon Greenstone Panatier Bartlett, PC
Dallas, TX
Panel discussions will focus on:
* Top Emerging Trends in Asbestos Litigation
* Are Industrial and Commercial Talc the New Frontier in Asbestos
Litigation?
* Jurisdictional Updates
* In-House Counsel and Insurance Perspectives
* DNA Discussion
* The Long Tail of Discovery Obligations: What are the Current
Ethical Responsibilities of Litigants and Their Attorneys?
The conference also includes a Women in Business Lunch which has
become a Perrin Conferences' signature event that features
compelling discussions and is always well-attended.
In addition to exclusive learning, information sharing, and
networking opportunities, CLE Accreditation for this conference
will be provided as requested by attendees, including an hour of
ethics.
For more information, registration and hotel accommodations,
please visit http://www.PerrinConferences.com.
About Perrin Conferences
As the leading national provider of joint plaintiff/defendant
litigation conferences, Perrin Conferences offers comprehensive
and specialized continuing legal education (CE/CLE) in an
atmosphere of learning, networking and sharing. The company's
conferences attract influential leaders and foremost talent in the
legal industry to discuss current topics in litigation through
mock trials, presentations and webinars, setting the standard in
professional litigation education and networking.
ASBESTOS UPDATE: DEC Probing Dumping of Asbestos Waste
------------------------------------------------------
Joan Gralla, writing for Newsday, reported that about 100 bags of
asbestos waste were dumped illegally along the Wantagh State
Parkway, state environmental officials said Friday. The agency is
investigating.
The potentially hazardous material was found along the west side
of the parkway, north of Old Country Road, the Department of
Environmental Conservation said in a statement.
No further information was immediately available.
This is at least the second DEC investigation into illegal dumping
on Long Island that came to light this week.
Joined by Brookhaven Town, the DEC said they were investigating
the dumping of construction debris, carpeting, old furniture and
other trash in Tanglewood Park in Coram.
The DEC asked anyone with information about the dumping on Wantagh
Parkway to call its 24-hour hotline at 844-DEC-ECOS (844-332-
3267).
ASBESTOS UPDATE: Tough Penalties for Asbestos Offenses in WA
------------------------------------------------------------
Safety Culture reported that new tough penalties for people caught
failing to take appropriate safeguards when handling or disposing
of asbestos has been introduced in Western Australia.
The new penalties hope to promote asbestos safety across the
state. The penalties include fines of up to $10,000 for
individuals and $50,000 for corporations.
Health Minister John Day has issued the warning as amendments to
the Health (Asbestos) Regulations 1992 come into effect, which
include on-the-spot infringement notices for specified asbestos-
related offences.
"If not handled properly, asbestos products present a significant
public health risk and can have potentially deadly consequences,"
said Mr. Day.
"Unfortunately previous penalties for asbestos-related offences
were failing to deter people from such risky practices."
Under the amended regulations, an individual convicted of an
offence will have to face a penalty of up to $10,000. Corporations
can face up to $50,000 in penalties.
"This represents a 10-fold increase in the current penalties but I
am sure people will agree these changes are justified, given the
dangerous nature of asbestos products under certain conditions,"
said Mr. Day.
"We have also introduced on-the-spot infringements, meaning anyone
mishandling asbestos -- from a homeowner doing a minor renovation
to an experienced builder on a construction site -- can be issued
by local government-authorised officers with a penalty of up to
$2,000 for a specified offence."
About 100 new cases of mesothelioma have been identified in WA
annually in recent years.
Asbestos is a substance commonly used in fibre cement boards,
insulation for pipes, floor tiles, vehicle brakes, clutches and in
other building materials. The use of asbestos has caused a global
stir when health organisations around the world warned of its
serious health implications. The World Health Organisation (WHO)
estimates that about 107 workers worldwide die every year due to
asbestos-related diseases.
Asbestos is now considered a "hidden killer," causing serious
diseases like lung cancer, mesothelioma, and asbestosis. It can
take around 15 to 60 years after the first exposure for fatal
diseases to develop.
ASBESTOS UPDATE: Pa. Court Won't Revive Asbestos Suit
-----------------------------------------------------
Matt Fair, writing for Law360, reported that the Pennsylvania
Superior Court said it would not revive an asbestos exposure
lawsuit against Standard Steel LLC that was thrown out after a
trial judge ruled a bankruptcy court order barred the claims
against the company.
The appellate court's decision upholds a summary judgment nixing
claims brought by the wife of a Mifflin County manufacturing plant
worker who alleged she developed mesothelioma after being exposed
to two years worth of asbestos dust brought home on her husband's
clothes in the early 1970s.
A three-judge panel, however, said that Standard Steel's
arrangement to buy the plant out of bankruptcy in June 2002
insulated it from the claims as the sale was conducted under a
section of federal bankruptcy law allowing assets to be sold
unencumbered by liens, interest and third-party claims.
"Section 363(f) of the code allows the sale of such assets free
and clear of interests like appellants' successor tort claims,"
the court ruled in an opinion penned by Judge William Platt.
"Thus, the trial court did not abuse its discretion or commit an
error of law."
Plaintiff Jacqueline Wagner says that the two years she spent
laundering her husband's clothes during his employment as a
material handler and crane operator at a wheel and axle
manufacturing plant led to her subsequent mesothelioma diagnosis
in September 2013.
The facility was ultimately put up for sale after then-owner
Freedom Forge Corp. filed for Chapter 11 bankruptcy protection in
2001 in Delaware federal court, the opinion said.
A bankruptcy judge agreed in June 2002 that the plant, along with
other Freedom Forge assets, could be sold under Section 363(f) of
the bankruptcy code in order to allow the company to get as much
in return for the facility as possible without its value being
reduced by potential claims, liens and other encumbrances.
A Philadelphia County judge granted summary judgment last
February, finding that the court's ordering authorizing the sale
under Section 363(f) acted as an effective bar to Wagner's claims.
Wagner argued on appeal, however, that she should be allowed to
pursue her case because the claims hadn't ripened at the time the
bankruptcy sale took place.
The appeals court upheld summary judgment in Standard Steel's
favor on grounds that it said fell in line with a Third Circuit
decision from 2003 finding that employment claims against Trans
World Airlines Inc. were barred after its sale to American
Airlines under Section 363(f) of the bankruptcy code.
"As the TWA court reasoned, if Freedom Forge had declined to
invest in factories which employed workers such as . . . Thomas
Wagner, and if Freedom Forge had not used asbestos in such sites,
appellants' successor tort claims would not exist," the Superior
Court concluded.
The case is JACQUELINE S. WAGNER & THOMAS WAGNER, Appellants, v.
STANDARD STEEL, LCC, Appellee, No. 850 EDA 2016 (Pa. Sup.).
A full-text copy of the Decision dated January 26, 2017, is
available at https://is.gd/eTAQOu from Leagle.com.
Benjamin Peter Shein, Shein Law Center, Ltd., for Appellant,
Jacqueline S. Wagner & Thomas Wagner, et al.
John P. Kopesky, Shein Law Center, Ltd., for Appellant, Jacqueline
S. Wagner & Thomas Wagner, et al.
Daniel J. Ryan, Jr., Marshall Dennehey Warner Coleman & Goggin,
for Appellee, Standard Steel, LLC.
Carol Ann VanderWoude, Marshall, Dennehey, Warner, Coleman &
Goggin, P.C., for Appellee, Standard Steel, LLC.
ASBESTOS UPDATE: Local Agencies Can Be Liable for Exposure
----------------------------------------------------------
Zack Needles, writing for The Legal Intelligencer, reported that a
local agency can be held liable for an employee's asbestos-related
injuries when the exposure was caused by a condition that falls
under one of the exceptions to governmental immunity, the
Commonwealth Court ruled in a case of first impression.
Counsel for the plaintiff in Geier v. Board of Public Education of
the School District of Pittsburgh, Michael J. D'Amico of D'Amico
Law Offices in Pittsburgh, said the ruling opens up "a new avenue"
of liability in asbestos cases, made possible in part by the
Pennsylvania Supreme Court's 2013 ruling in Tooey v. AK Steel.
In Tooey, the justices held that employees could seek a common-law
remedy for asbestos exposure against their employers if they were
precluded from recovering under the Workers' Compensation Act
because of its 300-week occupational disease limitation provision.
D'Amico said that it's not uncommon for teachers to file lawsuits
alleging injuries caused by exposure to asbestos in schools, but
those suits have typically not named school districts as
defendants, even after Tooey, because of governmental immunity.
As a result of the Geier ruling, however, the practice of suing
local agencies for asbestos-related injuries is likely to become
more common, D'Amico said.
In Geier, a three-judge panel of the court unanimously affirmed an
Allegheny County trial judge's ruling denying a motion for summary
judgment by the Pittsburgh School District's Board of Public
Education.
"We hold that a public employer has a common-law duty to create
reasonably safe conditions of employment, including the
maintaining of safe structures," Judge Robert Simpson wrote for
the court. "Further, an employer is charged with such knowledge as
to the conditions likely to harm its servants as persons
experienced in the business and having special acquaintance with
the subject matter have. Therefore, it is possible for a local
agency to be liable to an employee for workplace exposure to
asbestos dust, if the condition causing exposure falls within one
of the exceptions to governmental immunity."
Simpson was joined by Judges Renee Cohn Jubelirer and P. Kevin
Brobson.
According to Simpson's opinion, plaintiff Marianne M. Geier worked
for the school district -- referred to as "PBE" throughout the
decision -- as a math teacher at South High School from the fall
of 1958 through the summer of 1959. During that time, Simpson
said, Geier was exposed to asbestos dust coming from pipe
coverings on steam and water pipes located in the hallways,
stairways and classrooms of the high school.
In October 2013, Geier was diagnosed with mesothelioma and she and
her husband filed a suit against PBE and 40 corporate defendants
whose businesses are related to manufacturing, sales, installation
and removal of asbestos products. Geier died in July 2016,
according to Simpson.
PBE filed a motion for summary judgment, arguing that it was
entitled to government immunity under the Political Subdivision
Tort Claims Act and the state constitution. Allegheny County Court
of Common Pleas Judge Michael F. Marmo denied the motion and PBE
filed an interlocutory appeal, arguing that the alleged failure to
provide a safe workplace does not fall within any of the eight
exceptions to governmental immunity.
But Simpson said that, in light of the Tooey decision, the school
district, as an employer, had a common-law duty to protect Geier,
as an employee and business invitee, from the hazards of asbestos
exposure.
With that in mind, the court turned to the question of whether the
condition at South High School that caused Geier's exposure fell
under any of the exceptions to governmental immunity.
Simpson said the plaintiffs' evidence showed that during the 1958-
59 school year, the school district used asbestos products to
repair and maintain floor and ceiling tiles, drywall, and steam
and water pipe coverings.
Geier also testified that she saw maintenance workers on several
occasions using products clearly marked with the word "asbestos"
and that her classroom had a steam pipe running from ceiling to
floor that was fitted with a covering, which was repaired using
asbestos-containing materials, according to Simpson.
Simpson found the plaintiffs' claims fell within the real property
and utility service facilities exceptions to the Tort Claims Act.
Simpson said the plaintiffs "sufficiently alleged a dangerous
condition of PBE's utility service facilities and real property
substantially contributed to decedent's mesothelioma and ultimate
death."
"In addition, plaintiffs' factually supported allegations of PBE's
maintenance workers' actions in spreading asbestos dust during the
maintenance or repair of the steam and water pipe coverings, floor
and ceiling tiles and drywall, while decedent was present, are
sufficient to assert a claim that PBE's negligent care, custody or
control of its real property substantially contributed to
decedent's death," Simpson said.
The case is John F. Geier, Executor of the Estate of Marianne M.
Geier and John F. Geier, her husband, v. Board of Public Education
of the School District of Pittsburgh, v. American Art Clay
Company, Inc., a/k/a Amaco, Inc., American Biltree, and it's
division AMTICO; AVCO Corporation, on behalf of its Lycoming-
Spencer division; Azrock Industries, Board of Public Education of
the School District of Pittsburgh, a Delaware Corporation, f/k/a
Viacom, Inc., successor by merger to CBS Corporation, a
Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation;
Certainteed Corporation; Conwed Corporation, Individually and as
successor to the Wood Conversion Company; F.B. Wright Company;
George V. Hamilton, Inc.; Georgia Pacific Corporation; Hinkle
Hoffman Supply Company; I.U. North America, Inc., as successor by
merger to the Garp Company, formerly known as The Gage Company,
formerly known as Pittsburgh Gage and Supply Company; Kaiser
Gypsum Company, Inc.; Mannington Mills, Inc., Owens-Illinois,
Inc., Plum Borough School District; Rust Engineering and
Construction, Inc., Trane U.S. Inc. f/k/a American Standard, Inc.,
successor in interest to Kewanee Boiler Company, Inc.; Union
Carbide Corporation and its Linde Division; Cemline Corporation;
Oakfabco, Inc.; Rheem Manufacturing Company; ECR International;
Allentown; Armstrong Pumps, Inc.; Arnold Lumber and Supply Co.;
The Columbus Heating and Ventilating Company; Davis Fetch
Corporation of Pennsylvania; Eaton Corporation, as successor-in-
interest to Cutler-Hammer, Inc.; Grinnel LLC; Hammond Valve
Company; Houston-Starr Company; ITT Corporation, f/k/a ITT
Industries; Kennedy-Tubular Products, Inc., in its own right as
and successor-in-interest to Pennco Industries; Kurtz Bros.;
Milton W. Ryan and Associates, Inc.; North American Manufacturing
Company; Schultheis Bros. Co.; and Square D Company, Appeal of:
Board of Public Education of the School District of Pittsburgh,
No. 625 C.D. 2016 (Pa. Comm. Ct.).
A full-text copy of the Opinion dated January 25, 2017, is
available at https://is.gd/cXmlWN from Leagle.com.
Zack Needles can be contacted at 215-557-2373 or zneedles@alm.com.
Follow him on Twitter @ZackNeedlesTLI.
Bryan Scott Neft, Pietragallo, Gordon, Alfano, Bosick & Raspanti,
LLP, for Appellant, Board of Public Education of the School
District of Pittsburgh.
Jeanette Hsin Ho, Pietragallo, Gordon, Alfano, Bosick & Raspanti,
LLP, for Appellant, Board of Public Education of the School
District of Pittsburgh.
Ira Weiss, Weiss Burkardt Kramer, LLC, for Appellant, Board of
Public Education of the School District of Pittsburgh.
Melissa Devich Cochran, Marshall, Dennehey, Warner, Coleman &
Goggin, P.C., for Appellee, Trane U.S. Inc.
Jeffrey N. Kinsey, K&L Gates LLP, for Appellee, Square D Company.
Michael Magee, Dinsmore & Shohl, L.L.P., for Appellee, Rust
Engineering and Construction.
George D. Bruch, Jr., Swartz Campbell & Detweiler, for Appellee,
Rheem Manufacturing Company.
David Hendrickson, for Appellee, Owens-Illinois, Inc.
Concetta Angela Silvaggio, Willman & Silvaggio, LLP, for Appellee,
Oakfabco, Inc.
Richard Clayton Polley, Dickie, McCamey & Chilcote, P.C., for
Appellee, North American Manufacturing Company.
Jennifer E. Watson, Wilbraham, Lawler & Buba, P.C., for Appellee,
Mannington Mills, Inc.
Michael John Richard Schalk, K&L Gates LLP, for Appellee, Kurtz
Brothers.
Bryan Scott Neft, Pietragallo, Gordon, Alfano, Bosick & Raspanti,
LLP, for Appellee, Kennedy Tubular Products.
Edward A. Miller, Marshall, Dennehey, Warner, Coleman & Goggin,
P.C., for Appellee, Kaiser Gypsum Company, Inc.
Steven Andrew Luxton, Morgan, Lewis & Bockius LLP, for Appellee,
ITT Corporation.
Jennifer E. Watson, Wilbraham, Lawler & Buba, P.C., for Appellee,
I.U. North America, Inc.
Kevin Charles Tierney, Tierney Law Offices, P.C., for Appellee,
Hinkle Hoffman Supply Company.
Concetta Angela Silvaggio, Willman & Silvaggio, LLP, for Appellee,
George V. Hamilton.
Ronald Joseph Richert, Willman & Silvaggio, LLP, for Appellee,
George V. Hamilton.
Adam Joshua Warhola, Dickie, McCamey & Chilcote, P.C., for
Appellee, Grundfos Pumps Corporation.
Steven Andrew Luxton, Morgan, Lewis & Bockius LLP, for Appellee,
Grinnell LLC.
Michael Joseph D'Amico, D'Amico Law Offices, L.L.C., for Appellee,
John F. Geier.
Andrew Frank Adomitis, for Appellee, F.B. Wright Company.
Michael Joseph D'Amico, D'Amico Law Offices, L.L.C., for Appellee,
Estate of Marianne M. Geier.
Concetta Angela Silvaggio, Willman & Silvaggio, LLP, for Appellee,
ECR International, Inc.
Jason Wayne Rubin, Goldberg, Miller & Rubin, P.C., for Appellee,
Eaton Corporation.
Richard Clayton Polley, Dickie, McCamey & Chilcote, P.C., for
Appellee, Davis Fetch Corporation of Pennsylvania.
David J. Rosenberg, Weber, Gallagher, Simpson, Stapleton, Fires &
Newby, L.L.P., for Appellee, Columbus Heating and Ventilating
Company.
Jennifer E. Watson, Wilbraham, Lawler & Buba, P.C., for Appellee,
Certainteed Corporation.
Eric Lorin Horne, Eckert Seamans Cherin & Mellott, LLC, for
Appellee, CBS Corporation.
Bryan Scott Neft, Pietragallo, Gordon, Alfano, Bosick & Raspanti,
LLP, for Appellee, Beazer East, Inc.
Bernard L. Levinthal, Goldfein & Joseph, P.C., for Appellee,
Azrock Industries.
Terence M. Pitt, Goldfein & Joseph, P.C., for Appellee, Azrock
Industries.
Joseph Welter, Goldberg Segalla, L.L.P., for Appellee, AVCO
Corporation.
Adam Joshua Warhola, Dickie, McCamey & Chilcote, P.C., for
Appellee, Armstrong Pumps, Inc.
Edmund Lucien Olszewski, Jr., Dickie, McCamey & Chilcote, P.C.,
for Appellee, American Biltrite.
John Joseph Delany, III, Delany McBride, PC, for Appellee,
American Art Clay Company, Inc.
ASBESTOS UPDATE: Asbestos Found in James Bay Building
-----------------------------------------------------
Katherine Dedyna and Jeff Bell, writing for Times Colonist,
reported that dozens of residents of a James Bay apartment
building are being relocated to a downtown hotel after asbestos
was found during renovations.
They're being housed for free at the DoubleTree Hotel on Douglas
Street, where they will receive breakfast each day.
Each tenant is also receiving a $100 grocery gift card and a $100
pre-paid credit card.
About 35 residents of Charter House rode the a shuttle bus to the
DoubleTree and others made their own way there. The tenants'
accommodation will be paid for until remediation work is finished,
said Danny Roth, spokesman for Devon Properties and Starlight
Group Property Holdings Inc., which manages the building.
The two tenants who first alerted management to construction-
related dust in their units were relocated earlier, he said. There
wasn't a need to vacate the entire building at that time, Roth
said.
"We needed to test the samples and wait for the results before
determining the best course of action. The decision to relocate
residents needed to be evidencebased, he said.
"Once the evidence -- in this case, the results of our testing --
was received, only then could we take action, and we immediately
did so."
Tenants must be relocated from the 73 apartment units by noon
Sunday.
Most buildings of the Charter House era, built in the 1960s,
likely contain asbestos. When undisturbed, it does not pose a
problem, Roth said.
In this case, asbestos was encountered in the course of work on
balconies, as well as the interior and exterior of the building.
Robert White, who has lived at Charter House for two years, said
some action should have been taken sooner.
"My lungs are burning every day and my eyes are burning," he said.
He said the building was an "awesome" place until renovations
began several months ago.
"It's been frustrating," White said. "The entire summer I had
plastic covering the windows, there was no air circulation in my
suite."
He said it has been tough because he is self-employed and works
from home.
Tenants received letters notifying them of the need to relocate.
"The decision to relocate tenants was made in consultation with
[Island Health] and upon the advice of our environmental
consultants after lab results were received by management on Jan.
27, suggesting that isolated areas within the building had dust
which contained elevated asbestos levels," the company said in a
statement.
"Further testing and remediation of the property can only begin
once the building has been fully vacated.
"While we recognize the inconvenience and disruption the
relocation will cause our residents, their safety and well-being
is our primary concern and so we have taken the difficult, but
necessary step to relocate all tenants."
It's the first time the company has ever relocated a building full
of tenants, Roth said.
The company is also footing the bill for extra charges for parking
and pet accommodation.
ASBESTOS UPDATE: Mr. Fluffy Crisis Threat to Mental Health
----------------------------------------------------------
The Canberra Times reported that new information from the ACT
Asbestos Health Study paints a worrying picture of the strain the
Mr Fluffy crisis has put on the mental health of affected
homeowners in the territory.
Much has been made of the financial costs of the ACT government's
demolition scheme and the possible health risks of exposure to the
deadly asbestos.
But this study now gives a strong indication that many affected
homeowners have suffered serious psychological distress. The study
found while most affected home owners reported relatively good
health with low anxiety, some had experienced high levels of
distress.
A quarter of the 1022 affected households that are part of the
scheme participated in the survey.
Consideration too must go towards all of the people who have lived
in and worked on these homes in the years between the installation
of the asbestos in the 1970s and the current demolition scheme.
There is no doubt that some people are suffering considerably with
the thought that they could have been exposed to the asbestos.
The ACT government is due credit for the way it has handled the
health considerations that have arisen during the scheme.
Homeowners reported in the survey that they had been given
sufficient information about the health risks of exposure to
loose-fill asbestos.
However, while the government engaged with a number of community-
based associations to deal with the psychological ramifications,
it was a mistake not to engage Canberra's leading suicide
prevention service.
Lifeline staff have dealt with highly distressed Mr Fluffy owners
and the organisation has raised serious concerns about the risks
to these people, including their risk of suicide.
The organisation should have been given funding support to target
these homeowners from the start.
The ACT government has made positive inroads in dealing with the
mental health of Canberrans and it is pleasing to see a dedicated
minister, Shane Rattenbury, for the matter and the establishment
of an Office for Mental Health.
But it must be said that the ACT government did not listen when
warned about this particular mental health crisis and it should
have.
ASBESTOS UPDATE: BBC Boss' Bro Paid to Spy on Asbestos Campaign
---------------------------------------------------------------
Michael Gillard and Jon Ungoed-Thomas, writing for The Sunday
Times, reported that a documentary maker is alleged to have been
paid more than GBP460,000 in fees and expenses to infiltrate the
anti-asbestos movement as a corporate spy.
Robert Moore, 50, was hired by a corporate intelligence firm in
2012 for the four-year operation and is now being sued in the High
Court for misuse of confidential information.
K2 Intelligence, the firm that hired Moore, has now been ordered
to identify its client. The High Court has concluded the client
was "involved in wrongdoing".
Moore, who is the brother of Charlotte Moore, the BBC's director
of content, said it was an "unfortunate and complicated" dispute.
He said he would address the allegations when the full facts are
known.
ASBESTOS UPDATE: '70s Fort Work Blamed for Asbestos Problems
------------------------------------------------------------
Jersey Evening Post reported that islanders who believe that their
health was damaged due to asbestos exposure during a construction
project at Fort Regent 40 years ago are being asked to come
forward.
Former labourer Malcolm 'Micky' Bees says he is convinced that he
now suffers respiratory illness as a result of exposure to the
toxic substance when he was part of the team developing the
leisure centre between 1976 and 1980.
Mr Bees (66), who is originally from Wales and came to Jersey in
1973, recently developed plural thickening of his lungs, an
asbestos-related disease which causes internal scarring.
Mr Bees has posted a photograph of himself on the Jersey 80s Fotos
Facebook page with a group of men who were also working on the
project at the time, and has called for anyone else who has
suffered ill effects to get in contact with him.
St Brelade Constable Steve Pallett, who has responsibility for
sport in the Economic Development Department, said that he could
not comment on an individual case like Mr Bees. But he did say:
'Clearly there was a lot of asbestos used in many buildings,
public and private, in the 1940s, 50s 60s and 70s.
Mr Bees has asked anyone who thinks they were affected by asbestos
poisoning during the project to contact him on 07797 753922 or
617919.
ASBESTOS UPDATE: Hundreds of North Wales Schools Have Asbestos
--------------------------------------------------------------
Steve Bagnall, writing for Daily Post, reported that hundreds of
schools across North Wales contain potentially deadly asbestos,
prompting calls for immediate action to tackle the problem.
In total, 367 primary, secondary and special needs schools spread
across the six counties have the toxic substance, according to a
Freedom of Information request.
Gwynedd has 111 schools containing asbestos, Flintshire 70,
Denbighshire 53, Conwy 51, Wrexham 44 and Anglesey 38.
The Right to Know Asbestos in Schools Wales campaign has called on
the Welsh Government to lead a strategy to clear it out of
schools.
The National Union of Teachers (NUT) also wants action taken to
get rid of asbestos from schools, amid fears pupils and staff's
health could be at risk.
Union chiefs cite research suggesting that between 200 and 300
adults each year die from mesothelioma due to asbestos exposure
when they were school pupils.
Teachers are now dying from the cancer at an average of 17 per
year, up from 3 per year during 1980-85.
Removing asbestos from schools across North Wales is estimated to
cost millions.
Cenric Clement-Evans, of Right to Know, said: "In my view we need
an asbestos in schools steering group in Wales to assist the Welsh
Government which should include wider representation than simply
government departments.
"The issue of asbestos in schools in Wales is clearly not
receiving the same attention as in schools in England. This cannot
be right."
Asbestos database warning which North Wales schools contain
substance would be 'too bureaucratic' says Education Minister
Owen Hathway, NUT Wales policy officer, added: "No teacher or
pupil should ever find themselves working in conditions that may
impact on their health.
"We know there have been cases in the past where exposure to
asbestos has had dire consequences for school staff.
"The fact is all asbestos should be removed from schools, whenever
it is found and whatever its form, unless this is completely
impracticable."
North Wales local authority chiefs insist measures are in place to
manage asbestos including surveying and monitoring buildings, site
manager training and removing asbestos when needed.
Campaign group demands register on asbestos in Welsh schools
An Anglesey council spokesman said every school had a register to
make staff and workers aware of the substance and a surveyor
responsible for monitoring its management.
Conwy council said it has started a three-year programme to remove
asbestos from schools.
"Removal is only required where the asbestos is in a dangerous
condition"
A Gwynedd Council spokesperson added: "Over the years we have
removed significant amounts of asbestos from our buildings.
"However, removal is only required where the asbestos is in a
dangerous condition and it cannot be repaired or where its removal
is required to allow other building work to take place."
Neal Cockerton, Flintshire council's chief officer for
organisational change, said: "Asbestos removal works are notified
(where required) to the Health and safety Executive prior to
commencement of works which will be pre-planned with school
management to ensure that suitable and safe access is maintained.
"Removal works are supported by the presence of independent UKAS
accredited asbestos surveyors engaged in background air monitoring
and four stage clearance procedures."
"We take this issue very seriously"
A Welsh Government spokesman said: "We take this issue very
seriously and, in May 2014, we published our own advice and
guidance for schools and local authorities that is directly
comparable to the policy in place in England and clearly sets out
the responsibilities for local authorities and school governing
bodies around asbestos management.
"Our GBP1.4 billion 21st Century Schools and Education Programme
is helping to refurbish schools and colleges across Wales. This
programme includes the removal or treatment of asbestos and will
continue to do so."
Asbestos can be found in most commercial properties built between
1950 and the 1980s and was used for its fireproof and insulating
qualities. It was banned in 1999.
ASBESTOS UPDATE: B.C. Court of Appeal Overturns Asbestos Ruling
---------------------------------------------------------------
Keith Fraser, writing for Vancouver Sun, reported that the B.C.
Court of Appeal has overturned a ruling that found laws protecting
asbestos removal workers from the deadly substance were too
complex to enforce.
In February last year, B.C. Supreme Court Justice George Macintosh
refused to find that Mike Singh, the owner of a Lower Mainland
asbestos-removal contractor, and his son, Shawn Singh, were in
contempt of court for violating a 2012 court order.
The judge found that the terms of the order requiring the Singhs
to comply with the Workers Compensation Act and its regulations
were too voluminous and difficult to understand.
The order, also directed at Singh's company Seattle Environmental
Consulting Ltd., came after WorkSafeBC issued 237 asbestos
violation notices to the company and two men between 2007 and 2012
and imposed fines in excess of $200,000.
WorkSafeBC appealed Macintosh's ruling and earlier this month, a
three-judge panel of the B.C. Court of Appeal found that Macintosh
had made a number of errors in his ruling.
In his reasons for judgment, Appeal Court Justice John Savage
dismissed last year's finding that the 2012 court order issued by
Justice Loryl Russell was not clear and unequivocal enough for the
Singhs to follow.
"While the Act and regulation may have some complexity, the
persons to whom they apply voluntarily engage in a business for
profit in a highly regulated area, and do so on the understanding
that they must comply with the Act and regulation," said Savage.
"Requiring familiarity and understanding of statutory and
regulatory requirements for workplace safety from voluntary
industry participants is not an impermissibly onerous
requirement."
Savage added that he did not mean by his ruling that the Singhs
were guilty of contempt of court, as that was not the issue before
B.C.'s highest court. He said that the contempt issue would be
sent back to the B.C. Supreme Court for a determination.
The Singhs appealed to have Russell's order set aside, but Savage
declined to do so. Savage's ruling was agreed to by Justice David
Frankel and Justice David Harris.
In a media release, the B.C. Insulators Union and the B.C.
Federation of Labor said they were "extremely relieved" that the
Appeal Court had found the asbestos laws enforceable.
"This is an incredible relief to not only asbestos removal workers
who need maximum safety protection to deal with the number-one
workplace killer in B.C., but all workers dependent on our health
and safety laws to prevent workplace deaths and injuries," said
Lee Loftus, the union's business manager.
The union said that in 2015, asbestos killed 42 workers in B.C.
and likely more in 2016, calling it the most dangerous product
workers can handle. It said it expects a new contempt application
against the Singhs and Seattle Environmental will proceed later
this year.
Reached for comment Monday, Mike Singh maintained that Russell's
order was not clear enough for him to understand and he plans to
appeal the case to the Supreme Court of Canada.
"We're not as happy with the appeal ruling," said Singh. "The
reason is, whatever was discussed in the court during the appeal
is totally different from the ruling."
ASBESTOS UPDATE: EnPro Reports Progress in Asbestos Litigation
--------------------------------------------------------------
EnPro Industries, Inc., on January 30, 2017, reported that, as
contemplated by the joint plan of reorganization to resolve all
current and future asbestos claims against its subsidiaries
Garlock Sealing Technologies LLC ("GST") and Coltec Industries Inc
("Coltec") that was filed in GST's asbestos claims resolution
process (the "ACRP") under Chapter 11 of the Bankruptcy Code
pending in the U.S. Bankruptcy Court for the Western District of
North Carolina (the "Bankruptcy Court"), the anticipated corporate
restructuring of EnPro's Coltec subsidiary has been completed. As
planned, Coltec merged with and into a new indirect subsidiary of
EnPro, OldCo, LLC ("OldCo"), and OldCo, as the successor to
Coltec, filed a pre-packaged Chapter 11 bankruptcy petition with
the Bankruptcy Court on January 30, 2017. OldCo and GST have filed
a motion with the Bankruptcy Court for OldCo's Chapter 11
proceedings to be administered jointly with GST's pending Chapter
11 proceedings.
The joint plan of reorganization was proposed pursuant to a
comprehensive settlement, announced on March 17, 2016, with the
court-appointed committee representing current asbestos claimants
and the court-appointed legal representative of future asbestos
claimants in the ACRP, as well as with ad-hoc representatives for
current and future asbestos claimants against Coltec. The joint
plan remains subject to approval by the Bankruptcy Court and the
U.S. District Court for the Western District of North Carolina
(the "District Court") and, if so approved and consummated, would
permanently resolve all current and future asbestos claims against
GST and Coltec/OldCo and would protect all of EnPro and its
subsidiaries from those claims, under Section 524(g) of the U.S.
Bankruptcy Code.
Under the joint plan, the corporate restructuring of Coltec to
facilitate the implementation of the settlement was contingent
upon the approval of the joint plan by asbestos claimants. The
vote of the asbestos claimants approving the joint plan was
certified on December 16, 2016, and the corporate restructuring
was completed on December 31, 2016. Prior to this corporate
restructuring, all operating businesses of EnPro were operated
either directly by Coltec or by direct or indirect subsidiaries of
Coltec. In the restructuring, all of Coltec's significant
operating assets and subsidiaries were distributed to a new
direct, wholly owned subsidiary of EnPro, EnPro Holdings, Inc.
("EnPro Holdings"). EnPro Holdings assumed substantially all of
Coltec's non-asbestos liabilities. As part of the corporate
restructuring, Coltec merged with and into OldCo, which is a newly
formed direct subsidiary of EnPro Holdings. OldCo, as the
restructured entity and the successor to Coltec, retained
responsibility for all asbestos claims and rights to certain
insurance assets of Coltec. It also retained ownership of the
business operated by its EnPro Learning System, LLC subsidiary
("EnPro Learning System"), which provides occupational safety
training and consulting services offered to third parties; EnPro
Learning System had 2016 revenues of approximately $364,000.
In connection with the restructuring, EnPro Holdings entered into
a keep well agreement with OldCo. Under the keep well agreement,
EnPro Holdings has agreed to make equity contributions to OldCo
sufficient, together with other funds available to OldCo, to
permit OldCo to pay and discharge its liabilities as they become
due and payable. Prior to the commencement of OldCo's Chapter 11
proceedings, OldCo was released from its obligations with respect
to all outstanding indebtedness for borrowings or evidenced by
notes or similar instruments, including its obligations with
respect to the outstanding intercompany notes to GST (which
obligations were assumed by EnPro Holdings and which intercompany
notes were amended to extend their maturity date to January 1,
2018). OldCo was also released as a guarantor under EnPro's $300
million senior secured revolving credit facility and under the
indenture governing EnPro's 5.875% senior notes due 2022 (OldCo
having been designated as an "unrestricted subsidiary" under the
terms of such indenture).
During the pendency of OldCo's Chapter 11 proceedings, certain
actions proposed to be taken by OldCo not in the ordinary course
of business will be subject to approval by the Bankruptcy Court.
As a result, during the pendency of the OldCo's Chapter 11
proceedings, EnPro will not have exclusive control over OldCo,
and, as required by GAAP, OldCo will be deconsolidated from
EnPro's consolidated financial statements beginning on January 30,
2017. EnPro does not anticipate recognizing any material gain or
loss in connection with such deconsolidation of OldCo.
Steve Macadam, EnPro's President and Chief Executive Officer,
said, "Completing the corporate restructuring of Coltec and the
commencement of OldCo's prepackaged Chapter 11 petition moves us
two steps closer to permanent resolution of these asbestos claims.
While a number of steps still remain, we continue to anticipate
receiving all necessary court approvals for confirmation of the
joint plan, with the target that GST and OldCo will consummate the
joint plan and emerge from bankruptcy during the third quarter of
2017."
About EnPro Industries
EnPro Industries, Inc. is a leader in sealing products, metal
polymer and filament wound bearings, components and service for
reciprocating compressors, diesel and dual-fuel engines and other
engineered products for use in critical applications by industries
worldwide. For more information about EnPro, visit the company's
website at http://www.enproindustries.com.
ASBESTOS UPDATE: Asbestos Discovered in N.C. Neighborhood
---------------------------------------------------------
Dan Yesenosky, writing for WCNC.com, reported that people living
in a Davidson, North Carolina neighborhood are worried about how
much exposure they've had to asbestos.
State officials discovered that it came from the site of a former
asbestos shingles factory nearby.
"When it rains you can see clay looking mud, so it's here," said
Joanne Archie. "I know it's here."
Archie looked on as workers began removing trees and vegetation
across the street from her home. The state Department of
Environmental Quality says they've been exposed to asbestos.
"The EPA had a full disclosure about asbestos being in our front
yard, back yard," said Amer Raja.
Raja lives here, too, and says the word that asbestos had spread
to his home was alarming.
"Just concerned about my 2-year-old son," Raja said.
The state says asbestos-containing material was first identified
in the fall after heavy rainfall eroded a slope on the site where
Carolina Asbestos Company used to produce asbestos shingles
between the 1930s and 1960s. They believe the asbestos-
contaminated rain water flowed onto two residential streets
nearby.
Archie says she grew up here. She had lung cancer back in 2012.
"I think the asbestos had a lot to do with it because I worked in
that mill we played in that mill yard," Archie said. "Every child
in Davidson did that."
Raja is grateful that he's seeing some action start to take place,
in hopes that this problem gets resolved quickly.
"I don't think everyone wants to walk around wearing a mask on
their face," Raja said.
But the work being done now isn't enough to make Archie feel any
better about the health hazard.
"A little too late," Archie said. "It should've been done years
ago."
Contractors are going to place clean soil and fiber matting over
the area to stabilize the slope and prevent this from happening
again. The work is expected to take four days.
ASBESTOS UPDATE: EPA Fails to Tell of Montana Asbestos Danger
-------------------------------------------------------------
Andrew Schneider, writing for Montana Billings Gazette, reported
that a change in federal law that could warn tens of millions of
residents and homeowners across the country about the dangers of a
Montana-mined mineral insulation in their ceilings and attics may
be too little, too late.
Public health officials say the addition of asbestos to the
government's recently released list of most dangerous chemicals
will save lives, especially people across the country who are
living with lethal fibers dug from a Montana mine.
Before the Trump administration's gag order on the Environmental
Protection Agency, a senior spokesperson said even though
extensive, peer-reviewed studies confirmed the significant danger
from the asbestos-coated Zonolite insulation, the EPA has three
years to take action. That delay, coupled with the new
administration's position, could mean more people are unwittingly
exposed to the asbestos which can be toxic or lethal even with a
tiny exposure.
Linda Reinstein, the CEO and president of the Asbestos Disease
Awareness Organization, called it "inexcusable that EPA is willing
to wait years before telling homeowners they're at risk of
exposure to deadly Zonolite."
"There's no reason to wait," Reinstein said. "We've known the
facts about the asbestos-contaminated wall and attic insulation
for decades. The time is now for the EPA to warn an estimated 30
million homeowners about the asbestos in their attics. The longer
they wait, the more people will get sick and die from preventable
diseases. As a mesothelioma widow I know the pain; I buried my
husband."
The legislation at the heart of the issue is the historic revision
of the Toxic Substances Control Act, first passed in 1976. It was
crafted to control the production, importation, use and disposal
of more than 83,000 chemicals.
The regulation was the subject of endless corporate lobbying and
congressional debate and ultimately accomplished little.
"In the law's 40-year history, only a handful of the tens of
thousands of chemicals on the market when the law passed have ever
been reviewed for health impacts, and only five have ever been
banned," EPA's former Administrator Gina McCarthy recalled when
former President Barack Obama signed the bill last June.
Finally, on Nov. 29, the EPA announced the first 10 chemicals it
will evaluate for potential risks to human health and the
environment under the new TSCA, formally named the Frank R.
Lautenberg Chemical Safety for the 21st Century Act.
The mica-like Libby vermiculite -- usually marketed as Zonolite --
was heavily tainted with asbestos, which permeated the mine. At
hundreds of Grace processing plants throughout the country, clouds
of the deadly fibers were spewed into the air in communities where
the Montana ore was transformed into wall and attic insulation and
also gardening and other home products.
The federal agency hasn't committed to warning tens of millions of
home and business owners likely living with insulation made from
asbestos-contaminated vermiculite from Libby.
"It's too early to say what the result will be and what action EPA
will take. TSCA requires these chemical risk evaluations be
completed within three years," said a senior EPA spokesperson.
The dangers from exposure to Zonolite insulation have been proven
time and time again. For decades, Grace's own scientists and then
others from federal health agencies documented the hazard of
breathing the invisible fibers which can cause incurable
respiratory diseases and mesothelioma, lung, laryngeal, colorectal
and ovarian cancers.
According to death certificates, interviews with survivors and
studies by the Centers for Disease Control and the EPA in 1999 and
2000, more than 480 deaths in Libby and its surrounding county
were attributed to asbestos exposure. Those with symptoms of
various forms of asbestos-related diseases totaled more than
8,000. Many health experts believe that nationally -- especially
including Zonolite processing plants -- the the body count from
exposure to Montana vermiculite ore is 10 to 30 times greater, but
those figures have not been confirmed.
More recently, extensive studies have been done by Drs. James
Lockey and Alan Whitehouse, both leaders in occupational,
environmental and pulmonary medicine. Their research, done
independently, showed the most infinitesimal exposure to Libby
asbestos can cause illness and death.
The peril of exposure to Zonolite was further proven by Jean Pfau,
an immunologist at Montana State University, in Bozeman.
Pfau's groundbreaking work with colleagues at the University of
Montana in Missoula repeatedly showed that an alarming number of
cases of autoimmune disease including lupus, rheumatoid arthritis
and systemic sclerosis are related to asbestos exposure.
There is wide agreement among federal health experts that the
research done by Lockey, Pfau and Whitehouse is solid and doesn't
need repeating before the EPA takes action.
"The new law says EPA has up to three years to study its top ten
picks, but it surely doesn't mean they need to take three years,"
said Dr. Celeste Monforton, a top public health researcher from
the Department of Environmental & Occupational Health at George
Washington University and a lecturer at Texas State University.
"Asbestos is one chemical for which the evidence of harm is
overwhelming and there's no compelling need for more study. An EPA
warning about Zonolite contaminated asbestos is long overdue and
well within EPA's authority," she said.
Trump praises asbestos
Federal health agencies have mostly ignored the well-documented
risk from asbestos-containing products for years, regardless of
who sat in the Oval Office.
President Donald J. Trump has often said that the danger of
asbestos is overblown. The 45th president brought with him a well-
documented history of defending asbestos as safe.
Testifying as a New York landlord and developer, Trump touted the
safety of the "miracle fiber" to the Senate Homeland Security and
Governmental Affairs Committee Subcommittee on Federal Financial
Management on July 21, 2005.
He hammered home his belief in numerous speeches, tweets and in
his 1997 book, "The Art of Making a Comeback."
"I believe that the movement against asbestos was led by the mob,
because it was often mob-related companies that would do the
asbestos removal," Trump wrote in that book. "Great pressure was
put on politicians, and as usual, the politicians relented.
Millions of truckloads of this incredible fire-proofing material
were taken to special 'dump sites' and asbestos was replaced by
materials that were supposedly safe but couldn't hold a candle to
asbestos in limiting the ravages of fire."
However, the Centers for Disease Control and the Occupational
Safety and Health Administration insist that there is no safe
level of exposure to any asbestos fiber.
Expressing concern about Trump's defense of asbestos, Monforton
said it was irresponsible for the EPA to not issue a warning
before the change of administrations.
Courageous researchers
Jim Lockey conducted an extensive occupational health study
spanning three decades on the same cohort of workers from the O.M.
Scott factory in Marysville, Ohio, who had been exposed to Libby
vermiculite used in the company's lawn products.
Lockey, a physician and professor of occupational, environmental
and pulmonary medicine at the University of Cincinnati College of
Medicine, found by repeatedly testing the same surviving workers
that the mineral from the Grace mine in Libby sickens and kills at
lower and shorter exposures than anyone believed possible.
"People are touching this stuff all the time. They drill a hole in
the ceiling, or they rip a wall out. An electrician strings new
wiring through a wall to put up additional outlets or cables, or
the attic, walls or floor joists are packed with Zonolite," said
Lockey. "Where it's used in home insulation should be identified.
The homeowners should be warned that it's in the air, and they
should keep it isolated and avoid moving it at all."
Dr. Aubrey Miller shares Lockey's concern on the danger to
residents and workers.
"Tens if not hundreds of thousands of remodelers, installers and
cable workers throughout the nation go into attics that have
exceedingly high exposures and ones that could easily result in
disease from contamination, Of course, the same dangers face the
residents of those homes," said Miller, the senior medical adviser
to the director of the National Institute of Environmental Health
Sciences and the first government physician to arrive in Libby in
1999.
He also expresses concern that without publicizing the potential
hazards, physicians will not know enough to properly question
their patients about asbestos exposure, and "a lot of lives may be
lost throughout the country."
"Doctors need to know that there is reason to ask their patients
about exposure to asbestos and if patients don't know they've been
exposed, the results could be fatal," Miller said.
Even those trained in hazardous substances might not recognize the
danger of Zonolite.
Public was almost warned
The decision not to warn citizens of the potential danger cannot
be blamed on politics, as EPA administrators from both parties did
nothing despite repeated warnings by public health experts in
their agencies.
EPA documents show that career bureaucrats urged political
appointees not to issue warnings. They feared the agency could
get stuck with a cleanup bill for the contaminated homes of
between $60 billion and $80 billion.
Experts within the EPA and the public health community who were on
the front lines in Libby and at Grace vermiculite processing
plants were not urging a decontamination of any kind. All they
wanted then and now was for the public who may be at risk to be
told so they could make their own decisions on their family's
safety.
The one exception who openly called for a public warning was
Christine Todd Whitman, who headed the EPA under President George
W. Bush. In 2001, she had buckled under enormous White House
pressure to downplay the debilitating breathing hazard confronting
residents of Manhattan and nearby New Jersey from the collapsed
Twin Towers, which government scientists called as caustic as
drain cleaner. However, Whitman stood strong when it came to
danger from the huge pit mine in Libby.
She listened as EPA health and safety experts anguished over the
millions of home and business owners throughout the country that
Grace sales records said may be living with lethal asbestos fibers
contaminating the vermiculite insulation where they lived and
worked.
She approved a 14-page detailed "rollout plan" for warning the
public of the hazard in the Zonolite. She and other top agency
officials would go on morning TV shows, talk radio outlets and
public service announcements in large and small newspapers and all
the major home improvement and hardware chains.
The rollout was to be unleashed June 27, 2003. It never happened.
Instead, that morning, it was announced that Whitman had resigned.
ASBESTOS UPDATE: Banned Asbestos Slipping Past Customs Officials
----------------------------------------------------------------
Anna Patty, writing for The Sydney Morning Herald, reported that
banned asbestos and other dangerous building products are slipping
past customs officials and being used in Australian homes and
building sites, a senate inquiry has heard.
The national construction union has made a submission to the
inquiry saying building materials containing asbestos,
formaldehyde and cheap glass that explodes are being imported and
used in Australia.
Construction Division, said the Australian Border Force was
seriously under resourced to intercept the arrival of dangerous
building products.
"Non-conforming building products touch nearly every part of our
daily lives. From asbestos that kills to cheap glass that
explodes, to flat pack kitchens reeking of formaldehyde," Mr
Parker said.
Mr Parker said Russian manufacturers had spread their tentacles
into developing countries across eastern Asia. He said the Russian
companies were heavy handed in their marketing of asbestos-
containing products at international trade shows and had lobbied
against any bans on the products.
CFMEU officials found insulation products containing asbestos on
construction sites in Brisbane and Perth last year. Mr Parker said
there were "dodgy builders who'll do anything to save a buck
ordering from dodgy suppliers who send lethal, banned material to
our country because they know the government won't do anything
about it".
"These products are only slightly cheaper than Australian-made
products, which comply with the law and do not contain poisonous
asbestos," Mr Parker said.
The senate inquiry hearing in Brisbane heard products from
countries including China, Sri Lanka and the US contained
asbestos.
The Australian Council of Trade Unions said it was alarmed at the
level of contaminated products being imported into Australia
without adequate regulation.
ACTU assistant secretary Michael Borowick said stronger penalties
and better border protections are needed to ensure consumers were
not unwitting exposed to lethal products which have been banned
since 2004.
"Australian Border Force must be specifically resourced to
properly monitor all imports and better protect people from this
dangerous material," he said.
"Given a single exposure to asbestos can lead to decades of
uncertainty and illness and in many cases death, it should be
treated with the same seriousness as any prohibited drug or
substance."
Senator Nick Xenophon called for an overhaul of regulations
covering the importation of high-risk products from countries
including the US and China without a zero tolerance of asbestos
products. He said the Australian Federal Police should be on alert
for any allegations of organised criminal links to the importation
of asbestos products.
Senator Xenophon said it was "outrageous" Australia was still
receiving imported building products containing asbestos. He said
there ought to be mandatory testing to ensure they met Australian
standards and that their certification of contents was accurate.
"If we don't sort this out now we will have another tsunami of
asbestos-related deaths in years to come," he said.
Senator Xenophon has proposed that all building products from
countries including the US, China, Indonesia and India be
certified to Australian standards as being 100 per cent asbestos
free.
"Any country without a zero tolerance to asbestos in their
products should be banned from importing into Australia, unless
every one of their products is tested prior to arrival on
Australian shores," he said.
ASBESTOS UPDATE: Alcoa Units Still Face PI Suits at Jan. 18
-----------------------------------------------------------
Some of Alcoa Inc.'s subsidiaries as premises owners continue to
face active lawsuits filed on behalf of persons alleging injury as
a result of occupational exposure to asbestos at various
facilities, according to Alcoa Corporation's Form Form S-1 filing
with the U.S. Securities and Exchange Commission on January 18,
2017.
A former affiliate of a ParentCo (Alcoa Inc.) subsidiary has been
named, along with a large common group of industrial companies, in
a pattern complaint where ParentCo's involvement is not evident.
Since 1999, several thousand such complaints have been filed. To
date, the former affiliate has been dismissed from almost every
case that was actually placed in line for trial. ParentCo's
subsidiaries and acquired companies, all have had numerous
insurance policies over the years that provide coverage for
asbestos based claims. Many of these policies provide layers of
coverage for varying periods of time and for varying locations.
ParentCo has significant insurance coverage and believes that its
reserves are adequate for its known asbestos exposure related
liabilities. The costs of defense and settlement have not been and
are not expected to be material to the results of operations, cash
flows, and financial position of Alcoa Corporation.
Alcoa Corporation manufactures specialty metal products.
*********
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 * * *