/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170217.mbx C L A S S A C T I O N R E P O R T E R Friday, February 17, 2017, Vol. 19, No. 35 Headlines 360 DIGITAL: Faces "Lopez" Suit in Middle District of Florida AEROTEK INC: "Gordon" Suit Moved from Super. Ct. to C.D. Cal. AMERICAN BANKERS: Faces "Garvey" Suit in Northern Dist. of Ill. AUSTRALIA: Former Retta Dixon Residents to Receive Compensation AUSTRALIA: BELAW Begins Indigenous Workers' Wage Class Action BARKWORKS: Averts Class Action Over Puppy Mill Allegations CALAMOS PARTNERS: Short Changed in Merger Deal, "Witmer" Says CANADA: Judge Allows '60s Scoop Class Action to Proceed CAPITAL ONE: Faces Class Action in Florida Over Robocalls CAREMARKPCS HEALTH: Faces Class Action Over Enbrel Side Effects CENTURY ALUMINUM: Settles Retiree Medical Class Action COASTAL BUILDING: "Nolasco" Suit Moved from Cir. Ct. to S.D. Fla. CONAIR: March 9 Dryer Settlement Claims Filing Deadline Set CPCM ACQUISITION: Faces "Solak" Lawsuit Over Going Private Deal DEKALB COUNTY: Faces "Meyer" Suit in Western District of Texas DEVON ENERGY: Appeals Ruling in Gas Royalties Class Action EPIC SYSTEMS: SCOTUS Pushes Waiver Case to October 2017 Term FT FITNESS OPCO: "Amsler" Labor Suit Transferred to N.D. Tex. GILLMANN SERVICES: "Harden" Seeks Unpaid Wages, Overtime Pay GLACIER WATER: Wins Bid to Dismiss "Magee" Suit in E.D. Louisiana HEIDELBERGCEMENT: CDC Loses Cement Cartel Class Action HOMETOWN CARE: "Hite" Labor Suit Seeks Unpaid Overtime Wages INTERCOAST COLLEGES: Faces Class Action Over Accreditation LANDRY'S INC: Court Certifies Class of Workers in "Griffith" Suit LOWRY LAND: Faces "Hutchason" Suit Alleging Misclassification MARATHON OIL: Faces "Bollenbach" Suit in Western Dist. of Okla MISSOURI, USA: Court Denies Jackson's Bid for Class Certification MURPHY OIL: SCOTUS to Hear Waiver Case in October 2017 Term NFL ENTERPRISES: Cheerleaders File Class Suit in Georgia NORTHLAND GROUP: Faces "Baksh" Suit in Eastern Dist. of New York ORACLE CORP: Salespeople File Class Action Over Commissions PETCO ANIMAL: Overtime Pay Sought in "Cote" Labor Dispute REMINGTON: Presents Defective Rifle Settlement Before Court REWALK ROBOTICS: "Deng" Seeks Damages Over Share Price Drop RICE ENERGY: Robinson Moves to Certify Class of Consultants ROADRUNNER INTERMODAL: "Phillips" Suit Moved to E.D. Cal. ROADRUNNER TRANSPORT: "Goss" Seeks Damages from Share Drop RUBIN & ROTHMAN: Certification of Class Sought in "Dickon" Suit RUI CREDIT: Faces "Miller" Suit in Eastern District of New York SFPP LP: Landowners Seek to Certify Class in Right-of-Way Suit SIENTRA INC: May 22 Settlement Fairness Hearing Set ST CLAIR, MI: Residents File Class Action Over Sewer Backups STEMLINE THERAPEUTICS: Faces "Hedlund" Suit Over IPO Disclosures SUBWAY: Plaintiffs in Text Message Class Action Appeal Ruling TILE SHOP: May 3 Settlement Fairness Hearing Set TRIDENT INDUSTRIAL: "Leija" Suit to Recover Overtime Pay TRUGREEN INC: 6th Circuit Reverses Ruling in Arbitration Case UNILEVER CANADA: Legal Logik Firm Files "Pink Tax" Class Action UBER TECHNOLOGIES: Rosen Seeks to Certify Medallion Holders Class UNITED STATES: ACRL Files Class Suit in Michigan UNITED STATES: Wins Bid to Dismiss "Smallwood" Class Suit in D.C. US WELL SERVICES: Court Certifies Workers Class in "Lackie" Suit VECTOR MARKETING: "Knudsen" Suit Moved to District of Mass. WELLS FARGO: Torres Moves for Certification of Consultants Class YAHOO INC: Warns Users of Malicious Activity on Accounts ZEEKREWARDS: Founder Faces 15-Year Sentence for Role in Scam * Lack of Registration Process Hampers Collective Action in UK * Labor Dep't. Seeks to Delay Fiduciary Rule Applicability Date * Procedure Rule Changes Proposed in Class Action Litigation Act * Securities Class Action Filing Activity Surpasses Prior Years Asbestos Litigation ASBESTOS UPDATE: Warren Pumps Wins Summary Judgment in "Macqueen" ASBESTOS UPDATE: Claims vs. BorgWarner Partly Dismissed ASBESTOS UPDATE: Summary Judgment in Take-Home Suit Affirmed ASBESTOS UPDATE: Herty Wins Summary Judgment in Widow's Suit ASBESTOS UPDATE: Heirs Allowed to File Bid to Substitute ASBESTOS UPDATE: Plaintiffs' Motion in DeLisle v. Crane Pending ASBESTOS UPDATE: Crane Co. Seeks Review of Ruling in "Sweberg" ASBESTOS UPDATE: Oral Argument Held in Crane's Appeal in "Poage" ASBESTOS UPDATE: Crane Appeals $0.4MM Award in "Rabovsky" ASBESTOS UPDATE: Crane Appeals $6.8MM Award in "Coulbourn" ASBESTOS UPDATE: Crane Co. Incurs $73.5MM for Settlement, Defense ASBESTOS UPDATE: Crane Co. Records $227MM Additional Liability ASBESTOS UPDATE: Alexandria Real Warns of Asbestos Exposure ASBESTOS UPDATE: Family Claims Asbestos Caused Death of Loved One ASBESTOS UPDATE: Refusal to Unseal Deposition a Travesty ASBESTOS UPDATE: Ruling in Asbestos Trial Expected by Month's End ASBESTOS UPDATE: Former Central Valley Students Sue School ASBESTOS UPDATE: Suspected Asbestos in Housing Prompts Probe ASBESTOS UPDATE: Counsel Moves for Mistrial in Madison County ASBESTOS UPDATE: Asbestos Found in Faculty Offices in Miguel ASBESTOS UPDATE: Cosatu Threatens Suit vs. De Lille Over Asbestos ASBESTOS UPDATE: Estate Administrator Sues Manufacturers ASBESTOS UPDATE: Queensland Woman's Losing Battle for Payment ASBESTOS UPDATE: Mining Co. Fights Community Over Asbestos ASBESTOS UPDATE: BorgWarner Records $411MM Asbestos Charge ASBESTOS UPDATE: Contractor Jailed for Illegal Asbestos Removal ASBESTOS UPDATE: Transport Workers Exposed to Asbestos ASBESTOS UPDATE: Asbestos Found in Axminster Flats ASBESTOS UPDATE: 5th Cir. Rejects Removal Statute Interpretation ASBESTOS UPDATE: Asbestos Find Closes Oxford University Bldg. ASBESTOS UPDATE: Court Says Asbestos Spy Must Reveal Client ASBESTOS UPDATE: Asbestos Force Eviction in Boise Center ASBESTOS UPDATE: Asbestos Abatement Begins at Elementary School ASBESTOS UPDATE: Mesothelioma Risk High Among Shipyard Workers ASBESTOS UPDATE: Madison County Asbestos Trial Continues ASBESTOS UPDATE: Three Months of Asbestos Removal Start in Tonga ASBESTOS UPDATE: Hundreds Back Bid to Save Asbestos Cases Dept. ASBESTOS UPDATE: Ottawa Schools Rife with Asbestos ASBESTOS UPDATE: Potential Asbestos Exposure on RHH Site ASBESTOS UPDATE: Asbestos "Double-Dipping" Bill Reintroduced ASBESTOS UPDATE: Asbestos Discovered in Private School ASBESTOS UPDATE: Aussies With Asbestos at Home Have Health Issues ASBESTOS UPDATE: Asbestos Warning in Fire-Ravaged NSW Towns ASBESTOS UPDATE: Dumped Asbestos Shuts Eyemouth Recycling Center ASBESTOS UPDATE: Asbestos Kills Retired Chef ASBESTOS UPDATE: Rawlins Stops Demolition After Asbestos Find ********* 360 DIGITAL: Faces "Lopez" Suit in Middle District of Florida ------------------------------------------------------------- A class action lawsuit has been filed against 360 Digital Marketing LLC. The case is captioned as Kevin Lopez and Michael Biondi, individually and on behalf of all others similarly situated, the Plaintiff, v. 360 Digital Marketing LLC, a Delaware limited liability company, the Defendant, Case No. 6:17-cv-00209- JA-TBS (M.D. Fla., Feb. 6, 2017). The case is assigned to Hon. Judge John Antoon II. Digital 360 full service digital agency offers a full range of services from digital strategy to website development & digital marketing. The Plaintiffs are represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, PLLC 201 S Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: (877) 333 9427 Facsimile: (888) 498 9827 E-mail: law@stefancoleman.com AEROTEK INC: "Gordon" Suit Moved from Super. Ct. to C.D. Cal. ------------------------------------------------------------- The class action lawsuit titled Mia Gordon, an individual, on behalf of herself, and on behalf of all persons similarly situated, the Plaintiff, v. Aerotek, Inc., a Corporation; and Does 1 through 50, Inclusive, the Defendant, Case No. CIVDS1621258, was removed from the San Bernardino Superior Court, to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:17-cv-00225 to the proceeding. Aerotek is a leading staffing agency that matches qualified candidates with top companies worldwide. The Plaintiff appears pro se. AMERICAN BANKERS: Faces "Garvey" Suit in Northern Dist. of Ill. --------------------------------------------------------------- A class action lawsuit has been filed against American Bankers Insurance Company of Florida. The case is titled as Terence Garvey, individually and on behalf of classes of similarly situated individuals, the Plaintiff, v. American Bankers Insurance Company of Florida, a Florida corporation, the Defendant, Case No. 1:17-cv-00986 (N.D. Ill., Feb. 6, 2017). The case is assigned to Hon. Sharon Johnson Coleman. American Bankers develops, underwrites and markets specialty insurance, extended service contracts and other risk management solutions in collaborative relationships with leading financial institutions, retailers, automobile dealers, utilities and other entities. The Plaintiff is represented by: Michael J McMorrow McMorrow Law, P.C. One North LaSalle Street 44th Floor Chicago, IL 60602 Telephone: (312) 265-0708 E-mail: mike@mjmcmorrow.com AUSTRALIA: Former Retta Dixon Residents to Receive Compensation --------------------------------------------------------------- Avani Dias, writing for ABC, reports that after enduring years of horrific sexual and physical abuse, 71 former residents of a home for Indigenous Stolen Generation children in Darwin will be compensated in what their lawyer says is the largest class action in the Northern Territory's history. They are also the first group across the country to attain compensation from the Federal Government following evidence heard by the Royal Commission into Institutional Responses to Child Sexual Abuse, which has been holding hearings around Australia for almost four years. The former residents of the Retta Dixon Home took civil action in 2014 against a number of defendants, including convicted paedophile and the home's former house parent Donald Bruce Henderson, the Commonwealth, and Australian Indigenous Ministries Christian organisation which ran the home. The plaintiffs allege physical and sexual assaults by staff at the home from 1946 to 1980, and sought compensation for a failure of duty of care by the defendants, saying they suffered damage and loss as a result. The group's lawyer Bill Piper said the class action was settled after a week-long mediation in Darwin. "We can confirm there has been a resolution of the Retta Dixon class action," he said. Hopes settlement will lead to closure Mr. Piper said Mr. Henderson, lawyers for the Commonwealth Government, which administered the NT at the relevant time, and lawyers for Australian Indigenous Ministries (AIM), participated in the mediation. "Of the 71 plaintiffs, around half alleged sexual abuse and virtually all alleged physical abuse while they were at, or under the control of, the missionaries of house parents running the home," Mr Piper said. "We think it's the largest class action that there's been in the NT that's now settled and the terms of settlement are confidential." The Federal Government was responsible for taking many of the mixed-race children from their families and putting them in the home as wards of the state. "The Commonwealth acknowledges the trauma that has resulted from the abuse experienced by some of the children who resided in the Retta Dixon Home," a Department of Prime Minister and Cabinet spokesperson said. Survivors told of horrific abuse endured at the home The institution housed scores of Aboriginal children from 1946 to 1980. The royal commission in 2014 laid bare allegations of horrific sexual, physical and mental abuse at the home. A child at Retta Dixon who suffered seizures was allegedly tied up like a dog to a bed, and fed on the ground with an enamel plate. One girl allegedly had faeces rubbed in her face, was tied to a clothesline and deliberately burned with hot water. Residents testified to seeing a male house parent force-feed a baby until she choked The inquiry heard some children were raped so badly they were taken to hospital for treatment, but were watched by their abuser to make sure they did not alert authorities. One man told of having to wear nappies to school as a boy to stop the bleeding after being sexually assaulted, while other children were allegedly flogged with a belt until they bled. One woman said she had persistent hearing problems from beatings to her head. During the class action, the group told the court that staff at the home failed to report abuse or to listen to the children when they spoke up. Many complaints related to house parent Henderson, now aged 80. In 1984, he was found guilty of sexually abusing two boys at a public pool, but was never successfully prosecuted for criminal offences allegedly committed at the home. However, the royal commission heard there was evidence to support charges. Mr. Piper said the compensation payment is not expected for several months and he will be speaking to all 71 plaintiffs individually. AUSTRALIA: BELAW Begins Indigenous Workers' Wage Class Action ------------------------------------------------------------- Derek Barry, writing for The North West Star, reports that law firm BELAW has begun a class action in Queensland on behalf of hundreds of Indigenous Australians impacted by wage control legislation prior to 1973. BELAW solicitors and support will visit Mount Isa, Cloncurry and Camooweal to talk to potential claimants next week. "We would like to talk to Indigenous Australians who worked in Queensland prior to 1973 and had their wages controlled, or whose deceased parents worked before 1973, if people know the work details of their parents," Jerry Tucker, BELAW solicitor said. BELAW will be available to meet with potential claimants in Mount Isa February 20, 21 and 22 9am to 4.30pm at the Moondarra Room, Ibis Styles. They will be in Cloncurry 9am-4pm February 23 at the Cloncurry Shire Council meeting room and in Camooweal 9am-3pm February 24 at the hall. Information they need: work history prior to 1973, date of birth, work places (eg station names), name of employer, what kind of work, how much money was paid and ID (eg birth certificate or driver licence). BARKWORKS: Averts Class Action Over Puppy Mill Allegations ---------------------------------------------------------- Matt Coker, writing for OCWeekly, reports that animal activists have succeeded in drawing protests, lawsuits and media coverage to the Barkworks pet store chain in Orange County, where there are allegations of dogs from puppy mills being sold. But the chain's Los Angeles-based attorney says Barkworks just scored a legal win. Daniel Silverman, Celeste Brecht, Matthew Gurvitz and Melissa McLaughlin successfully defeated a Motion for Class Certification despite going against six plaintiff lawyers and the Animal Legal Defense Fund. The plaintiffs were seeking to certify a class of all California customers of Chien et Chat, Inc. (Barkworks Pet Stores) from 2009 to the present based on claims that store policies, business practices and intentional misrepresentations misled customers to purchase puppies that were sick at the time of sale. However, Judge Thierry Colaw in the Complex Division of the Orange County Superior Court denied the motion. Whether a particular puppy was sick at the time of sale, and whether that illness was the result of Barkworks' conduct, presented too many individualized questions to make class certification appropriate, the judge ruled. Judge Colaw found the plaintiffs did not present any method for identifying which Barkworks' customers suffered harm and concluded that class-action status would not make trying the case easier for the court or the jury. CALAMOS PARTNERS: Short Changed in Merger Deal, "Witmer" Says ------------------------------------------------------------- Colleen Witmer, individually and on behalf of all others similarly situated, Plaintiff, v. John P. Calamos, Sr., Thomas F. Eggers, John Koudounis, Keith (Kim) M. Schappert, William N. Shiebler, Calamos Partners LLC, and CPCM Acquisition, Inc., Defendants, Case No. 2017-0073 (Del. Ch., January 31, 2017), seeks damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief for Defendants' breaches of fiduciary duties in connection with the Calamos Asset Management, Inc. merger with Calamos Partners LLC and CPCM Acquisition, Inc., with Calamos Asset Management as the surviving corporation. Plaintiff alleges that the price of $8.25 in cash for each share of Calamos Asset Management Class A common stock is insufficient and is substantially unfair in terms of process and price, failing to protect its minority stockholders and favored the interests of the controlling stockholders. The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 (302) 295-5310 - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Dr., Ste. 3112 Berwyn, PA 19312 Tel: (484) 324-6800 CANADA: Judge Allows '60s Scoop Class Action to Proceed ------------------------------------------------------- Colin Perkel, writing for The Canadian Press, reports that Canada failed to take reasonable steps to prevent thousands of on-reserve children who were placed with non-native families from losing their indigenous heritage during the '60s Scoop, an Ontario judge ruled in a landmark case on Feb. 14. The decision in the long-running and bitterly fought class action paves the way for an assessment of damages the government will now have to pay and was hailed as a major step toward reconciliation and healing. The lawsuit launched eight years ago sought $1.3 billion on behalf of about 16,000 indigenous children in Ontario who claimed they were harmed by being placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement. In siding with the plaintiffs, Ontario Superior Court Justice Edward Belobaba found Canada had breached its "duty of care" to the children. The judge also found that Ottawa breached part of the agreement that required consultation with Indian bands about the child-welfare program. Justice Belobaba was scathing about the government's contention that consultation with the bands would have made little difference to the children. "This is an odd and, frankly, insulting submission," Justice Belobaba wrote. "Canada appears to be saying that even if the extension of child welfare services to their reserves had been fully explained to the Indian bands and, if each band had been genuinely consulted about their concerns in this regard, that no meaningful advice or ideas would have been forthcoming." Justice Belobaba rejected the government's arguments that the 1960s were different times, and that it acted with good intentions in line with prevailing standards. As a result, the government insisted, it could not have known the harm that might have been done to the children. "Canada's submission misses the point," Justice Belobaba said. "The issue is not what was known in the 1960s about the harm of trans-racial adoption or the risk of abuse in the foster home." Instead, the justice said, there could be "no doubt" that what was well known even then was the importance to First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of extended family. The lead plaintiff in the Ontario action, Marcia Brown Martel, 53, a member of the Temagami First Nation near Kirkland Lake, Ont., was adopted by a non-aboriginal couple in 1972 at age nine. She later discovered the Canadian government had declared her original identity dead. "I feel like a great weight has been lifted from my heart," Brown Martel said in a statement. "Our voices were finally heard and listened to. Our pain was acknowledged." In Ottawa, Indigenous Affairs Minister Carolyn Bennett said the government would "absolutely not" appeal the ruling, but she also suggested more than money was at stake. "It is really important that, as we begin these conversations about what is the best way forward for these survivors, we understand that what they are talking about are language and culture and the kinds of things that were taken from them, and they're things that a court can't really award," Bennett said. "So, it's really important that we get to the table as quickly as possible." Justice Belobaba said that while the 1965 agreement, strictly speaking, applied to the Indian bands and not the children, he hoped the government would not now try to make such a "formalistic argument" given the First Nations context. The Liberal government indicated it was going to try to block Justice Belobaba from releasing his ruling after Bennett announced an intention to negotiate with '60s Scoop survivors across the country. The government relented amid outrage by the plaintiffs and critics, who called the attempt to stop the ruling unprecedented political interference. Similar legal actions in several provinces other than Ontario are pending but none has been certified. Those cases focus on the apprehension of the children itself rather on the protection of their aboriginal identities. Perry Bellegarde, the chief of the Assembly of First Nations, welcomed the ruling, saying children of the '60s Scoop deserve "justice, healing and reconciliation." CAPITAL ONE: Faces Class Action in Florida Over Robocalls --------------------------------------------------------- Shayna Posses, writing for Law360, reports that Capital One NA was hit with a proposed class action on Feb. 14 in Florida federal court alleging the bank violates the Telephone Consumer Protection Act by routinely using an automatic telephone dialing system to call noncustomers' cellphones without permission. Darrell Pickett alleges that months after he got a new cellphone number, Capital One started bombarding him with calls placed using an autodialer, despite him explaining that the bank was calling the wrong number and asking for the calls to cease. Thus, the complaint alleges, the bank violates the TCPA "by using an automatic telephone dialing system to place nonemergency calls to numbers assigned to a cellular telephone service, without prior express consent -- in that it calls wrong or reassigned cellular telephone numbers that do not belong to its customers." The Orlando resident contends that he received a slew of calls from a number assigned to Capital One from at least April to July, at least once leaving a voicemail asking for someone who wasn't Mr. Pickett and whom he didn't know. On at least one occasion, Mr. Pickett answered and told Capital One's representative that the bank was calling the wrong number and asked that they stop, the complaint says. Mr. Pickett is not, nor ever was, a Capital One customer, according to the complaint. He didn't give the bank his phone number, nor provide express consent to place calls to his cellphone using an automatic telephone dialing system, he says. The complaint alleges that based on the frequency, number, nature and character of the calls, Capital One placed them using equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial those numbers. As a result of these autodialed calls, Pickett says he suffered actual harm in the form of invasion of privacy, an intrusion into his life and a private nuisance. The calls also depleted cellphone minutes that he had to pay for and tied up his phone line, the complaint says. He seeks to represent a proposed class of cellphone owners Capital One called in connection with its automobile financing business using an automatic telephone dialing system or an artificial or prerecorded voice during the last four years without prior express consent, meaning that the called party wasn't the intended recipient of the call. Mr. Pickett seeks an injunction, class and treble damages, attorneys' fees and costs, and pre- and post-judgment interest. Representatives for the parties didn't immediately return requests for comment on Feb. 14. Mr. Pickett is represented by Michael L. Greenwald, James L. Davidson, Jesse S. Johnson and Aaron D. Radbil of Greenwald Davidson Radbil PLLC. Counsel information for Capital One wasn't immediately available. The case is Darrell Pickett v. Capital One NA, case number 6:17- cv-00260, in the U.S. District Court for the Middle District of Florida. CAREMARKPCS HEALTH: Faces Class Action Over Enbrel Side Effects --------------------------------------------------------------- Wadi Reformado, writing for Legal Newsline, reports that an Orange County, California, consumer is suing a drug business, alleging breach of warranty, unfair competition and violation of state law. B. Amburgey of Newport Beach, California, filed a class action complaint, individually and on behalf of all others similarly situated, Feb. 2 in U.S. District Court for the Central District of California against Caremarkpcs Health LLC and Does 1-10, alleging they failed to ensure that the specialty drugs are maintained within the required temperature range. According to the complaint, Amburgey suffered side effects from taking the drug Enbrel that was ineffective due to the way it was stored. The plaintiff alleges the defendants failed to make sure that Enbrel was properly stored with the proper temperature required by FDA guidelines. Amburgey seeks trial by jury, enjoin the defendant, restitution, all legal fees and all other relief the court deems just. She is represented by attorneys Caleb Marker -- caleb.marker@zimmreed.com -- and Hannah P. Belknap -- hannah.belknap@zimmreed.com -- of Zimmerman Reed LLP in Manhattan Beach, California. U.S. District Court for the Central District of California Case number 8:17-cv-00183-CJC-KES CENTURY ALUMINUM: Settles Retiree Medical Class Action ------------------------------------------------------ John Meagher, writing for Montreal Gazette, reports that on February 9, 2017, Century Aluminum of West Virginia, Inc., a wholly-owned subsidiary of Century Aluminum Company, announced that it had entered into a Settlement Agreement (subject to court and other approvals) regarding the previously disclosed retiree medical class action lawsuit pending before the District Court for the Southern District of West Virginia. "We are pleased to have reached this milestone," commented Century's President and Chief Executive Officer, Michael Bless. "By settling this litigation, we are eliminating a risk for our shareholders while providing a benefit for a group of extraordinary people, many of whom dedicated their professional lives to the safe and efficient operation of the plant. It has been an honor and a privilege to get to know many of them personally. We are also appreciative of the union's leadership and commitment to reach a rational solution. "We are fortunate to have received tremendous support from West Virginia's elected leaders in this process, including the direct participation of Senators Manchin and Capito and former Governor Tomblin," Mr. Bless concluded. "I can say without doubt that, without Senator Manchin's personal commitment and leadership over many years, this agreement would not have been reached. The citizens of West Virginia are fortunate to have such dedicated public servants." As previously disclosed, under the terms of the Settlement Agreement, Century Aluminum of West Virginia has agreed to make payments into a trust for the benefit of certain former employees of the now closed Ravenswood, W.V. aluminum smelter in the aggregate amount of $23 million over the course of ten years (the "Settlement Amount"). The Settlement Amount is payable in installments with $5 million payable upon final approval by the court of the Settlement Agreement and $2 million payable annually thereafter for nine years. The Settlement Agreement is subject to final court approval following a notice period during which persons within the class have the opportunity to object to the settlement or thereafter appeal such approval. Final court approval is not expected before the third quarter of 2017. Century Aluminum Company owns primary aluminum capacity in the United States and Iceland. Century's corporate offices are located in Chicago, IL. Visit www.centuryaluminum.com for more information. COASTAL BUILDING: "Nolasco" Suit Moved from Cir. Ct. to S.D. Fla. ----------------------------------------------------------------- The class action lawsuit titled Leomindry Nolasco, and other similarly situated individuals, the Plaintiff, v. Coastal Building Maintenance, Inc., a Florida profit corporation; Matthew R. Sullivan, individually; and Agatha Velez, individually, Case No. 17-00369 CA 01, was removed from the 11th Judicial Circuit of Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:17-cv-20463-JEM to the proceeding. The case is assigned to Hon. Judge Jose E. Martinez. Coastal Building Maintenance, Inc., is family owned and operated since 1953. CBM Florida is a full-service janitorial and cleaning company in Miami. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: agp@rgpattorneys.com The Defendants are represented by: Luke Clinton Savage, Esq. ALLEN NORTON & BLUE 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 Telephone: (305) 445 7801 Facsimile: (305) 442 1578 E-mail: lsavage@anblaw.com - and - Suhaill Machado Morales, Esq. ALLEN NORTON & BLUE, P.A. 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 Telephone: (305) 445 7801 Facsimile: (305) 442 1578 E-mail: smorales@anblaw.com CONAIR: March 9 Dryer Settlement Claims Filing Deadline Set ----------------------------------------------------------- Frank Bednarz, writing for Competitive Enterprise Institute, reports that if you own a Conair Infiniti Pro model 259 or 279 hair dryer that you bought before August 31, 2016 in New York or California, then you are probably part of a class action settlement that your putative attorneys did little to tell you about. One of the manufacturers of the above Conair models, Neumax, supposedly produced especially dangerous hair dryers. Plaintiffs alleged that under normal use, these dryers could catch fire, or shoot sparks from the handle. This seems like something you would want to know about, right? Well, unless you're obsessively reading the legal notices in People magazine or clicking wildly on internet banner ads (yes, banner ads, like it's 1996), the settlement agreement provides little hope you would ever find out about the settlement. Plaintiffs' counsel could have subpoenaed customer information from retailers like CVS and Amazon to send class members direct notice, but they chose not to do so. Prior to the settlement, Conair called the notice plan "woefully insufficient." Even for class members who do manage to find out about the settlement, it's needlessly difficult to get benefits. Owners of the Neumax-manufactured hair dryers are eligible to receive a replacement dryer, and owners of 259/279 hair dryers made by other manufacturers can claim $5.00. But there are hoops to jump through: all claiming class members must print out a claim form, write down two serial numbers off the dryer, and attach either a photograph of the dryer or proof of purchase, then send all of this via postal mail. No email is accepted, nor is any online filing available (like it's 1896). Class members with a Neumax- manufactured dryer (which can be identified by an 'N' engraved on the plug) must also arrange to have their dryer shipped to Conair. The replacement will arrive sometime after the settlement is approved, likely months in the future. Why would plaintiffs' attorneys do so little to inform class members and then make it so hard to claim any benefit? Simple: plaintiffs' counsel would prefer that money to settle the lawsuit go to themselves rather than the class. Bad class action settlements frequently pay class members a pittance while providing disproportionate fees to attorneys. Because courts are reluctant to approve settlements that obviously pay attorneys more than class members, clever attorneys devise gimmicks to obscure this fact. One of the most frequently-abused gimmicks is a "claims-made settlement." Instead of agreeing to pay a lump sum to the class (called a common fund), the defendant instead agrees to pay each class member a flat payment per claim. Settling parties know that only a fraction of class members will file claims even under ideal circumstances, and a difficult claims process will further depress recovery. With few benefits going to the class, the parties can agree to larger fees for counsel. The Conair settlement provides class members with either five whopping dollars or a replacement hair dryer, but Conair agreed to pay counsel $1,196,000 cash. Counsel rationalizes their proposed fee by saying that " $4.58 to $5.37 million" is "made available" to about a half million class members in New York and California, but few will be paid due to the lack of direct notice and pointless hoop jumping. The figures are "alternative facts": fictional values to make the attorneys' fees seem proportional. CEI's Center for Class Action Fairness opposes this practice and has recently petitioned the U.S. Supreme Court to reform claims- made settlements so that attorneys' fees are based on benefits actually given to class members. As for the Conair settlement, one hopes that a class member investigates the unfairness of the settlement and retains qualified counsel to object. The claims deadline and the objection deadline is March 9. CPCM ACQUISITION: Faces "Solak" Lawsuit Over Going Private Deal --------------------------------------------------------------- JOHN SOLAK, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. JOHN P. CALAMOS, SR., THOMAS F. EGGERS, JOHN KOUDOUNIS, KEITH (KIM) M. SCHAPPERT, WILLIAM N. SHIEBLER, CALAMOS PARTNERS LLC, and CPCM ACQUISITION, INC. Defendants, Case No. 2017-0083 (Del. Ch., February 3, 2017), seeks damages for Defendants' alleged breaches of fiduciary duties in connection with a Proposed Transaction wherein the Company will be taken private through a tender offer and second step merger that values each share of CAM Class A common stock for $8.25 in cash. Allegedly, the Special Committee that approved the transaction lacked independence and utterly failed to protect CAM's minority stockholders. The Company primarily provides investment advisory services to individuals and institutional investors. The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Phone: (302) 295-5310 - and - Gregory M. Nespole, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Phone: (212) 545-4600 DEKALB COUNTY: Faces "Meyer" Suit in Western District of Texas -------------------------------------------------------------- A class action lawsuit has been filed against DeKalb County Solutions, Inc. The case is captioned as Lorna Meyer, pleading on her own behalf and on behalf of all other similarly situated consumers, the Plaintiff, v. DeKalb County Solutions, Inc., the Defendant, Case No. 5:17-cv-00081-DAE (W.D. Tex., Feb. 6, 2017). The case is assigned to Hon. Judge David A. Ezra. DeKalb County Solutions is a debt collection agency located in Sycamore, Illinois. The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW LLC 70 Clinton Ave., Suite 3 Newark, NJ 07114 Telephone: (862) 227 3106 Facsimile: (862) 204 5901 E-mail: dz@zemellawllc.com DEVON ENERGY: Appeals Ruling in Gas Royalties Class Action ---------------------------------------------------------- Max B. Baker, writing for Star-Telegram, reports that Devon Energy contends that a Dallas federal judge ignored state law when he allowed a class-action lawsuit to go forward accusing it of using sham transactions to underpay thousands of property owners in North Texas tens of millions of dollars in royalties. In January, U.S. District Judge Ed Kinkeade granted class-action certification to a lawsuit brought by four individuals with leases in Denton County who had their gas processed at a Bridgeport plant. By certifying the class, Judge Kinkeade said they represent the interests of thousands of landowners with common legal issues. The Devon case echoes accusations brought against Chesapeake Energy that it sold natural gas from its Barnett Shale wells to an affiliate and pocketed the profits when it was sold on the open market. In a filing with the 5th Circuit Court of Appeals in New Orleans, Devon says Judge Kinkeade's ruling would force the Oklahoma City company to face a fundamentally unfair situation of defending thousands of claims in one trial or be forced to purse a settlement worth tens of millions of dollars. Devon accuses Judge Kinkeade of "abuse of discretion" in granting certification without examining the 4,143 leases involved. "In certifying a class, the district court failed to conduct the mandatory rigorous analysis" and "made clearly erroneous findings of fact, and failed to properly apply Texas law," according to court documents filed in late January. The court's ruling exposes Devon "to potentially ruinous liability." Attorneys representing the landowners earlier this month fired back that Judge Kinkeade's ruling is anchored in Texas Supreme Court rulings and presents no "novel or unsettled issues," court records show. They also said the case is not "ruinous" when Devon has $26.8 billion in assets and $4.2 billion in quarterly earnings. David Drez, one of the attorneys for the plaintiffs, declined to comment. John Porretto, a spokesman for Devon, said the company doesn't comment on pending litigation. In their lawsuit, the landowners allege Devon Energy's production arm sold the natural gas at a low well head price to an affiliate, Devon Gas Services, which then processed the gas through its Bridgeport plant and deducted an "unreasonable and lucrative 17.5 percent processing fee" from the royalty checks. The lawsuit refers to these transactions as a sham, made worse by the fact that once the gas left the plant, Devon and its affiliates sold the residue gas to third parties for a profit but didn't pass those proceeds on. The lawsuit covers gas sales from 2008 to 2014, when Devon owned the Bridgeport plant. The Texas Oil and Gas Association, a trade group representing more than 5,000 energy industry members, filed documents supporting Devon's position, saying that Judge Kinkeade's decision runs counter to jurisprudence and "unquestionably creates settlement pressure" when "the merits of individual claims are in doubt." Allowing the Devon case to go to trial will "encourage comparable class actions," court records state. EPIC SYSTEMS: SCOTUS Pushes Waiver Case to October 2017 Term ------------------------------------------------------------ Aaron R. Wegrzyn, Esq. -- awegrzyn@foley.co -- of Foley & Lardner LLP, in an article for The National Law Review, wrote that the United States Supreme Court informed litigants in Epic Systems Corp. v. Lewis that it is pushing the case to its October 2017 term. The lawsuit, which rose up through the Western District of Wisconsin and the Seventh Circuit, presents the High Court with a chance to resolve a robust circuit split on the question whether mandatory arbitration clauses in employment contracts may contain class action waivers without running afoul of the National Labor Relations Act (NLRA). Last spring, the Seventh Circuit ruled that such clauses were unenforceable, deviating from rulings by the Second, Fifth, and Eighth Circuits, and prompting the Supreme Court to grant certiorari on January 13, 2017. The resolution of the issue turns on whether NLRA Section 7's (29 U.S.C. Sec. 157) protection of employees' right to engage in "concerted activities" qualifies as a "contrary congressional command" (under CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012)) sufficient to override the Federal Arbitration Act's (FAA) presumption that arbitration agreements are enforceable as written. The National Labor Relations Board (NLRB) has taken the position for years that class action waivers in employment agreements are unenforceable under the NLRA. See D.R. Horton, Inc., 357 N.L.R.B. 2277, 2289 (2012). In Lewis, Judge Barbara Crabb of the Western District of Wisconsin followed the NLRB's interpretation, based on Supreme Court precedent directing courts to give "considerable deference" to the agency's interpretations of the NLRA. Lewis, No. 15-cv-82-bbc, 2015 U.S. Dist. LEXIS 121137, at *4 (W.D. Wis. Sept. 11, 2015) (quoting ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994)). On appeal, the Seventh Circuit ruled that such class action waivers were "illegal" under the NLRA, making them unenforceable because the FAA contains a "savings clause" that allows courts to refuse to recognize arbitration agreements on grounds sufficient "for the revocation of any contract." Lewis, 823 F.3d 1147, 1159 (7th Cir. 2016) (quoting 9 U.S.C. Sec 2). The Seventh Circuit acknowledged that its decision departed from precedents in its sister circuits but dismissed their reasoning. Following Lewis, a divided Ninth Circuit panel joined the Seventh Circuit, deepening the circuit split and teeing the issue up for Supreme Court review. Because the case has now been deferred until next term, President Trump's recent nomination of Judge Neil Gorsuch leads inquisitive minds to wonder about his jurisprudence on the FAA. With the Supreme Court's present four-to-four ideological split, Judge Gorsuch's vote may well decide the case. The 10th Circuit has not weighed in on the enforceability of class action waivers in employment agreements, but Judge Gorsuch's opinions on the FAA demonstrate a commitment to enforcing its preference for arbitration. Just a few weeks ago, in Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016), Judge Gorsuch penned a dissent from a panel decision that affirmed denial of a motion to compel arbitration. The parties in Ragab agreed to six business contracts with one another, each containing a separate (and contradictory) mandatory arbitration provision, which led the panel to rule that the parties failed to reach agreement on the essential terms regarding arbitration. In his dissent, Judge Gorsuch opined that the parties' verbal cacophony regarding the procedural details of arbitration did not override their clear intention to arbitrate. His dissent identified two "workarounds" to save the arbitration agreements and alluded to the preemptive force of the FAA over state law. Id. at 1139, 1141. And, in Sanchez v. Nitro-Lift Techs., L.L.C., 762 F.3d 1139 (10th Cir. 2014), Judge Gorsuch joined an opinion requiring three former employees to arbitrate their wage claims against their employer, despite ambiguity in the parties' arbitration agreement, based on the "liberal federal policy favoring arbitration." Id. at 1145, 1147-48. Furthermore, Judge Gorsuch has expressed deep skepticism regarding deference to administrative agencies. Back in August, he authored not one but two opinions in a case called Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In his opinion for the court, Judge Gorsuch ruled that the Board of Immigration Appeals could not apply a new administrative rule retroactively. Id. at 1148. Then, in a separate concurring opinion, he called on the Supreme Court to reconsider the doctrine of Chevron deference to administrative agencies, calling the precedent a "behemoth" of administrative law that was "more than a little difficult to square with the Constitution of the framers' design." Id. at 1149. This suggests that the NLRB's anti-class waiver position may not carry much deferential heft with Judge Gorsuch. So, while it appears that employers across the country will need to hold tight for a few months longer to see whether the class action waivers in their employment agreements hold water, the wait could be worthwhile for those looking to avoid class adjudication. FT FITNESS OPCO: "Amsler" Labor Suit Transferred to N.D. Tex. ------------------------------------------------------------- The case captioned David Amsler, Roberto Avila, Jose Benitez, Dustin Bookhout, Rolando Castro, Chace Corbett, Greg Gamby, Dustin Gutkowski, Damon Hodge, Robby Karl, Lindsey Allentia Lloyd, Jacob Martin, Chris Mays, Herman McCord, Colin Padilla, Philip Pollard, Brenton Robinson, Walter A. Rush, Iii, Tim Spicer, Anthony Tate, Jeffrey Votaw and Terry Watson, on behalf of themselves and all similarly situated, Plaintiffs, v. FT Fitness Opco, LLC, TXFF1 LLC, TXFF2 LLC, TXFF3 LLC, TXFF4 LLC, TXFF5 LLC, TEXAS Family Fitness 6 LLC, TXFF7 LLC, Texas Family Fitness 8 LLC, TXFF9 LLC, TEXAS FAMILY FITNESS 10 LLC, Texas Family Fitness 11 LLC, Texas Family Fitness of Carrollton LLC, Texas Family Fitness of Mesquite LLC, TXFFPE LLC, Texas Family Fitness of White Rock LLC, Defendants, Case No. 1:16-cv-01121, (W.D. Tex., October 4, 2016), was transferred to the U.S. District Court for the Northern District of Texas on January 30, 2017, under Case No. 3:17-cv- 00282. Plaintiffs formerly were General Managers and Assistant General Managers, Sales Counsellors and Personal Trainers who have worked unpaid overtime hours for Defendants, a chain of fitness gyms operating under the Texas Family Fitness name. Plaintiff is represented by: Richard C. Dalton, Esq. 1343 West Causeway Approach Mandeville, LA 70471 Tel. (985) 778-2215 Fax: (985) 778-2233 E-mail: rdalton746@aol.com GILLMANN SERVICES: "Harden" Seeks Unpaid Wages, Overtime Pay ------------------------------------------------------------- Sean Harden, James Ridley, David Ridley, and Maurice Lamb, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. Gillmann Services, Inc., Varney Inc., Mechanical & Electrical, Contractors, LLC f/k/a M&E Contractors, LLC, M&E Contractors, Inc. and IES Commercial, Inc., Defendants, Case No. 3:17-cv-00091, (E.D. Va., January 31, 2017), seeks unpaid minimum and/or overtime wages with pre-judgment interest, plus an equal amount as liquidated damages, reasonable attorneys' fees, expenses, and all recoverable costs of this suit, and post- judgment interest as allowed by the Fair Labor Standards Act. Gillmann is a temporary staffing agency in Virginia with its headquarters at 11848 Rock Landing Drive, Suite 102, Newport News, Virginia 23606. Varney, IES and M&E, electrical and plumbing contractors, are clients of Gillmann who managed or operated construction projects where Plaintiffs provided skilled labor. Defendants, collectively, are alleged of avoiding paying full tax obligation to state and federal taxing authorities and denying employees the full overtime premium owed, mostly from off-the- clock work and travel time to and from work. Plaintiff is represented by: Craig Juraj Curwood, Esq. Philip Justus Dean, Esq. CURWOOD LAW FIRM 530 E. Main Street, Suite 710 Richmond, VA 23219 Telephone: (804) 788-0808 Fax: (804) 767-6777 Email: pdean@curwoodlaw.com ccurwood@curwoodlaw.com GLACIER WATER: Wins Bid to Dismiss "Magee" Suit in E.D. Louisiana ----------------------------------------------------------------- The Hon. Sarah S. Vance grants the Defendants' motion to dismiss the lawsuit captioned SCOTT MAGEE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. GLACIER WATER SERVICES, INC. AND WINN-DIXIE STORES, INC., Case No. 2:16-cv-04364-SSV-KWR (E.D. La.). The Court dismisses the Plaintiff's second amended complaint and denies the Plaintiff's motion for class certification. On May 6, 2016, Mr. Magee, who is legally blind, filed the class action lawsuit against Winn-Dixie, asserting that Winn-Dixie's refill stations unlawfully discriminate against the blind in violation of the Americans with Disabilities Act. Mr. Magee brought his ADA claim on behalf of himself and a proposed class consisting of all legally blind individuals, who have been or are being "denied access to Glacier Water Refill Stations" located in the United States and owned and operated by GWS, as well as a subclass of legally blind individuals, who have been denied access to the stations at locations owned and operated by Winn-Dixie. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ukbwStbk HEIDELBERGCEMENT: CDC Loses Cement Cartel Class Action ------------------------------------------------------ The Global Legal Post reports that a class action case has failed in its second attempt to bring an action for damages against HeidelbergCement as court rules it a 'legacy case'. Belgian company Cartel Damage Claims (CDC) had bought claims from parties who allegedly suffered losses from the cement cartel and were seeking compensation of hundreds of millions. First attempts to obtain damages had been unsuccessful on account of antitrust violations from the cement manufacturers before the DÅsseldorf Regional and Higher Regional Courts. The Mannheim Regional Court has now also dismissed CDC's action. Legacy case In its judgment, the Mannheim Regional Court endorsed the view that the rule of suspension of section 33(5) Act Against Restraints of Competition cannot -- given the clear and unambiguous wording of the provision and the underlying system -- be applied to what are known as 'legacy cases'. This meant that the claims had become statute-barred, regardless of various further objections. Implications for private anti-trust litigation in EU The Mannheim Regional Court's judgment has significant implications for private antitrust litigation in Germany and other EU Member States. In November 2016, the Karlsruhe Higher Regional Court already had to rule on an action brought by an individual cement buyer and determined that Act Against Restraints of Competition does not apply to "legacy cases". An appeal on points of law has in the meantime been filed against this judgment with the Federal Court of Justice. Advisors HeidelbergCement is being advised by a Gleiss Lutz team comprising Dr Ulrich Denzel, Dr Andrea Leufgen, Dr Carsten Kloppner and Dr. Florian Wagner. HOMETOWN CARE: "Hite" Labor Suit Seeks Unpaid Overtime Wages ------------------------------------------------------------ Jeanne Hite, on behalf of herself and all others similarly situated, Plaintiff, v. Hometown Care, LLC d/b/a Community Caregivers of Cuyahoga Falls, Defendant, Case No. 5:17-cv-00199, (N.D. Ohio., January 31, 2017), seeks compensatory damages in the amount of their unpaid wages and commissions, as well as liquidated damages in an equal amount, costs and attorney's fees incurred in prosecuting this action and such other further relief under the Fair Labor Standards Act and Ohio Revised Code 4113.15. Hometown Care, LLC operates Community Caregivers of Cuyahoga Falls where Defendant employed Hite as a home healthcare worker. Hite seeks overtime compensation for all hours worked in excess of forty in certain workweeks. Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 4580 Stephen Circle, NW, Suite 201 Canton, OH 44718 Telephone: (330) 470-4428 Fax: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com INTERCOAST COLLEGES: Faces Class Action Over Accreditation ---------------------------------------------------------- Karen Kidd, writing for Legal Newsline, reports that lack of clearer allegations about accreditation could be a weak spot in the $5 million putative class action lawsuit filed in Maine by four former nursing students, a New York-based business law and litigation attorney said during a recent interview. "I was disappointed that the complaint did not more clearly spell out the alleged misrepresentation regarding accreditation, which seems to be the key fact," John J. Tollefsen of Tollefsen Law said during a Legal Newsline email interview. Mr. Tollefsen, whose "Negligent Misrepresentation in Washington State Law" and "Four Theories of Recovery for Misrepresentation" were first published in 2009 and 2012 respectively, said the relevant laws are not uniform in all states. "Negligent misrepresentation is a creation of common law applied differently in the states and is harder to prove than the statutory allegations (consumer protection violations) alleged in the complaint," he said. "I expect the case will turn on statutory violations." The putative class action complaint was filed Dec. 30 in U.S. District Court for the District of Maine against Intercoast Colleges, doing business as Intercoast Career Institute. The four plaintiffs and former Intercoast nursing students -- Stephanie Kourembanas, Caridad Jean Baptiste, Cathy Mande and Catharine Valley -- allege Intercoast misrepresented that it offered accredited programs. The four students' accusations against InterCoast are blistering. "The InterCoast LPN Program was a sham," the lawsuit says. "It existed to make money without regard for the quality of education its students received in exchange. InterCoast provided little, if any, educational value to its students and failed to enhance their occupational qualifications or career prospects. "Among other failings, InterCoast did not provide qualified faculty members to teach required courses, did not provide adequate clinical experiences for its students, and did not adequately prepare its students for taking the National Council Licensing Examination for Practical Nurses (NCLEX-PN), which they had to pass to become LPNs and obtain work in their chosen field." InterCoast charged each enrolled student about approximately $36,000 to participate in its LPN Program, and most students paid for that with federally backed student loans, the lawsuit said. "InterCoast played an extensive role in the financial aid process for plaintiffs and potential class members, which included gathering and submitting the students' necessary paperwork to the United States Department of Education," the lawsuit said. "InterCoast worked to maximize the aid each student received from the federal government so as to maximize the number of students able to pay its high tuition. InterCoast treated the United States Department of Education as its cash source, with the students serving unwittingly as the means by which InterCoast enriched itself at the expense of both the students and the public fisc." InterCoast did not respond to a Legal Newsline request for comment. Mr. Tollefsen declined to speculate about what strategy InterCoast's attorneys might follow in the case. "I do not know enough about the facts to guess the defense," he said. "But often defendants point the finger at the plaintiffs: e.g. they flunked the test due to their own inability and not because of the quality of instruction." LANDRY'S INC: Court Certifies Class of Workers in "Griffith" Suit ----------------------------------------------------------------- The Hon. Mary S. Scriven grants Jonathan Blocher's motion for class certification in the lawsuit titled JEFFREY GRIFFITH, JONATHAN BLOCHER, ANNETTE RODRIGUEZ, and JOSEPH LEVI, on behalf of themselves and all others similarly situated v. LANDRY'S, INC. and CHLN, INC., Case No. 8:14-cv-03213-MSS-JSS (M.D. Fla.). The action is certified as a class action, the class being comprised of: All individuals who worked at Chart House and/or Landry's Seafood House restaurants in Florida at any time during the Relevant Class Liability Period [beginning December 14, 2009] for whom Defendants claimed a tip credit to meet Defendants' minimum wage obligations under Article X, Section 24 of the Florida Constitution and who participated in Defendants' Employee Discount Program. Plaintiff Blocher, on behalf of himself and others similarly situated, challenges the legality of the Landry's Employee Discount Program -- a program that the Defendants administer in a uniform way across all of their restaurants. Specifically, Mr. Blocher contends that the Defendants' deduction of money from his and class members' tipped sub-minimum hourly wages or from their tips for participation in the EDP violates the Florida Minimum Wage Act. Plaintiff Jonathan Blocher is appointed as the class representative and Sam J. Smith, Esq., Loren Donnell, Esq., and Tamra Givens, Esq., of Burr & Smith, LLP, and Hillary Schwab, Esq., of Fair Work, P.C. are appointed as class counsel. The Court directs the Defendants to produce to the Plaintiffs within 21 days from the date of this Order the names, last known addresses, telephone numbers, e-mail addresses (if known), unique employee identification numbers, and social security numbers for all class members. Judge Scriven approves the Plaintiffs' proposed class notice and authorizes the Plaintiffs to provide notice of the case to the class members via mail, e-mail, and Web site. The Plaintiffs will notify the Court in writing within seven days of giving class notice. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=imNt2mrG LOWRY LAND: Faces "Hutchason" Suit Alleging Misclassification ------------------------------------------------------------- JOSHUA HUTCHASON, individually and on behalf of all persons similarly situated, Plaintiff, v. LOWRY LAND CO., INC., Defendant, Case No. 5:17-cv-00113-D (W.D. Okla., February 3, 2017), alleges that Lowry Land improperly misclassified Plaintiff and Collective Members as independent contractors. As a result of the misclassification, Lowry Land, allegedly, did not pay Plaintiff and Collective Members in accordance with the Fair Labor Standards Act and state wage laws and otherwise forced Plaintiff and Collective Members to bear the costs of Lowry Land's business. Lowry Land Co., Inc. provides third party services, such as reviewing property titles, digital imaging of courthouse documents, negotiating for the acquisition or divestiture of mineral rights, curing title defects, managing rights and/or obligations derived from ownership of interests in minerals, among other services, for oil and gas companies throughout the United States. Plaintiff worked for Lowry Land reviewing, capturing and uploading courthouse documents for companies in the oil and gas industry. The Plaintiff is represented by: Steven T. Horton, Esq. HORTON LAW FIRM 114 N.W. 6th Street, Suite 201 Oklahoma City, OK 73102 Phone: 405/606-8080 Fax: 405/606-8088 E-mail: shorton@coxinet.net - and - Shanon J. Carson, Esq. SARAH R. SCHALMAN-BERGEN, PA Alexandra K. Piazza, Esq. Camille Fundora, PA Bar No. 312533 BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Phone: (215) 875-3000 Fax: (215) 875-4604 E-mail: scarson@bm.net sschalman-bergen@bm.net apiazza@bm.net cfundora@bm.net MARATHON OIL: Faces "Bollenbach" Suit in Western Dist. of Okla -------------------------------------------------------------- A class action lawsuit has been filed against Marathon Oil Company. The case is styled as Barbara Bollenbach, on behalf of herself and all others similarly situated, the Plaintiff, v. Marathon Oil Company, including affiliated predecessors and affiliated successors, the Defendant, Case No. 5:17-cv-00122-M (W.D. Okla., Feb. 6, 2017). The case is assigned to Hon. Vicki Miles-LaGrange. Marathon Oil is an American petroleum and natural gas exploration and production company headquartered in the Marathon Oil Tower in Houston, Texas. The Plaintiff is represented by: Reagan E. Bradford, Esq. THE LANIER LAW FIRM - OKLAHOMA CITY 12 E California Ave., Suite 200 Oklahoma City, OK 73104 Telephone: (405) 820 4401 Facsimile: (713) 659 2204 E-mail: Reagan.Bradford@lanierlawfirm.com MISSOURI, USA: Court Denies Jackson's Bid for Class Certification ----------------------------------------------------------------- The Hon. Fernando J. Gaitan, Jr., denies the Plaintiff's second motion for class certification and supporting memorandum of law filed in the lawsuit entitled RANDALL JACKSON v. LARRY CRAWFORD, et al., Case No. 2:12-cv-04018-FJG (W.D. Mo.). The Plaintiff's motion to exceed page limits is granted. Defendant Larry Crawford was the director of the Missouri Department of Corrections. In his lawsuit, Mr. Jackson alleges that the Defendants violated his rights as an atheist by requiring him to participate in substance abuse treatment programs at the MDOC, such as Alcoholics Anonymous, which requires its participants to recognize and rely upon a "Higher Power" to remedy their problems with alcohol. He has also sought to list his religion as atheism on the facesheet to his prison file, but MDOC has denied this request, responding that atheism is a philosophy, not a religion. Mr. Jackson has sought to certify these classes under Rule 23(b)(2) of the Federal Rules of Civil Procedure: All prisoners who are eligible or ordered to receive substance abuse treatment in one of MDOC's substance abuse treatment programs and who would object to the faith-based requirements of those programs, if MDOC made clear the availability of a genuinely secular, non-faith-based program, and the prisoners could trust MDOC not to prolong their custody because they objected to the religious components or selected a secular path; and All prisoners in MDOC's custody who do not believe in a god. Judge Gaitan, among other things, opines that the Plaintiff has failed to demonstrate numerosity and that commonality has not been met to warranty certification. Judge Gaitan also agrees with the Defendants that the Plaintiff's injunctive relief claims are both highly individualized and moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=uVXWm5DM MURPHY OIL: SCOTUS to Hear Waiver Case in October 2017 Term ----------------------------------------------------------- Jillian Orticelli, Esq. -- jorticelli@carltonfields.com -- and Jonathan Sterling, Esq. -- jsterling@carltonfields.com -- of Carlton Fields, in an article for JDSupra, wrote that the Supreme Court granted petitions for certiorari in three lawsuits challenging the legality of arbitration agreements that bar workers from pursuing class actions. The Court consolidated the cases, Murphy Oil USA Inc., Epic Systems Corp., and Ernst & Young LLP for oral argument to resolve a circuit spit over whether arbitration agreements that prohibit employees from pursuing work- related claims as a group violate the National Labor Relations Act (NLRA). On February 8, the Supreme Court stated that it will not hear argument on these cases until the 2017 term -- which begins in October. The issue is of significant concern to employers, many of whom see class action waivers as a way to reduce both legal exposure and expense. If enforceable, class action waivers can keep disputes with employees in arbitration and out of court. Whether such constraints on class action litigation are legal has been and remains a hotly contested issue, with the National Labor Relations Board ruling in numerous cases that class action waivers are unenforceable. NFL ENTERPRISES: Cheerleaders File Class Suit in Georgia -------------------------------------------------------- Jane Doe, individually and on behalf of all others similarly situated, Plaintiff, v. NFL Enterprises LLC dba National Football League (NFL), Forty Niners Football Company LLC, The Oakland Raiders, a California limited partnership, Chargers Football Company LLC, The Los Angeles Rams LLC, The Arizona Cardinals Football Club LLC, Atlanta Falcons Football Club LLC, Baltimore Ravens Inc., Buffalo Bills LLC, Panthers Football LLC, Cincinnati Bengals Inc., The Dallas Cowboys Football Club, Ltd., PDB Sports Ltd., dba Denver Broncos, The Detroit Lions Inc., Houston Texans Inc., Indianapolis Colts Inc., Jacksonville Jaguars LLC, Kansas City Chiefs Football Club Inc., Miami Dolphins, Ltd., Minnesota Vikings Football LLC, New England Patriots LLC, The New Orleans Louisiana Saints Limited Partnership, New York Jets LLC, Philadelphia Eagles LLC, Seattle Seahawks LLC, Buccaneers Limited Partnership dba Tampa Bay Buccaneers, Tennessee Football Inc., Pro-Football Inc. dba Washington Redskins, Defendants, NFL Member Teams and with NFL, Defendants, Case No. 2:17-cv-00402, (N.D. Ga., January 30, 2017), seeks unpaid minimum wages, overtime wages, liquidated damages, and costs of litigation and reasonable attorney's fees pursuant to the Fair Labor Standards Act of 1938. Plaintiff seeks to represent a class of individual team cheerleaders, who complain of a low, flat wage for each game performed, unpaid rehearsal time and community outreach events and inhibition from performing other cheerleading work professionally outside NFL events. Plaintiff was specifically employed by the 49ers from approximately May 2013 through February 2014. NFL, which maintains its offices at 345 Park Avenue, New York, New York, is an unincorporated association consisting of separately owned professional football teams that operate out of many different cities and states in this country. Plaintiff is represented by: Drexel A. Bradshaw, Esq. Thomas J. O'Brien, Esq. BRADSHAW & ASSOCIATES, P.C. One Sansome Street, Thirty-Fourth Floor San Francisco, CA 94104 Phone: (415) 433-4800 Fax: (415) 433-4841 NORTHLAND GROUP: Faces "Baksh" Suit in Eastern Dist. of New York ---------------------------------------------------------------- A class action lawsuit has been filed against Northland Group, Inc. The case is captioned as Anthony Baksh, on behalf of himself and all others similarly situated, the Plaintiff, v. Northland Group, Inc., the Defendant, Case No. 1:17-cv-00664 (E.D.N.Y., Feb. 6, 2017). Northland Group, Inc. provides accounts receivable management and collection services to national credit grantors, debt buyers, and student loan lenders. The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Alan J Sasson, Esq. LAW OFFICE OF ALAN J. SASSON, P.C. 2687 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Telephone: (718) 339 0856 Facsimile: (347) 244 7178 E-mail: jmizrahi@sassonlaw.com alan@sassonlaw.com ORACLE CORP: Salespeople File Class Action Over Commissions ----------------------------------------------------------- Gina Hall, writing for Silicon Valley Business Journal, reports that a $150 million class action lawsuit filed against Oracle Corp. on Feb. 14 claims the tech giant bilked sales employees of millions of dollars in earned commission wages. The complaint, which was filed in U.S. District Court in San Francisco, alleged that Oracle (Nasdaq: ORCL) retroactively increased quotas or decreased commission rates on past sales in order to pay sales employees less than what their existing compensation plans required. The plaintiffs are seeking unpaid commission wages and are requesting an injunction on behalf of a class of California sales employees. Oracle denied the allegations. Redwood City-based Oracle employed a policy called a "re-plan" to reduce commissions earned on completed sales, the complaint alleges, and re-planned employees after commission wages had already been paid. Oracle "clawed back" payments by withholding newly earned commissions until the employees had reimbursed the company, the lawsuit alleges. Oracle's retroactive re-plans were a "willful and systematic scheme designed to align commissions with financial forecasts and bottom line goals," the plaintiffs say. "Oracle coerces employees into accepting re-plans by threatening that if they fail to accept the new commission plans within 24 hours, they will not be paid pending commissions at all," according to the lawsuit. "Even if a bold employee refuses to agree to an inferior re-plan, Oracle barrels ahead anyway, applying the re-plan terms to both past and future sales." Oracle's commission policies and practices violated numerous California Labor Code requirements and resulted in damages of more than $150 million to California employees over a four-year period, according to the filing. Plaintiff Marcella Johnson said that she was one of the typical sales employees who was subjected to a retroactive re-plan that reduced her commission payments. She claimed that Oracle demanded that she pay back a substantial amount of her earned commissions that had been paid before the re-plan. "California law does not allow a company to point to fine print that supposedly allows it to reduce commissions after the fact," Xinying Valerian -- xvalerian@sanfordheisler.com -- a lawyer at San Francisco-based Sanford Heisler, said in a statement. "We think all employers should honor the commission formulas that they have provided sales employees and be held accountable for paying employees the commission they have earned." PETCO ANIMAL: Overtime Pay Sought in "Cote" Labor Dispute --------------------------------------------------------- Maria Cote, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. Petco Animal Supplies, Inc., Petco Holdings, Inc., Defendants, Case No. 1:17-cv-10171, (D. Mass., January 31, 2017), seeks unpaid overtime wages for hours worked over 40 in a workweek, and treble and liquidated damages pursuant to Massachusetts General Law. Petco Animal Supplies, Inc. is a Delaware corporation with its principal places of business at 10850 Via Fontera, San Diego, California, operating more than 1,150 specialty retail stores nationwide, selling pet food, live animals, pet supplies and related goods and services. Plaintiff was employed from May 2009 to January 2015 as an Assistant Store Manager at Defendants' store in North Andover, Massachusetts. Plaintiff seeks unpaid overtime wages for hours worked over 40 in a workweek. Plaintiff is represented by: Fran L. Rudich, Esq. Seth R. Lesser, Esq. Michael H. Reed, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (914) 934-9200 Facsimile: (914) 934-9220 - and - Marc S. Hepworth, Esq. David A. Roth, Esq. Charles Gershbaum, Esq. Rebecca S. Predovan, Esq. HEPWORTH GERSHBAUM & ROTH, PLLC 192 Lexington Avenue, Suite 802 New York, NY 10016 Telephone: (212) 545-1199 Facsimile: (212) 532-3801 REMINGTON: Presents Defective Rifle Settlement Before Court ----------------------------------------------------------- According to FOX 4's John Holt, the federal class action lawsuit that was highlighted in the news agency's report on federal gun recall power limits took center stage at the Whittaker Federal Courthouse in downtown Kansas City on Feb. 14. The class action, which includes a metro area plaintiff, alleged Remington knew it had defective triggers in its 700 series rifles dating back to 1947, but failed to fix the flaw until 2006. It's estimated more than 7 million of the defective rifles could be out there, though it's unknown how many are still in use. At issue is triggers that fire even though they are not touched. The guns have killed and maimed, and Remington has also faced individual lawsuits. Lawyers from Remington and the gun owners reached a settlement after years of negotiation, and on Feb. 14 they presented it before Federal Judge Ortrie Smith. Nine states have objected to the settlement. They joined other objectors in court on Feb. 14 arguing the settlement isn't good enough. Remington and the plaintiffs argue the important thing is to get guns repaired, which is at the heart of the settlement. But so far, only about 22,000 claims have been filed, a fact that concerns Judge Smith. He questioned whether notice has been adequate, and if paying gun owners might be a better remedy. The attorneys general also raised the low claim rate argument, as well as the fact that Remington would be off the hook for an estimated half-a-billion dollars in claims. That fact was also noted by the judge. The settlement supporters say notice efforts have included emails, posters, social media and radio, and that gun owners would have 18 months to file for the trigger retrofit. That process lawyers noted, was an easy on-line system that would allow the gun owners to ship their guns to licensed repair shops, or in some cases, to Remington itself. In the settlement, Remington does not admit the trigger is defective, but agrees to the repairs at no cost to the owners. Attorneys are seeking 12 million dollars in legal fees, another aspect troubling to the judge given the claims rate so far. But the lawyers argue case law does not make that a factor to consider. The Remington case was part of our FOX 4 story on the laws that prohibit the Consumer Product Safety Commission from ordering recalls on guns or ammunition. It's rooted in the 2nd Amendment and fears by those who oppose recall powers for the federal government as potentially a "slippery slope" toward confiscation of firearms. Gun manufacturers can voluntarily recall guns, but they can't be ordered to do so. Judge Smith heard about three hours of argument, and took the settlement under advisement. He says he hopes to rule in the next 30 days. REWALK ROBOTICS: "Deng" Seeks Damages Over Share Price Drop ----------------------------------------------------------- Qian Deng, David Hershlikovitz, Jackie888, Inc., Michael C. Kemmerling, Narbeh Nathan, and Paul Sislin, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Rewalk Robotics Ltd., Larry Jasinski, Ami Kraft, Amit Goffer, Jeff Dykan, Hadar Ron, Asaf Shinar, Wayne B. Weisman, Yasushi Ichiki, Aryeh Dan, Glenn Muir, Barclays Capital Inc., Jeffries LLC and Canaccord Genuity Inc., Defendants, Case No. 1:17-cv-10169, (D. Mass., January 31, 2017), seeks damages and other remedies as set forth in the Securities Act of 1933; reasonable costs and expenses incurred in this action, including counsel fees and expert fees; and such other and further relief. ReWalk is a medical device company that designs develops and markets wearable robotic exoskeletons for people with spinal cord injuries. ReWalk became a public company on September 12, 2014 when it completed its IPO and issued 3,450,000 ordinary shares and raised $41.4 million. On February 25, 2016, it was discovered that ReWalk failed to disclose that the Company was wholly unprepared or unable to comply with the extensive postmarket regulatory requirements set forth by the United States Food and Drug Administration. ReWalk's stock dropped over 22%, thereby causing Plaintiffs and other members of the Class substantial damages in connection with their purchases of ReWalk ordinary shares. Plaintiff is represented by: Jeffrey C. Block, Esq. Bradley J. Vettraino, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Tel: (617) 398-5600 Fax: (617) 507-6020 - and - Mark C. Gardy, Esq. James S. Notis, Esq. Jennifer Sarnelli, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10022 Tel: (212) 905-0509 Fax: (212) 905-0508 - and - Shannon L. Hopkins, Esq. Sebastiano Tornatore, Esq. LEVI & KORSINSKY, LLP 733 Summer Street, Suite 304 Stamford, CT 06903 Telephone: (203) 992-4523 Facsimile: (212) 363-7171 - and - Ronen Sarraf, Esq. Joseph Gentile, Esq. 14 Bond Street, Suite 212 Great Neck, NY Telephone: 516-699-8890 Facsimile: 516-699-8968 RICE ENERGY: Robinson Moves to Certify Class of Consultants ----------------------------------------------------------- The Plaintiff in the lawsuit captioned DYSON ROBINSON, each individually and on behalf of others similarly situated v. RICE ENERGY, INC., Case No. 2:16-cv-00985-CRE (W.D. Pa.), files with the Court a motion for conditional certification. Mr. Robinson also seeks approval of his proposed notice and consent form, and procedure for sending notice. In his complaint, Mr. Robinson alleges that Rice classified its wellsite/drillsite consultants and flowback/well-testing consultants as independent contractors and did not pay overtime wages. He contends that instead, Rice maintained a uniform day- rate practice applicable to all putative class members. He argues that Rice's pay practice flagrantly violates the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=QMI5Qh3i ROADRUNNER INTERMODAL: "Phillips" Suit Moved to E.D. Cal. --------------------------------------------------------- The class action lawsuit titled Latrina Phillips, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. Roadrunner Intermodal Services, LLC; and Morgan Southern, Inc., which will do business in California as Morgan Southern Trucking, the Defendants, Case No. 2:16-cv-01072, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Eastern District of California - (Fresno). The District Court Clerk assigned Case No. 1:17-cv-00164-LJO-SAB to the proceeding. The case is assigned to Hon. Chief Judge Lawrence J. O'Neill. Roadrunner Intermodal provides intermodal drayage solutions in the United States. The Plaintiff is represented by: Daniel Gene Emilio, Esq. Justin G Schmidt, Esq. Laurie M Cortez, Esq. EMILIO LAW GROUP 12832 Valley View Street Suite 106 Garden Grove, CA 92845 Telephone: (714) 379 6239 Facsimile: (714) 379 5444 The Defendants are represented by: Adam C. Smedstad, Esq. Alaina Cathrine Hawley, Esq. James H Hanson, Esq. Christopher Chad McNatt, Jr., Esq. SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY 30 West Monroe Street, Suite 600 Chicago, IL 60603 Telephone: (312) 255 7181 Facsimile: (312) 422 1224 E-mail: asmedstad@scopelitis.com ahawley@scopelitis.com cmcnatt@scopelitis.com ROADRUNNER TRANSPORT: "Goss" Seeks Damages from Share Drop ---------------------------------------------------------- Robert Goss, individually and on behalf of all others similarly situated, Plaintiff, v. Roadrunner Transportation Systems, Inc., Mark A. Diblasi and Peter R. Armbruster, Defendants, Case No. 2:17-cv-00144, (E.D. Wisc., January 31, 2017), seeks compensatory damages including interest, reasonable costs and expenses incurred in this action, plus counsel fees and expert fees, and extraordinary equitable and/or injunctive relief for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Roadrunner is a Delaware corporation providing asset-light transportation and logistics service as well as global supply chain solutions. DiBlasi is the Company's chief executive officer while Armbruster is its Chief Financial Officer, Treasurer and Secretary. Defendants allegedly failed to disclose that the company lacked effective internal control over financial reporting, specifically its financial statements in beginning of 2014 overstated the estimated results of operations and contained errors relating to unrecorded expenses from unreconciled balance sheet accounts including cash, driver and other receivables as well as line-haul and other driver payables. Plaintiff purchased Roadrunner common stock and lost substantially as share prices dropped as a result of corrective disclosures. Plaintiff is represented by: Scott Wagner, Esq. WAGNER LAW GROUP, S.C. 839 North Jefferson Street, Suite 400 Milwaukee, WI 53202 Telephone: (414) 278-7000 Fax: (414) 278-7590 Email: ksw@wagner-lawgroup.com RUBIN & ROTHMAN: Certification of Class Sought in "Dickon" Suit --------------------------------------------------------------- Richard Dickon moves for an order certifying the case styled RICHARD DICKON, an individual; on behalf of himself and all others similarly situated, Plaintiffs, vs. RUBIN & ROTHMAN, LLC, a New York Limited Liability Company; and JOHN AND JANE DOES 1 THROUGH 25, Case No. 2:15-cv-07961-SCM (D.N.J.), to proceed as a class action and granting preliminary approval of the parties' class settlement agreement. Specifically, the Plaintiff asks the Court to certify this class: All natural persons with addresses in the State of New Jersey, against whom Rubin & Rothman filed a complaint in a lawsuit, between November 14, 2014, and September 25, 2015, in connection with the collection of a consumer debt on behalf of Toyota, which indicated Toyota was seeking to collect late charges or attorney's fees. The complaint was filed pursuant to the Fair Debt Collection Practices Act, which alleges Rubin & Rothman violated the FDCPA by sending consumers initial collection letters that failed to inform consumers late charges and attorneys' fees would be added to their debts if/when a lawsuit was filed and, therefore, failed to correctly state the amount of the debt owed. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hAdNw2SP The Plaintiff is represented by: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Avenue, Suite 200 Hackensack, NJ 07601 Telephone: (201) 273-7117 E-mail: ykim@kimlf.com - and - Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com RUI CREDIT: Faces "Miller" Suit in Eastern District of New York -------------------------------------------------------------- A class action lawsuit has been filed against RUI Credit Services, Inc. The case is captioned as Avraham Miller, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. RUI Credit Services, Inc., the Defendant, Case No. 1:17-cv-00679 (E.D.N.Y. Fla., Feb. 6, 2017). RUI, founded in 1996, provides accounts receivable management (collection) services and customer contact services. The Plaintiff appears pro se. SFPP LP: Landowners Seek to Certify Class in Right-of-Way Suit -------------------------------------------------------------- Martin and Susan Wells, as trustees of the Martin and Susan Wells Revocable Trust; and Sandra L. Hinshaw, as trustee of the Sandra L. Hinshaw Living Trust, Plaintiffs in the lawsuit titled In re SFPP Right-of-Way Claims, Case No. 8:15-cv-00718-JVS-DFM (C.D. Cal.), move the Court for an order certifying a class of: "all landowners who, from January 1, 1983 to the date of class certification, own or have owned land in fee adjoining and underlying the railroad right-of-way granted under the Land Grants, or through condemnation, under which the pipeline is located within the State of California." The Plaintiffs further move the Court for an order certifying a Current Owner Sub-Class of: "all landowners who, as of the date of class certification, own land in fee adjoining and underlying the railroad right-of-way granted under the Land Grants, or through condemnation, under which the pipeline is located within the State of California." Excluded from the Class and the Current Owner Subclass are the Defendants, their parents, subsidiaries, officers, directors, affiliates, legal representatives, heirs, predecessors, successors, and assigns. Also excluded are the United States of America, the State of California, any governmental entity, any railroad, and the judges and court personnel in this case and any members of their immediate family. Alternatively, the Plaintiffs will move the Court for an order certifying for class treatment common questions. Finally, the Plaintiffs move the Court for an order appointing Plaintiffs Sandra L. Hinshaw, Martin Wells, and Susan Wells, as representatives of the class, and appointing Norman E. Siegel, Esq., and Thomas S. Stewart, Esq., as Class Counsel. The Court will commence a hearing on May 1, 2017, at 1:30 p.m., to consider the Motion. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=QAeaCE9k The Plaintiffs are represented by: Norman E. Siegel, Esq. Barrett J. Vahle, Esq. Ethan M. Lange, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: siegel@stuevesiegel.com vahle@stuevesiegel.com lange@stuevesiegel.com - and - Jason S. Hartley, Esq. STUEVE SIEGEL HANSON LLP 550 West C Street, Suite 1750 San Diego, CA 92101 Telephone: (619) 400-5822 Facsimile: (619) 400-5832 E-mail: hartley@stuevesiegel.com - and - Thomas S. Stewart, Esq. Elizabeth G. McCulley, Esq. STEWART, WALD & MCCULLEY, LLC 2100 Central, Suite 22 Kansas City, MO 64108 Telephone: (816) 303-1500 Facsimile: (816) 527-8068 E-mail: stewart@swm.legal mcculley@swm.legal - and - Steven M. Wald, Esq. STEWART, WALD & MCCULLEY, LLC 12747 Olive Blvd., Suite 280 St. Louis, MO 63141 Telephone: (314) 720-6190 Facsimile: (314) 400-7724 E-mail: wald@swm.legal - and - John W. Cowden, Esq. Angela M. Higgins, Esq. BAKER STERCHI COWDEN & RICE, L.L.C. 2400 Pershing Road, Suite 500 Kansas City, MO 64108 Telephone: (816) 471-2121 Facsimile: (816) 472-0288 E-mail: cowden@bscr-law.com higgins@bscr-law.com - and - J. Robert Sears, Esq. BAKER STERCHI COWDEN & RICE, L.L.C. 1010 Market Street, Suite 950 St. Louis, MO 63101 Telephone: (314) 231-2925 Facsimile: (314) 231-4857 E-mail: sears@bscr-law.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. Theodore W. Maya, Esq. Bradley K. King, Esq. AHDOOT & WOLFSON, PC 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com tmaya@ahdootwolfson.com bking@ahdootwolfson.com - and - Andrew G. Giacomini, Esq. John T. Cu, Esq. HANSON BRIDGETT LLP 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 E-mail: agiacomini@hansonbridgett.com jcu@hansonbridgett.com - and - Francis A. Bottini, Jr., Esq. Albert Y. Chang, Esq. Yury A. Kolesnikov, Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 E-mail: fbottini@bottinilaw.com achang@bottinilaw.com ykolesnikov@bottinilaw.com SIENTRA INC: May 22 Settlement Fairness Hearing Set --------------------------------------------------- The following statement is being issued by Robbins Geller Rudman & Dowd LLP and Pomerantz LLP regarding the Sientra, Inc. Shareholder Litigation: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA No. 2:15-cv-07548-SJO-RAO JOHN M. FLYNN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SIENTRA, INC., HANI ZEINI, MATTHEW PIGEON, NICHOLAS SIMON, TIMOTHY HAINES, R. SCOTT GREER, KEVIN O'BOYLE, JEFFREY NUGENT, PIPER JAFFRAY & CO., STIFEL, NICOLAUS & CO., INC., LEERINK PARTNERS LLC, and WILLIAM BLAIR & CO., L.L.C., Defendants. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO Master File No. CIV 536013 CLASS ACTION OKLAHOMA POLICE PENSION & RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. SIENTRA, INC., et al., Defendants. SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTIONS TO: ALL PERSONS OR ENTITIES ("PERSONS") THAT PURCHASED OR OTHERWISE ACQUIRED SIENTRA, INC. ("SIENTRA" OR THE "COMPANY") COMMON STOCK PURSUANT OR TRACEABLE TO THE REGISTRATION STATEMENT AND PROSPECTUS FOR THE COMPANY'S SEPTEMBER 2015 SECONDARY OFFERING OR THAT PURCHASED OR OTHERWISE ACQUIRED SIENTRA COMMON STOCK DURING THE PERIOD MAY 14, 2015 THROUGH AND INCLUDING OCTOBER 28, 2015 (THE "CLASS") THIS NOTICE WAS AUTHORIZED BY TWO COURTS. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED that a hearing will be held on May 22, 2017, at 10:00 a.m., before the Honorable S. James Otero at the United States District Court for the Central District of California, Courtroom 10C, 350 W. 1st Street, Los Angeles, CA 90012, and a hearing will be held on May 31, 2017 at 9:00 a.m., before the Honorable Marie S. Weiner at the Superior Court of the State of California, County of San Mateo, Department 2, Courtroom 2E, 400 County Center, Redwood City, CA 94063, to determine whether: (1) the proposed settlement as set forth in the Stipulation of Settlement dated December 2, 2016 ("Stipulation") of the above-captioned actions ("Actions") for $10,900,000 in cash should be approved by the Courts as fair, reasonable and adequate; (2) to award Plaintiffs' Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Actions ("Notice"), which is discussed below); and (3) the Plan of Allocation should be approved by the Courts, as fair, reasonable and adequate. The Actions are securities class actions brought on behalf of those Persons who purchased or otherwise acquired the common stock of Sientra pursuant or traceable to the Registration Statement and Prospectus ("Registration Statement") issued in connection with Sientra's September 2015 secondary public offering and/or who purchased or acquired Sientra common stock during the period May 14, 2015 through and including October 28, 2015 ("Class Members"), against Sientra, certain of its key executives and directors, and Underwriters of the secondary offering (collectively, "Defendants") for allegedly misstating and omitting material facts concerning alleged particle contamination on Sientra's primary products, silicone breast implants, at Sientra's Silimed manufacturing plant in Brazil. Federal Plaintiffs alleged claims under Secs. 11 and 15 of the Securities Act of 1933 and Secs. 10(b) and 20(a) of the Securities Exchange Act of 1934. State Plaintiffs alleged claims under Secs. 11, 12(a)(2) and 15 of the Securities Act of 1933. Defendants deny all of Plaintiffs' allegations. IF YOU PURCHASED OR OTHERWISE ACQUIRED SIENTRA COMMON STOCK (1) PURSUANT OR TRACEABLE TO THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IN CONNECTION WITH THE COMPANY'S SEPTEMBER 2015 OFFERING, OR (2) DURING THE PERIOD MAY 14, 2015 THROUGH AND INCLUDING OCTOBER 28, 2015, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THESE ACTIONS. To share in the distribution of the Net Settlement Fund, you must establish your rights by submitting a Proof of Claim by mail (postmarked no later than May 8, 2017) or by submitting electronically no later than May 8, 2017. Your failure to submit your Proof of Claim by May 8, 2017, will subject your claim to rejection and preclude your receiving any of the recovery in connection with the settlement of the Actions. If you are a member of the Class and do not request exclusion, you will be bound by the Settlement and any judgment and release entered in the Actions, including, but not limited to, the Judgments, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement or exclude yourself from the Settlement), and a Proof of Claim form, you may obtain these documents, as well as a copy of the Stipulation (which, among other things, contains definitions for the defined terms used in this Summary Notice) and other settlement documents, online at www.sientrashareholderlitigation.com, or by writing to: Sientra Shareholder Litigation Claims Administrator c/o Gilardi & Co. LLC P.O. Box 30252 College Station, TX 77842-3252 Phone: 1-866-801-6780 Inquiries should NOT be directed to Defendants, the Courts, or the Clerks of the Courts. Inquiries may also be made to a representative of Plaintiffs' Counsel: ROBBINS GELLER RUDMAN & DOWD LLP Shareholder Relations Rick Nelson 655 West Broadway, Suite 1900 San Diego, CA 92101 Phone: 800-449-4900 POMERANTZ LLP Leigh Handelman Smollar, Esq. 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED NO LATER THAN APRIL 24, 2017, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE CLASS WILL BE BOUND BY THE JUDGMENTS ENTERED IN THE ACTIONS EVEN IF THEY DO NOT FILE A TIMELY PROOF OF CLAIM. IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, THE PLAN OF ALLOCATION, AND/OR THE REQUEST BY PLAINTIFFS' COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES. ANY OBJECTIONS MAY BE FILED WITH EITHER COURT AND MUST BE SENT TO PLAINTIFFS' COUNSEL AND THE CLAIMS ADMINISTRATOR BY MAY 8, 2017, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: February 6, 2017 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HONORABLE S. JAMES OTERO BY ORDER OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO HONORABLE MARIE S. WEINER ST CLAIR, MI: Residents File Class Action Over Sewer Backups ------------------------------------------------------------ Beth Dalbey, writing for St. Clair Shores Patch, reports that Susan Chadwick, Teresa Davenport and Mark Lysakowsky filed the lawsuit Jan. 12 in Macomb County Circuit Court. According to the complaint, they brought "the action on behalf of themselves and all other city of St. Clair Shores residents who have suffered from flooding and physical invasion of their property by sewage, water, feces, dirt, debris and noxious odors, thereby causing material injury to their properties." The lawsuit asks for damages for each of the plaintiffs in excess of $25,000, plus attorney fees. The plaintiffs, who live on Beste and Elizabeth streets, accuse city officials of failing to update sewer infrastructure, the St. Clair Shores Sentinel reported. Sewer backups were reported on July 8 and Aug. 15-16, according to the lawsuit. "It's not sexy to take care of sewage pipes. It's sexy to take care of the Nautical Mile," Detroit attorney Steve Liddle, who backed a state law that allows residents to sue the government for sewage backups, told the newspaper. STEMLINE THERAPEUTICS: Faces "Hedlund" Suit Over IPO Disclosures ---------------------------------------------------------------- KENNETH HEDLUND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, vs. STEMLINE THERAPEUTICS, INC., IVAN BERGSTEIN, and DAVID GIONCO, Defendants, Case No. 1:17-cv- 00832 (S.D.N.Y., February 3, 2017), alleges that Defendants made false and/or misleading statements and/or failed to disclose in relation to its secondary public offering on or about January 20, 2017 that a cancer patient in a Stemline clinical trial tied to SL-401 died from a severe side effect on January 18, 2017 STEMLINE THERAPEUTICS, INC. is a clinical stage biopharmaceutical company that focuses on the discovery, acquisition, development, and commercialization of proprietary oncology therapeutics in the United States. The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Phone: (212) 686-1060 Fax: (212) 202-3827 Email: lrosen@rosenlegal.com Email: pkim@rosenlegal.com SUBWAY: Plaintiffs in Text Message Class Action Appeal Ruling ------------------------------------------------------------- Jireh Gibson, writing for Forbes, reports that plaintiffs suing Subway over a text message have appealed a federal judge's decision to dismiss their class action lawsuit and send their claims to arbitration. On Jan. 31, David and Yehuda Rahmany filed their notice of intent to appeal U.S. District Judge John C. Coughenour's Jan. 5 decision in their class action. Their appeal will be heard by the U.S. Court of Appeals for the Ninth Circuit. The text read: "This T-Mobile Tuesday, Score a free 6" Oven Roasted Chicken sub at SUBWAY, just for being w/T-Mobile. Ltd. Supply. Get app for details: http://t-mo.co/" However, just two days later, the plaintiffs voluntarily dropped T-Mobile from the complaint, yet failed to amend it. Therefore, all claims against T-Mobile and Subway remained against Subway. This oversight may have been the extra push Subway needed. In August 2015, the plaintiffs had activated telephone contracts with T-Mobile. One of the service agreements required arbitration of all disputes. The notice states in bold print that T-Mobile requires arbitration of disputes unless customers opt out within 30 days of activation. The other agreement in all caps reads, "Any and all claims or disputes in any way related to or concerning this [agreement] our privacy policy, our services, equipment devices or products." Both agreements included an opt-out provision. Judge Coughenour applied California law to the Rahmanys' claims. When the plaintiffs claimed the arbitration agreement was unconscionable, Judge Coughenour found the cases they cited contained factual scenarios not present in the Rahmanys' case. Judge Coughenour wrote that the plaintiffs could have opted out of the arbitration clause within 30 days of activating their phones but did not. Therefore, the court found that the text message was within the scope of the arbitration agreement since it was not substantively or procedurally unconscionable. The court used its discretion to dismiss the case because under California law, equitable estoppel applied to allow Subway, a non- signatory, to enforce the agreement. The victory for Subway was the most recent of a string of class action suits dismissed in favor of arbitration since a Supreme Court ruling in a similar TCPA case in 2011, J.R. Skrabanek, senior counsel for the Snell Law Firm, said. When asked if what happened in the Subway victory is common, he said, "Yes. Ever since the Supreme Court's decision in AT&T v. Concepcion, using arbitration clauses to defeat class actions has been an increasingly popular and effective tactic." Why did the court apply T-Mobile's arbitration provision to Subway? "Because even though it was a joint promotion, it was sent by, through, and for T-Mobile customers. These customers consented to it when they accepted T-Mobile's services, which included a mandatory arbitration clause," Skrabanek said. The Austin, Texas-based attorney suggests that if consumers want relief from arbitration provisions, they should lobby Congress to pass a law to overturn the AT&T decision. "At present, contracts containing arbitration requirements will almost always be upheld by courts if consumers agree to them when accepting service," he said. The Rahmanys are represented by Abbas Kazerounian of Kazerouni Law Group. Their opening brief is due to the Ninth Circuit by May 11, and Subway's response is due a month later. Subway is represented by the Seattle firm Corr Cronin Michelson Baumgardner Foxx & Moore and the Atlanta firm Alston & Bird. TILE SHOP: May 3 Settlement Fairness Hearing Set ------------------------------------------------ The following statement is being issued by Robbins Geller Rudman & Dowd LLP and Kessler Topaz Meltzer & Check, LLP regarding the Tile Shop Securities Litigation: BEAVER COUNTY EMPLOYEES' RETIREMENT FUND; ERIE COUNTY EMPLOYEES' RETIREMENT SYSTEM; and LUC DE WULF, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. TILE SHOP HOLDINGS, INC.; ROBERT A. RUCKER; THE TILE SHOP, INC.; TIMOTHY C. CLAYTON; PETER J. JACULLO III; JWTS, INC.; PETER H. KAMIN; TODD KRASNOW; ADAM L. SUTTIN; WILLIAM E. WATTS; ROBERT W. BAIRD & CO. INCORPORATED; CITIGROUP GLOBAL MARKETS INC.; CJS SECURITIES, INC.; HOULIHAN LOKEY CAPITAL, INC.; PIPER JAFFRAY & CO.; SIDOTI & COMPANY, LLC; TELSEY ADVISORY GROUP LLC; and WEDBUSH SECURITIES, INC., Defendants. SUMMARY NOTICE OF CLASS ACTION DETERMINATION, PROPOSED SETTLEMENT, AND HEARING ON SETTLEMENT TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED TILE SHOP HOLDINGS, INC. COMMON STOCK BETWEEN AUGUST 22, 2012 AND JANUARY 28, 2014, INCLUSIVE (THE "CLASS") Certain persons and entities are excluded from the definition of the Class as set forth in detail in the Stipulation of Settlement dated January 13, 2017 (the "Stipulation") and the Notice described below, which both can be viewed and/or downloaded at www.tileshopsecuritiessettlement.com. Please read this notice carefully. If you are a member of the Class, your rights will be affected by a class action lawsuit pending in this Court, and you may be entitled to share in the Settlement described below. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Minnesota, that the parties to the above-captioned action (the "Action") have reached a proposed settlement for $9,500,000 in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on May 3, 2017 at 10:00 a.m., before The Honorable Ann D. Montgomery at the United States District Court for the District of Minnesota, 13W U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, to determine whether: (i) the Settlement should be approved as fair, reasonable, and adequate; (ii) the Action should be dismissed with prejudice against Defendants, and the releases set forth in the Stipulation (and Notice described below) should be granted; (iii) the Plan of Distribution should be approved as fair and reasonable; and (iv) Class Counsel's application for attorneys' fees and expenses, including Lead Plaintiffs' request for reimbursement of costs and expenses in connection with their representation of the Class, should be approved. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL BE AFFECTED BY THE PENDING ACTION AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. A detailed Notice of Class Action Determination, Proposed Settlement, and Hearing on Settlement ("Notice") and Proof of Claim and Release Form ("Claim Form") are currently being mailed to Class Members explaining Class Members' rights in connection with the Action and Settlement and the process for submitting a Claim Form. If you have not yet received the detailed Notice and Claim Form, you may obtain copies of these documents by visiting www.tileshopsecuritiessettlement.com, or by contacting the Claims Administrator at: Tile Shop Securities Litigation Settlement c/o Gilardi & Co. LLC P.O. Box 43451 Providence, RI 02940-3451 (844) 330-1184 info@tileshopsecuritiessettlement.com Inquiries, other than requests for the Notice and Claim Form, may be made to Court-appointed Class Counsel: Matthew Mustokoff, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 www.ktmc.com Rick Nelson Shareholder Relations ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (800) 449-4900 www.rgrdlaw.com If you are a member of the Class, in order to be eligible to receive a payment from the Settlement, you must submit a Claim Form postmarked or submitted online no later than May 3, 2017. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Class and wish to exclude yourself from the Class, you must submit a request for exclusion such that it is postmarked no later than April 3, 2017, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. If you are a Class Member, you have the right to object to the Settlement, the Plan of Distribution of the net settlement proceeds, Class Counsel's motion for attorneys' fees and expenses, and/or Lead Plaintiffs' request for reimbursement of costs and expenses. Any objections must be filed with the Court and delivered to Class Counsel and representative Defendants' Counsel such that they are received no later than April 3, 2017, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, Defendants, or their counsel regarding this notice. All questions about this notice, the Settlement, or your eligibility to participate in the Settlement should be directed to Class Counsel or the Claims Administrator as listed above. DATED: January 19, 2017 BY ORDER OF THE COURT United States District Court District of Minnesota TRIDENT INDUSTRIAL: "Leija" Suit to Recover Overtime Pay -------------------------------------------------------- Noe Leija, Rodrigo Sanchez, Pablo Cruz Sanchez, Pablo Cruz Leija, Jose Leija, Sr., Jose Leija, Jr., Heriberto Cruz and Fernando Cruz, individually and on behalf of all others similarly situated, Plaintiff, v. Trident Industrial, L.L.C., Case No. 6:17-cv-00221 (W.D. La., January 31, 2017), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Plaintiffs were employed by Defendant to perform manual labor including hanging drywall, replacing receptacles, replacing sinks and tubs, minor demolition, and cleaning, as well as other home construction/remodelling duties, usually working at least 10-11 hours a day, for at least 7 days a week. Trident Industrial is an industrial supply company offering construction and/or remodeling services to include cleaning homes, light demolition, dry wall and sheetrock work, installing fixtures and receptacles, installing tubs and showers and sinks in Louisiana. Plaintiff is represented by: Kenneth D. St. Pe, Esq. KENNETH D. ST. PE, LLC 311 West University Avenue, Suite A Lafayette, LA 70506 Tel: (337) 534-4043 TRUGREEN INC: 6th Circuit Reverses Ruling in Arbitration Case ------------------------------------------------------------- Liz Kramer, Esq. -- liz.kramer@stinson.com -- of Stinson Leonard Street, in an article for JDSupra, reports that the Ninth, Sixth, and Third Circuits all recently issued decisions about whether putative class or collective actions could proceed despite the existence of arbitration clauses. In two of those decisions, the courts found the arbitration agreements did not allow for class arbitration and therefore dismissed the claims. In the third, the court found the arbitration agreement was not applicable to the dispute. In Opalinski v. Robert Half Int'l, 2017 WL 395968 (3d Cir. filed Jan. 30, 2017), the Third Circuit again tackled arbitrability issues in a case that has gotten the runaround for five years (district court, then arbitrator, then district court, then appellate court, back to district court, now back to appellate court). The case involves a collective action complaint alleging violations of the Fair Labor Standards Act. The arbitration clause between the employees and employer provides for AAA arbitration. In its most recent decision, the district court dismissed the action, finding the arbitration clause did not allow class arbitration. On appeal, the Third Circuit reiterated that courts (not arbitrators) should decide whether class arbitration is available. It found that in this case the parties' arbitration clause does not indicate they agreed to class arbitration. In particular, the court found the absence of any explicit mention of class arbitration was dispositive, and outweighed the fact that the parties agreed to arbitrate disputes arising under statutes that allow class litigation. In another employment dispute, Poublon v. C.H. Robinson Co., 2017 Wl 461099 (9th Cir. Feb. 3, 2017), a class of employees asserted that the employer had misclassified them as exempt from overtime pay and asserted a Private Attorneys General Act (PAGA) claim. The arbitration agreement provided "neither You nor the Company may bring any Claim combined with or on behalf of any other person or entity, whether on a collective, representative, or class action basis." It ended with a severability clause, so that if any part of the arbitration agreement was invalid, the rest of it would be enforced. The employer moved to compel arbitration and dismiss class or representative claims. The district court found the arbitration clause was unconscionable and denied the employer's motion. The Ninth Circuit reversed, finding only two aspects of the arbitration clause were unconscionable/unenforceable and those could be severed, allowing the rest of the arbitration clause to be enforced. (The two stinkers: waiver of a representative PAGA claim (see Iskanian); and a provision allowing only the employer to go to court for injunctive or equitable relief.) While the two classes of employees above were not able to continue prosecuting claims as a group (and had to go to arbitration), a class of consumers won the right to stay in court in Stevens- Bratton v. TruGreen, Inc., 2017 WL 108032 (6th Cir. Jan. 11, 2017). In that case the class representative had hired a lawn care company for one year. More than six months after the service contract had been terminated, the class representative received numerous telemarketing calls from the company, even though her number was on the Do-Not-Call Registry. She then sued for violation of the TCPA. In response, the lawn care company moved to compel arbitration, based on its service contract with the class representative, which "expressly waive[d] any ability to maintain any Class Action." The district court compelled arbitration, and the 6th Circuit reversed. Although there is usually a presumption in favor of an arbitration agreement surviving the expiration of the rest of a contract, the court was not convinced that the dispute "had its real source in the contract." It found that the lawn care service contract was "irrelevant to this case," since it had completely expired before the calls took place and the lawn services provided were not at issue in the TCPA claim. UNILEVER CANADA: Legal Logik Firm Files "Pink Tax" Class Action --------------------------------------------------------------- John Meagher, writing for Montreal Gazette, reports that a Montreal law firm filed a motion in Quebec Superior Court to seeking authorization to launch a class action against eight corporations for what is commonly referred to as an invisible "Pink Tax." The so-called "Pink Tax" refers to discriminatory surcharges on a variety of consumer and personal hygiene products, such as deodorant, for women. The Legal Logik firm launched the class-action against Unilever Canada, Shoppers Drug Mart, Jean Coutu, Uniprix, Metro, Loblaws, Walmart and Familiprix. The class action argues that merchants of products for women have engaged in discriminatory pricing practices, said Jamie Benizri, a lawyer with Legal Logik. Ms. Benizri said the class action motion was launched after a Montreal woman claimed she'd been "discriminated against by way of price discrimination in the form of products that are more expensive for females versus their male counterparts for the same product and same quantity." "We're talking about the exact same product, same ingredients, essentially for the same product on a per-gram basis," Ms. Benizri said. "She was paying on average 40 per cent more over certain products," he said. "On a per-gram basis it was about 40 per cent more expensive." "The Canadian Charter of Rights and Freedoms strictly prohibits any form of discrimination based on sex, yet surcharges on products for women is a practice that continues despite significant attention from the media," added Michael Simkin, one of the Legal Logik attorneys who filed the motion. "We believe this is a practice that should stop and class members should be compensated for the actual costs as well as damages," he said. Asked if the class action will result in compensation for class members or a reduction in price of certain consumer products, Ms. Benizri said: "I think it's going to be both. I think the marketing practices are going to have to catch up to the discrepancy in prices. Companies are going to have to be a little more sensitive and a little more careful with respect to how they market to males and females. "I think we will see a shift in the way products are marketed in very gendered bias way. So hopefully we'll see gender neutrality in marketing but I think we are looking to recapture some compensation for the class members who have been discriminated against." Legal Logik said members of the class are requesting reimbursement for the price difference on products they have purchased, plus $50 in damages and interest for moral damages. Also requested will be $50 for damages and interest for an "unlawful and intentional violation of the right to gender equality". The law firm from estimates that the total of damages, multiplied by the number of victims, could reach over 100 million dollars. UBER TECHNOLOGIES: Rosen Seeks to Certify Medallion Holders Class ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled STEWART ROSEN, on Behalf of Himself and All Others Similarly Situated v. UBER TECHNOLOGIES, INC., a Delaware Corporation; RASIER, LLC, a Delaware limited liability company; and RASIER-CA, LLC, a Delaware limited liability company, Case No. 3:15-cv-03866-JST (N.D. Cal.), moves for an order appointing class counsel and certifying this class: "All individuals who held a Medallion issued by the City and County of San Francisco, through the Division of Taxi and Accessible Services of the San Francisco Municipal Transportation Agency ("SFMTA") at any time during the period from August 25, 2011, four years from the filing of the Complaint through the date established by the Court for notice of certification of the class (the "Class Period"), except for those Medallion holders who run their own individual taxi business." Stewart Rosen challenges UBER's representation regarding safety of taking rides on cars driven by UBER's driver partners. He contends, among other things, that he and all others similarly situated Medallion Holders are entitled to expenses under the Lanham Act and that the Defendants have violated California's False Advertising Act. The Court will commence a hearing on April 13, 2017, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=65nAusje The Plaintiff is represented by: Harold M. Jaffe, Esq. LAW OFFICES OF HAROLD M. JAFFE 3521 Grand Avenue Oakland, CA 94610 Telephone: (510) 452-2610 Facsimile: (510) 452-9125 E-mail: hmjaffe@gmail.com - and - Brian W. Newcomb, Esq. LAW OFFICES OF BRIAN W. NEWCOMB 770 Menlo Avenue, Suite 101 Menlo Park, CA 94025 Telephone: (650) 322-7780 Facsimile: (650) 322-7740 E-mail: brianwnewcomb@gmail.com UNITED STATES: ACRL Files Class Suit in Michigan ------------------------------------------------ Arab American Civil Rights League, Samir Almasmari, Sabah Almasmary, Hana Almasmari, Mounira Atik, Walid Jammoul, Abubaker Abbass, on behalf of themselves and others similarly situated, Plaintiffs, v. Donald Trump, President of the United States, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Secretary of Department of Homeland Security, Kevin K. McAleenan, Acting Commissioner of Customs and Border Protection, Defendants, Case No. 3:17-cv-00272 (E.D. Mich., January 31, 2017), seeks (i) an injunction ordering Defendants to desist from further illegal detention of returning Arab-Americans, (ii) judgment declaring that the said executive is unauthorized by statute and contrary to law, (iii) reasonable attorney's fees and costs pursuant to the Equal Access to Justice Act and such other relief. ACRL is a non-profit organization and has its principal place of business at 4917 Schaefer Rd., Dearborn, Michigan 48126, committed to protecting the civil rights of Arab Americans through education and advocacy. Plaintiffs have either been denied ability to return to the United States or face a real and immediate threat of not being permitted to travel to Detroit, after President Donald Trump signed an Executive Order suspending the entry of non-citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen into the United States for 90 days. The Plaintiff is represented by: Nabih H. Ayad, Esq. AYAD LAW, P.L.L.C. 645 Griswold St., Ste. 2202 Detroit, MI 48226 Tel: (313) 983-4600 Email: nayad@ayadlaw.com - and - Helal Farhat, Esq. FARHAT & ASSOCIATES, PLLC Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 - and - Nida Samona, Esq. Counsel for the Arab Chaldean Council 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 - and - Ali Hammoud, Esq. HAMMOUD, DAKHLALLAH & ASSOCIATES Counsel for Yemini American Benevolent Association 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 - and - Rula Aoun, Esq. Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126 - and - Kassem Dakhlallah, Esq. Hammoud, Dakhlallah & Associates 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 - and - Mona Fadlallah, Esq. Natalie Qandah, Esq. VIDA LAW GROUP, PLLC Co-Counsel for ACRL 43050 Ford Rd., #160 Canton, MI 48187 UNITED STATES: Wins Bid to Dismiss "Smallwood" Class Suit in D.C. ----------------------------------------------------------------- The Hon. Reggie B. Walton entered an order in the lawsuit styled WILLIAM H. SMALLWOOD, JR. v. SALLY Q. YATES, Acting Attorney General of the United States, and MICHAEL YOUNG, Acting Secretary of the United States Department of Agriculture, Case No. 1:16-cv- 00161-RBW (D.D.C.): -- granting the Defendants' motion to dismiss; -- denying as moot the Plaintiff's motion for class certification and appointment of class counsel; -- dismissing the Plaintiff's class action complaint; and -- closing this case. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mdu3PYvU US WELL SERVICES: Court Certifies Workers Class in "Lackie" Suit ---------------------------------------------------------------- The Hon. George C. Smith grants the Plaintiffs' motion for conditional certification and Court-authorized notice filed in the lawsuit titled JEFF LACKIE, et al., v. U.S. WELL SERVICES, LLC, Case No. 2:15-cv-03078-GCS-EPD (S.D. Ohio). The Plaintiffs bring the present collective action pursuant to the Fair Labor Standards Act, on behalf of themselves and others similarly situated. The parties have stipulated to conditional certification of a putative class defined as: All current and former hourly employees who were employed by Defendant during the period of December 11, 2012 to March 15, 2015, received per diem payments, and worked more than forty hours in one or more workweeks in which the per diem payments were paid. The Parties further stipulated that counsel for the Plaintiffs will serve as lead counsel for the collective action, Jeff Lackie and William Crandell will serve as the representative plaintiffs, and USWS will provide the names and last-known contact information for all putative class members within 21 days of the Court's approval of the Notice. In his Opinion and Order, Judge Smith notes that the Court has altered the Notice consistent with the Opinion and Order and it has been circulated to counsel of record. Pursuant to the agreement of the parties, USWS will produce to lead counsel the names and last-known contact information for all putative plaintiffs. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=TDoIOiGy VECTOR MARKETING: "Knudsen" Suit Moved to District of Mass. ----------------------------------------------------------- The class action lawsuit titled Daniel Knudsen, on behalf of himself and all others similarly situated, the Plaintiff, v. Vector Marketing Corporation and Cutco Corporation, the Defendants, Case No. 16-01906A, was removed from the Essex County Superior Court, to the U.S. District Court for the District of Massachusetts (Boston). The District Court Clerk assigned Case No. 1:17-cv-10200-DJC to the proceeding. The case is assigned to Hon. Judge Denise J. Casper. Vector Marketing is the domestic sales arm of Cutco Corporation, an Olean, New York based cutlery manufacturer. The Defendants are represented by: Robert M. Hale, Esq. GOODWIN PROCTER, LLP 100 Northern Avenue Boston, MA 02210 Telephone: (617) 570 1252 Facsimile: (617) 227 8591 E-mail: rhale@goodwinprocter.com WELLS FARGO: Torres Moves for Certification of Consultants Class ---------------------------------------------------------------- The Plaintiffs in the lawsuit captioned NICOLE TORRES, TANYA COLLINS, ANDREW HOEFLIN, individually, and on behalf of other members of the general public similarly situated v. WELLS FARGO BANK, N.A. a national association; and DOES 1 through 10, inclusive, Case No. 5:15-cv-02225-PSG-KK (C.D. Cal.), move the Court for an order certifying classes for the Plaintiffs' claims that Wells Fargo underpaid the meal break premiums paid to Home Mortgage Consultants and derivative claims. The Plaintiffs further move the Court for an order appointing Plaintiff Tanya Collins as class representative, and appointing Kawahito Westrick LLP as class counsel. The Court will commence a hearing on March 20, 2017 at 1:30 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ucJBTxNK The Plaintiffs are represented by: Shawn C. Westrick, Esq. KAWAHITO WESTRICK LLP 10474 Santa Monica Blvd., Suite 405 Los Angeles, CA 90025 Telephone: (310) 746-5300 Facsimile: (310) 593-2520 E-mail: swestrick@kswlawyers.com YAHOO INC: Warns Users of Malicious Activity on Accounts -------------------------------------------------------- Raphael Satter and Paisley Dodds, writing for The Associated Press, report that Yahoo is warning users of potentially malicious activity on their accounts between 2015 and 2016, the latest development in the internet company's investigation of a mega- breach that exposed 1 billion users' data several years ago. Yahoo confirmed on Feb. 15 that it was notifying users that their accounts had potentially been compromised but declined to say how many people were affected. In a statement, Yahoo tied some of the potential compromises to what it has described as the "state-sponsored actor" responsible for the theft of private data from more than 1 billion user accounts in 2013 and 2014. The stolen data included email addresses, birth dates and answers to security questions. The catastrophic breach raised questions about Yahoo's security and destabilized the company's deal to sell its email service, websites and mobile applications to Verizon Communications. The malicious activity that was the subject of the user warnings revolved around the use of "forged cookies" -- strings of data which are used across the web and can sometimes allow people to access online accounts without re-entering their passwords. A warning message sent to Yahoo users on Feb. 15 read: "Based on the ongoing investigation, we believe a forged cookie may have been used in 2015 or 2016 to access your account." Some users posted the ones they received to Twitter. "Within six people in our lab group, at least one other person has gotten this email," Joshua Plotkin, a biology professor at the University of Pennsylvania, said. "That's just anecdotal of course, but for two people in a group of six to have gotten it, I imagine it's a considerable amount." Mr. Plotkin said in a telephone interview that he wasn't concerned because he used his Yahoo email for messages that were "close to spam." In the message he posted to Twitter , he joked that "hopefully the cookie was forged by a state known for such delicacies." ZEEKREWARDS: Founder Faces 15-Year Sentence for Role in Scam ------------------------------------------------------------ The Associated Press reports that the founder of ZeekRewards has been sentenced to nearly 15 years behind bars for his lead role in an $850 million online Ponzi scheme that bilked nearly a million people in the U.S. and abroad. Paul Burks, 70, was given three concurrent prison sentences of 14 years and eight months on Feb. 13 after being convicted in July on four felony fraud charges, news outlets reported. Mr. Burks had been free on bond for the past 4 1/2 years and could have been sentenced to up to 59 years under federal sentencing guidelines. U.S. District Judge Max Cogburn Jr. indicated Burks most likely will spend his final days in prison, given his multiple health issues, including cancer. "While this sentence is much lower than called for by the sentencing guidelines, it is still a severe punishment, particularly given our client's age and health," said Noell Tin, one of Burks' attorneys. An appeal of Burks' July conviction is in the works, Tin said. Mr. Burks owned ZeekRewards.com, a Lexington, North Carolina-based website which gave incentives for recruiting new investors to an online auction site Burks also ran called Zeekler. On that site, customers were charged up to $1 to bid for the chance to buy heavily discounted consumer products such as iPads. The site made fanciful promises of 125 percent returns at a time when the economy limped out of the Great Recession. The scheme would have needed a miracle on the order of "the loaves and the fishes" to make good on that pledge, Judge Cogburn said. Investments were capped at $10,000, but people could invest on behalf of their spouses, children or other relatives. Some mortgaged homes to raise their investment and almost 90 percent of the people who bought in to the operation lost money. "The scheme got out of hand, more than Mr. Burks may have thought was going to happen," the judge said. "But anyone could have seen what was going to occur outside himself and his (marketing) cheerleaders." * Lack of Registration Process Hampers Collective Action in UK -------------------------------------------------------------- Lauren Priest, Esq. -- LaurenPriest@emmlegal.com -- of Edmonds, Marshall, McMahon, in an article For Lexology, reports on class actions in the USA and United Kingdom. What is a class action in the USA? A class action is a collective claim in which the court awards permission to an individual or individuals to bring the claims of others similarly situated (the class members) in a single case. Rule 23 of the Federal Rules of Civil Procedure prescribes the model for most class actions. Under Rule 23(a), one or more members of a class may sue or be sued as representative parties on behalf of all members if: -- the class is so numerous that joinder of all members is impracticable; -- there are questions of law or fact common to the class; the claims or defences of the representative parties are typical of the claims or defences of the class; and -- the representative parties will fairly and adequately protect the interests of the class. The claims of the class members must be so similar to those of the class representative that a trial of the representative's claim can appropriately decide the outcome for all class members. A class action must define the class, the claims, the issues, and appoint class counsel (Rule 23(c))[1]. Class actions operate on an opt-out regime, whereby an action is pursued on behalf of a defined class of unnamed claimants, who are deemed included in the action and are bound by the outcome unless they "opt out". There is clearly a presumption in the USA that everybody will enjoy litigation! Due to the "opt out" regime in the United States, there is less importance placed upon identifying each and every potential claimant prior to the filing of a class action as parties are included by default. Depending on the type of action and class, notice requirements fall in place following the certification of a class action including the giving of notice that the court will exclude from the class any member who requests exclusion and the binding effect of a class judgment on class members. However, it may sometimes be difficult to identify the individual members of a class in order to personally notify them due to the sheer number of members. What sort of cases would be appropriate for Class Actions in the USA? Class actions are often brought in "David v Goliath" circumstances where an individual does not have the resources to challenge a multinational company i.e. where a bank has charged excessive fees on a certain category of customer accounts. The class may be defined as including all customers who fell victim to the bank's excessive fees. This could include hundreds, if not thousands of customers, rather than one individual. The downside of the "opt out" regime is that there may be individuals who are not aware they have been overcharged yet are directly affected by the outcome of the action unless they opt out. It is for this reason that individual class members should receive notice of the class action if they can be identified using reasonable effort. Class actions can lead to large scale pay-outs. In 2005, investors in the multinational media company, AOL Time Warner, received a settlement of US2.5 billion when suing the company for fraud under federal securities law. They claimed the company disguised its poor performance between 1998 - 2002 by forging multiple transactions which they estimated to inflate the company's value by US1.7 billion. In 2014, the Citigroup Banking and Financial Services Corporation agreed to pay US7 billion to settle a class action brought by investors who acquired shares between February 2007 and April 2008. The Claim was bought against Citigroup and some of its senior executives who misrepresented the company's exposure to collateralised debt obligations ("CDOs") which were a high risk investment and therefore, a major factor in the 2007 - 2009 US property crash. How do people know they are included in group litigation in the USA? If a class claims individualised fiscal awards, the class members are entitled to notice that the class has been defined and certified by the court. A notice campaign must then be approved by the court. However, if the class claims equitable or a collective award, notice is not required but may be provided. The purpose of a notice is to inform class members of the existence of the class action and their right to "opt out" of the class. Members must also be informed if they do not opt out, any judgment will be applicable to them and they will not be permitted to bring an individual claim at a later stage. Depending on the nature of the claims and type of class, notice can be provided by mail, email, publication in newspapers and magazines, advertisements on television, radio and internet websites and by any other method likely to come to the attention of class members. Solicitors may also provide information regarding a class action they are investigating on their firm website. Why don't we have class actions in the United Kingdom? Class actions are not permitted in the United Kingdom per se although we do have collective forms of litigation available such as "Group Litigation Orders". A Group Litigation Order ("GLO") is an order under Civil Procedure Rule (CPR) 19.11 to provide for the case management of claims which give rise to common or related issues of fact or law (the "GLO issues")[5]. A GLO allows individuals who have claims (whether issued or not) giving rise to common or related issues of fact or law, to join forces. This has many advantages such as splitting the costs between the group litigants, increasing the availability of similar evidence and the sharing of knowledge and litigation risk. It is important to note that parties do not have an absolute right to proceed under a GLO and the Court must grant permission to the Applicants to litigate in this manner. Under CPR 19.11, the Court may make a GLO where there are, or are likely to be, a number of claims giving rise to the GLO issues. An application for a GLO may be made at any time before or after any relevant claims have been issued and may be made either by a claimant or a defendant. If a successful application is made to the court in accordance with CPR Part 23, the Court can manage all claims covered by the order in a coordinated way. Under CPR 19.11, a GLO will establish a group register in which the relevant claims will be entered, specify the GLO issues that will identify the claims to be managed as a group, and specify which court will manage those claims. All judgments, orders and directions of the court will be binding on all claims within the GLO unless ordered otherwise. Most recently in the United Kingdom, the VW Emissions Action Group, made up of many thousands of motorists affected by the Volkswagen emissions scandal, has filed an application with the High Court for a GLO order against car manufacturers Volkswagen, Audi, Skoda and SEAT. It is alleged that the manufacturers deceived customers as to the "green nature" of the cars in question by installing devices which duped emissions tests. Volkswagen have already had to pay US14.1 billion towards settlement in relation to a class action brought in the United States. If UK litigators wish to conduct GLO litigation, there is no straightforward process for finding others who may have claims which give rise to common or related issues of fact or law. Further, Claimants in the UK, must "opt in" -- i.e. agree to be party to the litigation and make an application to be included. This is in stark contrast to class actions in the US whereby those falling under the definition of the "class" are presumed to be included in the proceedings and must "opt out" if they do not want to be bound by the rulings of the court. How do lawyers in the UK find other claims (issued or otherwise) which are sufficiently similar to apply for a GLO? There is no definitive procedure in place whereby solicitors and claimants are adequately able to locate others who may have claims which give rise to common or related issues of fact or law. Solicitors may advertise their involvement in group claims through postings on their firm's website in the hope that additional claimants may come forward. Such publicity must meet the standards set by the solicitors' code of conduct such as the rule prohibiting the solicitation of clients. Another option is to search the court database for cases currently filed but yet to be determined. You may search cases by party name and division. This may enable a party to identify a claim or multiple claims that are already afoot and bear notable similarities to their own. This can be a difficult task as the database provides limited information as to the subject matter of proceedings and may produce hundreds, if not thousands of individual cases currently before the courts. In the event that a GLO is awarded by the court, there is further opportunity to identify other claims (whether issued or not) which give rise to common or related issues of fact or law and invite them to join the GLO. When a GLO is approved, the court will commonly order the parties to publicise the existence of the GLO so that all relevant claims can be managed within it. This usually takes the form of advertisements approved by the court if the parties are unable to agree. Once a GLO is ordered, a copy of the order should also be supplied to the Law Society. Solicitors acting for GLO claimants are encouraged to contact the Law Society Multi Party Actions Information Service to identify other potential claims giving rise to the same issues. A list of GLO's is also maintained on the justice website, which includes details of the lead solicitors and case issues defined by the GLO. Summary The advantages of class actions and GLO's are numerous however both systems suffer comparable difficulties in identifying those individuals whom have similar potential claims against a defendant. In the USA, difficulties arise due to the sheer number of potential claimants included within a class. In the United Kingdom, the difficulties arise as we lack a registration process or other such mechanism by which people adequately describe or enter their existing claims. Considering the advantages of a GLO, perhaps more thought should be given to sharing of such relevant information. * Labor Dep't. Seeks to Delay Fiduciary Rule Applicability Date --------------------------------------------------------------- Sean Forbes, writing for Bloomberg BNA, reports that President Donald Trump's Department of Labor moved one step closer to putting the brakes on the agency's fiduciary rule for retirement investment advisers late Feb. 9. The agency sent to the White House's Office of Management and Budget a proposal to delay the rule's applicability date, one week after Trump ordered the agency to review the Obama-era rule that aims to protect retirement investors from conflicted advice. The proposal won't be publicly available until it clears the OMB, but it's expected to delay the rule by 180 days and open a short public comment period. The move by the DOL came just one day after a federal judge in Texas upheld the rule and refused to delay its implementation, which is scheduled for April 10. Three federal courts have now upheld the rule. Industry groups have attempted to kill the rule since it was in its infancy in 2010 when the DOL originally proposed it. Many of those groups hailed Trump's Feb. 3 memorandum that the DOL review the rule before moving forward, so it's likely that the agency will be flooded with comments to delay the regulation. Litigation Risks Trump's memo listed three factors for the DOL to consider: whether the rule would eliminate consumers' choice of products, cause disruption in the retirement market to the detriment of consumers or cause an increase in litigation. A positive finding on any one of those factors would result in cause for a proposal to rescind or revise the rule, the memo said. The rule gets its teeth by allowing individual customers to pursue class actions, so the third factor alone may be a reason to kill or change it. Currently, disputes between customers and firms are handled through arbitration on an individual basis. Although the DOL's estimated average costs for the entire broker- dealer industry is in the "right ballpark," it's probably underestimated for the very largest firms, Michael Wong, a senior equity analyst at Morningstar Inc., told Bloomberg BNA. "Our estimate of baseline ongoing compliance costs plus our downside scenario class action settlement at the firm-level for some of the largest wealth management firms can be over 15 times higher than the Department of Labor's $1.8 million ongoing cost estimate for large broker-dealers," Mr. Wong said in an e-mail. But the DOL may find it a challenge to conclude that the rule will result in higher litigation costs because of the high hurdle that clients have to jump over to join a class action, Barbara Roper, director of investor protection for the Consumer Federation of America, told Bloomberg BNA in an e-mail. "The class action remedy will only be successful where a firm is systematically violating the rules across its 401(k)" or individual retirement account platform, Ms. Roper said. Ms. Roper highlighted the importance of the class action provision. Without that provision, "you greatly reduce the incentive for compliance, particularly when the Administration appears to be far from enthusiastic about providing direct enforcement." And if the DOL did underestimate the costs for the very largest firms? "Assume Morningstar is correct, that is not enough to scare large firms into walking away from advising the trillions in retirement accounts," Ms. Roper said. "On the other hand, it may be enough to incentivize them to take compliance seriously." Morningstar also said the financial industry is unlikely to walk away from working with retirement investors. "Some financial industry participants have argued that wealth managers will just step away from serving retirement investors because of the impact from the Department of Labor fiduciary rule," Morningstar said in a report. "We don't think that's possible. Total assets in private pension plans and IRAs totaled nearly $16 trillion at the end of 2015, while IRA assets typically constitute from 20% of client assets at wirehouses to 50% at independent firms." * Procedure Rule Changes Proposed in Class Action Litigation Act ---------------------------------------------------------------- Alison Frankel reports that most of the proposed procedural rule changes in Representative Bob Goodlatte's "Fairness in Class Action Litigation Act of 2017," introduced in the House of Representatives, are directly traceable to the business lobby's anti-class-action talking points. Mr. Goodlatte -- a Virginia Republican and chair of the House Judiciary Committee - has significantly expanded the changes he proposed last year in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte's bill in anything like its current form, class actions and MDLs will be a shadow of what we know today. The bill would limit class certification to class actions in which plaintiffs all "suffered the same type and scope of injury" and would bar certification unless courts can ascertain class membership and assure that only injured plaintiffs recover. Class action lawyers would not be able to sue on behalf of relatives and employees -- or any other client with whom they have an ongoing contractual or attorney-client relationship. Class certification decisions would be automatically appealable. Attorneys' fees in class actions resolved through injunctions would be limited to a percentage of the "value of the equitable relief." In MDLs, personal injury plaintiffs would have to submit evidence of their injury within 45 days of their case being transferred to the multidistrict proceeding or else risk dismissal. Appellate courts would have to consider appeals from any MDL order that would "materially advance the ultimate termination" of any case in the consolidated proceeding. Judges would have to assure that plaintiffs receive 80 percent of their recovery, presumably restricting their lawyers' fees contingency fees to 20 percent. Ms. Frankel said "I write all the time about abuses in class actions and MDLs, and I can certainly understand why defendants want reforms -- and why various provisions of Goodlatte's bill seem appealing. The Judiciary chairman described his proposals as a way 'to maximize recoveries by deserving victims and weed out unmeritorious claims that would otherwise siphon resources away from innocent parties.' Well, sure. Who doesn't want more money going to injury victims and less to their lawyers? Who cheers consumer class action settlements in which few actual consumers recover money? Who doesn't question whether Congress truly intended to encourage serial claims by professional plaintiffs when it enacted the Telephone Consumer Protection Act and other consumer laws with private rights of action?" The Goodlatte bill, though, is both overly specific and underdeveloped. It would interfere with judges' ability to manage complex litigation in all kinds of ways, from interfering with decades of precedent on the range of injuries that can be resolved in the same class action to requiring MDL courts to assess injury evidence at the very beginning of complex cases. The proposal would federalize contingency arrangements, which are private contracts, and would remove from state bar associations the regulation of relationships between plaintiffs' lawyers and their clients. It would also discourage all kinds of civil rights class actions -- including, presumably, actions by gun-rights advocates and religious groups -- by changing the rules for fees in injunction-only cases. The bill's provision to restrict class action lawyers from representing repeat clients would severely disadvantage pension funds and other institutional plaintiffs, said class action expert Samuel Issacharoff, a law professor at New York University. (It also seems to undermine the 1995 law governing securities class actions, which encourages pension funds to act as lead plaintiffs.) Sophisticated plaintiffs in complex securities and antitrust litigation need specialized lawyers, just like defendants in the same cases, Mr. Issacharoff said. Why should a corporation be allowed to have an ongoing relationship with outside counsel but not a pension fund acting as a lead plaintiff? "That is a significant disruption of the attorney-client relationship," said Mr. Issacharoff. Democrats in the House Judiciary Committee have already begun to push back against the bill, contacting class and mass litigation scholars for their analysis of Mr. Goodlatte's suggestions. At least two leading class action law profs -- Myriam Gilles of Cardozo and Elizabeth Burch of the University of Georgia -- have submitted comments. Ms. Gilles, who described the proposed legislation in an email as a "partisan, kill-all-class-actions bill," focused her submission to the Judiciary Committee Democrats on the vast body of class action precedent, including Supreme Court cases, that guides judges on predominance and ascertainability. She also raised her concerns about the future of issues cases. Burch's 8-page letter points out that the judiciary is already addressing many of the issues the Goodlatte bill raises, through case management and proposed changes to the class action rules by judiciary's advisory committee on civil rules. Ms. Frankel said "I encourage class action and MDL lawyers on both sides of the v. to read the Burch and Gilles letters and submit your own comments to the House as the Goodlatte bill moves forward. In particular, defense counsel may want Congress to know why class actions and MDLs can be an effective means to resolve serious litigation that might otherwise swamp your clients." "In the meantime, I do want to highlight an intriguing idea in the Goodlatte bill that I haven't seen anyone previously suggest. The bill calls for class counsel to submit an accounting of class action payouts to the Federal Judicial Center and the Administrative Office of the U.S. Courts. The accounting would include all sorts of data: the total paid to class members, the number of class members who received payments, median and average recoveries, largest and smallest recoveries and all payments to anyone outside of the class, including class counsel. The bill would require the Judicial Center to compile the data and report it annually to Congress." "Right now, as you know, there is no comprehensive compilation of data on class action and MDL claims and recoveries. The data exists, at least for class actions, but is to date closely guarded by the small and secretive claims administration industry. Last fall, the Federal Trade Commission ordered eight claims administrators to report on class action response rates, but the Goodlatte bill would require the disclosure of vastly more information." With caveats, I think that's a good thing. As Georgia professor Burch noted in her comments to the House Judiciary Committee, data can "easily be skewed through methodology." She also said the bill's data collection provision, as drafted, "appears to be less concerned about delivering the necessary data to judges and more concerned with holding up plaintiffs' attorneys' funds in administration so as to prevent them from investing in new lawsuits." NYU prof Issacharoff said Congress needs to provide funds to the Judicial Center to administer the data collection and compilation. But both professors agree with me that discussion of the merits of class actions and MDLs would be enormously informed by actual numbers -- especially if they are collected and compiled by a neutral body like the Judicial Center. Mr. Issacharoff said the lack of data is "a real problem." His prediction is that the numbers will show critics how effective mass litigation can be. "You will see that MDLs and class actions by and large are very good at delivering returns to those who have been injured -- certainly better than the FTC" and other government agencies, he said. If Mr. Issacharoff is wrong and the data shows class actions and MDLs disproportionately benefit the lawyers who prosecute them, class action detractors will have much stronger arguments for changing the rules. Either way, both sides will have an opportunity to debate based not on the occasional abuses the Goodlatte bill seems to have been written to address but on a comprehensive and systematic evaluation of the effectiveness of these procedural devices. If Congress is going to change the rules, it ought to have a good reason to do it. * Securities Class Action Filing Activity Surpasses Prior Years --------------------------------------------------------------- Alexander "Sasha" Aganin of Cornerstone Research provides a review on securities class action filings in 2016. NUMBER AND SIZE OF FILINGS By several measures, securities class action filing activity surpassed all previous years, including 2008. Plaintiffs filed a record 270 new federal class action securities cases (filings) in 2016. This was 44 percent greater than both 2015 filings and the historical average of 188 filings observed between 1997 and 2015. Disclosure Dollar Loss (DDL) edged up to $107 billion in 2016, 2 percent above 2015 DDL, but 11 percent below the historical average of $120 billion. For the first time since the 2008 financial crisis, Maximum Dollar Loss (MDL) exceeded the historical average. MDL was $823 billion in 2016, 38 percent above the historical average, and more than double 2015 MDL. In 2016, five mega filings made up 31 percent of DDL and 22 mega filings made up 66 percent of MDL. While the number of mega DDL filings was in line with the historical average, mega DDL as a percentage of total DDL was well below the historical average of 54 percent. The number of mega MDL filings was well above the historical average, but mega MDL as a percentage of total MDL was below the historical average of 71 percent. Filings with a DDL of at least $5 billion or an MDL of at least $10 billion are considered mega filings. OTHER MEASURES OF LITIGATION INTENSITY A record 3.9 percent of U.S. exchange-listed companies were subject to "traditional" class action filings in 2016. This was above the historical average of 2.8 percent. More cases were filed against S&P 500 firms in 2016 than in any of the previous seven years, with a large spike for companies in the Health Care sector. KEY TRENDS A substantial increase in federal M&A filings drove the overall jump in filing activity. Federal filings of class actions involving merger and acquisition (M&A) transactions increased to 80, more than four times greater than in 2015. The 2016 median filing lag of seven days was the shortest on record. Between 1997 and 2015, the average median filing lag was 23 days. The number of filings against foreign issuers increased from 2015 levels despite very few filings against Chinese issuers, previously the most frequently targeted foreign firms. Filings targeting European issuers increased to their highest level since case tracking began in 1997. Filings against companies in the Financial sector doubled to 34 in 2016 after dropping to 17 in 2015. The Consumer Non-Cyclical sector again had the most filings with 109, more than double the historical average of 47 filings. The increase was driven in part by filings against pharmaceutical, biotechnology, and healthcare companies. There were 86 filings in the Ninth Circuit and 64 filings in the Second Circuit. Filings in these circuits made up 56 percent of all filings in 2016. M&A FILINGS BY CIRCUIT The wave of federal M&A filings in 2016 may be the result of the venue shifting effect of Trulia. Federal M&A objection filings (M&A filings) more than quadrupled to 80 filings in 2016 and were most common in the Ninth and Third Circuits, with 24 and 11 filings, respectively. Federal M&A filings quintupled in the Third and Ninth Circuits in 2016 compared to 2015. The Third and Ninth Circuits accounted for 44 percent of all M&A filings in 2016. The Delaware Court of Chancery's rejection of a disclosure-only settlement in Trulia in January 2016 may have resulted in shifting of merger objection lawsuits from state to federal venues. STATUS OF M&A FILINGS M&A filings had a higher dismissal rate than other filings from 2009 to 2015. During this period, 78 percent of these M&A filings were dismissed, compared to 47 percent of other federal filings. PHARMACEUTICAL, BIOTECHNOLOGY, AND HEALTHCARE SUBSECTORS The number of filings in the Pharmaceutical, Biotechnology, and Healthcare subsectors increased for the fifth consecutive year and was more than double the 1997-2015 historical average. These filings continue to make up an increasingly large percentage of MDL. CALIFORNIA STATE COURT SECTION 11 CASES California state Section 11 filings have become more frequent in the last two years. Class actions with Section 11 claims have been increasingly filed in California state courts in the last few years (California state Section 11 filings). Some of these filings have parallel actions in federal courts, but most do not. These California state Section 11 filings do not include claims related to Rule 10b-5, but may include Section 12 or Section 15 claims. Between 2010 and 2016, plaintiffs filed 48 Section 11 cases in California state courts. In 2016, California state Section 11 filings were greater than in any of the previous six years. These filings were primarily concentrated in the San Francisco Bay Area. The MDL of California state Section 11 filings was higher in 2015 and 2016 than in any previous years. A larger percentage of California state Section 11 filings are ongoing relative to comparable federal filings (i.e., filings with Section 11 claims, but no Rule 10b-5 claims), primarily due to a lower dismissal rate for state filings. Asbestos Litigation ASBESTOS UPDATE: Warren Pumps Wins Summary Judgment in "Macqueen" ----------------------------------------------------------------- In MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of DAVID MACQUEEN, deceased, Plaintiff, v. UNION CARBIDE CORPORATION, et al., Defendants, Civil Action No. 13-831-SLR-CJB Consolidated (D. Del.), Magistrate Judge Christopher J. Burke of the United States District Court for the District of Delaware recommended that Warren Pumps LLC's motion for summary judgment be granted and that Crane Co.'s and Air & Liquid Systems Corporation's motions be granted in part and denied in part. Crane and Buffalo's Motions are granted-in-part and denied-in- part, and all counts/claims against them are dismissed, except as to Count VII of Plaintiffs Fourth Amended Complaint. Count VII alleges that the remaining Defendants (and, actually, all then- named Defendants) conspired with Metropolitan Life Insurance Company in order to suppress and misrepresent the hazards of exposure to asbestos. The magistrate noted that the Court does not have a sufficient basis before it to recommend dismissal of Count VII as to Crane and Buffalo. A full-text copy of the Report and Recommendation dated February 8, 2017, is available at https://is.gd/KIA0XV from Leagle.com. ASBESTOS UPDATE: Claims vs. BorgWarner Partly Dismissed ------------------------------------------------------- In NOLAN LEGEAUX ET AL., SECTION I, v. BORG-WARNER CORPORATION, ET AL., Civil Action No. 16-13773 (E.D. La.), Judge Lance M. Africk of the United States District Court for the Eastern District of Louisiana issued an Order and Reasons dated February 8, 2017, granting a motion for partial dismissal and for all of the plaintiffs' claims against BorgWarner Morse TEC LLC for pre-death loss of consortium, market share liability, enterprise liability, concert of action, punitive damages, and attorneys' fees to be dismissed with prejudice. A full-text copy of the decision is available at https://is.gd/Bp8VsL from Leagle.com. Nolan Legeaux, Plaintiff, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C. Nolan Legeaux, Plaintiff, represented by Matthew Scott Dillahunty, Ferrell Law Group, pro hac vice. Susan Legeaux, Plaintiff, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C. & Matthew Scott Dillahunty, Ferrell Law Group, pro hac vice. CBS Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C. CertainTeed Corporation Inc., Defendant, represented by Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP, Jennifer E. Adams, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP. General Electric Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. Georgia-Pacific LLC, Defendant, represented by Gayla M. Moncla, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Anthony M. Williams, Kean Miller LLP, Barrye Panepinto Miyagi, Kean Miller, Gregory M. Anding, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Kean Miller & Sarah W. Anderson, Kean Miller. Genuine Parts Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. Goulds Pumps, Incorporated, Defendant, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius. Union Carbide Corporation, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson, LLC, Melissa M. Desormeaux, Kuchler Polk Schell Weiner & Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson, LLC & Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC. Huntington Ingalls, Inc., Defendant, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP, Michelle A. Beaty, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP. Puget Sound Commerce Center, Inc., Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. Vigor Industrial LLC, Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. Vigor Shipyards, Inc., Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. BorgWarner Morse TEC LLC, Defendant, represented by Christopher O. Massenburg, Manion Gaynor Manning LLP, Bradley Adam Hays, Manion Gaynor & Manning LLP, Jeanette Seraile-Riggins, Manion Gaynor Manning LLP, Kevin R. Sloan, Manion Gaynor Manning LLP, Meaghan M. Donovan, Manion Gaynor & Manning, LLP & Meghan B. Senter, Manion Gaynor Manning LLP. Huntington Ingalls, Inc., Third Party Plaintiff, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP, Michelle A. Beaty, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP. Huntington Ingalls, Inc., Cross Claimant, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP, Michelle A. Beaty, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP. Huntington Ingalls, Inc., Cross Defendant, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP, Michelle A. Beaty, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP. BorgWarner Morse TEC LLC, Cross Defendant, represented by Christopher O. Massenburg, Manion Gaynor Manning LLP, Bradley Adam Hays, Manion Gaynor & Manning LLP, Jeanette Seraile-Riggins, Manion Gaynor Manning LLP, Kevin R. Sloan, Manion Gaynor Manning LLP, Meaghan M. Donovan, Manion Gaynor & Manning, LLP & Meghan B. Senter, Manion Gaynor Manning LLP. CBS Corporation, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. CertainTeed Corporation Inc., Cross Defendant, represented by Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP, Jennifer E. Adams, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP. Gardner Denver, Inc., Cross Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Daniel Rolando Estrada, Courington, Kiefer & Sommers, LLC & James Matthew Matherne, Courington, Kiefer & Sommers, LLC. General Electric Company, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. Genuine Parts Company, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.. Georgia-Pacific LLC, Cross Defendant, represented by Gayla M. Moncla, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Anthony M. Williams, Kean Miller LLP, Barrye Panepinto Miyagi, Kean Miller, Gregory M. Anding, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Kean Miller & Sarah W. Anderson, Kean Miller. Goulds Pumps, Incorporated, Cross Defendant, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius. Puget Sound Commerce Center, Inc., Cross Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. Union Carbide Corporation, Cross Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson, LLC, Melissa M. Desormeaux, Kuchler Polk Schell Weiner & Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson, LLC & Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC. Vigor Industrial LLC, Cross Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. Vigor Shipyards, Inc., Cross Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery, Liskow & Lewis. BorgWarner Morse TEC LLC, Third Party Plaintiff, represented by Christopher O. Massenburg, Manion Gaynor Manning LLP, Bradley Adam Hays, Manion Gaynor & Manning LLP, Jeanette Seraile-Riggins, Manion Gaynor Manning LLP, Kevin R. Sloan, Manion Gaynor Manning LLP, Meaghan M. Donovan, Manion Gaynor & Manning, LLP & Meghan B. Senter, Manion Gaynor Manning LLP. ASBESTOS UPDATE: Summary Judgment in Take-Home Suit Affirmed ------------------------------------------------------------ Chief Justice Leo E. Strine, Jr., of the Supreme Court of Delaware affirmed the Superior Court's orders granting summary judgment in favor of five remaining defendants in the take-home asbestos exposure action styled IN RE ASBESTOS LITIGATION relating to WAYNE R. REED, INDIVIDUALLY and AS THE EXECUTOR OF THE ESTATE OF BARBARA REED, DECEASED, and AMY RHODES and COURTNEY REED, AS SURVIVING CHILDREN, Plaintiffs Below Appellants, v. ASBESTOS CORPORATION LIMITED, BAYER CROPSCIENCE, INC., CHARLES A. WAGNER CO., INC., NOSROC CORPORATION, and COUNTY INSULATION COMPANY, Defendants Below, Appellees, No. 387, 2016 (Del. Sup.). As to Nosroc Corporation, County Insulation Company, Asbestos Corporation Limited, and Charles Wagner Company, Inc., the Chief Justice said although the Superior Court relied in part on an issue that those defendants did not fairly put in contest -- whether there was evidence of friability -- the plaintiffs did not produce evidence from which a jury could reasonably infer, without speculation, that Barbara Reed's father and former husband were in specific proximity to the products at issue at the time they were being used. Thus, the Superior Court was correct to grant summary judgment. The final defendant, Bayer Cropscience, Inc., properly raised the issue of friability, according to the Chief Justice. The plaintiffs failed to produce evidence from which a jury could reasonably infer, without speculation, that Barbara Reed's father was in specific proximity to the products distributed by Bayer at a time when they were friable, and thus, the Superior Court's ruling was proper. A full-text copy of the Order dated February 6, 2017, is available at https://is.gd/4acGlU from Leagle.com. ASBESTOS UPDATE: Herty Wins Summary Judgment in Widow's Suit ------------------------------------------------------------ Dorothy Ramsey, through her estate, alleges that Georgia Southern University Advanced Development Center negligently failed to warn her of the risks of take-home exposure to its asbestos paper product used at her husband's workplace from 1976-1980. She argues that Herty owed her a duty to warn because it was foreseeable that her husband would transport home asbestos debris that adhered to his uniform and unwittingly expose the Plaintiff to this debris when she laundered his clothes. She alleges that Herty's failure to warn her of this risk was the proximate cause of her lung cancer. Herty moves for summary judgment and argues that it did not owe the Plaintiff a duty of care. The Defendant manufacturer argues that the Plaintiff's allegations are claims of nonfeasance and require the Plaintiff to identify a "special relationship" before liability may attach to its alleged failure to act. Further, Herty argues that the Plaintiff cannot identify a "special relationship" and no such special relationship exists. Conversely, the Plaintiff characterizes her claims as affirmative acts of negligent conduct, i.e., misfeasance. As such, she argues against dismissal and contends that Herty owed her a duty of care to warn her of the risks of take-home asbestos exposure because it knew or should have known that its product would adhere to the clothes of employees and expose household members. The central issue in this Motion is whether Price v. E.I. DuPont de Nemours & Co. and Riedel v. ICI Americas Inc. apply to the facts of this case. Both Price and Riedel dealt with claims of negligence asserted against the employer of the plaintiff's spouse. Herty contends that both cases are applicable to a spouse's claim of take-home asbestos exposure against a manufacturer who supplies an asbestos product to the employer of the plaintiff's spouse. The Plaintiff argues that both cases are inapt because Herty was not the Plaintiff's husband's employer. Judge Vivian L. Medinilla of the Superior Court of Delaware finds that this case fits within the legal parameters and rationale of Price and Riedel. Consistent with both cases, the Court finds that the Plaintiff alleges claims of nonfeasance. Thus, Herty does not owe the Plaintiff a general duty of care. Further, the Court finds that the Plaintiff has not identified any evidence of a special relationship between herself and Herty. Therefore, Herty has met its burden of proving that no duty of care exists and Herty's Motion for Summary Judgment is granted. The case is N RE: ASBESTOS LITIGATION relating to ELIZABETH RAMSEY, Administrator of the Estate of DOROTHY RAMSEY, deceased, Plaintiff, v. ATLAS TURNER LTD., et al., Defendants, C.A. No. N14C-01-287 ASB (Del. Sup.). A full-text copy of the Opinion dated February 2, 2017, is available at https://is.gd/JBzpvT from Leagle.com. Thomas Crumplar, Esquire, and Raeann Warner, Esquire, of Jacobs & Crumplar, P.A., Wilmington, Delaware. Attorneys for Plaintiff Elizabeth Ramsey. Eileen M. Ford, Esquire, and Megan T. Mantzavinos, Esquire, of Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., of Wilmington, Delaware. Attorneys for Defendant Georgia Southern University Advanced Development Center. ASBESTOS UPDATE: Heirs Allowed to File Bid to Substitute -------------------------------------------------------- In WILLIAM D. COLEMAN, v. ANCO INSULATIONS, INC. ET AL., Civil Action No. 15-821-BAJ-EWD (M.D. La.), Magistrate Judge Erin Wilder-Doomes of the United States District Court for the Middle District of Louisiana issued an order dated February 10, 2017, directing Pamela Coleman and Jody Coleman Nolte to file a motion to substitute the proposed pleading with a proposed pleading that properly sets forth the citizenship of the parties. The Movants filed a Motion to Substitute and Amended and sought to be substituted in William Coleman's stead as plaintiffs and to "formally allege causes of action sounding in survival and wrongful death." The Movants assert that William D. Coleman, the named plaintiff in the suit, died from malignant mesothelioma on November 8, 2016, and that the Movants are Mr. Coleman's statutory heirs and the proper persons to pursue survival and wrongful death claims. According to the magistrate, the Fifth Circuit has explained that, "[f]or diversity purposes, citizenship means domicile; mere residence in the State is not sufficient." The Movants' allegation that the defendants are "all foreign corporations" is insufficient to establish diversity jurisdiction, the magistrate held. The magistrate further ordered the Movants to state in their motion to substitute whether the defendants consent to the filing of the First Supplemental and Amended Complaint. A full-text copy of the Order is available at https://is.gd/WFagdM from Leagle.com. William D. Coleman, Plaintiff, represented by Susannah B. Chester- Schindler, Waters & Kraus, LLP. Liberty Mutual Insurance Company, Defendant, represented by Susan M. Rogge, Barrasso Usdin Kupperman Freeman & Sarver LLC, H. Minor Pipes, III, Barrasso Usdin Kupperman Freeman & Sarver LLC & Kimberly R. Silas, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C.. Safety National Casualty Corporation, Defendant, represented by Chris James LeBlanc, Watson, Blanche, Wilson & Posner, LLP & William Eugene Scott, III, Watson, Blanche, Wilson & Posner, LLP. Travelers Casualty and Surety Company, Defendant, represented by Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Katherine L. Osborne, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard. Pilkington North America, Inc., Defendant, represented by Matthew Culp, Rasmussen Willis Dickey Moore, pro hac vice, Matthew S. Jensen, Rasmussen Willis Dickey & Moore, LLC, pro hac vice & Jane H. Barney, J.H. Barney Law Firm, LLC. Bedivere Insurance Company, Defendant, represented by Samuel M. Rosamond, III, Taylor Wellons Politz & Duhe, APLC, Adam D. deMahy & Angela Jacketti O'Brien, Taylor, Wellons, Politz & Duhe, APLC. Susannah Chester-Schindler, Attorney for Plaintiff not admitted to LAMD, Notice Only, Pro Se. Susannah Chester-Schindler, Notice Only, represented by Susannah B. Chester-Schindler, Waters & Kraus, LLP. ASBESTOS UPDATE: Plaintiffs' Motion in DeLisle v. Crane Pending --------------------------------------------------------------- A motion by plaintiffs for a rehearing and/or appeal of a ruling in an asbestos suit filed by Richard DeLisle remains pending, according to the Company's results of operations for the quarter ended December 31, 2016 disclosed in an 8-K filing with the U.S. Securities and Exchange Commission on January 30, 2017. On September 17, 2013, a Fort Lauderdale, Florida state court jury in the Richard DeLisle claim found the Company responsible for 16 percent of an $8 million verdict. The trial court denied all parties' post-trial motions, and entered judgment against the Company in the amount of $1.3 million. The Company has appealed. Oral argument on the appeal took place on February 16, 2016. On September 14, 2016 a panel of the Florida Court of Appeals reversed and entered judgment in favor of the Company. Plaintiff filed with the Court of Appeals a motion for rehearing and/or certification of an appeal to the Florida Supreme Court, which the Court denied on November 9, 2016. Plaintiffs have subsequently requested review by the Supreme Court of Florida. That motion remains pending. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Crane Co. Seeks Review of Ruling in "Sweberg" -------------------------------------------------------------- Crane Co. is asking the New York Court of Appeals to review a ruling denying a rehearing of liability issues in an asbestos suit filed by Ivan Sweberg and Selwyn Hackshaw, according to the Company's results of operations for the quarter ended December 31, 2016 disclosed in an 8-K filing with the U.S. Securities and Exchange Commission on January 30, 2017. On June 16, 2014, a New York City state court jury entered a $15 million verdict against the Company in the Ivan Sweberg claim and a $10 million verdict against the Company in the Selwyn Hackshaw claim. The two claims were consolidated for trial. The Company filed post-trial motions seeking to overturn the verdicts, to grant new trials, or to reduce the damages, which were denied, except that the Court reduced the Sweberg award to $10 million, and reduced the Hackshaw award to $6 million. Judgments have been entered in the amount of $5.3 million in Sweberg and $3.1 million in Hackshaw. The Company appealed. Oral argument on Sweberg took place on February 16, 2016, and oral argument on Hackshaw took place on March 9, 2016. On October 6, 2016, two panels of the Appellate Division, First Department, affirmed the rulings of the trial court on liability issues but further reduced the Sweberg damages award to $9.5 million and further reduced the Hackshaw damages award to $3 million, which after settlement offsets are calculated to be $4.73 million in Sweberg and $0 in Hackshaw. Plaintiffs have the option of accepting the reduced awards or having new trials on damages. The Company filed a motion with the Appellate Division requesting a rehearing on liability issues in Sweberg. That motion was denied. The Company is seeking review before the New York Court of Appeals. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Oral Argument Held in Crane's Appeal in "Poage" ---------------------------------------------------------------- Oral argument was held in an appeal by Crane Co. against a $10.8 million judgement in an asbestos suit filed by James Poage, according to the Company's results of operations for the quarter ended December 31, 2016 disclosed in an 8-K filing with the U.S. Securities and Exchange Commission on January 30, 2017. On July 2, 2015, a St. Louis, Missouri state court jury in the James Poage claim entered a $1.5 million verdict for compensatory damages against the Company. The jury also awarded exemplary damages against the Company in the amount of $10 million. The Company filed a motion seeking to reduce the verdict to account for the verdict set-offs. That motion was denied, and judgment was entered against the Company in the amount of $10.8 million. The Company is pursuing an appeal. Oral argument was held on December 13, 2016. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Crane Appeals $0.4MM Award in "Rabovsky" --------------------------------------------------------- Crane Co. is pursuing an appeal to the Third Circuit Court of Appeals against a $0.4 million judgment in an asbestos suit filed by Valent Rabovsky, according to the Company's results of operations for the quarter ended December 31, 2016 disclosed in an 8-K filing with the U.S. Securities and Exchange Commission on January 30, 2017. On February 9, 2016, a Philadelphia, Pennsylvania, federal court jury found the Company responsible for a 30 percent share of a $1.085 million verdict in the Valent Rabovsky claim. The court ordered briefing on the amount of the judgment. The Company argued, among other things, that settlement offsets reduce the award to plaintiff under Pennsylvania law. A further hearing was held April 26, 2016, after which the court denied the Company's request and entered judgment in the amount of $0.4 million. The Company filed post-trial motions, which were denied in two decisions issued on August 26, 2016 and September 28, 2016. The Company is pursuing an appeal to the Third Circuit Court of Appeals. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Crane Appeals $6.8MM Award in "Coulbourn" ---------------------------------------------------------- Crane Co. is pursuing an appeal to the Ninth Circuit Court of Appeals against a $6.8 million judgment in an asbestos suit filed by George Coulbourn, according to the Company's results of operations for the quarter ended December 31, 2016 disclosed in an 8-K filing with the U.S. Securities and Exchange Commission on January 30, 2017. On April 22, 2016, a Phoenix, Arizona federal court jury found the Company responsible for a 20 percent share of a $9 million verdict in the George Coulbourn claim, and further awarded exemplary damages against the Company in the amount of $5 million. The jury also awarded compensatory and exemplary damages against the other defendant present at trial. The court entered judgment against the Company in the amount of $6.8 million. The Company filed post- trial motions, which were denied on September 20, 2016. The Company is pursuing an appeal to the Ninth Circuit Court of Appeals. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Crane Co. Incurs $73.5MM for Settlement, Defense ----------------------------------------------------------------- Crane Co. incurred $73.5 million gross settlement and defense costs for asbestos matters for the years ended December 31, 2016, according to the Company's Form 8-K filing with the U.S. Securities and Exchange Commission dated January 30, 2017. The gross settlement and defense costs incurred (before insurance recoveries and tax effects) for the Company for the years ended December 31, 2016, 2015 and 2014 totaled $73.5 million, $69.4 million and $81.1 million. In contrast to the recognition of settlement and defense costs, which reflect the current level of activity in the tort system, cash payments and receipts generally lag the tort system activity by several months or more, and may show some fluctuation from quarter to quarter. Cash payments of settlement amounts are not made until all releases and other required documentation are received by the Company, and reimbursements of both settlement amounts and defense costs by insurers may be uneven due to insurer payment practices, transitions from one insurance layer to the next excess layer and the payment terms of certain reimbursement agreements. The Company's total pre-tax payments for settlement and defense costs, net of funds received from insurers, for the years ended December 31, 2016, 2015 and 2014 totaled $56.0 million, $49.9 million and $61.3 million, respectively. For the comparable amounts for the periods indicated, see: https://is.gd/e9qw43 The amounts shown for settlement and defense costs incurred, and cash payments, are not necessarily indicative of future period amounts, which may be higher or lower than those reported. Cumulatively through December 31, 2016, the Company has resolved (by settlement or dismissal) approximately 124,000 claims. The related settlement cost incurred by the Company and its insurance carriers is approximately $483 million, for an average settlement cost per resolved claim of approximately $3,900. The average settlement cost per claim resolved during the years ended December 31, 2016, 2015 and 2014 was $3,900, $3,100 and $3,800, respectively. Because claims are sometimes dismissed in large groups, the average cost per resolved claim, as well as the number of open claims, can fluctuate significantly from period to period. In addition to large group dismissals, the nature of the disease and corresponding settlement amounts for each claim resolved will also drive changes from period to period in the average settlement cost per claim. Accordingly, the average cost per resolved claim is not considered in the Company's periodic review of its estimated asbestos liability. Effects on the Condensed Consolidated Financial Statements The Company has retained the firm of Hamilton, Rabinovitz & Associates, Inc. ("HR&A"), a nationally recognized expert in the field, to assist management in estimating the Company's asbestos liability in the tort system. HR&A reviews information provided by the Company concerning claims filed, settled and dismissed, amounts paid in settlements and relevant claim information such as the nature of the asbestos-related disease asserted by the claimant, the jurisdiction where filed and the time lag from filing to disposition of the claim. The methodology used by HR&A to project future asbestos costs is based on the Company's recent historical experience for claims filed, settled and dismissed during a base reference period. The Company's experience is then compared to estimates of the number of individuals likely to develop asbestos-related diseases determined based on widely used previously conducted epidemiological studies augmented with current data inputs. Those studies were undertaken in connection with national analyses of the population of workers believed to have been exposed to asbestos. Using that information, HR&A estimates the number of future claims that would be filed against the Company and estimates the aggregate settlement or indemnity costs that would be incurred to resolve both pending and future claims based upon the average settlement costs by disease during the reference period. This methodology has been accepted by numerous courts. After discussions with the Company, HR&A augments its liability estimate for the costs of defending asbestos claims in the tort system using a forecast from the Company which is based upon discussions with its defense counsel. Based on this information, HR&A compiles an estimate of the Company's asbestos liability for pending and future claims using a range of reference periods based on claim experience and covering claims expected to be filed through the indicated forecast period. The most significant factors affecting the liability estimate are (1) the number of new mesothelioma claims filed against the Company, (2) the average settlement costs for mesothelioma claims, (3) the percentage of mesothelioma claims dismissed against the Company and (4) the aggregate defense costs incurred by the Company. These factors are interdependent, and no one factor predominates in determining the liability estimate. In the Company's view, the forecast period used to provide the best estimate for asbestos claims and related liabilities and costs is a judgment based upon a number of trend factors, including the number and type of claims being filed each year; the jurisdictions where such claims are filed, and the effect of any legislation or judicial orders in such jurisdictions restricting the types of claims that can proceed to trial on the merits; and the likelihood of any comprehensive asbestos legislation at the federal level. In addition, the dynamics of asbestos litigation in the tort system have been significantly affected by the substantial number of companies that have filed for bankruptcy protection, thereby staying any asbestos claims against them until the conclusion of such proceedings, and the establishment of a number of post-bankruptcy trusts for asbestos claimants, which have been estimated to provide $36 billion for payments to current and future claimants. These trend factors have both positive and negative effects on the dynamics of asbestos litigation in the tort system and the related best estimate of the Company's asbestos liability, and these effects do not move in a linear fashion but rather change over multi-year periods. Accordingly, the Company's management continues to monitor these trend factors over time and periodically assesses whether an alternative forecast period is appropriate. Each quarter, HR&A compiles an update based upon the Company's experience in claims filed, settled and dismissed as well as average settlement costs by disease category (mesothelioma, lung cancer, other cancer, and non-malignant conditions including asbestosis). In addition to this claims experience, the Company also considers additional quantitative and qualitative factors such as the nature of the aging of pending claims, significant appellate rulings and legislative developments, and their respective effects on expected future settlement values. As part of this process, the Company also takes into account trends in the tort system. Management considers all these factors in conjunction with the liability estimate of HR&A and determines whether a change in the estimate is warranted. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Crane Co. Records $227MM Additional Liability -------------------------------------------------------------- Crane Co. recorded an additional liability of $227 million as of December 31, 2016 after extending its estimate of the asbestos liability through 2059, according to the Company's Form 8-K filing with the U.S. Securities and Exchange Commission dated January 30, 2017. With the assistance of Hamilton, Rabinovitz & Associates, Inc. (HR&A), effective as of December 31, 2016, the Company extended its estimate of the asbestos liability, including the costs of settlement or indemnity payments and defense costs relating to currently pending claims and future claims projected to be filed against the Company through the generally accepted end point of such claims in 2059. The Company's previous estimate was for asbestos claims filed or projected to be filed through 2021. The Company's estimate of the asbestos liability for pending and future claims through 2059 is based on the projected future asbestos costs resulting from the Company's experience using a range of reference periods for claims filed, settled and dismissed. Based on this estimate, the Company recorded an additional liability of $227 million as of December 31, 2016. This action was based on several factors which contribute to the Company's ability to reasonably estimate this liability through 2059. First, the number of mesothelioma claims (which although constituting approximately 10% of the Company's total pending asbestos claims, have consistently accounted for approximately 90% of the Company's aggregate settlement and defense costs) being filed against the Company and associated settlement costs have stabilized. Second, there have been generally favorable developments in the trend of case law which has been a contributing factor in stabilizing the asbestos claims activity and related settlement costs. Third, there have been significant actions taken by certain state legislatures and courts that have reduced the number and types of claims that can proceed to trial, which has been a significant factor in stabilizing the asbestos claims activity. Fourth, recent court decisions in certain jurisdictions have provided additional clarity regarding the nature of claims that may proceed to trial in those jurisdictions and greater predictability regarding future claim activity. Fifth, the Company has coverage-in-place agreements with almost all of its excess insurers, which enables the Company to project a stable relationship between settlement and defense costs paid by the Company and reimbursements from its insurers. Sixth, annual settlements with respect to groups of cases with certain plaintiff firms have helped to stabilize indemnity payments and defense costs. Taking these factors into account, the Company believes that it can reasonably estimate the asbestos liability for pending claims and future claims to be filed through 2059. A liability of $696 million was recorded as of December 31, 2016 to cover the estimated cost of asbestos claims now pending or subsequently asserted through 2059, of which approximately 80% is attributable to settlement and defense costs for future claims projected to be filed through 2059. The liability is reduced when cash payments are made in respect of settled claims and defense costs. It is not possible to forecast when cash payments related to the asbestos liability will be fully expended; however, it is expected such cash payments will continue for a number of years past 2059, due to the significant proportion of future claims included in the estimated asbestos liability and the lag time between the date a claim is filed and when it is resolved. None of these estimated costs have been discounted to present value due to the inability to reliably forecast the timing of payments. The current portion of the total estimated liability at December 31, 2016 was $71 million and represents the Company's best estimate of total asbestos costs expected to be paid during the twelve-month period ended December 31, 2017. Such amount is based upon the HR&A model together with the Company's prior year payment experience for both settlement and defense costs. Insurance Coverage and Receivables Prior to 2005, a significant portion of the Company's settlement and defense costs were paid by its primary insurers. With the exhaustion of that primary coverage, the Company began negotiations with its excess insurers to reimburse the Company for a portion of its settlement and/or defense costs as incurred. To date, the Company has entered into agreements providing for such reimbursements, known as "coverage-in-place", with eleven of its excess insurer groups. Under such coverage-in-place agreements, an insurer's policies remain in force and the insurer undertakes to provide coverage for the Company's present and future asbestos claims on specified terms and conditions that address, among other things, the share of asbestos claims costs to be paid by the insurer, payment terms, claims handling procedures and the expiration of the insurer's obligations. Similarly, under a variant of coverage-in-place, the Company has entered into an agreement with a group of insurers confirming the aggregate amount of available coverage under the subject policies and setting forth a schedule for future reimbursement payments to the Company based on aggregate indemnity and defense payments made. In addition, with ten of its excess insurer groups, the Company entered into agreements settling all asbestos and other coverage obligations for an agreed sum, totaling $82.5 million in aggregate. Reimbursements from insurers for past and ongoing settlement and defense costs allocable to their policies have been made in accordance with these coverage-in-place and other agreements. All of these agreements include provisions for mutual releases, indemnification of the insurer and, for coverage-in- place, claims handling procedures. With the agreements, the Company has concluded settlements with all but one of its solvent excess insurers whose policies are expected to respond to the aggregate costs included in the liability estimate. That insurer, which issued a single applicable policy, has been paying the shares of defense and indemnity costs the Company has allocated to it, subject to a reservation of rights. There are no pending legal proceedings between the Company and any insurer contesting the Company's asbestos claims under its insurance policies. In conjunction with developing the aggregate liability estimate, the Company also developed an estimate of probable insurance recoveries for its asbestos liabilities. In developing this estimate, the Company considered its coverage-in-place and other settlement agreements, as well as a number of additional factors. These additional factors include the financial viability of the insurance companies, the method by which losses will be allocated to the various insurance policies and the years covered by those policies, how settlement and defense costs will be covered by the insurance policies and interpretation of the effect on coverage of various policy terms and limits and their interrelationships. In addition, the timing and amount of reimbursements will vary because the Company's insurance coverage for asbestos claims involves multiple insurers, with different policy terms and certain gaps in coverage. In addition to consulting with legal counsel on these insurance matters, the Company retained insurance consultants to assist management in the estimation of probable insurance recoveries based upon the aggregate liability estimate and assuming the continued viability of all solvent insurance carriers. Based upon the analysis of policy terms and other factors by the Company's legal counsel, and incorporating risk mitigation judgments by the Company where policy terms or other factors were not certain, the Company's insurance consultants compiled a model indicating how the Company's historical insurance policies would respond to varying levels of asbestos settlement and defense costs and the allocation of such costs between such insurers and the Company. Using the estimated liability as of December 31, 2016 (for claims filed or expected to be filed through 2059), the insurance consultant's model forecasted that approximately 21% of the liability would be reimbursed by the Company's insurers. While there are overall limits on the aggregate amount of insurance available to the Company with respect to asbestos claims, those overall limits were not reached by the total estimated liability currently recorded by the Company, and such overall limits did not influence the Company in its determination of the asset amount to record. The proportion of the asbestos liability that is allocated to certain insurance coverage years, however, exceeds the limits of available insurance in those years. The Company allocates to itself the amount of the asbestos liability (for claims filed or expected to be filed through 2059) that is in excess of available insurance coverage allocated to such years. An asset of $143 million was recorded as of December 31, 2016 representing the probable insurance reimbursement for such claims expected through 2059. The asset is reduced as reimbursements and other payments from insurers are received. The Company reviews the aforementioned estimated reimbursement rate with its insurance consultants on a periodic basis in order to confirm its overall consistency with the Company's established reserves. The reviews encompass consideration of the performance of the insurers under coverage-in-place agreements and the effect of any additional lump-sum payments under other insurer agreements. Actual insurance reimbursements vary from period to period, and will decline over time. Uncertainties. Estimation of the Company's ultimate exposure for asbestos-related claims is subject to significant uncertainties, as there are multiple variables that can affect the timing, severity and quantity of claims and the manner of their resolution. The Company cautions that its estimated liability is based on assumptions with respect to future claims, settlement and defense costs based on past experience that may not prove reliable as predictors; the assumptions are interdependent and no single factor predominates in determining the liability estimate. A significant upward or downward trend in the number of claims filed, depending on the nature of the alleged injury, the jurisdiction where filed and the quality of the product identification, or a significant upward or downward trend in the costs of defending claims, could change the estimated liability, as would substantial adverse verdicts at trial that withstand appeal. A legislative solution, structured settlement transaction, or significant change in relevant case law could also change the estimated liability. The same factors that affect developing estimates of probable settlement and defense costs for asbestos-related liabilities also affect estimates of the probable insurance reimbursements, as do a number of additional factors. These additional factors include the financial viability of the insurance companies, the method by which losses will be allocated to the various insurance policies and the years covered by those policies, how settlement and defense costs will be covered by the insurance policies and interpretation of the effect on coverage of various policy terms and limits and their interrelationships. In addition, due to the uncertainties inherent in litigation matters, no assurances can be given regarding the outcome of any litigation, if necessary, to enforce the Company's rights under its insurance policies or settlement agreements. Many uncertainties exist surrounding asbestos litigation, and the Company will continue to evaluate its estimated asbestos-related liability and corresponding estimated insurance reimbursement as well as the underlying assumptions and process used to derive these amounts. These uncertainties may result in the Company incurring future charges or increases to income to adjust the carrying value of recorded liabilities and assets, particularly if the number of claims and settlement and defense costs change significantly, or if there are significant developments in the trend of case law or court procedures, or if legislation or another alternative solution is implemented. Although the resolution of these claims will likely take many years, the effect on the results of operations, financial position and cash flow in any given period from a revision to these estimates could be material. Crane Co. is a diversified manufacturer of engineered industrial products. The Company operates in four segments: Fluid Handling, Payment & Merchandising Technologies, Aerospace & Electronics, and Engineered Materials. ASBESTOS UPDATE: Alexandria Real Warns of Asbestos Exposure ----------------------------------------------------------- Alexandria Real Estate Equities, Inc. disclosed the following asbestos-related matters at its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016: (i) "Some of our properties may have asbestos-containing building materials. Environmental laws require that asbestos- containing building materials be properly managed and maintained and may impose fines and penalties on building owners or operators for failure to comply with these requirements. These laws may also allow third parties to seek recovery from owners or operators for personal injury associated with exposure to asbestos-containing building materials. "In addition, some of our tenants routinely handle hazardous substances and wastes as part of their operations at our properties. Environmental laws and regulations subject our tenants, and potentially us, to liability resulting from these activities or from previous uses of those properties. "Environmental liabilities could also affect a tenant's ability to make rental payments to us. We require our tenants to comply with these environmental laws and regulations. "Independent environmental consultants have conducted Phase I or similar environmental site assessments on the properties in our portfolio. Site assessments are intended to discover and evaluate information regarding the environmental condition of the surveyed property and surrounding properties and do not generally include soil samplings, subsurface investigations, or an asbestos survey. To date, these assessments have not revealed any material environmental liability that we believe would have a material adverse effect on our business, assets, or results of operations. "Nevertheless, it is possible that the assessments on our properties have not revealed all environmental conditions, liabilities, or compliance concerns that may have arisen after the review was completed or may arise in the future; and future laws, ordinances, or regulations may impose additional material environmental liability." (ii) "Environmental laws also govern the presence, maintenance, and removal of asbestos-containing materials. These laws may impose fines and penalties on us for the release of asbestos- containing materials and may allow third parties to seek recovery from us for personal injury from exposure to asbestos fibers. We have detected asbestos-containing materials at some of our properties, but we do not expect that they will result in material environmental costs or liabilities to us." (iii) "We may incur significant costs in complying with environmental laws. "Federal, state, and local environmental laws and regulations may require us, as a current or prior owner or operator of real estate, to investigate and clean up hazardous or toxic substances or petroleum products released at or from any of our properties. The cost of investigating and cleaning up contamination could be substantial and could exceed the amount of any insurance coverage available to us. In addition, the presence of contamination, or the failure to properly clean it up, may adversely affect our ability to lease or sell an affected property, or to borrow funds using that property as collateral. "Under environmental laws and regulations, we may have to pay government entities or third parties for property damage and for investigation and cleanup costs incurred by those parties relating to contaminated properties regardless of whether we knew of or caused the contamination. Even if more than one party was responsible for the contamination, we may be held responsible for all of the cleanup costs. In addition, third parties may sue us for damages and costs resulting from environmental contamination, or jointly responsible parties may contest their responsibility or be financially unable to pay their share of such costs. "Environmental laws also govern the presence, maintenance, and removal of asbestos-containing materials. These laws may impose fines and penalties on us for the release of asbestos-containing materials and may allow third parties to seek recovery from us for personal injury from exposure to asbestos fibers. We have detected asbestos-containing materials at some of our properties, but we do not expect that they will result in material environmental costs or liabilities to us. "Environmental laws and regulations also require the removal or upgrading of certain underground storage tanks and regulate: -- The discharge of stormwater, wastewater, and any water pollutants; -- The emission of air pollutants; -- The generation, management, and disposal of hazardous or toxic chemicals, substances, or wastes; and -- Workplace health and safety. "Many of our tenants routinely handle hazardous substances and wastes as part of their operations at our properties. Environmental laws and regulations subject our tenants, and potentially us, to liability resulting from these activities. Environmental liabilities could also affect a tenant's ability to make rental payments to us. We require our tenants to comply with these environmental laws and regulations and to indemnify us against any related liabilities. "Independent environmental consultants have conducted Phase I or similar environmental assessments at our properties. We intend to use consultants to conduct similar environmental assessments on our future acquisitions. This type of assessment generally includes a site inspection, interviews, and a public records review, but no subsurface sampling. These assessments and certain additional investigations of our properties have not to date revealed any environmental liability that we believe would have a material adverse effect on our business, assets, or results of operations. "Additional investigations have included, as appropriate: -- Asbestos surveys; -- Radon surveys; -- Lead surveys; -- Mold surveys; -- Additional public records review; -- Subsurface sampling; and -- Other testing. "Nevertheless, it is possible that the assessments on our current properties have not revealed, and that assessments on future acquisitions will not reveal, all environmental liabilities. Consequently, there may be material environmental liabilities of which we are unaware that may result in substantial costs to us or our tenants and that could have a material adverse effect on our business. (iv) "Some of our properties may contain asbestos, which, under certain conditions, requires remediation. Although we believe that the asbestos is appropriately contained in accordance with environmental regulations, our practice is to remediate the asbestos upon the development or redevelopment of the affected property. We recognize a liability for the fair value of a conditional asset retirement obligation (including asbestos) when the fair value of the liability can be reasonably estimated. In addition, for certain properties, we have not recognized an asset retirement obligation when there is an indeterminate settlement date for the obligation because the period in which we may remediate the obligation may not be estimated with any level of precision to provide for a meaningful estimate of the retirement obligation." Alexandria Real Estate Equities, Inc. -- http://www.are.com/-- is engaged in the business of providing office/laboratory and technology office space for lease to the science and technology industries. ASBESTOS UPDATE: Family Claims Asbestos Caused Death of Loved One ----------------------------------------------------------------- Carrie Bradon, writing for Louisiana Record, reported that a Lafayette Parish family is seeking damages following the death of a loved one. Linda Patin, individually and on behalf of her mother Pearl Benoit Hebert, as well as Chester Hebert Jr., Sharon Buteau, Pasty Depue and Peggy Hebert, individually and on behalf of their deceased husband and father Chester M. Hebert Sr., filed a lawsuit Jan. 13 against Air & Liquid Systems Corporation et. al in Orleans Parish Civil District Court alleging asbestos related damages. According to the complaint, Chester Hebert was employed by the U.S. Navy from 1944-1946. The suit states that during his employment, he was exposed to certain asbestos-containing products. Due to his exposure, he died on Jan. 22, 2016. The defendant is accused of negligence, liability and fault in the death of Chester Hebert, failing to take the proper safety precautions and overall negligence in their treatment of the situation. The plaintiffs seek all reasonable damages, court costs, attorney fees and all appropriate relief. They are represented by attorney Susannah Chester-Schindler of Waters & Kraus LLP in Dallas. The case has been assigned to Division J Judge Paula A. Brown. Orleans Parish Civil District Court Case number 17-410. ASBESTOS UPDATE: Refusal to Unseal Deposition a Travesty -------------------------------------------------------- David Yates, writing for SE Texas Record, reported that a district judge's refusal to unseal testimony given by renowned plaintiff's attorney Russell Budd on the "Terrell memo" was a "travesty," says the lawyer who filed the motion to unseal. Late last year, Christine Biederman, a Dallas lawyer and freelance journalist working on behalf of a documentary filmmaker, intervened in a 24-year old asbestos suit filed in Travis County, seeking to unearth the deposition of Budd, the current president of Baron & Budd -- a Dallas-based law firm specializing in toxic torts. While the case in question was dismissed a decade ago, and Budd's deposition on the Terrell memo was offered 10 years prior to that, Biederman and her client Paul Johnson Films suspect the testimony has relevancy to ongoing asbestos litigation and could play a role in Johnson's upcoming documentary dubbed "UnSettled," a film developed to cast light on the business of asbestos lawsuits. The Terrell memo, considered by some to be a "cheat sheet," purportedly reveals how Baron & Budd attorneys coached up clients on how to identify asbestos products and exposures that they might not actually remember and might never have been exposed to in the first place. On Jan. 31, Judge Orlinda Naranjo, 419th District Court, ruled the court did not have jurisdiction over the case, brushing off Biederman's motion to unseal following a 35-minute hearing. When asked if the judge made the right call, Biederman answered: "Absolutely not." "It's a travesty whenever court records are not open and available to the public -- it's America 101 that our courts should be open," Biederman told the Record. "When you file a case in a publicly funded system, the presumption should always be the public has a right to know. "Secrecy is the enemy of justice." Perhaps ironically, Judge Naranjo sided with Baron & Budd's counsel and found the filmmaker's request to film the hearing untimely, as the motion to record was made the day of. However, the judge had no issue allowing Baron & Budd's rather lengthy response, which was filed the day before, despite Biederman's objections to its timeliness. "What can I say? I got a little bit hometowned," Biederman said. Arguably blindsided, Biederman was served with the response only hours before the hearing, a reply several hundred pages long and at least "a couple of inches thick," she says. "I was a little surprised," Biederman said. "Let's just say they (Baron & Budd) spent a lot of money to try and keep that deposition under wraps." The architects of the response were Austin attorneys Charles Herring and Jason Panzer, malpractice lawyers who have counseled some of Texas' most high-profile attorneys, including Steve Mostyn at a sanctions hearing against him last May. Strangely enough, when Biederman first served Baron & Budd with her motion back in November, she didn't receive any reaction at all, saying the firm only took notice once she set the matter for hearing. "The acted like they didn't care at first," she said. More perplexing, is the fact that most of the case files in the asbestos suit had been disposed of without the courthouse creating digital backups, a development that forced Biederman to piece events together from a patchwork docket. Biederman, a former U.S. assistant attorney, says she was "shocked" when she found out. "I have never heard of anything like this in any other county in Texas," she said. "I think that someone clearly screwed up." During the hearing, Budd's counsel cited a Travis County statute that allowed all the case files to be destroyed. Biederman's employers are currently weighing the option of an appeal. They believe Budd's deposition could even be relevant to the 2014 Garlock Sealing Technologies case, which exposed attorney "double- dipping" in bankruptcy asbestos trusts. As of Feb. 6, Judge Naranjo has not responded to a request for comment. ASBESTOS UPDATE: Ruling in Asbestos Trial Expected by Month's End ----------------------------------------------------------------- Edgar Sanchez, writing for Sonoma State Star, reported that the trial in a $15 million whistleblower lawsuit, involving the discovery of asbestos in some Sonoma State buildings, began in January and is expected to last until the end of February. "The health and safety of the employees and students at SSU are at stake in this case," said Dustin Collier, attorney for the plaintiff Thomas Sargent. Sargent was a former Sonoma State employee and asbestos consultant. Sargent accuses Sonoma State of mishandling contamination of asbestos and lead in multiple campus buildings. He also claims he suffered retaliation from the university when he exposed the problem. Sargent is seeking $15 million in damages. The trial, which is taking place in the Sonoma County Superior Courthouse in Santa Rosa, had its most recent hearing this past Wednesday, Feb. 2. Sargent testified in front of the seven-man, five-women jury and continued upholding the allegations that have rooted this trial. Among them are the mishandling of asbestos by his supervisor, Director of Energy and Environmental Health and Safety Craig Dawson, and the way he was treated after notifying the California Department of Public Health Childhood Lead Poisoning Prevention Branch, Cal-OSHA and Sonoma Department of Emergency Services, of the potential threat to the health of employees and students. The university has admitted to the presence of asbestos in Stevenson Hall; however, officials point to official reports found by private company, RHP Risk Management, which shows levels of the toxic material do not exceed unsafe standards imposed by Cal-OSHA. On Wednesday, Sargent claimed the testing used by the university was inadequate because they are testing the levels of asbestos in the air during a time in which asbestos sources are undisturbed. According to Sargent, in order to truly know if asbestos is present in the air, testing must be completed during a time in which asbestos sources are being disturbed. Nicolas Grizzle, a Sonoma State's spokesman, declined to comment on this matter. While on the stand, Sargent also answered questions from his lawyer indicating the deterioration of his work relationship with Dawson. Sargent claims he received his lowest ratings ever in areas such as quality of work, initiative, communication and customer service after his denouncement of the asbestos incident. This retaliation led Sargent to resign "in protest," said his lawyer Dustin Collier. So far top officials such as former Sonoma State University President Ruben Armi§ana and former Vice President of Administration and Finance,Laurence Furukawa-Schlereth have taken the stand during the trial. "What's at stake in this trial is whether or not the university has done enough to asses the asbestos problem, and to hold them accountable to take the problem more seriously," said Collier. "As well as bringing some justice to Sargent and restore him into society." ASBESTOS UPDATE: Former Central Valley Students Sue School ---------------------------------------------------------- The Associated Press reported that a judge has cleared the way for dozens of former Central Valley students to take their school district to trial over fears that a job-training program exposed them to cancer. Attorney Allen Sawyer said Monday he represents 61 former students of the Merced County Office of Education. He alleges that a decade ago, they renovated asbestos-laden buildings at an old military base without proper protection. In a separate case, three men who ran the program through a nonprofit were found guilty and sent to prison. Sawyer says the district now owes the former students lifelong coverage for preventative health checkups and payments for the fear they might contract cancer. An attorney for the county office of education, Leonard Herr, argues the students have access to health care provided through workers' compensation. ASBESTOS UPDATE: Suspected Asbestos in Housing Prompts Probe ------------------------------------------------------------ Felicity James, writing for ABC News, reported that Fears Tennant Creek residents are being exposed to asbestos in demountable housing have prompted the construction union to visit the remote Northern Territory town and investigate. Andrew Ramsay, a workplace safety officer with the CFMEU and chairman of the Brisbane-based Asbestos Disease Support Society, said demountables he suspected contained asbestos were spread across the town. "I've got a bag full of suspected asbestos debris and there is a lot of other debris lying around," he said. "The bag I've got, I reckon 80 per cent of it will be friable asbestos-containing material." NT WorkSafe has confirmed 11 demountables imported from China, purchased by the Julalikari Council Aboriginal Corporation for use in Tennant Creek about six years ago, have tested positive for asbestos. Several residents told the ABC their concerns that more than a dozen children were exposed to asbestos about three years ago were being ignored. Indigenous community leader Linda Turner, known locally as LT, said a vandalised demountable was left idle for children to play with and families urgently wanted answers. "My sister's grandchildren, my grandchildren have been playing in that," she said. Risk not being managed: Ramsay Mr Ramsay said it was clear from his inspection that debris from the demountables had not been cleaned up properly. "Obviously all the precautions under the code haven't been followed," he said. "I shouldn't be able to walk around and pick up debris." Attempts to fence off some of the demountables did not comply with required standards, according to CFMEU NT/QLD organiser Rolly Cummins, who also visited the town. "They haven't got locks on them or anything, you can just push the gates open and anyone can go in." The asbestos problem in Tennant Creek is a story repeated in other remote communities, Mr Cummins said. "It's across the whole Northern Territory." "I've been out to Docker River and Finke, Santa Teresa. "I've seen asbestos throughout the communities, holes in the walls, asbestos falling off, kids playing in it." Mr Ramsay said he had also seen the problem elsewhere. "I saw some broken fibro sheeting at Santa Teresa community last year around August," he said. "The gable of the building was broken and it was lying around -- it was asbestos-containing material." 'Woeful story of asbestos coming into this country' Independent senator Nick Xenophon pushed for the current Senate inquiry into non-conforming building products, including illegally imported asbestos. The inquiry is due to report in May. "The news coming out of Tennant Creek is yet another woeful story of asbestos coming into this country, even though there's been an absolute ban on asbestos products coming into Australia since 2003," he said. "The fact that non-conforming, non-complying dangerous building products and buildings are coming into Australia indicates that Border Force and regulatory agencies haven't been doing their job." In a statement to the ABC, the Department of Immigration said it was aware of the case in Tennant Creek and had taken "appropriate action" to target all imports of these types of goods from the various suppliers. "The Australian Border Force has significantly increased its strategic and operational focus on goods that pose a risk of containing asbestos with emphasis placed on imports from China," the statement said. "This has resulted in a substantial increase in the targeting and testing of high-risk goods. "So far in 2016/17 there has been 319 asbestos tests, with 10 consignments testing positive." NT Worksafe told the ABC that Julalikari was engaging a licensed business to help develop an asbestos management plan and asbestos register. Inspectors made an initial visit to the site in November last year and would visit Tennant Creek again on Wednesday, according to the statement. "NT WorkSafe's role is to ensure that the Julalikari Council Aboriginal Corporation complies with their obligations under the Work Health and Safety legislation," the statement said. ASBESTOS UPDATE: Counsel Moves for Mistrial in Madison County ------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Madison-St. Clair Record, reported that opening statements were hardly underway in a rare Madison County asbestos trial when counsel for defendant Hennessy Industries Inc. moved for a mistrial over the plaintiff's request for $8.5 million in compensatory damages. Towards the end of plaintiff attorney Tom Hart's opening statements, defense counsel Jim Lowry of Dallas objected when Hart asked the jury to award plaintiffs Stanley Urban Jr. and Janet Urban $8.5 million in damages. They briefly approached the bench, and Hart returned to his opening statements. He rephrased by requesting a "substantial" amount in damages. Minutes later, the jury was released for a brief recess, and Lowry moved for a mistrial. "Counsel has been doing this for a long time," Lowry said. "He knows full well that is totally inappropriate." "I have no choice but to move for a mistrial," he added. Hart responded that he didn't find the request so prejudicial to warrant a mistrial. Associate Judge Stephen Stobbs denied the motion at this time, but provided Lowry the chance to submit supportive case law to be reviewed at a later date. The Urbans are from West Bloomfield Michigan. They filed their complaint in March 2013 through the Shrader & Associates firm. Their most recent amended complaint was filed on Jan. 24. Hennessy is the only remaining defendant. Stanley Urban alleges he was exposed to asbestos-containing products while working at various auto dealerships in Michigan from the 1960s to 1974. He also alleges asbestos exposure while working at several schools as an auto technology teacher from 1975-present. Urban alleges he was exposed to asbestos while using Hennessy's brake grinders. Urban also alleges asbestos exposure when his family remodeled their home in the early 1960s while he was still living there. Urban alleges secondary asbestos exposure from his father, who was employed from the 1950s until 1971 repairing heavy machinery. On Jan. 10, 2013, Urban was diagnosed with mesothelioma as a result of his asbestos exposure. According to its website, Hennessy is "one of the world's foremost aftermarket manufacturers of wheel-service equipment." Most Madison County asbestos cases settle before trial begins, with approximately one case going to trial per year. Last year, two asbestos trials settled after testimony began. Madison County Circuit Court case number 13-L-437 ASBESTOS UPDATE: Asbestos Found in Faculty Offices in Miguel ------------------------------------------------------------ August Kissel and Megan Dreher, writing for The Quarangle, reported that when a building ages it becomes necessary that repairs are done in order to ensure that the building follows certain health codes. Manhattan College is no exception. Over winter break, faculty offices were renovated due to professor request. As students were welcomed back to school for second semester, asbestos was discovered to be present in some of those offices in Miguel Hall. Margaret Groarke, associate professor of the Government Department, discussed this issue in an email statement. "Faculty on the 4th floor were told late last semester that our hallways would be renovated over the break. Thus we were unable to access our offices from Dec. 19 until just recently. The walls were painted, and the old carpet was replaced with new carpet. It took a little longer than expected, but I'm very much looking forward to seeing how nice it looks," said Groarke. During and prior to the renovation, it was discovered that there was asbestos under certain floor tiles. Asbestos is an old form of insulation that is no longer used due to the fact that it can cause medical complications. It was often used with pipe insulation and floor tiles and was highly used in the 1970's. Since then, it has been labeled as a health hazard and has led to cases of mesothelioma, lung cancer and asbestosis. Vice President of Facilities, Andrew Ryan spoke of plans to clean up the asbestos. "When we are doing work that is going to involve one of those two things (pipe insulation and floor tiles), we take a look, if it's questionable we have a company come in to test. If it's negative we can go about our business, if it's positive we have to abate it," said Ryan. The college found that the asbestos test was positive and they took the proper precautions to remove the asbestos. This includes enclosing the work area completely in a plastic tent that is held under negative air pressure. By doing so, a vacuum pulls out the contaminated air and sends it outside so that it does not return into the space. The company also uses a monitor to watch the air quality and ensure that the area becomes asbestos free. One professor in particular had a closer encounter with the asbestos. Claudia Setzer, a Religious Studies professor, had her office renovated which called for the discovery of a long standing water leak. During the removal of floor tiles to fix the leak, a layer of asbestos was found underneath the floorboards. "This was just one of many cases where they are trying to protect us from asbestos, which is part of every old building. In my case it was quite deeply buried under one of the layers of the floor. It wasn't as if I was breathing it in or anything," said Setzer. Setzer's office is not ready for her to move back in. For now, she is sharing an office with a colleague and is "expecting that it's [the project] going to move along in the next few weeks." According to Andrew Ryan, there has been no health issues related to the asbestos so far. Overall, renovations to the faculty offices have made for a nicer atmosphere. "Hopefully, it will make the 4th floor a pleasanter place to work, and encourage more students to come visit their professors there!" said Groarke. ASBESTOS UPDATE: Cosatu Threatens Suit vs. De Lille Over Asbestos ----------------------------------------------------------------- Petru Saal, writing for Times Live, reported that in an open letter to Mayor Patricia De Lille and Cape Town City Manager Achmat Ebrahim, Coosatu provincial secretary Tony Ehrenreich claims that the City did not follow the correct procedure in removing and dumping asbestos at Athlone Power Station. "This asbestos that is present in the City of Cape Town's older buildings has already poisoned and killed the workers at Athlone power station," says Ehrenreich. Ehrenreich says that the City refused to assist the Athlone Power Station workers who are continually being exposed to asbestos. "The procedures for working with asbestos are not complied with, to the detriment of workers" says Eherenreich. He claims that the City has incorrectly removed and handled the asbestos as a cost saving measure and that the City and construction companies are in fact in cahoots. "This exposure of workers is just a result of the cost saving from the side of the Council and the construction companies, to properly process the asbestos. The interest of construction company owners and savings to the Council is much more important to De Lille than the lives of the poor black workers." Ehrenrech says that Cosatu will be taking legal action should the mayor not meet their demands by February 14. "That she undertakes to send all persons affected by the non compliance of procedure, to guard against exposure to asbestos for tests. That the Mayor ensures treatment and compensation for all those affected by asbestos; as a result of her neglect to follow procedures. That the Mayor undertakes to comply with the demands . . . failing which the class action will be launched." The City of Cape Town, however, has refuted the claims made by Cosatu, saying that anyone with information of procedures not being followed in the removal and dumping of asbestos should come forward. "The City of Cape Town is deeply concerned that, if Cosatu does indeed have information on breaches of asbestos demolition and disposal regulations, they have not reported this directly to the Department of Labour or the approved asbestos inspection authority. This, rather than threats against the City, would be in the best interests of the workers who have allegedly been affected," says Mayoral Committee Member for Corporate Service, Councillor Raelene Arendse. The City also says that claims that asbestos is still lingering in the air and water supply is incorrect. "Some older water and sewerage reticulation systems still convey water and sewerage in fibre cement pipe infrastructure that may contain asbestos. Research conducted by the World Health Organisation has, however, demonstrated that drinking water that is conveyed in asbestos-containing fibre cement water pipes does not pose a risk to the health of the end users," says Arendse. The City has also implemented an asbestosis programme where former and current workers of the Athlone Power Station are monitored and screened yearly for their exposure to asbestos. "The removal and disposal of the asbestos at the Athlone Power Station was done in strict accordance with the asbestos regulations by a certified asbestos removal and disposal company. The work was carried out under the auspices of an approved inspection authority which monitored the entire process. This would equally apply to the removal of asbestosis material at any City-owned building." ASBESTOS UPDATE: Estate Administrator Sues Manufacturers -------------------------------------------------------- Michael Abella, writing for Madison-St. Clair Record, reported that a special administrator of a deceased man's estate is suing Aerco International Inc., Alfa Laval Inc., Armstrong International Inc., et al., asbestos-containing product manufacturers, alleging negligence. Tommie Andrews, individually and as special administrator of the estate of Willie Andrews Jr., deceased, filed a complaint on Jan. 10 in St. Clair County Circuit Court against the defendants, alleging that they failed to exercise ordinary care and caution for the safety of those working with products containing asbestos fibers. According to the complaint, the plaintiff alleges that during decedent Willie Andrews Jr.'s life, he was exposed to and ingested large amount of asbestos fibers emanating from certain products he was working with, which caused him to develop lung cancer, that ultimately led to his death on Jan. 29, 2015. The plaintiff holds the defendants responsible for allegedly failing to protect the decedent from the dangers of asbestos. The plaintiff requests a trial by jury and seeks judgment against the defendants in an amount exceeding $50,000 which will fairly compensate decedent's injuries. He is represented by Randi L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 17-L-10 ASBESTOS UPDATE: Queensland Woman's Losing Battle for Payment ------------------------------------------------------------- Jorge Branco, writing for Brisbane Times, reported that nine months after Christine May's husband was diagnosed with an asbestos-caused cancer, he was dead. One year later, she is $10,000 in debt with three mortgages and reeling as her bid for compensation from WorkCover Queensland has been knocked back again. The Queensland Industrial Relations Commission decision, published last month, was the latest blow in what the 58-year-old Queenslander described as the worst two years of her life. Her lawyer argued there was an inconsistency in the law but the commission disagreed, upholding an earlier finding that a $100,000 claim for compensation in New Zealand precluded her from claiming in Queensland. William "Kev" Cameron's death on January 4 last year, just as his wife thought she saw a ray of hope, was shocking, devastating and fast. She took a holiday to Hawaii over Christmas last year while still expecting compensation, which hurt her financially, but said she couldn't bear being home. Her husband finished chemotherapy for mesothelioma in August 2015 and was feeling good until one day the usually voracious eater couldn't manage more than two bites of his lunch. A tumour next to his oesophagus had grown from 12 millimetres to 50 in just two months. Desperate for treatment, he accepted radiography treatment as the couple sought out respected oncologist and mesothelioma specialist Dr Keith Horwood. They flew from Innisfail, where the 74-year-old was building their home, to Brisbane to spend Christmas with friends in Paddington. A few days before, they met with Dr Horwood, who proposed a promising new treatment but noted Mr Cameron was too weak from the radiotherapy and would have to return later, Mrs May said. Things were looking promising. Then at Christmas lunch, "Kev" couldn't eat or drink. By Boxing Day he had "taken a turn for the worse" and his wife rushed him to the Royal Brisbane and Women's Hospital. The cancer had spread to the big man's liver and brain and he was moved to palliative care to die. "It was so quick, from Christmas Day when we had all hopes of having the immunotherapy treatment and the tumour shrinking back and everything to dead in a week," she said. Mrs May was herself diagnosed with endometrial cancer in March last year, sending her to hospital, then back to family in the UK for three weeks before eventually "falling in a heap" with severe depression. A remote area nurse working in the Northern Territory while her husband tried to finish their Innisfail home, she had been earning good money. At that point, the house would be finished soon and repayments on a loan and three mortgages on two investment properties were progressing as planned. But battling depression and recovering from cancer without her rock, the 58-year-old said she was unable to work. "I was down to my last $120 last week. I took all the money out of my savings account that I put aside for my grandson," she said, adding that she was returning to work in the Northern Territory despite not being ready. Mr Cameron started work as a carpenter in New Zealand in 1957 and was exposed to asbestos at work for a total of 15 years between 1960 and 1978. After moving to Queensland, he was exposed to the deadly fibres for about another three years. Before his death, Mr Cameron applied for compensation under New Zealand law and was paid out $NZD133,802. "Kev", thinking he was going to make a full recovery, bought a beautiful old Triumph Bonneville, which he rode maybe half a dozen times before his death, and poured money into the house. Mrs May said her legal advice at the time was that the Kiwi compensation would be easier to claim but wouldn't affect her right to claim in Queensland. According to the Workers' Compensation Regulator, confirmed by the QIRC in January, that was wrong and the New Zealand claim cancelled his entitlement to any claim in Queensland. Michael Grant-Taylor QC, acting for Mrs May, argued that one section of the Workers' Compensation and Rehabilitation Act seemed to only address compensation from another state of Australia, and clashed with another section. "The act specifically allows a worker to be compensated under the act when they have already been compensated for the same condition," he argued. "There cannot be any other logical analysis of how s 128C applies: it clearly does not work with s 118 and the statutory declaration required under s 118." But the Workers' Compensation Regulator's counsel submitted the intention of that part of the act was to avoid "double dipping" generally and there was no inconsistency. The QIRC agreed but also called for the Queensland Parliament to clarify the act in certain places. "Although I accept that in the circumstances of this case Mr Cameron's estate is barred from claiming what amounts to a significant sum, an election was made to claim in New Zealand where a smaller, but nevertheless substantial, award was made." Turner Freeman associate Ciaran Ehrich said he was still considering whether to appeal but Mrs May appeared to have given up on challenging further. "The problems with these claims is that it often crosses borders so it's a very complex field to look at," Mr Ehrich said. ASBESTOS UPDATE: Mining Co. Fights Community Over Asbestos ---------------------------------------------------------- Groundup.org.za reported that Kumba Iron Ore is demanding more than R1.6 million from a group of residents of the Northern Cape town of Dingleton after a battle over asbestos. Kumba says the residents disrupted the process of rehabilitation of a site near a railway where blue asbestos was spilled years ago. The company needs to rehabilitate the site in order to expand its Sishen iron ore mine near Dingleton. Last September some of the Dingleton residents, accompanied by the police, went to the site of the work and voiced their anger that rehabilitation was being carried out while they were still living in the town. They said rehabilitation workers were wearing "space suits" while the residents walked around without protection. When asbestos is disturbed, fibres are released into the air. If inhaled, this can cause asbestosis, lung cancer, and mesothelioma, a cancer of the lining of the lung. "You cannot rehabilitate, remove or disturb the asbestos while there are still people living here," said Nick Visagie, one of the remaining residents. Kumba is also relocating the entire town of Dingleton. Only 25 families remain and are refusing to move on Kumba's terms. Visagie, who was part of the group who objected to the rehabilitation, said the group had been summoned to the Kimberley High Court where Kumba was granted an interdict preventing them from further interfering with the rehabilitation. Kumba now wants the court to order the residents to pay R1.6 million to cover the costs that the mine incurred while the rehabilitation was on hold. (Kumba's summons cites five people, but some of the court papers refer to six.) The presence of blue asbestos in the Dingleton area is a result of spillage that occurred years ago when asbestos was still mined in the Northern Cape and was transported by railway. While the spillage was not caused by Kumba, the mining company is responsible for the rehabilitation as it needs the area to expand the Sishen mine. Jacob Rooiland believes that Kumba's demand for R1.6 million is an attempt to force the residents to move from the town. "[Kumba] knows we don't have the money. They are actually after our property," says Rooiland. Visagie states in his founding affidavit for the case that he believes that the mine did not have proper authorisation to rehabilitate asbestos. He said that the asbestos alongside the railway posed no risk to the residents as it was covered by "several metres of earth". It is in disturbing it, that the asbestos became dangerous to the residents of the town, he said. Victor Gorrah, another resident of Dingleton, states in his affidavit that they object to the rehabilitation as "it poses a threat to the health of the community". All the residents insist that they were peaceful when they engaged with the rehabilitation company. Asbestos is a carcinogen and occurs naturally in the environment. It was used in the manufacturing of many common goods until the dangers associated with its use were discovered. Blue asbestos is one of the most dangerous forms of asbestos. George Maluleke, a general manager for projects at Kumba, explained to GroundUp that an independent company had been commissioned to inspect the manner in which the rehabilitation was conducted. Kumba had applied for permission from the Department of Labour and this was granted. He said "monitoring points" had been set up to assess asbestos spillage as the rehabilitation was carried out. Maluleke said when the company that was to conduct the rehabilitation began to work, some members of the Dingleton community demonstrated, stopping the work, and "threatened to attack security guys as well". Kumba is now trying to recover the costs incurred for every day that the company could not carry out its work. In addition, Kumba wants those who caused the disruption to pay the costs of the lawsuit. In the High Court summons, Sishen Iron Ore, a subsidiary of Kumba, says that from September 2016 the defendants threatened to damage equipment and machinery, harassed and intimidated employees and removed barricades from the area. When GroundUp visited Dingleton the rehabilitation process appeared to be continuing and the area was demarcated with a sign reading "Danger Warning Asbestos". GroundUp also saw blue asbestos in another section of the town, far from where the rehabilitation was taking place. This asbestos was clearly visible above the ground. It is not clear how this asbestos ended up so far from the railway line where it is meant to have originally spilled. The case is set to be heard in the Kimberley High Court later this year, where the residents will be represented by Richard Spoor Attorneys. ASBESTOS UPDATE: BorgWarner Records $411MM Asbestos Charge ---------------------------------------------------------- Jack Walsworth, writing for Crain's Detroit, reported that BorgWarner Inc., the Auburn Hills-based supplier of turbocharger and emissions systems, reported a net loss of $293 million in the fourth quarter of 2016 as it announced a one-time asbestos-related charge of $411 million. The company said adjusted earnings were up 8.7 percent to $339 million. Revenue in the quarter rose 6.4 percent to $2.3 billion, up from $2.1 billion in the year-earlier period, driven by a 20 percent increase in its drivetrain division sales. Drivetrain division sales totaled $883 million in the quarter, up from $735 million in the year-earlier period. Engine segment sales dipped 0.7 percent to $1.38 billion, compared with $1.39 billion. BorgWarner's fourth-quarter results included an after-tax one-time noncash charge of $441 million for "indemnity and defense costs for pending and future asbestos-related claims." The supplier said the figure was "based on an undiscounted estimate of indemnity and defense costs that may be incurred at one of the company's subsidiaries on account of pending and potential future asbestos-related claims that may be asserted for the next 50 years." In a related filing, BorgWarner said: "We have in the past been named in a significant number of lawsuits each year alleging injury related to exposure to asbestos in certain of our historical products. We no longer manufacture, distribute, or sell products that contain asbestos, and we vigorously defend against asbestos-related claims. Over 80 percent of claims asserted against us in recent years have been resolved with no payment to the claimant." For the year, adjusted earnings rose 7.8 percent to $1.3 billion, up from $1.19 billion. Net income was $118.5 million, dropping from $610 million in 2015. Net revenue, however, rose to $9.1 billion, up from $8 billion. BorgWarner ranks No. 28 on Automotive News' list of the top 100 global suppliers. ASBESTOS UPDATE: Contractor Jailed for Illegal Asbestos Removal --------------------------------------------------------------- Bury Times reported that a Bury contractor has been jailed after admitting illegally removing asbestos from a building he was working on. David William Briggs, trading as Briggs Demolition was found to have ignored an asbestos survey while demolishing the former Oakbank Training Centre in Chadderton, Oldham. Manchester Magistrates' Court heard also failed to prevent exposure to asbestos to workers and others on site. The firm from Bridge Works, Wellington Street, Bury, had been contracted to demolish the former education centre off Chadderton Park Road and advised the site owners to have the site surveyed for asbestos before demolition could began. Mr Briggs, aged 75, recommended a suitable surveyor and the site owner paid for a full asbestos survey to be carried out on Mr Briggs' recommendation. But the Health and Safety Executive, prosecuting, told the court that Mr Briggs then chose to ignore the asbestos report which identified approximately 230 square metres of asbestos materials throughout the buildings, and began demolition without having any of it safely removed. The HSE first visited the site in 2015, and found that approximately half of the buildings had been demolished or partly demolished. When Mr Briggs was asked if the asbestos had been removed he denied there was any on site. A prohibition notice was served on him and the site owners, stopping work until the extent of the asbestos disturbance could be established. Scientists from the Health and Safety Laboratory confirmed the findings of the original asbestos survey report and identified hazardous asbestos in the remaining buildings. The court was told that that three workers were potentially exposed to deadly asbestos fibres. Local residents and people passing by the site were also at risk due to the uncontrolled method of demolition where large amounts of asbestos were present. David Briggs was charged with failing to protect the safety of his employees, failing to protect members of the public, failing to prevent the spread of asbestos and one count of illegally removing asbestos materials without a license. David William Briggs, of Wellington Street, Bury, pleaded guilty to breaching Section 2(1) & Section 3(1) of the Health and Safety at Work etc Act 1974 and Regulations 8 (1) and 16 of the Control of Asbestos Regulations 2012 and was sentenced to 24 weeks in prison. Speaking after the case, HSE inspector Matt Greenly said: "Mr Briggs wilfully ignored a professional asbestos survey, instigated by himself, and in doing so failed in his duty to protect his workers and anyone else around this site from a foreseeable risk of serious harm. Asbestos related diseases are currently untreatable and claim the lives of an estimated 5,000 people per year in the UK. "Anyone who worked on this site at this time, due to the lack of care taken by Mr Briggs, could possibly face a life shortening disease at some point over the next 30 years from an exposure which was totally preventable. This case sends a clear message to any individual or company that it does not pay to ignore known risks on site, especially to increase profits at the expense of people's lives." ASBESTOS UPDATE: Transport Workers Exposed to Asbestos ------------------------------------------------------ My Sunshine Coast reported that the ETU has called on the Department of Transport and Main Roads to put a stop to all below ground work on traffic lights and street lights statewide until asbestos discovered in the network is located. It was discovered Department of Transport and Main Roads/Roadtek workers had been exposed to asbestos and asbestos-containing materials in traffic light and street light pits and conduits throughout the state-owned network, as well as some local and regional council networks the Department are contracted to maintain. ETU Queensland and NT Organiser Brenton Muller said despite the discovery of the dangerous materials the Department had not put a halt to work in the suspect areas. "Hundreds of employees of the Department have been put at risk by their decision not to adhere to the Safe Work Method Statements and Asbestos Management Framework and put a stop to the work," Mr Muller said. "These employees aren't the only people at risk of exposure to asbestos -- their families could also be impacted by them unknowingly taking home asbestos dust on clothing. "There could be thousands of Queenslanders exposed to deadly asbestos due to this Departmental mismanagement." Mr Muller said while Workplace Health and Safety Queensland had agreed that the Department was in breach of regulations covering the management of asbestos, they were not taking action. "We are calling on Workplace Health and Safety Queensland to do their job and immediately protect these workers exposed to asbestos," he said. "The lives of Queensland workers are being put at risk as government bureaucrats twiddle their thumbs and avoid taking direct action against this threat to workers." ASBESTOS UPDATE: Asbestos Found in Axminster Flats -------------------------------------------------- Chris Carson, writing for Midweek Herald, reported that council chiefs have approved urgent work to remove dangerous asbestos from a sheltered housing complex in Axminster. East Devon District Council's cabinet has agreed funding of up to GBP67,000 for the works at Poplar Mount Flats - some 19 households. The asbestos has been discovered in the loft -- an area which houses the passenger lift equipment. "If an urgent service is not undertaken, the lift will need to be shut down," warned a report. "Shutting the lift down will have serious consequences for tenants and in some cases we may need to consider relocating tenants if they are unable to use the steps to access their properties." Asking members to approve the 'urgent' works, the report added: "As an immediate safety precaution, the areas are both currently closed off and no access is currently permitted without the support of an asbestos specialist who can carefully manage any urgent need to enter the space. "This requires significant works and cost in terms of creating an enclosed area that can be safely accessed. This also requires time that in many scenarios of needing to access the area we would not have as we would be faced with an emergency situation." Work began this week to remove the asbestos and is expected to be completed by mid March. Asbestos was widely used for insulation and fire prevention until 1999 but evidence shows its fibres can cause cancer. ASBESTOS UPDATE: 5th Cir. Rejects Removal Statute Interpretation ---------------------------------------------------------------- Glenn G. Lammi, writing for Forbes, reported that when attempting to remove civil lawsuits from state to federal court, business defendants often must contend with not one, but two opponents. One opponent, of course, is the plaintiff, who prefers the home cooking of a local judge and jury. The second opponent is the federal district court judge, who may be loath to inflate the size of his docket. The US Court of Appeals for the Fifth Circuit late last month reversed one district court judge's crabbed interpretation of a removal statute which consigned an asbestos- liability defendant to the notoriously pro-plaintiff Louisiana state courts. The lawsuit underlying the Fifth Circuit's Zeringue v. Crane Company decision is part of the "elephantine mass of asbestos cases" that have plagued thousands of businesses for decades. Zeringue claims that Crane and 20 other companies unlawfully exposed him to asbestos 65 years ago when he was serving in the Navy. As is all too common in such suits, Zeringue fails to specify which of the 21 companies produced the asbestos that harmed him, or when the exposure actually occurred. Crane Company removed the suit to federal district court under the federal-officer removal statute, 28 U.S.C. Section1442(a)(1). Zeringue moved to remand back to state court. Even though Crane had arguably met all of Section1442(a)(1)'s requirements, the trial court applied the statute narrowly and granted the plaintiff's motion. Crane appealed. The federal-officer removal provision is available to government contractors such as Crane which, by manufacturing a product (in this case, asbestos-lined industrial valves) to a government client's precise specifications, constitutes a "person acting under [an officer] of the United States." The Fifth Circuit agreed that Crane offered evidence sufficient to establish that it was acting under the Navy's direction. Contractors also must show that they have a "colorable" federal defense in opposition to the plaintiff's state-law claims. Crane intended to invoke the "government contractor defense," which the court explained was "an extension of the immunity afforded to the federal government for the performance of discretionary actions." Contractors are immune from suit if the US provided precise design specifications, the product conformed to those specs, and the contractor warned the US about the product's dangers. A new WLF Legal Opinion Letter, California Appeals Court Breaks with Ninth Circuit, Accepts Government-Contractor Defense in Asbestos Liability Suit, explains the defense in more detail. Zeringue argued that in order to benefit from the federal-officer removal statute, Crane had to prove that it met each factor of the government-contractor defense. The Fifth Circuit responded that a defendant need not "win his case before he can have it removed," and held that Crane had provided sufficient information supporting a "colorable" government-contractor defense. Finally, Section1442(a)(1) only allows for the removal of a state suit "for or relating to any act under color of such office." Courts have interpreted this to mean that government contractors must establish "a nexus, a 'causal connection' between the charged conduct and asserted official authority." On this question, the lower court accepted Zeringue's argument that Crane must show that it was acting under "precise federal direction," a standard the court concluded Crane could not meet. The Fifth Circuit held that Zeringue's construction was inconsistent with the plain language of Section1442(a)(1). The term "relating to," the court explained, reflects that Congress intended the causal connection requirement to be construed broadly. Crane's relationship with the plaintiff "derives solely" from the company's contract to provide valves to the Navy. The court added "that official authority relates to Crane's allegedly improper actions, namely its use of asbestos in those parts." The federal-officer removal statute and the government-contractor defense share common purposes. Both protect the federal government and American taxpayers from the collateral costs of litigation against contractors. If contractors could be haled into state court and sued for damages related to products manufactured to government specifications, those contractors would either pass liability costs onto the governmental client or recede from contracting altogether. In the latter case, government would then have to produce its own products, an outcome no taxpayer should welcome. Zeringue should prove very useful not only to targets of asbestos litigation that are engaged in defense contracting, but also to other government contractors sued under state product-liability theories such as defective design. It also is a further reflection that the Fifth Circuit respects the purpose of and need for federal removal. The decision comes a little less than a year after an en banc panel of the court decided in Flagg v. Stryker Corp. that plaintiffs cannot defeat removal by fraudulently joining extraneous parties for the purpose of eliminating federal jurisdiction. WLF advocated that outcome in an amicus brief filed in the case. ASBESTOS UPDATE: Asbestos Find Closes Oxford University Bldg. ------------------------------------------------------------- BBC News reported that about 1,650 staff and students will have to move out of an Oxford University building for up to two years after asbestos was discovered. The Tinbergen Building, which houses the departments of zoology and experimental psychology, will be closed from Monday. A university spokesman said it was not believed there was a health risk to regular users of the building. He said asbestos was found last year, but it was not in "accessible" areas. 'Unprecedented situation' A total of 750 staff are based in the building and it is used by 900 students. A statement said: "We do not believe there is, or has been, a health risk to regular users of the building, and more than 200 air quality readings, taken since September 2016, support this belief. "But this asbestos cannot be removed while the building is occupied, so we have decided to close the building while expert contractors carry out remedial works. "We apologise to staff and students for the inconvenience that this unprecedented situation will cause, and we will do all we can to support them so that research and teaching can continue." Prolonged inhalation of asbestos fibres can cause illnesses including lung cancer, mesothelioma, and asbestosis. ASBESTOS UPDATE: Court Says Asbestos Spy Must Reveal Client ----------------------------------------------------------- Mesothelioma.net reported that it's been several months since it was revealed that international anti-asbestos groups were infiltrated by a spy. That spy was 50-year old Robert Moore, the brother of a BBC producer. He had been employed for over four years by a corporate intelligence firm called K2 Intelligence with an assignment to infiltrate anti-asbestos organizations and document the confidential information that he gathered. Now the High Court has reviewed the case and ordered that K2 Intelligence must reveal the identity of their client, ruling that they were "involved in wrongdoing." The next hearing in the case will be held on Tuesday. The case reads like a spy movie. Moore was paid more than 460,000 pounds as well as expenses for the specific purpose of infiltrating the anti-asbestos movement and providing information on their plans for highlighting asbestos' risks. When he was hired he assured K2 Intelligence, saying, "I am confident I can enter this world relatively easily and with a high level of legitimacy and credibility." He then proceeded to befriend leaders within the organizations, indicating that he was a documentary maker and that he planned on filming a documentary or series for British channel BBC4. The network indicated that they had no series planned and no involvement in the situation. Among those that Moore had targeted were Laurie Kazan-Allen, a coordinator of the International Ban Asbestos Secretariat. Speaking of the case, she indicated that she had been shocked to learn that she had been targeted in this way. "I feel personally betrayed and professionally abused by his deception and those who commissioned him to infiltrate our network." Though it is not yet clear who K2 Intelligence's client was or what they hoped to gain from the information Moore was gathering, the intrigue is of particular interest. The history of asbestos includes reports that were commissioned by asbestos companies that were later hushed up in order to avoid liability for the damages caused by asbestos. Even today, with irrefutable scientific research confirming the material's dangers, powerful asbestos lobbies continue to work to keep the material in use. Asbestos has caused untold global misery, with those who have been exposed to the material at risk for mesothelioma and other asbestos-related diseases. If you or someone you love has been diagnosed with mesothelioma, contact Mesothelioma.net at 1-800- 692-86 to speak with one of our Patient Advocates. We will connect you with people who can help you file a claim with the asbestos bankruptcy trusts, and provide you with other helpful information. ASBESTOS UPDATE: Asbestos Force Eviction in Boise Center -------------------------------------------------------- George Prentice, writing for Boise Weekly, reported that since 1952, countless men and women have walked through the doors of the Grapevine Club, a support and recovery center in the North End that holds several daily meetings for people in Twelve Step protrams. "I was one of those lives saved," said one man, identified only as Bob. "I haven't had a drink since Nov. 22, 1985. That's when I first set foot here. This is my family. This is my home." At the building the Grapevine Club calls home, the roof leaks and the electrical, plumbing and fire suppression systems are all out of code. The owner of the building was approached by the City of Boise in late 2014 regarding the problems, and City Council decided to work with the Grapevine Club to help it either move out or find a way to raise enough funds to buy and renovate the building. Time has run out. The Boise City Public Works Department recently conducted an inspection of the building and found both asbestos and lead-based paint, which can cause serious health effects. "The potential for exposure ... is very concerning due to the condition of the paint and the lack of cleaning and general upkeep of the building," wrote Abigal Germaine of the Office of the Boise City Attorney. "The Department of Public Works and the City believe that occupying the building in its current condition is potentially unsafe, especially to children and women who are pregnant. The city recommends that Grapevine vacate the building immediately." Heeding the recommendation, the building will be closed off to any occupancy effective Friday, Feb. 17. "We have to secure that building next week and then we'll assess on where to go next," City of Boise Communications Director Mike Journee told Boise Weekly. "We should stress that there is no concern beyond the premises." In a formal notice to the Grapevine, the city attorney's office stated it is "currently discussing potential stabilization options going forward and will notify the Grapevine when further information is available." ASBESTOS UPDATE: Asbestos Abatement Begins at Elementary School --------------------------------------------------------------- Vera Westbrook, writing for The News-Review, reported that asbestos abatement began at Lookingglass Elementary School following a fire that destroyed the school's historic gymnasium on Dec. 27. Workers began prepping the site after students went home on Thursday by setting up dumpsters and hanging up black polyethylene plastic sheeting on fences around the burn site that provided a barrier to protect the public from the visual impact. "We are doing everything we can to ensure public health is met," said Project Manager Chris McKay with HMK Company from Salem. Earlier this week, McKay met with a regional environmental specialist from the Department of Environmental Quality to walk the site. McKay laid out the cleanup plan and the DEQ representative agreed to it. Since Lookingglass runs on a four-day school week, demolition workers were scheduled to clean up the rubble between Friday and Sunday for 10 working days during the next few weeks to avoid congestion during school days. McKay said the cleanup project will begin with asbestos abatement followed by complete demolition and clearing of debris, leaving behind a flat slab of dirt when the work is done. The project was estimated at $81,000. All Aspects Environmental and Demolition from Sutherlin was the contractor handling the cleanup. On Friday, six workers wearing disposable coveralls with respirators and hard hats were on site. "There is asbestos in there, but it's limited to specific areas," McKay said. Samples of the debris were taken to isolate the areas that contained asbestos. All the positive materials were located on the west side of the building in the tile floors, pipe insulation and wall paneling in the boiler room. Asbestos isn't flammable and ends up as dust. When blended with debris, it's hard to tell where it is, McKay said. Although there wasn't much asbestos in the rubble, "the problem is, because of the fire and debris, it is nearly impossible to mark what is asbestos and what isn't," McKay said. "That's why we're taking these precautions." Todd Kreuter, an independent project specialist from G2 Consultants in Lake Oswego, will also be on site taking air samples during the cleanup. He took a baseline test prior to the abatement and will compare air samples during the abatement to ensure cleanup procedures are not posing any risk to the public. The six workers began knocking down the west wall and one of the chimneys. They then used shovels and a mini track hoe to separate materials such as wood and metal that don't contain asbestos from debris that contained asbestos. With an excavator, the piles of asbestos containing debris were then transferred into a dumpster lined with two layers of clear polyethylene plastic. Workers were also hosing the site with water to keep the dust down. Once a dumpster was filled, the plastic wrapped around the asbestos debris was sealed with tape and glue to ensure the dust did not escape. A truck then transported the dumpster to an asbestos landfill at the Douglas County dump. The asbestos abatement should be completed this weekend, with the nonasbestos demolition project continuing next weekend. On Feb. 22, the school district will meet in a work session with consultants and the insurance company to evaluate the loss and determine the cost of rebuilding the lost structure. The school district will then decide between rebuilding or taking a cash settlement. ASBESTOS UPDATE: Mesothelioma Risk High Among Shipyard Workers -------------------------------------------------------------- Alex Strauss, writing for Surviving Mesothelioma, reported that a new analysis of Baltimore shipyard workers in the 1950s and 1960s suggests that exposure to a range of toxic substances raised their risk for lung cancer, malignant mesothelioma, and early death. Researchers with the Uniformed Services University in Maryland, the National Cancer Institute, and the US Military Academy in Westpoint, New York traced the work and health histories of more than 4,700 workers employed at the Coast Guard Shipyard in Baltimore between 1950 and 1964. The workers were analyzed for their exposure to five different types of chemicals including solvents, lead, oils/greases, wood dust and asbestos, the leading cause of malignant mesothelioma. Their vital status was tracked through 2001. The Impact of Asbestos Exposure Calculating exposures using standardized mortality ratios, the research team found that all five of the chemical categories to which these workers were exposed raised their risk for pleural mesothelioma and lung cancer. Because asbestos was so pervasive in shipyards, the researchers suggest that its presence may have skewed their efforts to independently evaluate the impact of other chemicals. "Findings from efforts to evaluate solvents, lead, oils/greases, and wood dust in isolation of asbestos suggested that the excesses from these other exposures may be due to residual confounding from asbestos exposure," writes author Jennifer Rusiecki, a researcher in the Department of Preventive Medicine and Biostatistics at the Uniformed Services University. The Mesothelioma Risk of Working on Ships Mesothelioma experts have long known that shipyards were dangerous places to work. From the 1940s to the 1980s, asbestos, a strong, non-corrosive insulator and building material impervious to heat and fire, was used throughout ships, from the engine room to the kitchen. Coast guard workers who helped build or repair such ships, as well as those who spent months of their lives living on them, face a higher lifetime risk of pleural mesothelioma because of their exposure to asbestos dust. Asbestos is "biopersistent", meaning that, once the dust is inhaled, it is difficult or impossible for the lungs to expel the toxic fibers which work their way deep into the tissue over time, potentially triggering mesothelioma decades later. Longer Exposure Leads to Higher Mesothelioma Risk In a previous cohort study of shipyard workers conducted by the same team of researchers who conducted the Coast Guard study, workers were found to have a higher risk of death from all causes, lung cancer, and mesothelioma the longer they worked in the shipyard. Other studies have also confirmed the mesothelioma risk of long- standing asbestos exposure. A 2016 Italian study found that 192 shipyard workers diagnosed with mesothelioma had an average occupational exposure duration of 24 years, which was longer than the workers who developed lung cancer. Because of the long latency of mesothelioma, most patients did not develop symptoms until an average of 31 years after their last asbestos exposure. Mesothelioma Risk Persists in Shipyards Even with modern regulations in place to protect workers from mesothelioma, shipyards remain dangerous. Although asbestos is no longer used in most shipbuilding, workers involved in dismantling decommissioned ships (called shipbreaking) may also be at risk for mesothelioma if they accidentally breathe in or ingest asbestos fibers. In the US, Occupational Safety and Health Administration (OSHA) guidelines for safe shipbreaking in the presence of asbestos include wearing special negative-pressure respirators and limiting the time workers can spend in an asbestos-laden environment. Source: Rusiecki, J, et al, "Mortality among Coast Guard Shipyard workers: a retrospective cohort study of specific exposures", February 2017, Archives of Environmental and Occupational Health, Epub ahead of print. ASBESTOS UPDATE: Madison County Asbestos Trial Continues -------------------------------------------------------- Heather Isringhausen Gvillo, writing for Madison-St. Clair Record, reported that a Michigan teacher's asbestos lawsuit alleging asbestos exposure from grinding brakes is still at trial in Madison County Associate Judge Stephen Stobb's courtroom. The trial began Tuesday. The nation's busiest asbestos docket typically sees an average of one asbestos trial per year. Most asbestos cases settle. Plaintiffs Stanley Urban Jr. and his wife Janet Urban are represented by Tom Hart of Shrader & Associates. Jim Lowry of Dallas represents Hennessy Industries Inc., the only remaining defendant. The Urbans filed their complaint in March 2013. All of Stanley Urban's asbestos exposures occurred in Michigan. Urban alleges he was exposed to asbestos-containing products while working at various auto dealerships in Michigan from the 1960s to 1974 and while working at several schools as an auto technology teacher from 1975 to present. More specifically, Urban claims he was exposed to asbestos while using Hennessy's brake grinders. During opening statements on Wednesday, Lowry explained that Hennessy manufactured the actual tool that grinded the brakes and didn't manufacture any asbestos-containing products. The plaintiff's asbestos exposure came from the asbestos-containing brakes that Urban would have grinded off the brake shoe. In January 2013, Urban was diagnosed with mesothelioma both above and below his diaphragm as a result of his asbestos exposure. During opening statements, Hart said Urban's cancer is still there, but chemotherapy has helped slow down its progression. The Urbans have been present at the trial. Hart told jurors that Urban may look healthy now, but said they can't see what is happening on the inside. Hart said the Urbans' have more than $800,000 in medical expenses and expect to lose more than $600,000 in Urban's income. But he went further and asked the jury to award the Urbans $8.5 million in compensatory damages during his opening statements. "We can only ask you for monetary damages," he said. Lowry objected and moved for a mistrial. Stobbs denied the motion at this time. Attorney Bob Rich also presented a portion of Hennessy's opening statements on Wednesday, tracing the history of Hennessy and Ammco, Hennesy's predecessor. Rich presented tests showing the asbestos dust produced by the brake grinders met all OSHA standards and safety measures. He said that as OSHA learned more about the dangers of asbestos, Ammco updated its products and warnings in accordance with the most recent knowledge at that time. He said Ammco did not know more about asbestos dangers than the leading researchers. The early brake grinders included a dust bag that was intended to keep the shop clean, but also served as a means to minimize asbestos dust. However, after OSHA increased its standards for allowable asbestos exposure, Ammco redesigned its grinder to allow for better dust collection and ventilation even though its previous design met the requirements, Rich said. Rich explained that OSHA standards began by allowing for 30 f/cc (fibers per cubic centimeter) in 1946 to the current .1 f/cc standard. He added that one of the world's leading asbestos researchers even told those working with asbestos-containing products to continue their work as late as 1972. Rich also explained that the brake grinder's manual instructed users to empty the dust bag often, but he said Urban only emptied it a few times per year, resulting in more dust. However, during a video deposition on Thursday, Dr. Arthur Frank of Drexel University School of Public Health testified that he believed Urban's exposure to asbestos while grinding brakes was a substantial contributing factor to his mesothelioma. Frank testified that people could develop cancer by working with brake grinders, and did develop asbestos-related cancers. He explained that as workers' asbestos exposures increase, their chances of developing asbestos-related diseases increase. Frank said more asbestos fibers were blown into the air from light grinding than someone would be exposed to from background exposure in 70 years. He added that grinding around 800 or so brakes would expose Urban to billions or trillions of airborne asbestos fibers in his lifetime. Testimony for the case is expected to continue Monday. Madison County Circuit Court case number 13-L-437 ASBESTOS UPDATE: Three Months of Asbestos Removal Start in Tonga ---------------------------------------------------------------- RadioNZ.co.nz reported that a number of key buildings around Tonga are being closed to allow the removal of asbestos. The Tongan government's environmental officer Mafile'o Masi said the removal, being done through the European Union-funded Pacwaste programme by a European company, Polyeco, was expected to take about three months to complete. She said about 6,000 square metres of asbestos needed to be removed and about two thirds of that was in the Prince Ngu Hospital on Vava'u. "A lot of people are still using the hospital but we have received reassurance from the Ministry of Health that relocation of the patients and workers there is not a problem." Several buildings in Nuku'alofa are affected, including the main hospital, Vaiola, but there the presence of asbestos is confined to a short covered walkway and its removal will not interfere with the hospital's operations. The asbestos waste is to be sealed and isolated in landfills on Tongatapu and on Vava'u. ASBESTOS UPDATE: Hundreds Back Bid to Save Asbestos Cases Dept. --------------------------------------------------------------- North-west Evening Mail reported that hundreds have backed a campaign to save a highly skilled Barrow team who process claims for disability benefits and industrial illnesses. Phoenix House in Barrow has been put at risk of closure under plans by the Department for Work and Pensions to shut and relocate several health assessment offices and job centres across Britain. Around 80 members of staff are based at the Stephen Street site, specialising in working with individuals with industrial diseases such as mesothelioma. Many workers have been left fearing they will be made redundant if they cannot move to another DWP site. A petition has been set up on change.org calling on the government to save Phoenix House and retain the expertise in the local area. It has so far collected more than 600 signatures, with people from across the country, and some from as far away as Australia, adding their support the campaign by the Cumbrian branch of the Public and Communication Services Union. The petition states: "Over 1,000 combined years of experience helping victims of asbestos related lung diseases and industrial disease will be lost. "Excellent working relationships with asbestos support groups, unions and charities will end. "Industrial disease has had and continues to have a devastating effect on workers and families throughout the country meaning this proposed closure could have an effect on every worker in the land." Campaigners believe the facility must stay local as the Barrow borough has the highest rate of mortality for mesothelioma in England at 14.3 deaths per 100,000 people - triple the national average. Exposure to asbestos, which was once commonly used in the shipbuilding industry and in older construction methods, can cause the rare malignant lung cancer of mesothelioma to form many years later. Workers at Phoenix House processes claims for welfare support such as the Industrial Injuries Disablement Benefit, the Constant Attendance Allowance, and the 2008 Mesothelioma Scheme. Bob Pointer, chair of Cumbria Asbestos Related Disease Support (CARDS), is worried about the impact any closure will have on the group which meets monthly in Barrow. He said: "It means we wouldn't have a specialist benefit office for the worst affected area for asbestos in the country." The decision to close Phoenix House is out for consultation but if it gets the green light then the closure will take place by March 2018. The government is shrinking the DWP estate and merging offices to close "under-used" buildings and save money. ASBESTOS UPDATE: Ottawa Schools Rife with Asbestos -------------------------------------------------- Julie Ireton, writing for CBC News, reported that every school Kim Appel taught at over her 20-year teaching career contained asbestos. Every one. That's not surprising, though, when you consider that more than 200 schools in Ottawa were built with the ubiquitous construction material in their floors, ceilings, walls and pipes. Appel, now a health and safety rep with the Ontario Secondary School Teachers' Federation, isn't afraid of getting sick because she knows how to protect herself from exposure to asbestos. But she has witnessed first-hand the deadly effects of the toxic material, and has become an advocate for the public's right to know exactly where asbestos lurks. "In Ottawa, a good friend of mine ... did die from mesothelioma," said Appel, referring to a teacher who worked at Sir Robert Borden High School. "He's only been in one school -- his only job that he ever did for 40 years. So [asbestos] seems to be a likely scenario for it." Appel has heard other stories about teachers across the province who were exposed to asbestos years ago and who have become sick. She becomes emotional and gets what she calls "tingles" when she talks about it. "Those are the reasons why we do what we do . . . that their deaths weren't in vain." Between the 1930s to the mid-1980s asbestos, considered a good fire retardant and insulator, was wrapped around pipes, covered gym ceilings and used in plaster walls and flooring glue. It's now considered a toxic carcinogen, and the federal government has taken steps to ban the use and import of asbestos materials in this country. Asbestos can be contained safely as long as it's not disturbed, but Ottawa schools built as long ago as 1895 need constant repair, renovation and upgrades. "Even to update lights, update ceilings, updates ceiling tiles, we start to disturb things," said Appel. She said keeping schools safe requires constant communication and coordination between school boards, staff and unions. "We're starting to work together and we're starting to do awareness," said Appel. "It's not something that we're saying we're perfect at or that it's got there yet." The board The Ottawa Carleton District School Board is the city's largest, so it's no surprise it has the most schools -- some 115 -- that contain asbestos. "I don't think there's a meeting that we have as a management group in facilities that asbestos issues don't come up," said Mike Carson, the board's superintendent of facilities. "We can manage it. We are making sure that we're holding ourselves accountable, not only with the Ministry of Labour regulations, but also our own policies." Those policies include maintaining up-to-date inventories in every school, usually available in the chief custodian's office. Carson said right now those reports are only on paper, and aren't digitalized or available online. Any time a company is contracted to do repairs or work in a school, the "designated substances manual" or asbestos inventory is supposed to be provided to the workers. It's up to the board and its inspectors to make sure those reports are updated. Carson said in any given year, the board will spend $20 million to $25 million on facilities, and a portion of that money is used for asbestos removal. But he said asbestos will remain in many of Ottawa's schools for years to come, so openness is key. "I think the communication goes a long way, to not only calm people, but help them help us if they see a problem," said Carson. "People need to know what the risks are, what we're doing to minimize the risk, and if they have concerns that we can respond promptly." The parent Claire Todd probably knows more about all the places asbestos can hide in a school than she ever wanted to know. The mother of twins in Grade 5 and a member and former co-chair of the parent council at Broadview Public School, Todd still has hundreds of pages of asbestos reports on her desktop computer. "I was concerned about it, because there had been things that happened at Broadview that would disturb the asbestos," said Todd, scrolling through the files. "When I first started reading that document, asbestos kept coming up." Beyond asbestos, Broadview's extensive problems included lead pipes, a fire and floods that prompted the decision to build a new school on adjacent property. Demolition of the original building began last week, after the asbestos contaminants were removed. 'I think if I were a parent and my kids were in a school that was having a big renovation done, I would want to know.' - Claire Todd, parent While Todd believes in vigilance when it comes to asbestos, she doesn't think parents or kids should be worried. "I just want to make sure people don't feel really scared that their school contains asbestos because I think that it's in the school board's best interest to make sure everybody's safe, the workers and students," said Todd. If parents are concerned, she said, they just need to ask for the information in the reports. "I think if I were a parent and my kids were in a school that was having a big renovation done, I would want to know." The law A proposed law that goes to second reading debate at Queen's Park this month calls for a ban on the use, reuse, import, transport or sale of asbestos in Ontario. The legislation would also require the Ministry of Labour to create a register of all provincially owned or leased buildings containing asbestos. In December the federal government announced a similar registry for federal buildings, to be in place by next year. The takeaway There's still work to do within the school system to boost awareness about asbestos. For Kim Appel, that job begins at home. "I talk to my kids about it. They're teenagers. They're in an old school. They know because of what I do as my job," said Appel. "They know that I've been into their school when there have been projects on and I have been there to watch as they're testing the air quality." The lists and reports aren't complete: the Ministry of Labour has been called to various school board sites after contractors discovered asbestos without being warned first, Appel said. Still, she doesn't want people to fly off the handle when they hear the word "asbestos." "We can ask, what condition is it in? Where is it found? What things do I need to be aware of? Is it safe to hang things from the ceiling? Those are questions that we would want people to know that maybe they should be asking to protect themselves just to be safe and healthy." ASBESTOS UPDATE: Potential Asbestos Exposure on RHH Site -------------------------------------------------------- Safety Culture reported that the RHH Redevelopment has been advised of a potential asbestos exposure on the project site. According to Project Director, Ben Moloney, he has been advised that some of the Managing Contractor's workers have potentially been exposed to asbestos in the E-Block area at the Royal Hobart Hospital. He said the works were conducted in an isolated construction zone and not a staff or patient area. "What is of upmost importance is that potentially affected workers are offered support, together with detailed incident briefings and these have been instigated by the Managing Contractor," he said. Mr Moloney revealed that the presence of asbestos at the Royal Hobart Hospital has long been known and that they have implemented strict management procedures. "To identify and remove asbestos prior to works, RHH Redevelopment commissions an independent hygienist to undertake inspections and testing for asbestos and report on the findings," he said. Hygienists have inspected the area prior to the commencement of works in the E-Block and no sources of asbestos have been identified. "However, it appears that due to an administrative error, a single positive test for asbestos from a prior investigation of the same area was not identified by the hygienist," said Mr Moloney. "We are acting immediately to ensure our safety procedures are strictly enforced. "Appropriate cleaning of the construction area has been completed." WorkSafe Tasmania has been advised of the matter. ASBESTOS UPDATE: Asbestos "Double-Dipping" Bill Reintroduced ------------------------------------------------------------ Jessica Karmasek, writing for Legal Newsline, reported that a bill that targets the country's current asbestos injury compensation system has been quietly reintroduced by a Texas federal lawmaker who is hoping President Trump is more receptive than his predecessor. U.S. Rep. Blake Farenthold, a Republican who serves on the House Judiciary Committee and the House Committee on Oversight and Government Reform, re-submitted the GOP-backed bill last week. Reps. Bob Goodlatte, R-Va., and Tom Marino, R-Pa., are listed as cosponsors. The Furthering Asbestos Claim Transparency Act of 2017, or H.R. 906, would increase transparency in the asbestos trust system, in which about 100 companies that were targeted frequently by asbestos lawsuits declared bankruptcy to establish trusts to compensate victims without having to use the civil courts system. Elizabeth Peace, a spokeswoman for Farenthold, told Legal Newsline in an email that H.R. 906 is the same version that was introduced last Congress. The 2017 version has not been folded into the Fairness in Class Action Litigation Act or any other legislation, or at least not yet, Peace noted. The class action bill was introduced in April 2015 and merged with the FACT Act in January 2016. The House passed last year's Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act, or H.R. 1927, by a vote of 211-188. Additional hearings were held by the Senate, but ultimately it failed to move on the legislation. Former President Barack Obama would have vetoed the bill had it passed the Senate. Farenthold's previous bill, H.R. 526 or the Furthering Asbestos Claim Transparency Act of 2015, stalled in committee. The initial version of the bill passed the House in 2013; Farenthold was the sponsor. "When attorneys and their clients bring false or exaggerated claims to trusts, they take assets from deserving victims," Farenthold, now a four-term Congressman, said at the time. "The FACT Act will discourage this kind of abuse by shining light on the trust system, as sunlight is often the best disinfectant." Like previous versions, this bill would require quarterly reports on claims made to the trusts while taking measures to protect claimants' personal information. It also would require trusts to respond to information sought from them by defendants in asbestos lawsuits. Defendants in those lawsuits want to ensure that plaintiffs attorneys aren't fully blaming their products while also blaming the products of companies that established trusts. It is a practice that was brought to light in Garlock Sealing Technologies' bankruptcy proceeding. Tort reform advocates are hopeful Farenthold's legislation will move forward this time around, with a Republican majority in both houses and a GOP president in place. President Trump, as a real estate developer, has praised asbestos. He tweeted in 2012 that asbestos could have prevented the World Trade Center towers from collapsing on 9-11. He told a Senate subcommittee on federal financial management, government information and international security in 2005 that asbestos is a far more superior fire-retardant than the material now used in its place. He said comparing the two is like "a heavyweight champion against a lightweight from high school." "But in your great wisdom, you folks have said asbestos is a horrible material, so it has to be removed," he told the subcommittee. In his 1997 book, "The Art of the Comeback," he went as far as claim the anti-asbestos movement is the work of the mob. "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. Great pressure was put on politicians, and as usual, the politicians relented," he wrote in the book. Trump, in his book, argued the material, used in the past because of its insulating and fire-resistant properties, was better at "limiting the ravages of fire" compared to its replacements. According to the National Cancer Institute at the National Institutes of Health, asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads. These fibers are resistant to heat, fire and chemicals and do not conduct electricity. Asbestos has been classified as a known human carcinogen -- a substance that causes cancer -- by the U.S. Department of Health and Human Services, the Environmental Protection Agency, and the International Agency for Research on Cancer. According to the National Cancer Institute, studies have shown that exposure to asbestos may increase the risk of lung cancer and mesothelioma, a relatively rare cancer of the thin membranes that line the chest and abdomen. While rare, mesothelioma is the most common form of cancer associated with asbestos exposure. It has a latency period of several decades but is often quickly fatal once symptoms begin. The FACT Act targets conduct by plaintiffs attorneys and their claimants uncovered by Garlock Sealing Technologies during its bankruptcy process. The information was unsealed by a Legal Newsline lawsuit. In January 2014, U.S. Bankruptcy Judge George Hodges ruled in a landmark decision that plaintiffs attorneys had been withholding evidence that could have been submitted to trusts while pursuing lawsuits against Garlock. They did so in order to maximize recovery in both systems, he ruled. Companies targeted by lawsuits could not point to claims made by the same individuals to the bankruptcy trusts as proof that they weren't fully responsible for illnesses caused by exposure. Garlock had been permitted full discovery into the claims of 15 individuals and eventually filed racketeering lawsuits against the law firms that represented them. "It appears certain that more extensive discovery would show more extensive abuse," Hodges wrote. "But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive." Ultimately, Hodges ordered Garlock to put $125 million in its trust -- more than $1 billion less than plaintiffs attorneys had requested. Hodges ruled that Garlock's past record of verdicts and settlements was not an indicator of future liabilities because of the actions of plaintiffs attorneys. Garlock eventually agreed to put more than $350 million in its trust and dropped its racketeering lawsuits. Despite the settlement, John Crane Inc. -- a company that frequently finds itself targeted by asbestos attorneys -- has gone on to file lawsuits against various asbestos law firms under the Racketeer Influenced and Corrupt Organizations Act. The company, in its racketeering claims, has pointed to the evidence uncovered by Garlock during its bankruptcy proceeding. In September, Dallas asbestos firm Simon Greenstone Panatier Bartlett PC asked that JCI's complaint against it be dismissed for lack of subject matter jurisdiction and failure to state a claim. In a reply filed in the U.S. District Court for the Northern District of Illinois, the firm further argues that JCI cannot combine insufficient allegations of general jurisdiction with insufficient allegations of specific jurisdiction and "create personal jurisdiction over the defendant from the mixture." "JCI abandons any argument that general jurisdiction exists, and instead argues that this Court can exercise specific jurisdiction over this case -- which is premised on seven specific asbestos cases litigated in California, Texas and Pennsylvania -- based on entirely unrelated suits filed by Simon Greenstone against JCI," the firm wrote in its Dec. 2 reply. JCI, in a more recent sur-reply, described Simon Greenstone's arguments as an "erroneous characterization of facts and law." "The Defendants withheld evidence of exposure to bankrupt companies' products in litigation with JCI. The Defendants then received payment from bankruptcy trusts for the same injuries involved in litigation with JCI," the company wrote in its Dec. 13 filing. "But JCI and others had already compensated the plaintiffs for those same injuries, and JCI had a right to seek contribution from these bankruptcy trusts, which claims the Defendants prevented by hiding evidence of their clients' exposure. "JCI's claims do not require undoing state judgments -- in fact, those judgments are taken as a given for purposes of JCI's contribution claims. Instead, Defendants' fraud, not the judgments, foreclosed JCI's contribution claims." Judge Amy St. Eve, in a Feb. 8 minute entry, changed a status hearing set for this week to March 27. The defendant in another lawsuit filed by JCI, Philadelphia-based Shein Law Center, has made similar jurisdictional arguments. "JCI's claims are both factually unsupported and legally unsupportable and, more critically, Defendants Benjamin P. Shein and Shein Law Center Ltd. have no contacts with Illinois to justify the exercise of personal jurisdiction over them by this Court," the firm wrote in a Dec. 16 filing, also in the Northern District of Illinois. "This case should be dismissed forthwith due to lack of jurisdiction or, alternatively, due to failure to state a claim upon which relief can be granted." Judge John J. Tharp Jr. has set a status hearing for March 2. ASBESTOS UPDATE: Asbestos Discovered in Private School ------------------------------------------------------ Joe Jenkins, writing for Ramapo Daily Voice, reported that Rockland County officials discovered what could be asbestos in a sealed utility closet within the Bais Yaakov Elementary School of Rockland County, according to lohud.com. County officials discovered the substance during an inspection on Feb. 2, but allege school authorities would not allow them to test it. As a precaution, the school sealed the closet and the adjacent room. School officials also stated air samples came back negative for asbestos, lohud.com reported. ASBESTOS UPDATE: Aussies With Asbestos at Home Have Health Issues ----------------------------------------------------------------- Rae Johnston, writing for Gizmodo, reported that the ACT Asbestos Health Study, which looks at the health concerns of people who have lived in a house with loose-fill asbestos insulation, has release a third report. The finding show one in three people "had seen a health professional" for mental or physical health issues specifically related to living in a house with loose-fill asbestos. Loose fill insulation was installed in more than 1,000 Canberra homes between 1968 and 1979, and in 2015 the ACT Government commissioned the ANU National Centre for Epidemiology and Population Health to undertake a two-year study to improve understanding of the health risks of Mr Fluffy loose fill asbestos insulation. The ANU ACT Asbestos Health Study handed its first report to the ACT government in September 2015, which described the trends and risks of mesothelioma in the ACT from 1982 to 2014. It found mesothelioma was a relatively rare cancer, with 140 cases registered in the ACT between 1982 and 2014. Inhalation of asbestos fibres is the predominant cause of mesothelioma and an important contributor to risk of lung cancer in exposed people. The report is based on surveys of 363 residents who recently lived in a so-called "Mr Fluffy" house, along with 204 people who had lived in these houses at some time in the past. The survey, conducted between May and July 2016, found almost three quarters (72 per cent) of recent residents were concerned about their health from living in a Mr Fluffy house. Researcher Associate Professor Phil Batterham said the results found up to date information was a key to lowering the levels of stress and anxiety for people who have lived in a Mr Fluffy house. "Some people who responded to the survey have experienced high levels of psychological distress and health concerns," said Associate Professor Batterham, Acting Head of the ANU Centre for Mental Health Research. "However, the report finds people who have received health information relating to exposure to asbestos reported lower levels of stress and concern. We also found that most people surveyed believed they have had adequate information about the health issues associated with loose-fill asbestos." Professor Batterham said the findings suggest that providing timely and sufficient access to health information is important to reducing the stresses associated with living in an affected residence. Other key findings included four out of five residents reporting renovations to their "Mr Fluffy" house, 52 per cent having entered the roof space and 64 per cent entering the under-floor space. Two thirds said they had received "enough" health information about health risks of asbestos. 25 per cent of survey respondents reported high levels of distress, "which may or may not have been related to living in a Mr Fluffy house" and more than three quarters of respondents said they were concerned about their children's health. The ANU says there have been similar findings among respondents who had lived in Mr Fluffy homes in the past. Chief Investigator Associate Professor Martyn Kirk said most residents surveyed reported being in relatively good health. He said at the time of survey, no current or recent residents reported being diagnosed with mesothelioma. Associate Professor Kirk, from the ANU National Centre for Epidemiology and Population Health, also urged caution when interpreting the results. "Fewer people responded to the survey than we expected, which means those who didn't respond may have a different experience than those reported in this survey. For recent residents, only people from 262 houses responded, which is around one quarter of Mr Fluffy homes," he said. The ACT Health Asbestos Study is currently analysing data to examine if there is an elevated risk of cancer in residents of Mr Fluffy homes. Anyone experiencing anxiety or concerns about living in a Mr Fluffy house should contact their doctor, Capital Health Network on 6287 8099, Lifeline on 13 11 14 or Beyond Blue on 1300 224 636. ASBESTOS UPDATE: Asbestos Warning in Fire-Ravaged NSW Towns ----------------------------------------------------------- The Australian Associated Press reported that the number of NSW homes razed by devastating bushfires has risen to 33, with residents returning to inspect their properties warned about the dangers of deadly asbestos fibres in destroyed buildings. Most of the homes lost were in the state's central west where a large blaze blackened 52,000 hectares east of Dunedoo. A church was also reduced to ruins. The NSW Rural Fire Service says five homes have been damaged across the state. There are unconfirmed reports properties have been lost after a number of bushfires tore across NSW yesterday. The Asbestos Diseases Foundation of Australia says a high proportion of homes built before 1987 contain asbestos products so returning residents should consider using masks and disposable suits. "Losing your home is tragic enough, but the last thing anyone wants is to add the future suffering of asbestos-related diseases because appropriate safety precautions weren't taken," president Barry Robson said in a statement. There are more than 50 fires still burning across NSW, with about 15 yet to be contained. Farmer chokes back tears after losing his home, pets and livestock to out-of-control NSW bushfire. Firefighters were hoping to gain the upper hand before temperatures rise again over the coming days. There are 520 firefighters in the field on Tuesday night. Premier Gladys Berejiklian says the extensive loss of livestock has robbed many farmers of their livelihoods. She also praised the courage and commitment of volunteer fire crews. "Without their efforts, we would be looking at a very different outcome today," she said during her first question time as premier on Tuesday. "There is no finer example of selflessness and sacrifice. The entire state is indebted to our emergency services volunteers." The Insurance Council of Australia estimates insured losses are at least $20 million with that figure set to rise. Council chief executive Rob Whelan says an "insurance catastrophe" declaration has seen the industry escalate its response. An historic homestead on the $20 million Tongy Station was among at least 23 homes razed by the massive Sir Ivan fire in the central west with the village of Uarbry losing at least five houses. The Sir Ivan fire was so "extraordinarily destructive" at its height on Sunday that it created its own thunderstorm. NSW faced its worst day in the history of fire danger ratings on Sunday with an average temperature of 44C and strong winds. Two firefighters were hospitalised; one with a severely lacerated hand and the other with burns to his hands, arm and face. The federal and NSW governments on Tuesday announced funds would be made available to fire-affected communities across the state under the joint Natural Disaster Relief and Recovery Arrangements. ASBESTOS UPDATE: Dumped Asbestos Shuts Eyemouth Recycling Center ---------------------------------------------------------------- BBC News reported that a recycling centre in the Borders will be forced to close for three days after asbestos was found dumped in a skip. The Eyemouth site will have to shut from 22 to 24 February in order to safely dispose of the asbestos. It has been estimated the final cost of dealing with the substance will be a "four-figure sum" for the local authority. Scottish Borders Council has urged the public and businesses to use licensed contractors to remove the material. Councillor David Paterson said: "It is hugely disappointing that someone has acted in such an irresponsible manner by dumping asbestos waste at one of our recycling centres. "It could not only have proved dangerous to our staff and members of the public, but has now forced Eyemouth Recycling Centre to close for three days, affecting the service the council provides to the local community. "I would appeal to those who discover asbestos waste while working or in their homes to contact a licensed contractor, who can deal with it safely." ASBESTOS UPDATE: Asbestos Kills Retired Chef -------------------------------------------- Mirror reported that a pensioner died of lung disease after being exposed to asbestos while washing her husband's work overalls, an inquest heard. Retired chef Jill Moore, 71, was said to have had "prolonged exposure" to the killer substance while doing her family laundry. Her husband Brian had been a mechanic between 1965 and 1990, working on car parts such as brakes and transmission systems containing asbestos. The inquest in Ipswich, Suffolk, heard how asbestos dust and residue remained on his overalls and was inhaled by Mrs Moore of Hoddesdon, Hertfordshire. She had mesothelioma diagnosed in November 2015 and died from the disease on November 11 last year. The inquest heard that Mrs Moore spend the last months of her life living with her daughter-in-law Sue Preston in West Row, near Bury St Edmunds, Suffolk. Her family described her as "full of life" and "a fighter". Assistant coroner Kevin McCarthy recorded a conclusion of industrial disease as a result of severe lung disease. ASBESTOS UPDATE: Rawlins Stops Demolition After Asbestos Find ------------------------------------------------------------- Chad Abshire, writing for Rawlins Times, reported that the demolition of a building has been put on hold after officials discovered a not-so-pleasant surprise while tearing it down. City Manager Scott Hannum said asbestos was discovered in the former Uptown Motel, located at 619 W. Spruce St., during the first day of demolition. The project was immediately suspended. "There was some asbestos removal taken place the city had paid for," Hannum said. "The way it was documented and put into a file showed that the asbestos abatement was full and complete." However, that proved to not be the case when workers discovered asbestos. Hannum said the city immediately contacted the Wyoming Department of Environmental Quality to see if the agency could sign an emergency asbestos abatement plan. DEQ representatives are expected to be in Rawlins today and an asbestos specialist has already been in to evaluate the building. The city has invoices from 2014 that suggests the asbestos abatement had already occurred. Hannum said the building still containing asbestos was a "misunderstanding" in the documentation. The demolition has a cost of $20,000 to $25,000, Hannum said, which will likely increase now. Hannum said it would cost an estimated $16,000 to $20,000 to remove a "very small amount" of asbestos. Other buildings in town, he said, would run $450,000 in removing asbestos. Hannum said when DEQ signs off on the abatement, the asbestos and building should be down rather soon. However, the process will likely not resume until Monday. Since workers had been actively tearing the building down, there is a pile of rubble in the northwest corner of the building that does have asbestos within. However, Hannum said the scene was not dangerous "with it being contained." Hannum said workers who had been inside the building did not suffer from any ill effects. Workers have covered the rubble with plastic and anchored it. He said the city would keep an eye on it to ensure it remains covered in case of wind or animals. Hannum said the process of taking the building down began in March 2010. ********* 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 * * *