/raid1/www/Hosts/bankrupt/CAR_Public/170707.mbx
C L A S S A C T I O N R E P O R T E R
Friday, July 7, 2017, Vol. 19, No. 133
Headlines
A+ BUILDING: Faces "Parton" Suit Under FLSA, Ohio Wage Laws
AARON'S INC: Baton Rouge Retirement Sues Over Misleading Reports
AF DESIGN: "De La Nuez" Suit Complains Over Payroll Practices
ALKAWTHAR INTERNATIONAL: 4th Cir. Appeal Filed in "Khaer" Suit
ALON USA: "Adler" Seeks to Stop Shareholder Vote on Delek Merger
APOPKA, FL: "Reed" Suit Seeks Unpaid Back Wages Under FLSA
ARIZONA: Joe Arpaio Criminal Contempt Trial Begins
AUSTRALIA: Manus Island Settlement Cover-up for Refugee Crimes
BASMAT INC: "Canul" Seeks Unpaid Overtime Wages, Reimbursements
BROCKTON, MA: Court Upholds Judgment in Racial Bias Case
BUCKLES-SMITH: $350K Settlement in "Schwartz" Gets Final Approval
CALIFORNIA, USA: Ray Accuses CDSS and DPSS of Violating FLSA
CANADA: Set to Apologize for "LGBT Purge" Amid Class Action
CEMEX INC: "Russell" Suit Alleges FLSA Violation
CENTURYLINK: Idaho Among Complainants in False Billing Suit
CHEROKEE FUNDING: Order Dismissing PLA Claims Reversed
CHESAPEAKE BAY: Faces "Mueller" Suit Under FLSA, Md. Labor Laws
CLEARVIEW ELECTRIC: Violates TCPA, "Weintraub" Class Suit Alleges
CONAGRA BRANDS: "Lee" Suit Removed to District of Massachusetts
CONSUMERS WAREHOUSE: Misclassifies Designers, Vecchione Claims
CONVERGENT OUTSOURCING: Faces "Medina" Suit for Violating FDCPA
COSITAS RICAS: Faces "Garcia" Suit Under FLSA, NY Labor Law
CROSS COUNTY SUPPORT: "Taylor" Suit Seeks OT Wages
CS BUSINESS: "Schar" Class Certification Deadline Moved to Aug. 4
DC GROUP: "Collins" Suit by Sales Exec Alleges FLSA Violation
EVERGREEN HOSPICE: "Nunez" Suit Seeks OT Pay Under Labor Code
FAIRLIFE LLC: Seeks 7th Cir. Review of Ruling in "Kremmel" Suit
FARMERS RESTAURANT: Sued by Stephens for Violating FLSA
FLOWERS BAKING: Class Counsel in "Riley" Gets $3.8MM in Fees
FORESTAR GROUP: Faces "Gold" Lawsuit Over Terra Firma Merger
FRONTIER AIRLINES: Faces "Chimanski" Suit Over Delayed Flights
GASLAMP BAJA: Cheats Customers by Adding Surcharge, Knutson Says
GENOVA PRODUCTS: 3d. Cir. Affirms Dismissal of "Blanyar" Suit
GOLDEN STATE: Blumenthal Nordrehaug Files Class Action
GREGORY TURZA: Appeals Ruling in "Holtzman" Suit to 7th Circuit
GRUBHUB INC: "Stockman" Suit Sued over Hidden Fees and Charges
ITC HOLDINGS: September 25 Settlement Fairness Hearing Set
JOHN KYUNG: Failed to Pay Overtime Wage, "Keong" Suit Says
KINDRED HEALTHCARE: Al-Najjar Seeks Minimum Pay under Labor Code
LANGSTON CONSTRUCTION: Laborers' Suit to Proceed as Class Action
LAX IN-FLIGHT: "Gutierrez" Seeks Missed Break Premium, Last Pay
LIBERTY FORD: Court Directed to Dismiss Appeal
MDL 2002: IP's Bid for Class Certification Denied Anew
MENTOR EXEMPTED: "Fei" Seeks Overtime Pay, Alleges Time Shaving
MIDLAND FUNDING: Sued for Collection on Time-Barred Debt
MIKE HUCKABEE: May Face Class Action Over Robocalls
MOBILEIRON INC: August 18 Settlement Fairness Hearing Set
MONSANTO COMPANY: Faces "Couch" Suit over Herbicide Roundup
NABORS DRILLING: "Garza" Suit Alleges FLSA Violation
NATIONAL STORES: "Martinez" Seeks 60-day's Worth of Pay, Benefits
NEW YORK FILM: "Cho" Suit Seeks Minimum Wage & OT Pay
NEW ZEALAND: Earthquake Damage May Impact Canterbury Homeowners
OCWEN FINANCIAL: Bid for Interlocutory Review in "Weiner" Denied
OWL INC: "Perez" Lawsuit Alleges FLSA Violation
PACER INT'L: Tenn. App. Affirms Settlement in Shareholders Suit
PAIGE-HUNTER: Faces Class Action Over Void House Deed
PARKLANE FINANCIAL: July 31 Settlement Claims Filing Deadline Set
PATRIOT DRILLING: Fails to Pay Overtime, "Sanchez" Suit Alleges
PAYPAL HOLDINGS: Robins Arroyo Named Lead Counsel in "Silverman"
PERFUMANIA HOLDINGS: $463K Class Settlement Gets Final Approval
PROGRESSIVE LABORATORIES: "Noonan" Sues Over Excessive Iodine
R.J. CORMAN: "Abney" Suit to Recover Unpaid Overtime Wages
RAYONIER INC: September 8 Settlement Fairness Hearing Set
REYNOLDS AMERICAN: Faces "Drew" Suit Over British American Merger
SALANDER ENTERPRISES: Parties Agree to Dismiss "Williams" Suit
SIRIUS XM: Ninth Circuit Appeal Filed in "Wright" Class Suit
SKY SOLAR: Faces "Barilli" Suit Alleging Securities Act Violation
SMART EATING: Falsely Represented "Natural" Pizzas, Lazar Claims
SNAPPER INC: Faces "Orgera" Suit over Retained Gratuities
SOCAL GAS: Cedric the Entertainer Sues Over Hazardous Chemicals
SOUTH KOREA: Hearing Held in Class Action Against Ex-President
SP BEACH: "Avila" Suit Alleges FLSA Violation
SP PLUS: "Chavez" Suit Seeks Unpaid Wages, OT under Labor Code
TAD PGS: Faces "Gonzalez" Lawsuit Alleging FLSA Violation
TEMPUR-SEALY: Ct. Won't Review Denial of "Todd" Class Cert
TINA NAIL SPA: Accused by "Li" Suit of Violating FLSA and NYLL
TOYO INK: Faces "Polino" Lawsuit Under Calif. Labor Laws
UBER TECHNOLOGIES: Aggrieved Drivers File Suit Against Ex-CEO
UNION PACIFIC: 9th Cir. Remands "Christmas" to Superior Court
UNITED STATES: ACLU Expands Petition to Halt Iraqi Deportations
UNITED STATES: Faces Class Action Over PACER Overcharges
UNITED STATES: Appeals Ruling in "Greenwood" Suit to Fed. Circuit
UNO CONSTRUCTION: "Mendoza" Sues for Breach of Contract
WAL-MART STORES: "Prado" Suit Seeks Unpaid Wages under Labor Code
WELLS FARGO: Sued by Cotton Over Illegal Payment Change Notices
ZIMBABWE: Zec's Refusal to Release Voters Roll May Prompt Suit
ZURICH AMERICAN: Ill. App. Affirms Dismissal of "Marque" Suit
* Calif. Gov. to Earmark Settlement Money for Indigent Services
* Mandatory Arbitration Ban Hits Defrauded Student Borrowers
* South Korea Mulls Class Actions for Processed Food Damages
Asbestos Litigation
ASBESTOS UPDATE: Velan Valve Dropped as Defendant in "McSwain"
ASBESTOS UPDATE: Asbestos Removal Approved at Saffell St. School
ASBESTOS UPDATE: Warehouse Closed Down After Asbestos Find
ASBESTOS UPDATE: 3 Hidalgo ISD Schools Test Positive for Asbestos
ASBESTOS UPDATE: Greater Hume Gets Loose-Fill Asbestos Protocol
ASBESTOS UPDATE: Navy Veteran's Case Allowed to Proceed
ASBESTOS UPDATE: CRIZ Board Grants $1.9MM for Asbestos Removal
ASBESTOS UPDATE: Ukraine Implements Asbestos Ban
ASBESTOS UPDATE: Polaris Whistleblower Says Recall Should Extend
ASBESTOS UPDATE: Asbestos Concerns Remain After Pipe Explosion
ASBESTOS UPDATE: Ohio Contractor Sent to Prison in Asbestos Case
ASBESTOS UPDATE: Prohibition Notice Issued at Fyshwick Warehouse
ASBESTOS UPDATE: Man Says Major Corps. Exposed Him to Asbestos
ASBESTOS UPDATE: Gov't Sends Asbestos Warning to Grenfell Area
ASBESTOS UPDATE: Legal Wrangling Over Settlement Cost Continues
ASBESTOS UPDATE: Armley Prison Fitter Who Tried to Sue Gov't Dies
ASBESTOS UPDATE: Asbestos Falling Like Confetti, Inquest Told
ASBESTOS UPDATE: Oman Bans Import of Asbestos Goods
ASBESTOS UPDATE: Heirs Say Missouri Cos. Fail to Protect Workers
ASBESTOS UPDATE: DOT Ordered to Pay for Victim's Gravestone
ASBESTOS UPDATE: Asbestos Fiber Burden Doesn't Decline with Time
ASBESTOS UPDATE: Single Mum Dies from Asbestos-related Cancer
ASBESTOS UPDATE: Family Given Six-Figure Sum After Death
ASBESTOS UPDATE: Ex-Machinist Says St. Louis Cos. Fail to Warn
ASBESTOS UPDATE: Hefty Fine, Prison Time for Improper Abatement
ASBESTOS UPDATE: Wives Who Inhaled Asbestos Seek Justice
ASBESTOS UPDATE: Mills Dropped as Defendant in "Hanson"
ASBESTOS UPDATE: 12 Cos. Dropped as Defendants in "Everett"
ASBESTOS UPDATE: Parties Settle Asbestos PI Claims in "Cozart"
ASBESTOS UPDATE: RI Court Finds McCarthy Statement Admissible
ASBESTOS UPDATE: Yarway Corp. Dropped as Defendant in "Harris"
ASBESTOS UPDATE: Union Carbide Wins Summary Judgment in "Shaw"
ASBESTOS UPDATE: Inmates' Suit vs. Correctional Dismissed
ASBESTOS UPDATE: Eaton Corp. Dropped as Defendant in "Everett"
ASBESTOS UPDATE: Prison Officials Entitled to Qualified Immunity
*********
A+ BUILDING: Faces "Parton" Suit Under FLSA, Ohio Wage Laws
-----------------------------------------------------------
Scott Parton (3236 Zone Avenue, Toledo, Ohio 43617) & Bryon Perez
(4521 282nd St., Toledo, Ohio 43611), On behalf of themselves and
other members of the general public similarly situated,
Plaintiffs, v. A+ Building Maintenance and Home Repair, LLC
(230 Vance St., Toledo, Ohio 43604) and Nick Carpenter,
individually (230 Vance St., Toledo, Ohio 43604) Please also serve
Nick Carpenter, 130 Oakdale Avenue, Toledo, Ohio 43605
Defendants, Case No. 3:17-cv-01261 (N.D. Ohio, June 15, 2017),
alleges that Plaintiffs were misclassified as salaried, exempt
employees of Defendants because, inter alia, although they were
paid a weekly wage, Named Plaintiffs' wages were impermissibly
reduced depending on the number of hours they worked in a workweek
including when they worked below forty (40) hours per week at
various times throughout their employment with Defendants.
The case was filed under the Fair Labor Standards Act, the Ohio
Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act.
A+ Building Maintenance and Home Repair, LLC provides commercial &
residential home and building repairs. The Plaintiff was employed
as a service technician and/or general laborer.[BN]
The Plaintiff is represented by:
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1457 S. High St.
Columbus, OH 43207
Phone: (614) 704-0546
Fax: (614) 573-9826
Email: dbryant@bryantlegalllc.com
- and -
Matthew B. Bryant, Esq.
BRYANT LEGAL, LLC
3450 W Central Ave., Suite 370
Toledo, OH 43606
Phone: (419) 824-4439
Fax: (419) 932-6719
Email: Mbryant@bryantlegalllc.com
AARON'S INC: Baton Rouge Retirement Sues Over Misleading Reports
----------------------------------------------------------------
EMPLOYEES' RETIREMENT SYSTEM OF THE CITY OF BATON ROUGE AND PARISH
OF EAST BATON ROUGE, on behalf of itself and all others similarly
situated, Plaintiff, v. AARON'S, INC., JOHN W. ROBINSON, III, RYAN
K. WOODLEY, and GILBERT L. DANIELSON,
Defendants, Case No. 1:17-cv-02270-SCJ (N.D. Ga., June 16, 2017),
was brought on behalf of all those who purchased Aaron's common
stock between February 6, 2015 and October 29, 2015.
Throughout the Class Period, Defendants touted to investors the
strong revenue and sales growth generated by Progressive Finance
Holdings, LLC, the Company's most profitable subsidiary. In
addition, the Company specifically touted Progressive's
proprietary algorithm, which it used to determine which customers
meet the leasing qualifications. These statements, and similar
statements issued throughout the Class Period, were materially
false and misleading, says the complaint. In truth, Aaron's
statements regarding Progressive were materially false and
misleading because software issues related to the Progressive
algorithm, including the loss of critical data, undermined
Progressive's ability to determine which customers met the leasing
qualifications.
Aaron's, Inc. is a retailer of furniture, consumer electronics,
computers, appliances and household accessories that offers
flexible payment options for credit-challenged individuals.[BN]
The Plaintiff is represented by:
Michael A. Caplan, Esq.
CAPLAN COBB LLP
75 Fourteenth Street, N.E.
Atlanta, GA 30309
Phone: (404) 596-5610
Fax: (404) 596-5604
E-mail: mcaplan@caplancobb.com
- and -
Avi Josefson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Phone: (212) 554-1400
Fax: (212) 554-1444
E-mail: jerry@blbglaw.com
avi@blbglaw.com
AF DESIGN: "De La Nuez" Suit Complains Over Payroll Practices
-------------------------------------------------------------
DORA LOPEZ DE LA NUEZ, LEIDY VAZQUEZ, LUIS ZAPATA, PHILLIP
AGUILERA, MAURICE MACKENSON, DARRINGTON HORNE, RENAN OBREGON,
EDWARD RODRIGUEZ, YAMIL RODRIGUEZ TANCO, JOEL VAZQUEZ, JORGE
LOPEZ, and all others similarly situated under 29 U.S.C. 216(B),
Plaintiffs, vs. AF DESIGN SERVICES, LLC, ABILIO FURTADO and LUINA
FURTADO, Defendants, Case No. 1:17-cv-22263-CMA (S.D. Fla., June
18, 2017), alleges that Defendants willfully and intentionally
refused to pay Plaintiffs' wages as required by the Fair Labor
Standards Act as Defendants knew of the requirements of the Fair
Labor Standards Act and recklessly failed to investigate whether
Defendants' payroll practices were in accordance with the Fair
Labor Standards Act.
Plaintiffs work in various positions, including as architect,
janitor, supervisor, painter, laborers, drywall finishers,
electrician, plumber, drywall finisher and carpenter.[BN]
The Plaintiff is represented by:
Fiorella Castagnola Blaikie, Esq.
FIORELLA CASTAGNOLA, P.A.
4697 W. Flagler St.
Coral Gables, FL 33134
Phone: (786) 703-7936
Fax: (305) 675-7675
Email: Fiorella@rclegalgroup.com
ALKAWTHAR INTERNATIONAL: 4th Cir. Appeal Filed in "Khaer" Suit
--------------------------------------------------------------
Defendants Ibrahim Saed Ahmed and Miriam Ibrahim Elsayed filed an
appeal from a court ruling in the lawsuit styled Ibrahim S. Khaer,
et al. v. Alkawthar International LLC, et al., Case No. 1:16-cv-
00652-JCC-MSN, in the U.S. District Court for the Eastern District
of Virginia at Alexandria.
As previously reported in the Class Action Reporter, the lawsuit
seeks to recover unpaid minimum wages, overtime wages, liquidated
damages, reasonable attorney's fees and costs pursuant to the Fair
Labor Standards Act.
The Defendants are AL KAWTHAR INTERNATIONAL LLC, OLIVE BRANCH
KABOB LLC, SULTANA GRILL INCORPORATED, JIHAD KHATIB, MAWYA ABU AL-
HAWA, MOHAMMED BENCHERKI, HAJAR BENCHERKI, MOHAMED SEID AHMED
MOHAMED, IBRAHIM SAED AHMED and MIRIAM IBRAHIM ELSAYED.
The Defendants own and operate Olive Branch Kabob Restaurant
located at 8428 Lee Hwy., in Fairfax, Virginia, and the Sultana
Grill located at 5515 Wilson Blvd., in Arlington, Virginia.
The appellate case is captioned as Ibrahim S. Khaer v. Ibrahim
Saed Ahmed, Case No. 17-1775, in the United States Court of
Appeals for the Fourth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- RECORD requested from Clerk of Court is due on July 12,
2017;
-- Fee or application to proceed as indigent is due on
July 28, 2017;
-- Informal Opening Brief is due on July 24, 2017; and
-- Informal response brief, if any, is due 14 days after
informal opening brief is filed.[BN]
Plaintiffs-Appellees IBRAHIM S. KHAER, FOUIZA MOHAMED HADGAG,
HAMDI HASSAN AHMED SIYAM, and GEBREMESKEL YEMANE KIDST, On Behalf
of Themselves and All Others Similarly Situated, are represented
by:
Matthew Thomas Sutter, Esq.
SUTTER & TERPAK PLLC
7540A Little River Turnpike
Annandale, VA 22003
Telephone: (703) 256-1800
Facsimile: (703) 991-6116
E-mail: matt@sutterandterpak.com
ALON USA: "Adler" Seeks to Stop Shareholder Vote on Delek Merger
----------------------------------------------------------------
Joseph Adler, individually and on behalf of all others similarly
situated, Plaintiff, v. Alon USA Energy, Inc., Ezra Uzi Yemin,
David Wiessman, Zalman Segal, Ron W. Haddock, Ilan Cohen, Assaf
Ginzburg, Frederec Green, Mark D. Smith, Avigal Soreq, William
Kacal, Franklin Wheeler, Delek Holdco, Inc., Delek Us Holdings,
Inc., Dione Mergeco, Inc. and Astro Mergeco, Inc., Defendants,
Case No. 1:17-cv-00742 (D. Del., June 13, 2017), seeks to enjoin
Defendants from proceeding with the shareholder vote on Alon's
acquisition by Delek. The suit also seeks damages, in the event
the merger is consummated, pursuant to Sections 14(a) and 20(a) of
the Securities Exchange Act.
Delek will acquire the remaining fifty-three percent of Alon USA
outstanding common stock not already owned by Delek, constituting
an implied enterprise value of $675 million. Alon stockholders
will receive 0.504 Delek shares, representing an implied value of
$12.13 per share. Said deal are allegedly unfair to Alon's public
shareholders in view of the Company's recent financial success and
prospects for future growth. Page is a shareholder of Alon USA
Energy Inc. [BN]
Alon is an independent refiner and marketer of petroleum products,
operating primarily in the South Central, Southwestern, and
Western regions of the United States. [BN]
Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq
Seth D. Rigrodsky, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Tel: (302) 295-531
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
APOPKA, FL: "Reed" Suit Seeks Unpaid Back Wages Under FLSA
----------------------------------------------------------
SUSAN REED, on behalf of herself and those similarly situated, the
Plaintiff, v. CITY OF APOPKA, FLORIDA, A government agency, the
Defendant, Case No. 6:17-cv-01163-PGB-DCI (Fla. Cir. Ct., June 23,
2017), seeks to recover unpaid back wages and liquidated damages,
pursuant to the Fair Labor Standards Act.
According to the complaint, Plaintiff often worked for Defendant
in excess of 40 hours within workweek. However, Defendant failed
to compensate Plaintiff and all other hourly employees for all
overtime hours worked.
Apopka is a city in Orange County, Florida. The city's population
was 41,542 at the 2010 census, up from 26,969 at the 2000 U.S.
Census. It is part of the Orlando-Kissimmee-Sanford Metropolitan
Statistical Area.[BN]
The Plaintiff is represented by:
C. Ryan Morgan, Esq.
James J. Henson, Esq.
MORGAN & MORGAN P.A.
20 North Orange Avenue, 14th Floor
P.O. Box 4979
Orlando, FL 32802-4979
Telephone: (407) 420 1414
Facsimile: (407) 254 3401
E-mail: rmorgan@forthepeople.com
jjhenson@forthepeople.com
ARIZONA: Joe Arpaio Criminal Contempt Trial Begins
--------------------------------------------------
Jamie Ross, writing for Courthouse News Service, reports that
after 24 years as the self-proclaimed "America's toughest
sheriff," Joe Arpaio faced the other side of the legal system on
June 26 as he's brought to trial on a charge of criminal contempt
of court.
Mr. Arpaio, who served six terms as Maricopa County sheriff, faces
a misdemeanor charge of criminal contempt for failing to abide by
a federal judge's order to stop conducting immigration raids
targeting Latinos. If convicted, he faces up to six months in
jail.
The order was issued in a racial-profiling class action brought
against Mr. Arpaio and his deputies in 2007 for racially profiling
Latinos during traffic stops.
Mr. Arpaio's hard-line rhetoric against undocumented immigrants
gained him a popular following across Arizona and the United
States. That came to an end last November when he lost his bid
for a seventh term after years of legal turmoil that have cost
taxpayers $50 million in legal fees.
Mr. Arpaio acknowledged his contempt in the class action after he
allowed his deputies to continue to perform racially based
immigration patrols for 18 months despite the judge's order.
U.S. District Judge G. Murray Snow found statements Mr. Arpaio
made after the order was issued were evidence of the 85-year-old's
contempt.
Shortly after the injunction, Mr. Arpaio said in a statement that
he would "continue to enforce illegal immigration laws."
Three months later, his department issued another statement,
saying: "Arpaio remains adamant about the fact that his office
will continue to enforce both state and federal illegal
immigration laws as long as the laws are on the books."
The criminal case has seen a number of twists and turns since the
Department of Justice announced last year that it would pursue the
charge against Mr. Arpaio.
Mr. Arpaio's longstanding attorney, Mel McDonald, withdrew from
representing him in April after it was alleged in a court filing
that Mr. Arpaio was "coerced" into admitting contempt in the civil
case.
Mark Goldman, an attorney for Mr. Arpaio, wrote in a March court
filing that Mr. Arpaio "never received the proper assistance of
counsel in regard to the agreement because he was never informed
that the agreement would leave him open to the criminal charges."
Mr. Goldman could not be reached for comment.
The trial was slated for April, but was delayed to give time to
Mr. Arpaio's new defense team to prepare after McDonald withdrew.
Attorneys Dennis Wilenchik and his son, Jack, joined Goldman on
Mr. Arpaio's team.
In April, the attorneys told the Department of Justice they wanted
Attorney General Jeff Sessions to testify at the trial. Mr.
Arpaio, like Mr. Sessions, was a vocal supporter of presidential
candidate Donald Trump and found an ally in Sessions, who has
often spoken out against comprehensive immigration reform.
In a letter to the Justice Department, the attorneys said they
want Sessions to testify about "whether there exists, or has
existed, a 'clear and definite' order" that violates U.S.
immigration policy.
The Justice Department filed a motion to quash the subpoena on
June 19, saying that neither Session's legal opinions nor Justice
Department policies "can excuse the defendant's repeated, direct
violations of a federal court order."
Since April, Mr. Arpaio's attorneys have peppered the court with
filings seeking to further delay the proceedings.
On June 20, his attorneys filed a motion to stay the proceedings
until the U.S. Supreme Court resolves his petition for a writ of
mandamus to grant him a jury trial. As of now, the June 26 trial
was to be a bench trial before U.S. District Judge Susan Bolton.
Judge Bolton denied Mr. Arpaio's previous request for a jury
trial, as did the Ninth Circuit. An initial decision by the
Supreme Court was anticipated on June 26.
Mr. Arpaio's attorneys was expected to argue that if the Supreme
Court finds for him on June 26, it would remove the need for a
trial since the statute of limitation would have run out.
In a response, Justice Department attorneys say there is no
evidence that a court ever granted a stay pending a Supreme Court
decision on a mandamus petition.
"The Ninth Circuit has already denied the defendant's mandamus
petition, and the defendant identifies no reason why the Supreme
Court, which grants mandamus relief only as a matter of
'discretion sparingly exercised,' . . . is likely to come to a
different conclusion," federal prosecutors wrote. "More to the
point, the defendant cites no case -- and the government is aware
of none -- in which a court has granted a stay pending the Supreme
Court's decision on a mandamus petition."
On Thursday, June 22, Mr. Arpaio's attorneys also requested a
change of venue for the bench trial.
"Counsel does not suggest, nor mean to suggest that Judge Bolton
would be consciously influenced in regard to the pending bench
trial, but asserts that the influence may be there nevertheless
because of the inescapable media coverage that this case has and
will continue have in Arizona," Mr. Arpaio's attorneys wrote.
The Justice Department said there is no jury pool in Arizona that
could be tainted by media coverage.
"He cites no legal authority at all in support of his motion, much
less any case suggesting that a change of venue is ever necessary
to preserve the impartiality of a judge as a fact-finder as
opposed to a jury," the prosecutors wrote.
Judge Bolton has not yet ruled on the three motions.
The trial is scheduled to last two weeks. [GN]
AUSTRALIA: Manus Island Settlement Cover-up for Refugee Crimes
--------------------------------------------------------------
Max Newman, writing for World Socialist Web, reports that the
Australian government has settled a class action lawsuit, agreeing
to pay $70 million to 1,905 current and former detainees in the
Australian-run refugee prison camp on Manus Island, Papua New
Guinea, as well as legal costs estimated at $20 million.
The June 14 settlement sought to continue covering up the crimes
committed against refugees by successive Australian governments.
It prevented the case from going to trial, which would have
involved a detailed exposure, in a televised open court, of the
abuses at the detention centre.
Corporate media outlets described the outcome as possibly the
largest human rights settlement in Australian history. Yet the
payments will average only around $36,000 for each claimant, a
pitiful sum considering what they have suffered.
Moreover, many of them remain detained, and the entire system of
illegally repelling asylum seekers or confining them indefinitely
in remote hell holes in violation of international refugee law
survives intact.
The settlement proceeds will be split according to how long each
person spent at the centre, the injuries they received and whether
they were present during particular events, such as a February
2014 attack by soldiers and security guards on prisoners
protesting inside the camp in which one detainee Reza Barati, was
killed and 77 others injured.
The case was taken to the Supreme Court of Victoria by the law
firm Slater and Gordon, on behalf of all persons who were
imprisoned on Manus Island between 21 November 2012 and 12 May
2016.
Slater and Gordon class action group leader Rory Walsh
acknowledged some detainees would be displeased by the settlement,
but said they could petition the court if they wished to continue
with a separate case.
Sudanese asylum seeker Abdul Aziz Muhamat told Australian
Associated Press that detainees were considering rejecting the
settlement. "People are saying 'we've actually been in this place
for four years and we have got physical damage and mental damage
and this small amount of money won't do anything to help us'."
These abuses are a deliberate bipartisan policy, designed to deter
or prevent refugees from seeking protection in Australia.
The Manus Island facility was first opened, together with the
equally brutal camp on the Pacific island of Nauru, more than 15
years ago by the Howard Liberal-National government as part of its
"Pacific Solution" to stop asylum seekers, fleeing wars and
persecution, reaching Australia. In 2012, the camps were reopened
by the Greens-backed Labor government of Julia Gillard, and the
current Liberal-National government has maintained them since
2013.
The lawsuit was directed at the Commonwealth of Australia, as well
as G4S and Transfield (now Broadspectrum), which hold government
contracts to operate the detention centre. The main plaintiff was
Majid Karami Kamasaee, a refugee from Iran who suffered severe
pain and irritation to his skin from pre-existing burns while
forcibly imprisoned for 11 months on Manus Island, after his boat
was seized by the Australian Navy in August 2013.
According to Richard Ackland, writing in the Guardian, Slater and
Gordon lawyers appeared in court more than 50 times before the
settlement was agreed, opposing government moves to shut the case
down or exclude evidence. At every stage, the government sought to
maintain secrecy over the maltreatment and denial of basic rights
to the detainees.
There were repeated challenges claiming Public Interest Immunity,
seeking to block testimony or evidence that would supposedly
endanger national security or the "public interest."
The plaintiffs' lawyers also confronted the Border Force Act 2015,
passed with bipartisan support. The Act made it illegal,
punishable by up to two years' imprisonment, for anyone, including
health care professionals who worked at the centre, to publicly
reveal the conditions suffered by the asylum seekers.
Transfield/Broadspectrum followed lockstep with the government's
secrecy, requiring all employees to sign confidentiality
agreements. In the preliminary rounds of the pre-trial
proceedings, orders had to be obtained to permit witnesses to
testify without being prosecuted.
In April, the trial judge ruled that the case could be live-
streamed internationally. The government vehemently opposed the
ruling and demanded that any broadcast be confined to a secure
channel and only made available to a student law class.
Slater and Gordon reportedly conducted over 200 witness interviews
and gathered more than 200,000 documents. Some 70 witnesses were
willing to testify, despite confidentiality concerns.
The final 166-page Statement of Claim was full of damning
allegations about neglect, inadequate shelter and accommodation,
poor quality food, kitchens with rats running around, filthy
toilets, squalid and overcrowded conditions, oppressive heat and
humidity, inadequate medical and healthcare, and physical and
psychological injuries.
Detainees were not issued with basic personal supplies, including
shoes, soap or even toilet paper. They could not obtain any
medication or contact the ill-equipped medical centre without
written permission, which would normally take two to three days,
regardless of the severity of the situation.
Guards used humiliation tactics, involving physical and verbal
violence. This included sexual harassment and threats of solitary
confinement.
The statement also asserted false imprisonment since the Papua New
Guinea Supreme Court last year ruled that the detention was
unconstitutional.
The statement established that Australia controlled the centre's
operations and was therefore liable for the brutality inflicted on
the asylum seekers. All construction and maintenance of the
centre, management of detainees and restrictions on movement in
and around the centre were funded by Australia and "implemented by
Commonwealth officers, or subject to the direction or approval of
Commonwealth officers."
This further exposes the myth pedalled by the government that PNG,
not Australia, is responsible for the operations of the centre.
Immigration and Border Protection Minister Peter Dutton defiantly
insisted the settlement was "not an admission of liability in any
regard." Dutton instead claimed it was a "prudent" decision to
minimise the government's costs.
The Labor Party's immigration spokesman Shayne Neumann declined to
comment, effectively backing the decision, in line with Labor's
ongoing support for indefinite offshore imprisonment of refugees.
The Greens sought to use the settlement to hide their political
responsibility for the reopening of the Manus and Nauru camps in
2012 by the minority Labor government, which depended on the
Greens' parliamentary votes to stay in office.
Greens' immigration spokesman Senator Nick McKim declared that "by
accepting this settlement," Dutton and the Liberal Party "take
responsibility" for the atrocities at the centre. In reality,
both by propping up the previous Labor government and by
supporting the underlying framework of refugee and immigration
restrictions, the Greens are equally culpable.
The court settlement underscores the lengths to which Australian
governments will go to hide their crimes against asylum seekers.
While Australia is on the frontline of US-instigated predatory
wars in the Middle East, which have created the greatest refugee
crisis since World War II, it is overseeing the systematic torture
and illegal imprisonment of those fleeing for their lives. [GN]
BASMAT INC: "Canul" Seeks Unpaid Overtime Wages, Reimbursements
---------------------------------------------------------------
Jose Canul, an individual, on behalf of himself and all others
similarly situated, Plaintiff, v. Basmat, Inc. (d/b/a McStarlight)
and Does 1 through 100, Defendants, Case No. BC664824 (Cal.
Super., June 13, 2017), seeks redress from Defendant's failure to
authorize or permit required rest periods; unpaid minimum wages
and overtime pay; statutory penalties for failure to provide
accurate wage statements; reimbursement of business-related
expenses; injunctive relief and other equitable relief; and
reasonable attorney's fees and costs and interest pursuant to
California Labor Code and the Unfair Competition Law of the
California Business and Professions Code.
Defendants are in the business of metal fabrication catering to
the aerospace industry where Canul worked as a shop help. Aside
from claiming missed breaks compensation, Plaintiff seeks
reimbursement for the tools they used in doing their job. [BN]
Plaintiffs are represented by:
Paul K. Haines, Esq.
Tuvia Korobkin, Esq.
Sean M. Blakely, Esq.
HAINES LAW GROUP, APC
2274 East Maple Ave.
El Segundo, CA 90245
Tel: (424) 292-2350
Fax: (424) 292-2355
Email: phaines@haineslawgroup.com
skorobkin@haineslawgroup.com
sblakely@haineslawgroup.com
BROCKTON, MA: Court Upholds Judgment in Racial Bias Case
--------------------------------------------------------
Marc Larocque, writing for Enterprise News, reports that after
being denied post-trial motions to have a judge disregard the
jury's findings in favor of his own verdict, to lower the damages
in a racial discrimination and retaliation lawsuit, or to order a
new trial, the city of Brockton is now weighing its options.
A Superior Court justice recently upheld and increased a
multimillion judgment against the city of Brockton in a lawsuit
filed by a former applicant for a diesel mechanic job at the
Department of Public Works. Russell Lopes was awarded $4.05
million by a jury in late January at Brockton Superior Court,
after the 14-person panel agreed with his claims that he was
denied the position based on race, and that the city retaliated
when he spoke out by sending fire and police officials to his
house to do inspections the very next day.
Recently, Judge Joseph F. Leighton Jr., tacked on additional
costs, attorneys fees and interest, setting the new tally at about
$4.47 million in damages that the city is now responsible for
paying. That includes $144,412 in additional costs for interest
from when the Lopes case was first filed in 2013, $273,897 in
newly calculated attorney's fees and $2,055 in other related
costs.
"The city said give us a new trial or reduce the award," said
Boston-based attorney Philip Gordon, who represented Mr. Lopes.
"The judge said no."
And because the Lopes trial was a exemplar case in a class action
against the city, that bill could balloon up if others are
affirmed by the courts as members of the affected class, which
would include people of color who were denied positions at the
Brockton DPW. Mr. Gordon said that he believes members of the
class should each be awarded $1.2 million in "punitive" damages
for employment discrimination based on race, which is the same
amount Lopes was awarded on the charge.
However, the city of Brockton filed a notice on June 19 to move
forward with the next stage of the appeal process.
Brockton City Solicitor Philip C. Nessralla Jr., said the city is
still considering its options to fight the discrimination and
retaliation judgment.
"We're making an analysis of what the areas of appeal will be,"
Mr. Nessralla said.
Leighton, the judge, called the Lopes trial "a very significant
victory" for the plaintiff, in his recent memorandum of decision
on post-trial motions, denying the city's requests for a "judgment
notwithstanding the verdict," a lowered award or new trial. Judge
Leighton wrote that the case showed that Lopes was "deprived of
essential rights," and that the $1.2 million in "punitive" damages
is not unreasonable for the discriminatory hiring claim, even
though it didn't result in "compensatory" damages on the charge.
"The total punitive award sends the important message to the city
that it must reject, and bring to an end, the discriminatory
practices that the jury found were in place at the times relevant
to this case," Judge Leighton wrote. "While the amount awarded
was perhaps greater than the court would have awarded had it been
making the decision, the jury was warranted in finding that the
degree of misconduct proved in this case was also quite high."
During the trial, Mr. Lopes' attorney told the jury that, when the
plaintiff applied for the mechanic's job, just three of 117
employees at the Brockton DPW were black. Five years later, in
2015, just four percent of 100 employees at the DPW were black.
Brockton's population is 43.1 percent African-American, according
to a 2013 U.S. Census estimate
Judge Leighton wrote that he agreed with the jury about how the
behavior of Brockton Personnel Director Maureen Cruise could
reasonably be classified as racial bias in the employment process.
Mr. Lopes and his lawyers claimed that Ms. Cruise was a linchpin
in a scheme that denied DPW jobs to people of color, partly by
assisting white applicants to get positions over better qualified
black applicants such as the plaintiff. Mr. Lopes also testified
that Cruise made a comment to him that he interpreted as racist, a
conclusion that Leighton found credible.
"(Cruise) testified that it was important to apply the hiring
rules evenly and without bias or favor," Judge Leighton wrote in
his decision on the post-trial motions. "A finding that the city
failed to do so in this case is supported by the evidence. . . .
Lopes testified that when he inquired of Cruise why he had been
rejected, she replied, 'You're lucky we even interviewed someone
like you.' Mr. Lopes understood this comment to be a reference to
his race, and the jury would have been well within the bounds of
reason to agree with him."
Ms. Cruise declined to comment about the case when the judgment
was leveled against the city. However, a lawyer for the city
spoke on behalf of Ms. Cruise, who was previously named as a
defendant in the case, before she was dropped as a personal target
and took the stand as a witness.
Attorney Stephen Pfaff said there were falsehoods about
Ms. Cruise that have been spread, and that she didn't discriminate
during the hiring process, adding that the city personnel director
actually goes out of her way to help people of color in the
community. Mr. Pfaff denied that Cruise made a racist comment to
Mr. Lopes.
"'I would never make that kind of comment to another human
being,'" said Pfaff, recalling Ms. Cruise's testimony.
Judge Leighton also agreed with Mr. Lopes' specific complaint that
he was rejected for the DPW job in favor of a less-qualified white
applicant. In the lawsuit, Mr. Lopes claimed he had the right
background for the job, with at least six years of experience in
the field and an associate's degree in mechanical engineering, in
addition to a certification as an outdoor power technician.
"On the whole, the evidence supported findings that the process
was not evenly applied, that it was tainted by racial bias and
that the candidate chosen was discernibly less qualified than
Lopes," the judge wrote. [GN]
BUCKLES-SMITH: $350K Settlement in "Schwartz" Gets Final Approval
-----------------------------------------------------------------
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, granted the
Plaintiff's Motion for Final Approval of Class Action Settlement
and Plaintiff's Motion for Award of Attorneys' Fees and Costs in
the case captioned KRISTOPHER A. SCHWARTZ, individually and on
behalf of all others similarly situated, Plaintiff, v. ART COOK,
et al., Defendants, and BUCKLES-SMITH ELECTRIC COMPANY EMPLOYEE
STOCK OWNERSHIP PLAN, Nominal Defendant, Case No. 15-cv-03347-BLF
(N.D. Cal.).
The Plaintiffs were participants in or beneficiaries of the
Buckles-Smith Electric Company Employee Stock Ownership Plan
("ESOP"), an employee pension benefit plan covered by the Employee
Retirement Income Security Act of 1974 ("ERISA"). They claim that
the Defendants and several of its Board members, and Bankers Trust
Company of South Dakota breached fiduciary duties owed to the Plan
and its participants.
After more than a year of litigation, the parties settled the case
with the aid of a mediator, the Hon. Edward A. Infante. The
written Settlement Agreement contemplates the certification of a
non-opt out class of all Persons who were participants in or
beneficiaries of the Plan at any time from and after Sept. 1,
2012. The Settlement Agreement provides that the Company will pay
the total amount of $350,000 to settle all claims asserted against
all the Defendants in the action. The $350,000 Settlement Payment
will be used to establish a Settlement Fund which will be
maintained and distributed by Class Counsel. The cost of preparing
and mailing the class notice will be paid from the Settlement
Fund, and class counsel may apply to the Court for an award of
attorneys' fees and expenses to be paid from the Settlement Fund.
On March 20, 2017, the Court issued an order which: granted
preliminary approval of the class action settlement; preliminarily
certified the class; appointed Plaintiff Schwartz as class
representative; appointed the Plaintiff's counsel as class
counsel; approved forms and methods of notice to the class; set a
deadline of May 15, 2017 for objections; and set a hearing date of
June 15, 2017 for the Plaintiff's motion for final approval of the
class action settlement and for the Plaintiff's motion for
attorneys' fees. The only objection received in response to the
class notice was a letter dated May 10, 2017 from Robert J.
Polito. Mr. Polito does not object to the settlement per se, but
he suggests a modification to the Settlement Agreement. He does
not object to the Plaintiff's motion for attorneys' fees and
costs.
On June 15, 2017, the Court heard the Plaintiff's motion for final
approval and motion for attorneys' fees and costs where Mr. Polito
appeared and presented argument to the Court. The Court
thereafter granted both the motion for final approval of class
action settlement and the motion for attorneys' fees in the amount
of $115,500.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/iQLQUb from Leagle.com.
Kristopher A. Schwartz, Plaintiff, represented by Juli E. Farris,
KELLER ROHRBACK L.L.P..
Kristopher A. Schwartz, Plaintiff, represented by Gary A. Gotto --
ggotto@kellerrohrback.com -- Keller Rohrback, pro hac vice.
Art Cook, Defendant, represented by Aldo Emmanuel Ibarra --
pschrier@nixonpeabody.com -- Nixon Peabody, Gregory Paul O'Hara --
gohara@nixonpeabody.com -- Nixon Peabody LLP, Karl K. Sung --
ksung@nixonpeabody.com -- Nixon Peabody LLP & Lauren Marian
Michals -- lmichals@nixonpeabody.com -- Nixon Peabody LLP.
Roger Stanger, Defendant, represented by Aldo Emmanuel Ibarra,
Nixon Peabody, Gregory Paul O'Hara, Nixon Peabody LLP, Karl K.
Sung, Nixon Peabody LLP & Lauren Marian Michals, Nixon Peabody
LLP.
Ronald Zimmerman, Defendant, represented by Aldo Emmanuel Ibarra,
Nixon Peabody, Gregory Paul O'Hara, Nixon Peabody LLP, Karl K.
Sung, Nixon Peabody LLP & Lauren Marian Michals, Nixon Peabody
LLP.
Buckles-Smith Electric Company, Defendant, represented by Aldo
Emmanuel Ibarra, Nixon Peabody, Gregory Paul O'Hara, Nixon Peabody
LLP, Karl K. Sung, Nixon Peabody LLP & Lauren Marian Michals,
Nixon Peabody LLP.
Bankers Trust Company of South Dakota, Defendant, represented by
R. Bradford Huss, Trucker Huss, APC, Angel Lin Garrett, Trucker
Huss & Clarissa A. Kang, Trucker & Huss, A Professional
Corporation.
CALIFORNIA, USA: Ray Accuses CDSS and DPSS of Violating FLSA
------------------------------------------------------------
Trina Ray, individually, and on behalf of others similarly
situated v. California Department of Social Services, and Los
Angeles County Department of Public Social Services, Case No.
2:17-cv-04239-PA-SK (C.D. Cal., June 7, 2017), accuses the
Defendants of failing to pay overtime compensation to homecare
workers, home care providers and others, in violation of the Fair
Labor Standards Act.
According to its Web site, the mission of the California
Department of Social Services is to serve, aid, and protect needy
and vulnerable children and adults throughout the State of
California. CDSS is responsible for the oversight of programs,
including the In-Home Supportive Services, which serve more than
eight million people across the state.
According to its Web site, the Los Angeles Department of Public
Social Services is the second largest department in Los Angeles
County and is the largest social service agency in the United
States. DPSS is involved in the administration and oversight of
the IHSS program at the county level.[BN]
The Plaintiff is represented by:
Matthew C. Helland, Esq.
Daniel S. Brome, Esq.
NICHOLS KASTER, LLP
235 Montgomery St., Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
Facsimile: (415) 277-7238
E-mail: helland@nka.com
dbrome@nka.com
CANADA: Set to Apologize for "LGBT Purge" Amid Class Action
-----------------------------------------------------------
Mythili Sampathkumar, writing for Independent, reports that Canada
is set to apologise for the "LGBT purge" when actions were taken
against thousands of soldiers and public servants due to their
sexual orientation and gender during the Cold War.
The apology announcement comes after a recently filed $757 million
(GBP594 million) class-action lawsuit filed by former military and
public servants who were forced out of their jobs because of their
sexuality.
A lawyer on the case, Douglas Elliott said that up to 10,000
Canadians could join in on the lawsuit.
Several were dismissed, fired, demoted, or not promoted from the
1950s up until the late 1980s because the government considered
them a threat to national security. They were considered
vulnerable to blackmail by Soviet operatives.
Others were given a choice to undergo psychiatric treatment as an
alternative to dismissal, which involved crude machines that acted
as "lie detectors".
Prime Minister Justin Trudeau also said those discriminated
against will have their records expunged, which may allow many to
collect benefits associated with their service.
The Canadian Human Rights Act was not amended to included sexual
orientation until 1996, nearly four years after former army
officer Michelle Douglas helped bring an end to discriminatory
policies because she was dismissed for being a lesbian.
Randy Boissonnault, Mr Trudeau's special adviser on LGBTQ issues,
is "leading public consultations with a view to ensuring the
apology is comprehensive and satisfying," according to Pink News.
The formal apology is expected to be issued this fall and
compensation is also being considered. Canada would join the UK,
Australia, and Germany in apologising for past atrocities against
LGBTQ public servants and military members. [GN]
CEMEX INC: "Russell" Suit Alleges FLSA Violation
------------------------------------------------
JOSEPH RUSSELL, Individually and on behalf of all others similarly
situated Plaintiff, v. CEMEX, INC., CEMEX MANAGEMENT, INC., and
CEMEX CONSTRUCTION MATERIALS HOUSTON, LLC d/b/a
HOUSTON SHELL and CONCRETE, Defendants, Case No. 4:17-cv-01831
(S.D. Tex., June 15, 2017), alleges that Defendants violated and
continue to violate the Fair Labor Standards Act by failing to pay
their Cement Truck Drivers, including Plaintiff and the Putative
Class Members, time and one-half for each hour worked in excess of
40 hours per workweek.
CEMEX, Inc. is a global building materials company that provides
products and services to customers and communities throughout the
Americas, Europe, Africa, the Middle East, and Asia.
Plaintiff Joseph Russell has been employed as a nonexempt Cement
Truck Driver.[BN]
The Plaintiff is represented by:
Austin W. Anderson, Esq.
Clif Alexander, Esq.
Lauren E. Braddy, Esq.
ANDERSON2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Phone: (361) 452-1279
Fax: (361) 452-1284
E-mail: austin@a2xlaw.com
clif@a2xlaw.com
lauren@a2xlaw.com
CENTURYLINK: Idaho Among Complainants in False Billing Suit
-----------------------------------------------------------
KTVB reports that a class-action lawsuit against CenturyLink has
added customers in Idaho to its list of complainants.
Los Angeles law firm Geragos & Geragos said they planned to file
the Idaho class-action complaint on June 25. Attorney
Ben Meiselas tells KTVB that Idaho consumers were hit particularly
hard "by false billing, followed by unlawful collection activity
on the false charges."
The suit has already been filed in Washington, California, Nevada,
and Oregon.
The claim argues that CenturyLink billed customers for services
they never wanted, billed customers more than what was quoted,
charged early termination fees when customers canceled those
services, and then reported them to collection agencies if they
didn't pay.
Mr. Meiselas says his firm has received thousands of emails and
calls from Idahoans.
"They are represented in the Idaho class action lawsuit,"
Mr. Meiselas said. "CenturyLink is not going to get away with
defrauding consumers the way it has in the past."
The suit requests that any CenturyLink customers from 2013 to
present be eligible for reimbursement.
The suit is the latest against the telecom company in a number of
states. According to the suit, damages could range from $600
million to $12 billion, based on CenturyLink's 5.9 million
subscribers.
Former CenturyLink employee Heidi Heiser filed suit against the
company earlier in June alleging she was fired after raising
concerns about other employees signing customers up for accounts
without authorization. Ms. Heiser claims she was fired after
telling CEO Glen Post on a company message board about the
customers being defrauded. CenturyLink said it was investigating.
KTVB has reached out to CenturyLink for comment on the Idaho
lawsuit, but they have yet to respond.
A similar suit was filed in Washington state on June 23.
CenturyLink spokesperson Mark Molzen told KING 5 in a statement:
"Unfortunately, these types of opportunistic follow-on claims are
not unexpected. The fact that a law firm is trying to leverage a
wrongful termination suit into a putative class action lawsuit,
does not change our original position. Our employees know that if
they have any concerns about ethics or compliance issues, we have
an Integrity Line in place, 24 hours a day, seven days a week.
Our former employee did not make a report to the Integrity Line
and our leadership team was not aware of the alleged matter until
the lawsuit was filed. The allegations made by our former
employee are completely inconsistent with our company policies,
culture and Unifying Principles, which include honesty and
integrity. We take these allegations seriously and are diligently
investigating this matter."
Customers interested in joining the lawsuit can contact Geragos &
Geragos law firm. [GN]
CHEROKEE FUNDING: Order Dismissing PLA Claims Reversed
------------------------------------------------------
The Court of Appeals of Georgia, Second Division, affirmed in part
and reversed, in part, the trial court's ruling in the appeals
cases captioned CHEROKEE FUNDING LLC et al., v. RUTH et al.,
A17A0132, (Ga. Ct. App.) and RUTH et al., v. CHEROKEE FUNDING LLC
et al., A17A0208 (Ga. Ct. App.).
The plaintiffs, Ronald Ruth and Kimberly Oglesby retained attorney
Michael Hostilo to represent them in personal injury lawsuits
after being involved in separate unrelated vehicle accidents.
During the course of Hostilo's representation, the defendants,
Cherokee Funding LLC, Cherokee Funding II, LLC, and Cherokee
Funding III, LLC, and Reid Zeising, entered into separate "funding
agreements" with Ruth and Oglesby and provided funds to them, each
in a principal amount of less than $3,000. Ruth claimed that when
his personal injury lawsuit settled in February 2016, the
defendants sought repayment of about $84,000, which encompassed
about $5,300 in principal. Oglesby claimed that she borrowed
around $400 from the defendants and, when her personal injury
litigation was resolved in 2014, Hostilo deducted about $1,000 to
pay the defendants for her "loans."
The defendants moved to dismiss the complaint for failure to state
a claim, arguing that they were not subject to the PLA or the GILA
because the "funding agreements" at issue were not "loans," but
rather were "investments" in the plaintiffs' litigation. After a
hearing, the trial court granted in part and denied in part the
defendants' motion, dismissing the GILA claims, but allowing the
PLA claims to proceed.
On review, the appellate court held that the trial court erred in
denying the defendants' motion to dismiss the PLA claim. The
appellate court agreed with the defendants who argued that under
the rule of lenity, the PLA does not apply because the funding
agreements do not constitute "loans" that are regulated by the
statute. The court found that instead of being loans that are
regulated by the PLA, the funding agreements appear to be
investment contracts.
Because the appellate court viewed the funding agreements between
the plaintiffs and the defendants as investments contracts, the
court concluded that it was not error for the trial court to find
that the GILA does not apply. Thus, the court held that the trial
court properly dismissed the GILA claims.
A full-text copy of the appellate court's June 27, 2017 ruling is
available at https://is.gd/QLRmcW from Leagle.com.
Appellant is represented by Allan Charles Galis --
agalis@huntermaclean.com -- Bradley Mitchell Harmon --
bharmon@huntermaclean.com -- Timothy Hyun Lee --
timothy.lee@usdoj.gov -- Merritt Ellen McAlister --
mmcalister@kslaw.com -- Geoffrey H. Bracken --
gbracken@gardere.com -- Scott D. Ellis -- sellis@gardere.com
Appellee is represented by Robert Bartley Turner, Christopher
Dorian Britt, Kathryn Hughes Pinckney, Stanley Karsman, Jeremy
Springer McKenzie, Brent J. Savage.
CHESAPEAKE BAY: Faces "Mueller" Suit Under FLSA, Md. Labor Laws
---------------------------------------------------------------
KRISTINA MUELLER (2291 Canteen Circle, Odenton, MD 21113, Resident
of Anne Arundel County) and JILL MUELLER (2291 Canteen Circle,
Odenton, MD 21113, Resident of Anne Arundel County) Plaintiffs, v.
CHESAPEAKE BAY SEAFOOD HOUSE ASSOCIATES, L.L.C.
(1960 Gallows Road, Suite 200, Vienna, Virginia 22182, Serve:
Robert Easby-Smith, 4218 Glenridge Street, Kensington, Maryland
20895) Defendant, Case No. 1:17-cv-01638-ELH (D. Md., June 15,
2017), alleges that Defendant paid Plaintiffs and other similarly
situated employees an hourly tip-credit. In addition to these
wages, they also received tips. However, a combination of these
payments did not result in Plaintiffs and others similarly
situated being paid correctly. They were paid well below the
standard minimum hourly wage rate. Plaintiffs' and others
similarly situated employees' duties did not exempt them from the
minimum wage requirements, says the complaint.
The case raises Class/Collective Action Claim under the Fair Labor
Standards Act, Maryland Wage and Hour Law, and the Maryland Wage
Payment and Collection Law, asserts the complaint.
Chesapeake Bay Seafood House Associates, L.L.C. operates several
food and beverage establishments within Maryland, Virginia and
West Virginia. Plaintiffs and other similarly situated employees
hold or held the title of server or bartender.[BN]
The Plaintiff is represented by:
Robert J. Leonard, Esq.
Benjamin L. Davis, III, Esq.
THE LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street, Suite 1700
Baltimore, MD 21201
Phone: (410) 244-7005
Fax: (410) 244-8454
E-mail: rleonard@nicholllaw.com
bdavis@nicholllaw.com
CLEARVIEW ELECTRIC: Violates TCPA, "Weintraub" Class Suit Alleges
-----------------------------------------------------------------
DAVID WEINTRAUB, for himself and all others similarly situated v.
CLEARVIEW ELECTRIC INC.; and JOHN DOES 1-10, Case No. 2:17-cv-
04116-JLL-SCM (D.N.J., June 7, 2017), alleges that the Defendants
violated the Telephone Consumer Protection Act by using an
automated telephone dialing system to place solicitation phone
calls to the Plaintiff, and to putative class members, whose
landline numbers were registered with the national Do Not Call
Registry.
Clearview Electric Inc. is a corporation organized under the laws
of Texas, and located in Dallas, Texas. Clearview sells
electricity to residential consumers. The Doe Defendants are
entities whose names are not presently known to the Plaintiff.[BN]
The Plaintiff is represented by:
Gabriel Posner, Esq.
POSNER LAW PLLC
270 Madison Avenue, Suite 1203
New York, NY 10016
Telephone: (646) 546-5022
E-mail: gabe@PosnerLawPLLC.com
CONAGRA BRANDS: "Lee" Suit Removed to District of Massachusetts
---------------------------------------------------------------
The putative class action lawsuit captioned Lee v. Conagra Brands,
Inc., et al., was removed on June 7, 2017, from state court to the
U.S. District Court for the District of Massachusetts (Boston).
The District Court Clerk assigned Case No. 1:17-cv-11042-RGS to
the proceeding.
The nature of suit is stated as "Personal Property: Other."[BN]
Plaintiff Margaret Lee, On behalf of herself and all others
similarly situated, is represented by:
Ian J. McLoughlin, Esq.
SHAPIRO, HABER & URMY, LLP
Seaport East, Two Seaport Lane, Floor 6
Boston, MA 02210
Telephone: (617) 439-3939
Facsimile: (617) 439-0134
E-mail: imcloughlin@shulaw.com
Defendants Conagra Brands, Inc., The Stop & Shop Supermarket
Company, LLC, Roche Bros. Inc., Roche Bros. Supermarkets, Inc.,
and Roche Bros. Supermarkets, LLC, are represented by:
Kevin M. Duddlesten, Esq.
MCGUIREWOODS LLP
2000 McKinney Avenue, Suite 1400
Dallas, TX 75201
Telephone: (214) 932-6400
Facsimile: (214) 273-7484
E-mail: kduddlesten@mcguirewoods.com
- and -
Angela M. Spivey, Esq.
MCGUIREWOODS LLP
1230 Peachtree Street, Suite 2100
N.E., Promenade
Atlanta, GA 30309-3534
Telephone: (404) 443-5720
Facsimile: (214) 273-7484
E-mail: aspivey@mcguirewoods.com
CONSUMERS WAREHOUSE: Misclassifies Designers, Vecchione Claims
--------------------------------------------------------------
DAVID VECCHIONE, on behalf of himself and all others similarly
situated, and ROBIN GUADALUPI, individually, the Plaintiffs, v.
CONSUMERS WAREHOUSE CENTER, INC. d/b/a CONSUMERS KITCHEN & BATH,
and JAMES S. BALOGA, JR., JAMES S. BALOGA, SR, individually, the
Defendants, Case No. 606019/2017 (N.Y. Sup. Ct., June 23, 2017),
seeks to recover unpaid overtime and other damages under the New
York Labor Law.
According to the complaint, Consumers Warehouse requires its
Designers to work over 40 hours each week, designing kitchen and
bath installations and selling them to Consumers Warehouse's
customers. Consumers Warehouse operates a business enterprise
consisting of five kitchen and bath showrooms on Long Island. In
order to avoid paying Plaintiffs overtime premiums, Consumers
Warehouse misclassified its Designers as exempt employees and paid
them a salary, plus a limited sales-based commission.[BN]
The Plaintiffs are represented by:
Troy L. Kessler, Esq.
Garrett Kaske, Esq.
SHULMAN KESSLER LLP
534 Broadhollow Road, Suite 275
Melville, NY 11747
Telephone: (631) 499 9100
CONVERGENT OUTSOURCING: Faces "Medina" Suit for Violating FDCPA
---------------------------------------------------------------
JOSE MEDINA, on behalf of himself and all others similarly
situated v. CONVERGENT OUTSOURCING, INC. and JEFFERSON CAPITAL
SYSTEMS, LLC, Case No. 2:17-cv-04127-SDW-LDW (D.N.J., June 7,
2017), arises from the Defendants' alleged violation of the Fair
Debt Collection Practices Act, which prohibits debt collectors
from engaging in abusive, deceptive and unfair practices.
Convergent is a Washington corporation with its principal place of
business located in Renton, Washington. Jefferson Capital is a
Minnesota Limited Liability Company with its principal place of
business located in St. Cloud, Minnesota. Each Defendant is a
company that uses the mail, telephone, and facsimile and regularly
engages in business, the principal purpose of which is to attempt
to collect debts alleged to be due another.[BN]
The Plaintiff is represented by:
Lawrence C. Hersh, Esq.
17 Sylvan Street, Suite 102B
Rutherford, NJ 07070
Telephone: (201) 507-6300
E-mail: lh@hershlegal.com
COSITAS RICAS: Faces "Garcia" Suit Under FLSA, NY Labor Law
-----------------------------------------------------------
GLADYS GARCIA and ELSA MAYOR, on behalf of themselves and others
similarly situated, Plaintiffs, against COSITAS RICAS ECUATORIANAS
CORP. d/b/a EL PEQUENO COFFEESHOP; CARLOS SEGARRA; LUZMILA
SEGARRA; JUAN CARLOS SEGARRA; and LUIS CAGUANA, Defendants, Case
No. 1:17-cv-03671 (E.D.N.Y., June 16, 2017), alleges that,
pursuant to the Fair Labor Standards Act, Plaintiffs are entitled
to recover from the Defendants: (1) unpaid minimum wage and
overtime compensation, (2) liquidated damages on those amounts,
(3) prejudgment and post-judgment interest; and (4) attorneys'
fees and costs.
Plaintiffs further allege that, pursuant to New York Labor Law,
they are entitled to recover from the Defendants: (1) unpaid
minimum wage and overtime compensation; (2) unpaid "spread of
hours premium for each day he worked in excess of ten (10) hours;
(3) damages for Defendants' illegal wage deductions and failure to
reimburse employees for the costs of purchasing and maintaining
required work uniforms; (4) liquidated damages and civil penalties
pursuant to the New York Labor Law and the New York State Wage
Theft Prevention Act; and (5) prejudgment and post-judgment
interest; and attorneys' fees and costs.
Defendants own a restaurant known as El Pequeno Cofeeshop in
Jackson Heights, NY. Plaintiffs were hired purportedly as
waitresses.[BN]
The Plaintiffs are represented by:
Mohammed Gangat, Esq.
27005 79 Avenue
New Hyde Park, NY 11040-1546
Phone: (646) 556-6112
Fax: (646) 556-6113
Email: mgangat@gangatllc.com
CROSS COUNTY SUPPORT: "Taylor" Suit Seeks OT Wages
--------------------------------------------------
RENITA TAYLOR, individually, and on behalf of all current and
fanner similarly situated and other aggrieved employees of
DEFENDANTS in the State of California, the Plaintiff, v.
CROSS COUNTRY SUPPORT SERVICES, LLC; ASSIGNMENT AMERICA, LLC
d.b.a. MEDICAL STAFFING NETWORK; and DOES I THROUGH 50, inclusive,
the Defendants, Case No. BC666294 (Cal. Super. Ct., June 23,
2017), seeks to recover compensation for meal and rest period
violations, unpaid compensation for all hours worked, payment of
minimum and overtime wages, payment of wages due upon termination
of employment, and statutory and civil penalties, as well as
interest and attorney's fees and costs, under California Labor
Code.
According to the complaint, the Defendant failed to provide rest
periods, pay meal and rest premium wages, pay minimum and regular
wages for all hours worked, pay overtime wages, provide accurate
itemized wage statements, and indemnify employees for work-related
expenses incurred in discharging their duties.
Cross Country Support Services is doing business in help supply
services industry.[BN]
The Plaintiff is represented by:
Graham S.P. Hollis, Esq.
Paloma Acosta, Esq.
GRAHAMHOLUS APC
3555 Fifth Avenue, Suite 200
San Diego, CA 92103
Telephone: (619) 692 0800
Facsimile: (619) 692 0822
E-mail: ghollis@grahamhollis.com
pacosta@grahamhollis.com
CS BUSINESS: "Schar" Class Certification Deadline Moved to Aug. 4
-----------------------------------------------------------------
Judge Philip R. Lammens of the U.S. District Court for the Middle
District of Florida, Ocala Division, granted the Plaintiffs'
motion for a 60-day extension for class certification in the case
captioned CS BUSINESS SYSTEMS, INC., JAMES L. SHELTON, VIRGINIA L.
SHELTON, BRAD HECKENBERG, LANA C. HECKENBERG, PJS RENTAL, LLC, WON
Y. SHIN TRUST, WON Y. SHIN, BART SUTHERIN and KATHRYN SUTHERIN, a
foreign for-profit corporation, Plaintiffs, v. DWIGHT C. SCHAR,
PAUL E. SIMONSON, DCS INVESTMENTS HOLDINGS GP, LLC, DCS REAL
ESTATE INVESTMENTS, LLC, DCS REAL ESTATE INVESTMENTS I, LLC, DCS
REAL ESTATE INVESTMENTS II, LLC, DCS REAL ESTATE INVESTMENTS III,
LLC, DCS REAL ESTATE INVESTMENTS IV, LLC, DCS REAL ESTATE
INVESTMENTS IV-A, LLC, DCS REAL ESTATE INVESTMENTS V, LLC, BELLA
COLLINA PROPERTY OWNERS ASSOC., INC., DAVID BURMAN, AEGIS
COMMUNITY MANAGEMENT SOLUTIONS, INC., RANDALL F. GREENE, KEITH
CLARKE, PAUL LEBREUX, RICHARD C. ARRIGHI, JAMES D. RYAN, MICHAEL
J. RYAN, THE RYAN LAW GROUP, LLC, CULLEN D'AMBROSIO, ROCKING RED
H, LLC, RICKY L. SCHARICH and BELLA COLLINA TOWERS, LLC,
Defendants, Case No. 5:17-cv-86-Oc-PGBPRL (M.D. Fl.).
A large group of the Defendants, but not all, have replied with no
objection to the extension. The time for contesting this relief,
however, has now passed. The original deadline was June 2, 2017.
The new deadline for the Plaintiffs to move to certify a class is
on or before Aug. 4, 2017.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/Zn1q8D from Leagle.com.
CS Business Systems, Inc., Plaintiff, represented by E. Timothy
McCullough, E. Timothy McCullough.
CS Business Systems, Inc., Plaintiff, represented by Charles
Nicholas Dorman, Whatley Kallas, LLC.
James L. Shelton, Plaintiff, represented by E. Timothy McCullough,
E. Timothy McCullough & Charles Nicholas Dorman, Whatley Kallas,
LLC.
Virginia L. Shelton, Plaintiff, represented by E. Timothy
McCullough, E. Timothy McCullough & Charles Nicholas Dorman,
Whatley Kallas, LLC.
Brad Heckenberg, Plaintiff, represented by E. Timothy McCullough,
E. Timothy McCullough & Charles Nicholas Dorman, Whatley Kallas,
LLC.
Lana C. Heckenberg, Plaintiff, represented by E. Timothy
McCullough, E. Timothy McCullough & Charles Nicholas Dorman,
Whatley Kallas, LLC.
PJS Rental, LLC, Plaintiff, represented by E. Timothy McCullough,
E. Timothy McCullough & Charles Nicholas Dorman, Whatley Kallas,
LLC.
Won Y. Shin Trust, Plaintiff, represented by E. Timothy
McCullough, E. Timothy McCullough & Charles Nicholas Dorman,
Whatley Kallas, LLC.
Won Y. Shin, Plaintiff, represented by E. Timothy McCullough, E.
Timothy McCullough & Charles Nicholas Dorman, Whatley Kallas, LLC.
Dwight C. Schar, Defendant, represented by Jennifer Perry
Sommerville, Shutts & Bowen, LLP, Michael David Crosbie, Shutts &
Bowen, LLP & Nicole Louise Ballante, Shutts & Bowen, LLP.
Paul E. Simonson, Defendant, represented by Jennifer Perry
Sommerville -- JSommerville@shutts.com -- Shutts & Bowen, LLP,
Michael David Crosbie -- MCrosbie@shutts.com -- Shutts & Bowen,
LLP & Nicole Louise Ballante -- NBallante@shutts.com -- Shutts &
Bowen, LLP.
DCS Investments Holdings GP, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments I, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments II, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments III, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments IV, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments IV-A, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
DCS Real Estate Investments V, LLC, Defendant, represented by
Jennifer Perry Sommerville, Shutts & Bowen, LLP, Michael David
Crosbie, Shutts & Bowen, LLP & Nicole Louise Ballante, Shutts &
Bowen, LLP.
Bella Collina Property Owners Assoc., Inc., Defendant, represented
by Christina Bredahl Gierke, Cole, Scott & Kissane, PA & Jeffrey
Michael Partlow -- jeffrey.partlow@csklegal.com -- Cole, Scott &
Kissane, PA.
David Burman, Defendant, represented by Christina Bredahl Gierke,
Cole, Scott & Kissane, PA & Jeffrey Michael Partlow, Cole, Scott &
Kissane, PA.
DC GROUP: "Collins" Suit by Sales Exec Alleges FLSA Violation
-------------------------------------------------------------
MAUREEN COLLINS, individually and on behalf of all others
similarly situated, Plaintiff, vs. DC GROUP, INC. and JONATHAN
FRANK, Defendants, Case No. 0:17-cv-02095-DSD-FLN (D. Minn., June
16, 2017), alleges that Defendants permitted Plaintiff to
regularly work more than forty (40) hours in certain workweeks.
Upon information and belief, Defendants have also permitted the
members of the Fair Labor Standards Act Collective to regularly
work more than forty (40) hours in certain workweeks. During these
weeks, Defendants did not provide Plaintiff or the FLSA Collective
with overtime compensation at a rate of one and one-half times
their regular rate of pay for hours worked over 40.
DC GROUP, INC. provides power supply (UPS) backup power service
and maintenance to clients throughout the United States, Canada,
and parts of North America. Defendants employed Plaintiff as a
sales executive.[BN]
The Plaintiff is represented by:
Michele R. Fisher, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center
80 South Eighth St.
Minneapolis, MN 55402
Phone: (612) 256-3200
Fax: (612) 215-6870
EVERGREEN HOSPICE: "Nunez" Suit Seeks OT Pay Under Labor Code
-------------------------------------------------------------
CONCEPCION NUNEZ, as an individual and on behalf of all others
similarly situated, the Plaintiff, v. EVERGREEN HOSPICE CARE,
INC., a California Corporation; EVERGREEN HOME HEALTH, INC, a
California Corporation; and DOES 1 through 100, the Defendants,
Case No. BC666040 (Cal. Super. Ct., June 23, 2017), seeks to
recover civil penalties under Labor Code.
According to the complaint, the Plaintiff regularly worked in
excess of 8.0 hours per workday and/or 40.0 hours per workweek,
but did not receive overtime compensation of 1.5 times her regular
rate of pay for these hours, as Defendant did not compensate for
overtime hours.
The Defendants operate a home health and hospice agency, and
employed Plaintiff and other similarly situated hourly non-exempt
employees.[BN]
The Plaintiff is represented by:
Paul L. Haines, Esq.
Fletcher W. Schmidt, Esq.
Andrew J. Rowbotham, Esq.
Stephanie A. Kierig, Esq.
2274 East Maple Ave.
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslaegroup.com
fschimdt@haineslaegroup.com
arowbotham@haineslaegroup.com
skierig@haineslaegroup.com
FAIRLIFE LLC: Seeks 7th Cir. Review of Ruling in "Kremmel" Suit
---------------------------------------------------------------
Defendant Fairlife, LLC, filed an appeal from a court ruling in
the lawsuit styled Paulette Kremmel, individually and on behalf of
all other similarly-situated citizens of Illinois v. Fairlife,
LLC, Case No. 3:16-cv-00583-SMY-SCW, in the U.S. District Court
for the Southern District of Illinois.
As previously reported in the Class Action Reporter, the lawsuit
was filed in the St. Clair County Court (Case No. 16-L-241), and
was later removed to the District Court. The Plaintiff asserts
product-liability claims.
Fairlife, LLC operates a health and wellness dairy company that
produces and markets premium-quality, value-added nutrition
products.
The appellate case is captioned as Fairlife, LLC v. Paulette
Kremmel, Case No. 17-8013, in the U.S. Court of Appeals for the
Seventh Circuit.[BN]
Defendant-Petitioner FAIRLIFE, LLC, is represented by:
Douglas R. Heise, Esq.
HEYL, ROYSTER, VOELKER & ALLEN
105 W. Vandalia Street
P.O. Box 467
Edwardsville, IL 62025-0000
Telephone: (618) 656-4646
Facsimile: (618) 656-7940
E-mail: dheise@heylroyster.com
- and -
Matthew T. Kemp, Esq.
SCHUMAKER, LOOP & KENDRICK LLP
1000 Jackson Street
North Courthouse Square
Toledo, OH 43624-0000
Telephone: (419) 241-9000
Facsimile: (419) 241-6894
E-mail: mkemp@slk-law.com
Plaintiff-Respondent PAULETTE KREMMEL, individually and on behalf
of all other similarly-situated citizens of Illinois, is
represented by:
Matthew Hall Armstrong, Esq.
ARMSTRONG LAW FIRM
8816 Manchester Road, No. 109
St. Louis, MO 63144
Telephone: (314) 258-0212
E-mail: matt@mattarmstronglaw.com
- and -
Stuart L. Cochran, Esq.
COCHRAN LAW PLLC
12720 Hillcrest Road
Dallas, TX 75230
Telephone: (214) 300-1765
E-mail: scochran@scochranlaw.com
- and -
David C. Nelson, Esq.
NELSON & NELSON
420 N. High Street
Belleville, IL 62222-0000
Telephone: (618) 277-4000
E-mail: dnelson@nelsonlawpc.com
FARMERS RESTAURANT: Sued by Stephens for Violating FLSA
-------------------------------------------------------
SHAYN STEPHENS, ANITA CLARK, VANESSA CALVILLO, SYLVIA RACHAEL
KROHN, DESMOND PITT and JEANINE WILLIG v. FARMERS RESTAURANT
GROUP, DANIEL SIMON and MICHAEL VUCUREVICH, Case No. 1:17-cv-
01087-RMC (D.D.C., June 7, 2017), is brought as a collective
action in accordance with the Fair Labor Standards Act and the
District of Columbia Minimum Wage Act.
The Plaintiffs allege that the Defendants unlawfully deprived the
Plaintiffs' rights to overtime compensation and minimum wage.
Plaintiff Vanessa Calvillo also brings the action as a class
action on behalf of herself and all others similarly situated in
accordance with the Maryland Wage and Hour Law and the Maryland
Wage Payment and Collection Law.
Farmers Restaurant Group is a corporation headquartered in
Kensington, Maryland. The Individual Defendants are the owners of
Farmers Restaurant Group. The Defendants operate five restaurants
in the District of Columbia, Virginia, and Maryland, including
Founding Farmers DC, Farmers Fishers Bakers, and Farmers &
Distillers in Washington, D.C. and MoCo's Founding Farmers in
Potomac, Maryland.[BN]
The Plaintiffs are represented by:
Gregory K. McGillivary, Esq.
Molly A. Elkin, Esq.
T. Reid Coploff, Esq.
WOODLEY & McGILLIVARY LLP
1101 Vermont Ave., NW, Suite 1000
Washington, DC 20005
Telephone: (202) 833-8855
Facsimile: (202) 452-1090
E-mail: gkm@wmlaborlaw.com
mae@wmlaborlaw.com
trc@wmlaborlaw.com
FLOWERS BAKING: Class Counsel in "Riley" Gets $3.8MM in Fees
------------------------------------------------------------
In the case captioned WILLARD ALLEN RILEY MARIO RONCHETTI SCOTT
REHBERG, individually and on behalf of all similarly situated
individuals, Plaintiffs, v. FLOWERS BAKING COMPANY OF JAMESTOWN,
LLC FLOWERS FOODS, INC., Defendants, Docket No. 3:12-cv-00596-MOC-
DSC (W.D. N.C.), Judge Max O. Cogburn, Jr., of the U.S. District
Court for the Western District of North Carolina, Charlotte
Division, granted the parties' joint Motion for Final Approval of
Class and Collective Action Settlement and unopposed Motion for
Attorney Fees, Costs, and Payment of Service Awards.
The Court awarded the Class Counsel attorneys' fees and
reimbursement of expenses in the amount of $3.8 million. It
authorized the payment by the Settlement Administrator, of Valid
Claims that have been approved by the Settlement Administrator, in
accordance with the terms of the Settlement Agreement. The Court
further approved the Parties' agreement to maintain a reserve fund
of 1% of the settlement, or $52,000 to be held for payments to
self-identified Class members, if any.
The Court dismissed with prejudice the action, specifically
including the Released Claims.
Mark Dixon, XXX XXXXX, Salisbury, NC 28146 is excluded from the
settlement and will not be bound by the Order and will not receive
any benefits of the settlement.
The Court approved the Service Awards of $12,500 to Plaintiffs
Scott Rehberg, Willard Allen Riley, and Mario Ronchetti, and
directed payment of that amount from the Class Settlement Fund to
each of them, in accordance with the terms of the Settlement
Agreement.
The parties' request for appointment of Legal Aid of North
Carolina, 224 S. Dawson Street, Raleigh, NC 27601, as the cy pres
beneficiary is also approved.
The Clerk of Court is directed to enter Judgment reflecting this
Final Order approving the settlement and awarding fees, costs, and
service awards.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/ID0rF1 from Leagle.com.
Scott Rehberg, Plaintiff, represented by Charles E. Schaffer --
cschaffer@lfsblaw.com -- Levin Sedran & Berman, pro hac vice.
Scott Rehberg, Plaintiff, represented by Christopher D. Jozwiak --
cjozwiak@baillonthome.com -- Baillon Thome Jozwiak & Wanta LLP,
pro hac vice, David M. Cialkowski -- david.cialkowski@zimmreed.com
-- Zimmerman Reed, LLP, pro hac vice, J. Gordon Rudd, Jr. --
gordon.rudd@zimmreed.com -- Zimmerman Reed, LLP, pro hac vice,
Shawn Justin Wanta -- sjwanta@baillonthome.com -- Baillon Thome
Jozwiak & Wanta LLP, pro hac vice, Susan E. Ellingstad --
seellingstad@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., pro
hac vice & Ann Groninger.
Mario Ronchetti, Plaintiff, represented by Bryce Matthew Miller,
Baillon Thome Jozwiak Miller & Wanta, LLP, pro hac vice, Charles
E. Schaffer, Levin Sedran & Berman, pro hac vice, Christopher D.
Jozwiak, Baillon Thome Jozwiak & Wanta LLP, pro hac vice, David M.
Cialkowski, Zimmerman Reed, LLP, pro hac vice, J. Gordon Rudd,
Jr., Zimmerman Reed, LLP, pro hac vice, Shawn Justin Wanta,
Baillon Thome Jozwiak & Wanta LLP, pro hac vice, Susan E.
Ellingstad, Lockridge Grindal Nauen P.L.L.P., pro hac vice & Ann
Groninger.
Willard Allen Riley, Plaintiff, represented by Bryce Matthew
Miller, Baillon Thome Jozwiak Miller & Wanta, LLP, pro hac vice,
Charles E. Schaffer, Levin Sedran & Berman, pro hac vice,
Christopher D. Jozwiak, Baillon Thome Jozwiak & Wanta LLP, pro hac
vice, David M. Cialkowski, Zimmerman Reed, LLP, pro hac vice, J.
Gordon Rudd, Jr., Zimmerman Reed, LLP, pro hac vice, Shawn Justin
Wanta, Baillon Thome Jozwiak & Wanta LLP, pro hac vice, Susan E.
Ellingstad, Lockridge Grindal Nauen P.L.L.P., pro hac vice & Ann
Groninger.
Flowers Foods, Inc., Defendant, represented by Anthony Craig
Cleland -- craig.cleland@ogletree.com -- Ogletree Deakins Nash
Smoak & Stewart, PC, pro hac vice, Kevin Patrick Hishta --
kevin.hishta@ogletree.com -- Ogletree Deakins Nash Smoak &
Stewart, P.C., pro hac vice, Margaret Santen Hanrahan --
maggie.hanrahan@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., pro hac vice, Lia Anne Lesner --
lia.lesner@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Michael Oliver Eckard --
michael.eckard@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C. & Benjamin Robert Holland --
ben.holland@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart
PC.
Flowers Baking Company of Jamestown, LLC, Defendant, represented
by Anthony Craig Cleland, Ogletree Deakins Nash Smoak & Stewart,
PC, pro hac vice, Kevin Patrick Hishta, Ogletree Deakins Nash
Smoak & Stewart, P.C., pro hac vice, Margaret Santen Hanrahan,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., pro hac vice, Lia
Anne Lesner, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Michael Oliver Eckard, Ogletree, Deakins, Nash, Smoak & Stewart,
P.C. & Benjamin Robert Holland, Ogletree Deakins Nash Smoak &
Stewart PC.
FORESTAR GROUP: Faces "Gold" Lawsuit Over Terra Firma Merger
------------------------------------------------------------
MATTHEW GOLD, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. FORESTAR GROUP INC., PHILLIP J. WEBER,
JAMES A. RUBRIGHT, DANIEL B. SILVERS, RICHARD M. SMITH, M. ASHTON
HUDSON, and RICHARD D. SQUIRES, Defendants, Case No. 1:17-cv-
00779-UNA (D. Del., June 16, 2017), alleges violation of the U.S.
Securities and Exchange Act by authorizing the filing of a
materially incomplete and misleading Definitive Proxy Statement in
connection with the proposed merger between Forestar, Terra Firma
Merger Parent, L.P., and Terra Firma Merger Sub, L.P., affiliates
of Starwood Capital Group.
Pursuant to the transaction, the Company's stockholders stand to
receive $14.25 in cash for each share of Forestar common stock
they own.
In particular, the Proxy contains materially incomplete and
misleading information concerning: (i) Forestar's financial
projections; and (ii) the valuation analyses performed by the
Company's financial advisor, JMP Securities LLC, in support of its
fairness opinion, says the complaint.
FORESTAR GROUP INC. develops residential and mixed-use
communities, receives royalties from oil and natural gas producing
properties in the southern United States, and sells wood fiber
from its forests.[BN]
The Plaintiff is represented by:
Michael Van Gorder, Esq.
FARUQI & FARUQI, LLP
20 Montchanin Road, Suite 145
Wilmington, DE 19807
Phone: (302) 482-3182
Email: mvangorder@faruqilaw.com
- and -
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Phone: 212 971 1341
Fax: (212) 202-7880
E-mail: jmonteverde@monteverdelaw.com
FRONTIER AIRLINES: Faces "Chimanski" Suit Over Delayed Flights
--------------------------------------------------------------
ANNA CHIMANSKI and ILONA CHIMANSKI, 1464 Chippewa Trail, Wheeling
IL 60090, on behalf of themselves and all others similarly
situated passengers of proposed Class v. FRONTIER AIRLINES, 7001
TOWER ROAD, Denver, Colorado 80249, a foreign corporation, Case
No. 1:17-cv-04306 (N.D. Ill., June 7, 2017), is brought on behalf
of all other similarly situated members of proposed classes of
passengers pursuant to the Treaty of the United States known as
the Convention for the Unification of Certain Rules Relating to
International Transportation by Air, concluded at Warsaw, Poland,
October 12, 1929 or, in alternative, under Article 19 of Montreal
Convention for the Unification of Certain Rules for International
Carriage by Air, May 28, 1999 (entered into force on Nov. 4,
2003).
The Chimanskis tell the Court that on December 19, 2016, they were
scheduled to depart from Punta Cana, Dominican Republic, to
Chicago, Illinois, on the board of flight 81 operated by the
Defendant. They allege that their flights were delayed for more
than three hours or were canceled. They also say their flights
were delayed on departure from Chicago for approximately five
hours.
For the entire duration of five hours, they were confined at
departure area of Punta Cana International Airport operated by
Frontier Airline without access to food, refreshments and
lavatories, the Plaintiffs allege.
Frontier Airlines is a domestic U.S. air transportation carrier
with principal place of business in Denver, Colorado.[BN]
The Plaintiffs are represented by:
Vladimir M. Gorokhovsky, Esq.
GOROKHOVSKY LAW OFFICE, L.L.C.
10919 North Hedgewood Ln.,
Mequon, WI 53092
Telephone: (414) 581-1582
E-mail: gorlawoffice@yahoo.com
GASLAMP BAJA: Cheats Customers by Adding Surcharge, Knutson Says
----------------------------------------------------------------
Erik Knutson, individually and on behalf of all others similarly
situated v. Gaslamp Baja Lobster Group, Inc.; and Does 1 to 25,
inclusive, Case No. 37-2017-00020631-CU-MC-CTL (Cal. Super. Ct.,
San Diego Cty., June 7, 2017), seeks to enjoin the Defendants'
alleged deceptive business practices with regard to their
deceptive and misleading billing practices at their restaurants.
Gaslamp Baja Lobster Group, Inc., doing business as Rockin' Baja,
is a corporation that owns at least one restaurant in San Diego
County. Rockin' Baja is a corporation that is incorporated under
the laws of the state of California. Rockin' Baja's corporate
offices are located within San Diego County.
Mr. Knutson contends that Rockin' Baja's restaurant represents to
the general public certain prices for food and drinks in their in-
restaurant and advertised menus, but then, after the food and/or
drink is consumed, Rockin' Baja adds what it calls a "surcharge,"
which is actually a false, deceptive, and misleading charge, to
the balance of the final bill total, which consumers thereafter
pay, either knowingly or unknowingly. He argues that by not
raising its menu prices, and instead adding a surcharge onto a
customer's bill, Rockin' Baja is misleading the public as to the
actual prices of their food and drinks.[BN]
The Plaintiff is represented by:
Kevin Lemieux, Esq.
Robert L. Hyde, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: kevin@westcoastlitigation.com
bob@westcoastlitigation.com
GENOVA PRODUCTS: 3d. Cir. Affirms Dismissal of "Blanyar" Suit
-------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit affirmed the
District Court's order granting the motion to dismiss the case
captioned LOUISE BLANYAR; LAWRENCE BUCHMAN; EDWARD YACHERA,
Appellants, v. GENOVA PRODUCTS INC., No. 16-1684 (3d Cir.).
Genova manufactures vinyl pipes and rain gutters. It operated a
plant in Hazleton, Pennsylvania from 1975 to 2012, employing as
many as 240 workers in the late 1990s. The putative class action
includes persons who last worked at the Genova Hazleton plant in
2009.
On May 15, 2015, more than two years after the Hazleton plant
closed in 2012, the Appellants, former employees of Genova,
brought this medical monitoring action in state court on behalf of
themselves and all those similarly situated, including all
cohabitating family members. The complaint alleges that Genova's
negligence resulted in the Appellants' occupational exposure to
these toxins, which has substantially increased their risk of
developing serious diseases.
Genova moved to dismiss, arguing that the Appellants' claims were
barred by the statute of limitations. The Appellants did not
dispute the applicable two year statute of limitations for a
medical monitoring claim, but contended that the statute should be
tolled under the discovery rule as they were unable to reasonably
discover their cause of action within the prescribed time period.
The District Court granted Genova's motion without prejudice,
holding that the discovery rule did not apply because the
Appellants' complaint attested to the prevalence of information
regarding the dangers of PVC and VC years before this lawsuit was
brought. Thus, the two year statute of limitations for their
medical monitoring claim had passed with respect to the named
plaintiffs. The Appellants challenge the District Court's
decision to dismiss their putative class action for medical
monitoring as barred by the applicable two year statute of
limitations.
The Third Circuit held that given the substantial evidence
documenting the dangers of their occupational exposure to the
substances used at the Genova plant, the Third Circuit agrees with
the District Court that reasonable minds would not differ in
finding that the Appellants did not exercise the reasonable
diligence required for the discovery rule to toll the statute of
limitations. And because the statute of limitations for a medical
monitoring claim has clearly run, the District Court properly
dismissed the Appellants' complaint.
A full-text copy of the Court's June 30, 2017 Opinion is available
at https://is.gd/3A5DtQ from Leagle.com.
Sol H. Weiss, Esq., -- sweiss@anapolweiss.com -- [ARGUED], Paola
Pearson, Esq. -- ppearson@anapolweiss.com -- David S. Senoff, Esq.
-- dsenoff@anapolweiss.com -- ANAPOL WEISS, 130, North 18th
Street, Suite 1600, Philadelphia, PA 19103, Counsel for
Appellants.
Justin P. Bagdady, Esq. -- jbagdady@bodmanlaw.com -- [ARGUED],
James J. Walsh, Esq. -- fdindoffer@bodmanlaw.com -- BODMAN PLC,
201, South Division Street, Suite 400, Ann Arbor, MI 48104,
Fredrick J. Dindoffer, Esq. -- fdindoffer@bodmanlaw.com -- BODMAN
PLC, 1901, St. Antoine Street, Sixth Floor at Ford Field, Detroit,
MI 48226, J. Benjamin Nevius, Esq. -- jnevius@foxrothschild.com --
Ronald L. Williams, Esq. -- rwilliams@foxrothschild.com -- FOX
ROTHSCHILD LLP., 747, Constitution Drive, Suite 100, Exton, PA
19341, Counsel for Appellee.
GOLDEN STATE: Blumenthal Nordrehaug Files Class Action
------------------------------------------------------
The San Francisco labor law attorneys at Blumenthal, Nordrehaug
and Bhowmik lodged a putative class action lawsuit against Golden
State Overnight Delivery Service, Inc. for allegedly failing to
provide their drivers in California with the legally required
thirty-minute uninterrupted meal periods and off duty rest breaks.
The class action also alleges that Golden State Overnight failed
to properly reimburse the drivers for necessary business expenses
incurred on the company's behalf. The Golden State Overnight class
action lawsuit, Case No. RG17862924 is currently pending in the
Alameda County Superior Court.
The lawsuit filed against Golden State Overnight claims that the
drivers working for the company were not provided timely thirty-
minute uninterrupted meal breaks prior to their fifth hour of
work. The Complaint further alleges that as a result of their
rigorous work schedules, the drivers were not able to take off
duty rest breaks either. California law requires employers to
provide their non-exempt employees paid on an hourly basis with
thirty-minute meal periods before the employee works five hours
and off duty rest breaks.
For more information about the class action lawsuit filed against
Golden State Overnight Delivery Service, please call Attorney
Nicholas De Blouw at the firm Blumenthal Nordrehaug and Bhowmik at
(866) 771-7099.
Blumenthal, Nordrehaug and Bhowmik is a San Francisco employment
law firm that dedicates its practice to helping employees, fight
back against unfair business practices, including violations of
the California Labor Code and Fair Labor Standards Act. [GN]
GREGORY TURZA: Appeals Ruling in "Holtzman" Suit to 7th Circuit
---------------------------------------------------------------
Defendant Gregory P. Turza filed an appeal from a court ruling
relating to the lawsuit titled Ira Holtzman v. Gregory Turza, Case
No. 1:08-cv-02014, in the U.S. District Court for the Northern
District of Illinois, Eastern Division.
The appellate case is captioned as Ira Holtzman v. Gregory Turza,
Case No. 17-2330, in the U.S. Court of Appeals for the Seventh
Circuit.
As previously reported in the Class Action Reporter on June 23,
2017, the Defendant previously filed an appeal from a court ruling
in the lawsuit. That appellate case is entitled Ira Holtzman v.
Gregory Turza, Case No. 17-2224, in the U.S. Court of Appeals for
the Seventh Circuit.
The case began almost a decade ago, when Northbrook certified
public accountant Ira Holtzman filed a class-action lawsuit
against Skokie lawyer Gregory Turza for sending biweekly faxes to
advertise his services. In 2013, Mr. Holtzman's lawyers, Anderson
& Wanca in Rolling Meadows and Bock & Hatch in Chicago, won a $4.2
million judgment for the class when a judge determined Mr. Turza
had violated the 1991 Telephone Consumer Protection Act.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript information sheet is due by July 12, 2017; and
-- Appellant's brief is due on or before August 7, 2017, for
Gregory P. Turza.[BN]
Plaintiff-Appellee IRA HOLTZMAN, individually and as the
representative of a class of similarly-situated persons, is
represented by:
David Max Oppenheim, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. LaSalle Street
Chicago, IL 60602
Telephone: (312) 658-5500
Facsimile: (312) 658-5555
E-mail: david@classlawyers.com
Defendant-Appellant GREGORY P. TURZA is represented by:
Steven D. Pearson, Esq.
COZEN O'CONNOR
123 N. Wacker Drive
Chicago, IL 60606-0000
Telephone: (312) 474-7900
Facsimile: (312) 474-7898
E-mail: spearson@cozen.com
GRUBHUB INC: "Stockman" Suit Sued over Hidden Fees and Charges
--------------------------------------------------------------
MATTHEW STOCKMAN, individually and on behalf of all other
similarly situated, the Plaintiff, v. GRUBHUB INC., a Delaware
corporation, the Defendant, Case No. 2017-CH-08812 (Ill. Cir. Ct.,
June 23, 2017), seeks to recover awarding actual damages to
Plaintiff and the Class in an amount to be proven at trial under
Illinois Code of Civil Procedure.
According to the complaint, by requiring Plaintiff and the Class
to pay hidden fees and charges, Defendants knowingly received and
appreciated benefits at the expense and to the detriment of
Plaintiff and the Class. Defendant's receipt of monies from
Plaintiff and the Class allowed it to utilize those monies for its
own purposes, without expending resources to perform its
obligation under the contract. Defendant appreciates or has
knowledge of that benefit. Under principles of equity and good
conscience, Defendant should not be permitted to retain the monies
belonging to Plaintiff and the Class that were paid to Defendant,
and that Defendant unjustly received as a result of their alleged
misconduct.
Grubhub is an online and mobile food-ordering company.[BN]
The Plaintiff is represented by:
Holly McCurdy, Esq.
Celetha Chatman, Esq.
Michael Wood, Esq.
COMMUNITY LAWYERS GROUP. LTD.
73 W. Monroe Street, Suite 514
Chicago, IL 60603
Telephone: (312) 757 1880
Facsimile: (312) 265 3227
ITC HOLDINGS: September 25 Settlement Fairness Hearing Set
----------------------------------------------------------
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
BUSINESS COURT
In re ITC HOLDINGS CORPORATION
SHAREHOLDER LITIGATION
Lead Case No. 2016-151852-CB
Hon. James M. Alexander
This Document Relates To:
ALL ACTIONS.
NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION AND
SETTLEMENT HEARING TO: ANY AND ALL RECORD HOLDERS OR BENEFICIAL
OWNERS OF ITC HOLDINGS CORP. ("ITC") COMMON STOCK AT ANY TIME
BETWEEN AND INCLUDING FEBRUARY 9, 2016 AND THE DATE OF THE
CONSUMMATION OF THE MERGER ON OCTOBER 14, 2016 PLEASE READ THIS
NOTICE CAREFULLY AND IN ITS ENTIRETY.
THIS NOTICE RELATES TO A PROPOSED SETTLEMENT OF A LAWSUIT AND
CONTAINS IMPORTANT INFORMATION. YOUR RIGHTS WILL BE AFFECTED BY
THESE LEGAL PROCEEDINGS IN THIS LITIGATION.
The purpose of this Notice is to inform you of a proposed
settlement (the "Settlement") of the action (the "Litigation") on
the terms set forth in the Stipulation of Settlement
("Stipulation" or "Settlement") entered into between Lead
Plaintiff Alan Poland, on behalf of himself and each of the
Settlement Class Members (defined below), and Defendants Joseph L.
Welch, Albert Ernst, Christopher H. Franklin, Edward G. Jepsen,
Dave R. Lopez, Hazel R. O'Leary, Thomas G. Stephens, G. Bennett
Stewart III, Lee C. Stewart, and nominal party ITC Holdings Corp.
pending before the Circuit Court for the County of Oakland, State
of Michigan (the "Court"), as well as of a hearing to be held
before the Court on September 25, 2017, at 8:30 a.m. at 1200 North
Telegraph Road, Pontiac, Michigan 48341 (the "Settlement
Hearing"). The purpose of the Settlement Hearing is to determine
whether: (a) the proposed Settlement on the terms and conditions
provided for in the Stipulation should be finally approved by the
Court as fair, reasonable and adequate; (b) the Plan of Allocation
should be approved; and (c) whether Lead Counsel's request for an
award of attorneys' fees and expenses should be granted.
If the Court approves the Settlement, the parties to the
Litigation will ask the Court to enter the Judgment dismissing the
Litigation with prejudice on the merits.
This Notice describes the rights you may have under the Settlement
if you are a Settlement Class Member and what steps you may, but
are not required to, take in relation to the Settlement.
In consideration for the full settlement and release of all
Released Claims, Defendants shall cause $5,000,000.00 (the
"Settlement Amount") to be deposited into an interest bearing
account designated by the Escrow Agent within twenty (20) calendar
days after entry of the Notice Order or materially similar order
preliminarily approving the Settlement. The Settlement Amount,
plus any accrued interest (the "Settlement
Fund") and minus the costs associated with the administration of
the Settlement, as well as attorneys' fees expenses as approved by
the Court (the "Net Settlement Fund") will be distributed to
Settlement Class Members (as defined herein) who submit valid and
timely Proof of Claim and Release forms ("Proof of Claim")
pursuant to the Plan of Allocation ("Authorized Claimants").
The Court has ordered that the Litigation shall be maintained as a
class action for purposes of the Settlement only, of a class (the
"Settlement Class") consisting of all Persons (other than those
Persons who timely and validly request exclusion from the
Settlement Class) who were record holders or beneficial owners of
ITC common stock at any time between and including February 9,
2016 and the date of consummation of the Merger on October 14,
2016 (the "Settlement Class Period"). Excluded from the
Settlement Class are any and all record holders or beneficial
owners of ITC common stock who voted, themselves, by agent, or
otherwise whose stock was voted, in favor of the Merger. Further
excluded from the Settlement Class are Defendants, their immediate
family members, and any entity in which Defendants had a
controlling interest during the Settlement Class Period.
Any Settlement Class Member may exclude themselves from the
Settlement Class by submitting a written request for exclusion
(the "Request for Exclusion") by First-Class U.S. Mail postmarked
no later than August 15, 2017, and addressed to:
ITC Shareholder Litigation
Claims Administrator
c/o Gilardi & Co. LLC
EXCLUSIONS
P.O. Box 8040
San Rafael, CA 94912-8040
A Request for Exclusion must include: (a) the name and mailing
address of the person or entity seeking exclusion from the
Settlement Class; (b) a statement attesting to the fact that such
person or entity is a Settlement Class Member; and (c) a statement
that the person or entity wishes to be excluded from the
Settlement Class. All individuals or entities who submit valid
and timely Requests for Exclusion in the manner set forth here
will not be bound by the Settlement or any judgment entered
thereon.
Any Settlement Class Member can object to the Settlement, the Plan
of Allocation, and/or Lead Counsel's application for an award of
attorneys' fees and expenses. Settlement Class Members can also
seek to intervene in this action. Any Settlement Class Member who
seeks to object or intervene, or otherwise wishes to be heard, may
appear in person or at the Settlement Hearing and present evidence
or argument that may be proper and relevant. A Settlement Class
Member can appear through an attorney whom the Settlement Class
Member hires at his, her, or its own cost. If a Settlement Class
Member wishes to appear, object or seek to
intervene they must provide the Court and counsel listed below
with papers that include: (a) a written notice of intention to
appear; (b) a statement of such person's objections to any matters
before the Court; (c) documentary proof of the number of shares of
ITC common stock held by the objecting person between and
including February 9, 2016 and October 14, 2016; and (d) the
grounds for such objections and the reasons that such
person desires to appear and be heard and writings such person
desires the Court to consider. The papers must be filed with the
Court no later than August 15, 2017, and served by First-Class
U.S. mail on or before the date of filing with the Court to:
David T. Wissbroecker
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Louis P. Gabel
JONES DAY
150 W. Jefferson, Suite 2100
Detroit, MI 48226-4438
Andrew Kolozsvary
DYKEMA GOSSETT PLLC
201 Townsend Street, Suite 900
Lansing, MI 48933
In order to qualify for a payment, you must timely submit a Proof
of Claim. A Proof of Claim may be downloaded at
www.itcshareholderlitigation.com. Read the instructions
carefully, fill out the Proof of Claim, include all the documents
the form asks for, sign it, and mail or submit it online so that
it is postmarked (if mailed) or received (if filed electronically)
no later than September 20, 2017. If you do not
submit a valid Proof of Claim with all of the required
information, you will not receive a payment from the Net
Settlement Fund; however, you will still be bound in all other
respects by the Settlement, the Judgment, and the releases
contained in them.
Inquiries or comments about the Settlement or the Litigation may
be directed to the attention of Plaintiffs' Counsel:
David T. Wissbroecker
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
Marc L. Newman
THE MILLER LAW FIRM, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: 248/841-2200
248/652-2852 (fax)
PLEASE DO NOT WRITE OR CALL THE COURT.
DATED: June 1, 2017
BY ORDER OF THE COURT
STATE OF MICHIGAN
COUNTY OF OAKLAND
BUSINESS COURT
JOHN KYUNG: Failed to Pay Overtime Wage, "Keong" Suit Says
----------------------------------------------------------
KEONG AE NA, individually, and on behalf of herself and others
similarly situated, the Plaintiff, v. JOHN KYUNG HO KIM, an
individual doing business as Hyun Poong Gom Tang, and DOES 1
through 50, inclusive, the Defendants, Case No. BC666429 (Cal.
Super. Ct., June 23, 2017), seeks damages and injunctive relief
steeming from Plaintiff's misclassification as an independent
contractor under California Labor Code.
The Plaintiff was employed by Defendant at the Hyun Poong Gom Tang
restaurant as a non-exempt cook. Her primary duties involved
cutting and cleaning vegetables, and making sauces. The Plaintiff
worked six days a week and 10 hours per day without receiving a
10-minute rest period for every 4 hours worked.[BN]
The Plaintiff is represented by:
Aryeh Leichter, Esq.
LEICHTER LAW FIRM, APC
3580 Wilshire Blvd Ste 1745
Los Angeles, CA 90010-2534
Telephone: (213) 381 6557
KINDRED HEALTHCARE: Al-Najjar Seeks Minimum Pay under Labor Code
----------------------------------------------------------------
TINAMARIE FATIAH AL-NAJJAR, on behalf of herself and all others
similarly situated, the Plaintiff, v. KINDRED HEALTHCARE
OPERATING, INC., a Delaware corporation; and DOES 1 through 100,
Inclusive, the Defendants, Case No. BC666050 (Cal. Super. Ct.,
June 23, 2017), seeks to recover minimum wage and overtime pay
under California Labor Code.
According to the complaint, the Defendants have a consistent
policy of failing to pay wages including overtime wages and
provide meal periods.
Kindred is a healthcare services company that operates
hospitals.[BN]
The Plaintiffs are represented by:
Michael Nourmand, Esq.
James A. De Sario, Esq.
THE NOURMAND LAW FIRM, APC
8822 West Olympic Boulevard
Beverly Hills, CA 90211
Telephone: (310) 553 3600
Facsimile: (310) 553 3603
LANGSTON CONSTRUCTION: Laborers' Suit to Proceed as Class Action
----------------------------------------------------------------
In the case captioned BISMARK MAIRENA-RIVERA v. LANGSTON
CONSTRUCTION, LLC, ET AL, Civil Action No. 16-850-JJB-EWD (M.D.
La.), Judge James J. Brady granted the plaintiff's motion to
proceed as a collective action, for judicial notice, and for
disclosure of the names and addresses of potential opt-in
plaintiffs.
Bismark Mairena-Rivera was employed as a general construction
laborer by the defendants. He alleged that he was not paid one-
and-a-half times his straight time rate for the overtime hours he
worked in excess of 40 hours. Additionally, he alleged that the
unlawful pay practices were commonly applied throughout the
defendants' operations, and that he worked with other individuals
similarly situated to him who were not paid the proper overtime
rate.
Mairena-Rivera moved to conditionally certify a class of the
defendants' employees, and he asked that the Court direct the
defendants to provide the names, phone numbers, and last known
addresses of potential opt-in plaintiffs. He also asked the Court
to approve the sending of a class notice. Additionally, at least
one former employee of the defendants has already opted-in to this
action.
The defendants opposed the motion, making various arguments about
why it should be denied, and, even if it is granted, why the
notice should be narrowed.
Judge Brady granted the motion. However, finding that the
proposed class was too broad, the judge narrowed the class
definition as: "All individuals who worked or are working for
Langston Construction, LLC or Composite Architectural Design
Systems, LLC performing manual labor during the previous three
years and who are eligible for overtime pay pursuant to the FLSA,
29 U.S.C. section 207, and who did not receive full overtime
compensation."
Additionally, Judge Brady found that certifying a collective
action covering a period of three years is appropriate. Further,
the judge found that a 90 day opt-in period is appropriate.
A full-text copy of Judge Brady's June 27, 2017 ruling is
available at https://is.gd/PogF3w from Leagle.com.
Bismark Mairena-Rivera, Petitioner, represented by Roberto Luis
Costales, Beaumont Costales, Emily Anne Westermeier, Beaumont
Costales & William Henry Beaumont, Beaumont Costales.
Langston Construction, LLC, Composite Architectural Design
Systems, LLC, Michael Langston, Respondents, represented by D.
Scott Landry -- landrys@chaffe.com -- Chaffe McCall, LLP & Nicole
Celia Katz -- katz@chaffe.com -- Chaffe McCall, L.L.P..
LAX IN-FLIGHT: "Gutierrez" Seeks Missed Break Premium, Last Pay
---------------------------------------------------------------
Guillermo J. Lopez-Gutierrez, an individual, on behalf of himself
and all others similarly situated, Plaintiff, v. LAX In-Flight
Services LLC and Does 1 through 100, Defendants, Case No. BC664985
(Cal. Super., June 13, 2017), seeks unpaid wages and interest
thereon for Defendant's failure to pay for all hours worked and
minimum wage rate, failure to authorize or permit required meal
periods, failure to authorize or permit required rest periods,
statutory penalties for failure to provide accurate wage
statements, waiting time penalties in the form of continuation
wages for failure to timely pay employees all wages due upon
separation of employment, injunctive relief and other equitable
relief, reasonable attorney's fees and costs and interest pursuant
to California Labor Code, applicable Industrial Welfare Commission
Wage Orders and the California Business and Professions Code.
Defendants operate as Royal Airline Linen, a service provider at
the LAX Airport where Plaintiff worked. [BN]
Plaintiffs are represented by:
Joseph Lavi, Esq.
Vincent C. Granbeiry, Esq.
Vanessa Kamau, Esq
LAVI & EBRAHIMIAN, LLP
8889 West Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
LIBERTY FORD: Court Directed to Dismiss Appeal
----------------------------------------------
The Court of Appeals of Maryland remanded the appealed case
captioned Deer Automotive Group, LLC t/a Liberty Ford v. BARBARA
BROWN, et al., No. 62, September Term, 2016 (Md. Ct. App.) to the
Court of Special Appeals, directing the latter to dismiss the
appeal.
Barbara Brown and Herbert E. Spencer, Jr., are individuals who
each purchased vehicles from Deer Automotive Group, LLC t/a
Liberty Ford's dealership. On March 13, 2015, Brown and Spencer
filed a class action lawsuit in the Circuit Court for Baltimore
County against Liberty Ford, in which they challenged Liberty
Ford's practice of providing customers with an alleged free
lifetime Limited Warranty for their vehicles. The alleged free
warranty was conditioned on the consumer's continued use of and
payment for other services provided by Liberty Ford, which, Brown
and Spencer aver, is an arrangement that violates federal law.
In lieu of filing a motion to compel arbitration in the class
action matter, Liberty Ford commenced an independent action in the
same court on April 27, 2015 seeking to compel arbitration in the
existing class action case. The Circuit Court ruled that Brown
and Spencer's claims in the class action were not subject to
binding arbitration. Liberty Ford appealed. In the Court of
Special Appeals, Brown and Spencer filed a motion to dismiss the
appeal arguing that the Circuit Court's order denying arbitration
was not an appealable final judgment. The Court of Special
Appeals denied the motion, and Brown and Spencer petitioned the
Court of Appeals of Maryland for review.
Upon review, the Court of Appeals found that the Circuit Court's
order denying Liberty Ford's petition to compel arbitration is not
a final, appealable judgment under Cts. section Jud. Proc. section
12-301. The appellate court pointed out that the Court of Special
Appeals does not have jurisdiction to hear an appeal of that
order. The judgment of the Court of Special Appeals was thus
vacated and the case was remanded to that court with instructions
to dismiss the appeal.
A full-text copy of the appellate court's June 27, 2017 opinion is
available at https://is.gd/W6PDhE from Leagle.com.
MDL 2002: IP's Bid for Class Certification Denied Anew
------------------------------------------------------
Judge Gene E.K. Pratter of the United States District Court for
the Eastern District of Pennsylvania denied the indirect purchaser
("IP") plaintiffs' renewed motion for class certification in the
case captioned IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION.
THIS DOCUMENT APPLIES TO: ALL INDIRECT PURCHASER CASES, No. 08-md-
2002 (E.D. Pa.).
The antitrust action alleged a conspiracy consisting of three
general tactics:
(1) a series of short-term egg-supply reduction programs,
(2) a long-term plan to reduce the supply of eggs under the
pretext of an "animal-welfare program," and
(3) exporting eggs at a loss.
These tactics allegedly reduced the supply of eggs and resulted in
higher prices paid by the putative class of indirect purchasers.
The Court previously denied the IP plaintiffs' motion for class
certification. However, as to the proposed Fed. R. Civ. P.
23(b)(2) injunctive relief class, the Court permitted the IP
plaintiffs to file a renewed motion, after determining that all
parties' briefing on that particular issue lacked the rigor
necessary for the Court to decide that certification question. In
their renewed motion, the IP plaintiffs proposed a national
injunctive relief class, seeking relief under Section 1 of the
Sherman Act and Section 16 of the Clayton Act.
In their original class certification motion, the IP plaintiffs
only sought certification of an injunction class comprised of
individuals and entities in the "Class Jurisdictions," or a
collection of 21 states. Now that only injunctive relief is
potentially subject to class treatment, however, the IP plaintiffs
have expanded their proposed class to cover the entire United
States. The IP plaintiffs sought to enjoin the defendants from
making certain agreements with other egg producers -- more
specifically, the IP plaintiffs target the 100% Rule, the ban on
backfilling, short-term coordinated flock reductions, and egg
exports at a loss.
For many of the same reasons that the Court previously found that
the IP plaintiffs failed to show that common issues predominated
over individual ones as to their proposed Fed. R. Civ. P. (b)(3)
class, Judge Pratter also found that the IP plaintiffs have failed
to show that their proposed (b)(2) class is cohesive.
Judge Pratter found that the IP plaintiffs have not provided any
meaningful analysis of the threat of future harm, much less shown
how future harm could be proven on a class-wide basis. Because
the IP plaintiffs have not escaped their failure to present a
means of determining antitrust impact through common proof, the
judge declined to certify their proposed injunctive relief class.
A full-text copy of Judge Pratter's June 27, 2017 memorandum is
available at https://is.gd/gq5drb from Leagle.com.
SANDRA A. JESKIE, Special Master, represented by SANDRA A. JESKIE
-- jeskie@duanemorris.com -- DUANE, MORRIS LLP.
MENTOR EXEMPTED: "Fei" Seeks Overtime Pay, Alleges Time Shaving
---------------------------------------------------------------
Fei Lon Yung, on behalf of herself and all others similarly
situated, Plaintiff, v. Mentor Exempted Village School District
Board Of Education, Defendant, Case No. 1:17-cv-01241 (N.D. Ohio,
June 13, 2017), seeks to recover unpaid wages and overtime
compensation as well as for liquidated damages, attorneys' fees,
and costs under the Fair Labor Standards Act.
Defendant is an Ohio Board of Education established and operating
under Ohio Revised Code Chapter 3313. Defendant allegedly rounds
its employees' clock-in time in a manner in which an employee
always loses credit for time actually worked. [BN]
Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
MIDLAND FUNDING: Sued for Collection on Time-Barred Debt
--------------------------------------------------------
Karen Wiitanen, individually and on behalf of other persons
similarly situated, Plaintiff, v. Midland Funding LLC, Midland
Credit Management, Inc., Encore Capital Group, Inc. and Weltman,
Weinberg & Reis Co., L.P.A., Defendants, Case No. 1:17-cv-00534,
(W.D. Mich., June 13, 2017), requests statutory damages, actual
damages and attorney's fees and costs of suit along with
injunctive relief under the Fair Debt Collection Practices Act and
the Michigan Regulation of Collection Practices Act.
Wiitanen purchased a computer that was financed by Dell Financial
Services. She went into default in May 2011 but managed to fully
pay by December of the same year. Her outstanding was bought off
by Midland. She was still sued for her outstanding. Wiitanen seeks
redress for being sued on a time barred debt.
Midland Funding is engaged in the business of taking title to
charged-off consumer debts, including credit card, auto deficiency
and telecom receivables purchased from national financial
institutions, major retail credit corporations, telecom companies
and resellers of such portfolios. Midland Credit Management, Inc.
is a wholly-owned subsidiary of Encore Capital Group, Inc. [BN]
Plaintiff is represented by:
Curtis C. Warner, Esq.
WARNER LAW FIRM, LLC
350 S. Northwest HWY., Ste. 300
Park Ridge, IL 60068
Tel: (847) 701-5290
Email: cwarner@warner.legal
- and -
B. Thomas Golden, Esq.
GOLDEN LAW OFFICES, P.C.
2186 West Main Street, P.O. Box 9
Lowell, MI 49331
Tel: (616) 897-2900
Email: btg@bthomasgolden.com
MIKE HUCKABEE: May Face Class Action Over Robocalls
---------------------------------------------------
Julia Manchester, writing for The Hill, reports that former
Arkansas Gov. Mike Huckabee (R) could be facing a class-action
lawsuit stemming from the marketing campaign for his movie about
the "war on Christmas."
Attorneys for Dorit and Ron Golan claim that more than 4 million
calls were made to market Huckabee's film, "Last Ounce of
Courage," which could potentially violate the Telephone Consumer
Protection Act that says unrequested messages with commercial
content are illegal.
Individuals who could have received robocalls from the former
governor received mailers, saying they may be eligible to become
members of a lawsuit against the governor.
"If you received one or more telephone calls that used the
recorded voice of Mike Huckabee to deliver a message as part of a
campaign for the movie 'Last Ounce of Courage', you may be a class
member in a class action lawsuit," the letters read.
The case was originally dismissed in May 2014, but the class
action was certified by a St. Louis U.S. District Court judge in
January. [GN]
MOBILEIRON INC: August 18 Settlement Fairness Hearing Set
---------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP and Scott+Scott, Attorneys at Law, LLP regarding the
MobileIron Shareholder Litigation:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
In re MOBILEIRON, INC. SHAREHOLDER LITIGATION )
Lead Case No. 1-15-cv-284001
CLASS ACTION
Assigned to: The Honorable Thomas E. Kuhnle
Dept. 5
Date Action Filed: 08/05/15
This Document Relates To:
ALL ACTIONS.
SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO:
ALL PERSONS OR ENTITIES ("PERSONS") THAT PURCHASED MOBILEIRON,
INC. ("MOBILEIRON" OR THE "COMPANY") COMMON STOCK PURSUANT AND/OR
TRACEABLE TO THE REGISTRATION STATEMENT AND PROSPECTUS FOR THE
COMPANY'S JUNE 12, 2014 INITIAL PUBLIC OFFERING (THE "CLASS")
THIS NOTICE WAS AUTHORIZED BY THE COURT.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 August 18,
2017, at 9:00 a.m., before the Honorable Thomas E. Kuhnle at the
Superior Court of California, County of Santa Clara, 191 North
First Street, San Jose, CA 95113, to determine whether: (1) the
proposed Settlement as set forth in the Stipulation of Settlement
dated May 23, 2017 ("Stipulation") of the above-captioned action
("Litigation") for $7,500,000 in cash should be approved by the
Court as fair, reasonable, and adequate; (2) the Plan of
Allocation should be approved by the Court as fair, reasonable,
and adequate; (3) to award Plaintiffs' Counsel attorneys' fees and
expenses out of the Settlement Fund (as defined in the Notice of
Proposed Settlement of Class Action ("Notice"), which is discussed
below); and (4) to pay Plaintiffs for their time and expenses
incurred in representing the Class, out of the Settlement Fund.
This Litigation is a securities class action brought on behalf of
those Persons who purchased the common stock of MobileIron
pursuant and/or traceable to the Registration Statement and
Prospectus ("Registration Statement") issued in connection with
MobileIron's June 12, 2014 initial public offering (the "IPO")
against MobileIron and certain of its executives for allegedly
misstating and omitting material facts from the Registration
Statement filed with the U.S. Securities and Exchange Commission
("SEC") in connection with the IPO. Defendants deny all of
Plaintiffs' allegations.
IF YOU PURCHASED MOBILEIRON COMMON STOCK PURSUANT AND/OR TRACEABLE
TO THE REGISTRATION STATEMENT FILED WITH THE SEC IN CONNECTION
WITH THE COMPANY'S JUNE 12, 2014 IPO, YOUR RIGHTS MAY BE AFFECTED
BY THE SETTLEMENT OF THIS LITIGATION.
To share in the distribution of the Net Settlement Fund, you must
establish your rights by submitting a Proof of Claim and Release
("Proof of Claim") by mail postmarked no later than November 6,
2017, at the Claims Administrator's address, MobileIron
Shareholder Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box
404006, Louisville, KY 40233-4006, or submitted electronically at
www.mobileironshareholdersettlement.com no later than November 6,
2017. Your failure to submit your Proof of Claim by November 6,
2017, will subject your claim to possible rejection and may
preclude you from receiving any of the recovery in connection with
the Settlement of this Litigation. 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 Litigation,
including, but not limited to, the Judgment, whether or not you
submit a Proof of Claim. Lead Counsel represent you and other
Members of the Class. If you want to be represented by your own
lawyer, you may hire one at your own expense.
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 Class), and a Proof of Claim, 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.mobileironshareholdersettlement.com, or by
contacting the Claims Administrator at:
MobileIron Shareholder Litigation Settlement
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 404006
Louisville, KY 40233-4006
Phone: 1-866-684-3881
www.mobileironshareholdersettlement.com
Inquiries may also be made to a representative of Lead Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Shareholder Relations
Rick Nelson
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 1-800-449-4900
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
John T. Jasnoch
707 Broadway, Suite 1000
San Diego, CA 92101
Phone: 1-800-332-2259
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A
REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED NO LATER THAN
JULY 19, 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 SETTLEMENT ENTERED IN THE LITIGATION
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, THE REQUEST BY PLAINTIFFS'
COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES, AND/OR THE
PAYMENT TO PLAINTIFFS FOR THEIR TIME AND EXPENSES. ANY WRITTEN
OBJECTIONS MAY BE FILED WITH THE COURT AND COPIES SENT TO LEAD
COUNSEL BY JULY 19, 2017. HOWEVER, IT IS NOT NECESSARY TO FILE A
WRITTEN OBJECTION IN ORDER TO APPEAR AT THE HEARING TO PRESENT
YOUR OBJECTION TO THE COURT.
DATED: June 9, 2017
BY ORDER OF THE SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SANTA CLARA
HONORABLE THOMAS E. KUHNLE
MONSANTO COMPANY: Faces "Couch" Suit over Herbicide Roundup
-----------------------------------------------------------
GARY COUCH, the Plaintiff v. MONSANTO COMPANY, the Defendant, Case
No. N17C-06-280 VLM (Del. Super. Ct., June 23, 2017), seeks to
recover damages suffered by Plaintiff as a direct and proximate
result of Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable overtime
wages, double damages and reasonable attorney fees from
Defendants, jointly and severally, pursuant to the Fair Labor
Standards Act.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Raeann Warner, Esq.
JACOBS & CRUMPLAR, P.A.
750 Shipyard Drive, Suite 200
Wilmington, DE 19899
Telephone: (302) 656 5445
E-mail: Raeann@jcdelaw.com
- and -
Yvonne M. Flaherty, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339 6900
NABORS DRILLING: "Garza" Suit Alleges FLSA Violation
----------------------------------------------------
GUADALUPE GARZA on behalf of himself individually, and ALL OTHERS
SIMILARLY SITUATED Plaintiffs, v. NABORS DRILLING TECHNOLOGIES,
USA INC., NABORS CORPORATE, SERVICES INC., and NABORS INDUSTRIES
INC., Defendants, Case No. 4:17-cv-01848 (S.D. Tex., June 16,
2017), alleges that Defendants do not pay its Drillers overtime as
required by the Fair Labor Standards Act. Instead, Drillers were
paid straight time, not time and a half for overtime hours worked.
NABORS DRILLING TECHNOLOGIES, USA INC. is in the oil and energy
business. The Plaintiff is a driller.[BN]
The Plaintiff is represented by:
Taft L. Foley, II, Esq.
THE FOLEY LAW FIRM
3003 South Loop West, Suite 108
Houston, TX 77054
Phone: (832) 778-8182
Fax: (832) 778-8353
E-mail: Taft.Foley@thefoleylawfirm.com
NATIONAL STORES: "Martinez" Seeks 60-day's Worth of Pay, Benefits
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Olivia Martinez, on behalf of all similarly situated employees
Plaintiff, v. National Stores, Inc., Defendant, Case No. BC664859,
(Cal. Super., June 13, 2017), seeks unpaid wages and interest
thereon for Defendant's failure to pay for all hours worked and
minimum wage rate, failure to authorize or permit required meal
periods, failure to authorize or permit required rest periods,
statutory penalties for failure to provide accurate wage
statements, waiting time penalties in the form of continuation
wages for failure to timely pay employees all wages due upon
separation of employment, injunctive relief and other equitable
relief, and reasonable attorney's fees and costs and interest
pursuant to the California Business and Professions Code and the
Worker Adjustment and Retraining Notification (WARN) Act of 1988.
National Stores Inc. operates as "Fallas," a clothing retail store
based in Los Angeles. It implemented a mass lay-off on December
31, 2016 but the notice of closure was made only in December 8, in
violation of the 60-day notice. Plaintiff, thus claims 60 days'
worth of salary and benefits.
Plaintiff is represented by:
Kevin Mahoney, Esq.
Treana Allen, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd.,Ste. 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
Email: kmahoney@mahoney-law.net
NEW YORK FILM: "Cho" Suit Seeks Minimum Wage & OT Pay
-----------------------------------------------------
JOSHUA CHO, on behalf of himself and all others similarly
situated, the Plaintiff, v. NEW YORK FILM ACADEMY, LTD., a New
York Corporation, DANIEL MACKLER, an individual, and DOES 1
through 100, inclusive, the Defendants, Case No. BC666331 (Cal.
Super. Ct., June 23, 2017), seeks to recover minimum wage and
overtime pay under the California Labor Code.
According to the complaint, the Plaintiff and the entirety of the
proposed class were or are current or former employees of
Defendants who were deprived of wages earned, minimum wages and
overtime pay, whose overtime was not properly paid, whose payroll
records did not reflect all hours worked, and who were not
provided uninterrupted meal and rest breaks.
New York Film Academy is a for-profit film school and acting
school based in New York City, Los Angeles, Miami, and across the
world.[BN]
The Plaintiff is represented by:
Jack Risemberg, Esq.
RGLAWYERS, LLP
15910 Ventura Blvd 1610
Encino, CA 91436,
Telephone: (818) 815 2727
NEW ZEALAND: Earthquake Damage May Impact Canterbury Homeowners
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Stuff.co.nz reports that earthquake damage could be hiding under
the floors of pre-1970s homes in Christchurch, an earthquake
lawyer says.
Peter Woods, a partner at Anthony Harper, held a meeting for
affected homeowners on June 26, with the invitation specifying
that no insurance company affiliates could attend.
Strategies used to repair such homes following the Canterbury
earthquakes were failing and causing additional damage, he said.
Earthquake lawyer Peter Woods held a meeting seeking interest in
legal action against insurers regarding rubble foundations.
Mr. Woods was carrying out an independent survey to establish the
range of issues being dealt with in pre-1970s homes.
Many of the homes had problematic rubble foundations, he said.
Most of the rest of the country stopped using the foundations made
of stones and other rubble encased in varying grades of concrete,
aggregate and plaster in the 1920s.
Disgruntled earthquake insurance claimants gathered on June 26 to
learn about pre-1970 rubble foundations that may have been damaged
in the Canterbury earthquakes.
Mr. Woods said about 65 per cent of Canterbury homes had rubble
foundations.
"We are hearing about owners experiencing floors that are sagging,
dropping and bowing. More often than not, the only sign of
earthquake damage is the damage you can see on the plaster finish
on the outside of the perimeter foundation."
Licensed foundation specialist Bevan Craig was helping earthquake
claim advocacy group EQC Fix with its work on rubble foundation
repairs.
Mr. Craig said damaged rubble foundations could potentially be a
"multi-billion dollar problem" for the region's homeowners.
He said the meeting was not specifically to begin a class action,
but people with similar problems should "club together" to find
solutions.
Guidelines given to insurers in 2013 by the Ministry of Building,
Innovation and Employment (MBIE) were not appropriate for these
foundations, he said.
MBIE's advice was that "if a house looks reasonably level and the
cracks to its ring base are no larger than the 5 millimetre tip of
a pencil, then it is probably safe to put it down as a cosmetic
fix", Craig said.
Cosmetic fixes often involved waterproof filler and pain, or epoxy
resin for larger cracks.
Mr. Craig said that was like trying to glue together a plate that
had been trodden on and crushed.
"You wouldn't bother trying, would you? And that's what happens to
the rubble foundations after an earthquake."
Mr. Woods said he had seen a large number of cases where
foundation repairs had failed or were never done, despite being
signed off as completed.
"People are noticing cracks appearing in inside walls, or slumping
happening on one side of the house.
"We have one family in a 1915 house with a rubble foundation, with
all those things happening plus their internal walls are now
bowed."
He said EQC reduced the repair estimate for the property from
$800,000 to $52,000, and most of the cost cuts were in foundation
repair. [GN]
OCWEN FINANCIAL: Bid for Interlocutory Review in "Weiner" Denied
----------------------------------------------------------------
Judge Morrison C. England, Jr., of the U.S. District Court for the
Eastern District of California denied the defendants' motion for
interlocutory review in the case captioned DAVID WEINER,
individually, and on behalf of other members of the public
similarly situated, Plaintiff, v. OCWEN FINANCIAL CORPORATION, a
Florida corporation, and OCWEN LOAN SERVICING, LLC, a Delaware
limited liability company, Defendants, No. 2:14-cv-02597-MCE-DB
(E.D. Cal.).
David Weiner alleged that his mortgage servicer, Ocwen Loan
Servicing, LLC and OLS' parent company, Ocwen Financial
Corporation (collectively referred to as "Ocwen"), improperly
assessed default-related service fees that contained substantial,
undisclosed mark-ups which violated the terms of his mortgage
contract. Weiner further alleged that Ocwen misapplied his
payments in violation of the terms of the applicable deed of
trust. Weiner also purported to represent a class of borrowers
who have been similarly damaged by Ocwen's allegedly improper
actions in this regard.
On July 25, 2015, the district court issued a Memorandum and Order
denying Ocwen's Motion to Dismiss brought pursuant to Federal Rule
of Civil Procedure 12(b)(6). Ocwen then asked that the denial be
certified for interlocutory appeal under 28 U.S.C. section 1292(b)
on grounds that it purportedly is at odds with the Northern
District's decision granting a motion to dismiss in Giotta v.
Ocwen Financial Corp., No. 15-cv-00620-BLF, 2016 WL 4447150 (N.D.
Cal. Aug. 25, 2016). According to Ocwen, the alleged divergence
between the two rulings creates an intra-circuit split of
authority on a controlling question of law, the resolution of
which will materially advance the ultimate termination of this
litigation.
Judge England, however, found that Weiner's complaint, unlike
Giotta, relies upon the mortgage contract documents themselves,
and not on any violations of consent orders or federal
regulations, to allege fraudulent conduct on Ocwen's part. The
judge found that the factual basis for the two lawsuits appears
markedly different, and Giotta was adjudicated on grounds
different than those which caused the Court to deny Ocwen's motion
to dismiss. Given this factual disparity, Judge England held that
the Court cannot say that its ruling and the Giotta court's
decision are "diametrically opposed" as Ocwen argued, such that
immediate Ninth Circuit guidance to resolve the two "inconsistent
orders" is required.
Judge England further explained that the different factual bases
for the fraud claims in this case and Giotta undercuts any claim
that the two cases share a "controlling question of law" because
legal conclusions necessarily change depending on the facts, with
this consideration being particularly significant for fraud-based
claims which necessarily involve a fact-based inquiry under Rule
9.
Under these circumstances, Judge England held that Ocwen -- as the
parties seeking interlocutory appeal under section 1292(b) --
cannot show, as they must, that "exceptional circumstances justify
a departure from the basic policy of postponing appellate review
until after the entry of final judgment."
A full-text copy of Judge England's June 27, 2017 memorandum and
order is available at https://is.gd/zLsoqi from Leagle.com.
David Weiner, Plaintiff, represented by Daniel Alberstone --
dalberstone@baronbudd.com -- Baron & Budd, P.C., Roland Karim
Tellis -- rtellis@baronbudd.com -- Baron & Budd, P.C., Evan M.
Zucker -- ezucker@baronbudd.com -- Baron & Budd, PC, Michael Isaac
Miller, Branstetter Stranch & Jennings, Peter Klausner --
pklausner@baronbudd.com -- Baron & Budd, P.C. & Mark Pifko --
mpifko@baronbudd.com -- Baron & Budd.
Ocwen Financial Corporation, Ocwen Loan Servicing, LLC,
Defendants, represented by Elizabeth Lemond McKeen --
emckeen@omm.com -- O'Melveny & Myers LLP, Ashley Pavel --
apavel@omm.com -- O'Melveny & Myers LLP, Catalina Joos Vergara --
cvergara@omm.com -- O'Melveny & Myers, Erika Maki Rasch, O'Melveny
& Myers, LLP & James Abbott Bowman -- jbowman@omm.com -- O'Melveny
OWL INC: "Perez" Lawsuit Alleges FLSA Violation
-----------------------------------------------
Jose Perez, Alfredo Santos, and Douglas Richey, on behalf of
themselves and all others similarly situated, Plaintiffs, v. OWL,
INC. d/b/a OWL INC. TRANSPORTATION, Defendant, Case No. 6:17-cv-
01092-CEM-GJK (M.D. Fla., June 15, 2017), alleges that Owl's
drivers routinely work more than 40 hours a week, but were not
paid overtime when they work more than 40 hours in a week in
violation of the Fair Labor Standards Act.
Owl, Inc. is a company that provides transportation services for
veterans and other patients.[BN]
The Plaintiffs are represented by:
Joseph Egan, Esq.
Eric Lindstrom, Esq.
EGAN, LEV, LINDSTROM & SIWICA, P.A.
PO Box 2231
Orlando, FL 32802
Phone: 407 422 1400
E-mail: jegan@eganlev.com
elindstrom@eganlev.com
- and -
Shannon Liss-Riordan, Esq.
Benjamin J. Weber, Esq.
LICHTEN & LISS-RIORDA, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Phone: 617 994 5800
E-mail: sliss@llrlaw.com
bweber@llrlaw.com
PACER INT'L: Tenn. App. Affirms Settlement in Shareholders Suit
---------------------------------------------------------------
In the case captioned IN RE PACER INTERNATIONAL, INC., No. M2015-
00356-COA-R3-CV (Tenn. App.), Judge W. Neal McBrayer of the Court
of Appeals of Tennessee, at Nashville, affirmed the chancery court
decision approving the class action settlement and denying the
objector access to discovery materials.
This case began as a challenge to a proposed merger between Pacer
and a wholly-owned subsidiary of XPO Logistics, Inc. After Pacer
and XPO jointly announced the proposed merger, individual Pacer
stockholders filed five class action lawsuits, which were
ultimately consolidated into the present case, seeking to enjoin
the merger.
On Feb. 20, 2014, the Chancery Court for Davidson County,
Tennessee, appointed the Lead Counsel for the Plaintiffs with
authority to conduct discovery and settlement negotiations. The
parties negotiated the terms of a protective order and agreed to
conduct expedited, limited discovery.
The settlement negotiations began in March. The parties orally
agreed to settle if the Defendants disclosed additional
information about the merger before the stockholder vote. The
Defendants filed supplemental disclosures with the SEC on March
18, 2014. On March 27, 2014, Pacer stockholders approved the
proposed merger, and the merger was consummated on March 31, 2014.
On Aug. 6, 2014, the Plaintiffs moved for preliminary approval of
the settlement. The court preliminarily approved both the
settlement and notice of settlement on Oct. 14, 2014, set December
31 as the deadline for class members to file any objections, and
scheduled a fairness hearing for Jan. 15, 2015. Ultimately, 6,306
potential class members were notified of the proposed settlement.
On Dec. 23, 2014, the parties moved for final approval of the
proposed settlement.
On Dec. 31, 2014, Black Oak Investments, LLC filed written
objections to the proposed settlement and certification of the
settlement class contending that Pacer's Board breached its
fiduciary duty to Black Oak by not entertaining all credible
offers to get a bid over XPO Logistic's bid of $9.00 per share.
Black Oak owned approximately 3% of Pacer's stock, making it one
of Pacer's largest stockholders. It was the only class member to
object to the proposed settlement.
After a lengthy fairness hearing during which both the settlement
proponents and the objector were allowed to present their views,
the court issued its memorandum and final order denying Black
Oak's objections on Jan. 27, 2015. The court denied Black Oak's
request for access to previously discovered materials and to
conduct its own discovery into settlement negotiations. The court
also denied Black Oak's request for discovery of settlement
negotiations because it had not produced any evidence of
collusion.
The objector appeals, arguing that the chancery court erred in
denying it access to discovery and in approving the proposed
settlement.
Judge McBrayer held that the settlement proponents submitted ample
evidence to enable the court to evaluate the proposed settlement,
including the process Pacer's Board followed to obtain the best
offer for the company and the criteria used to narrow the field of
potential bidders. A significant amount of financial data, such
as the financial projections from senior management and the values
used by the two financial consultants in their fairness opinions,
was also provided. The Lead Counsel, who had extensive experience
in merger-related litigation, provided the court with the basis
for his conclusion that the Plaintiffs' claims had no significant
monetary value and that the supplemental disclosures benefited the
class. All sides submitted voluminous legal memoranda and were
allowed to argue their positions at length. On the record, he
cannot say that the chancery court ignored vital information in
approving this settlement. Therefore, Judge McBrayer affirmed the
chancery court decision approving the class action settlement and
denying the objector access to discovery materials.
A full-text copy of the Court's June 30, 2017 opinion is available
at https://is.gd/eD07jz from Leagle.com.
Greg Oakley, Nashville, Tennessee, and James D. Shields --
jshields@shieldslegal.com -- and Bart Higgins --
bhiggins@shieldslegal.com -- Addison, Texas, for the appellant,
Black Oak Investments, LLC.
Britt K. Latham -- blatham@bassberry.com -- and Jamie L. Brown,
Nashville, Tennessee, and James P. Smith III --
jpsmith@winston.com -- and John E. Schreiber --
jschreiber@winston.com -- New York, New York, for the appellees,
Pacer International, Inc., Daniel W.
Avramovich, Dennis A. Chantland, J. Douglass Coates, P. Michael
Giftos, Robert J. Grassi, Robert D. Lake, and Robert F. Starzel.
L. Webb Campbell II -- wcampbell@srvhlaw.com -- and John L.
Farringer IV -- jfarringer@srvhlaw.com -- Nashville, Tennessee,
and Rachelle Silverberg -- RSilverberg@wlrk.com -- and A. J.
Martinez -- AJMartinez@wlrk.com -- New York, New York, for the
appellees, Acquisition Sub, Inc., and XPO Logistics, Inc.
Douglas S. Johnston, Jr., Timothy L. Miles, and Scott P. Tift --
stift@barrettjohnston.com -- Nashville, Tennessee, Jerry E. Martin
-- jmartin@rgrdlaw.com -- and Christopher M. Wood --
cwood@rgrdlaw.com -- Nashville, Tennessee, and Randall J. Baron --
randyb@rgrdlaw.com -- and David T. Wissbroecker --
DWissbroecker@rgrdlaw.com -- San Diego, California, for the
appellees, Adnan Mahmutagic, Roger Blackwell, Mark Frazier,
Michael Iseman, and Joe Weingarten.
PAIGE-HUNTER: Faces Class Action Over Void House Deed
-----------------------------------------------------
Kayla Asbury, writing for Charleston Gazette-Mail, reports that
a Cross Lanes couple is accusing a realty company of obtaining the
deed to their home without their knowledge and, after waiting
three years, attempting to sell it back at an inflated price,
according to a lawsuit filed in U.S. District Court earlier in
June.
Jerry and Elizabeth Martin filed the complaint after being
informed they no longer owned their property in August 2016.
Paige-Hunter Properties Inc., PD Enterprises Inc., Hobert Aliff
Jr. and Vera McCormick, the Kanawha County Clerk, are being sued
for deprivation of property without due process and slander of
title.
The Martins' home was sold for delinquent taxes in Nov. 2012. The
complaint states the couple never had any notice of their property
taxes, the purchase of their property or their right to redeem
because of a change of address. The Martins didn't leave their
home, but their address was changed in 2011 during the
implementation of a countywide addressing system by 911 and
emergency services.
The lawsuit states that Ms. McCormick could not legally deprive
the Martins of their home ownership without violating the Martins'
constitutional right to due process of law. It claims that
McCormick knowingly granted Paige-Hunter Properties a void tax
deed to the Martins' home.
The complaint states that both Aliff, the owner of Paige-Hunter
Properties, and the business itself "have a history of obtaining
windfalls purchasing tax liens and, on information and belief,
selling them back to the property owner or a third party for a
substantial percentage of the actual value of the property."
After the address change, they did not receive a notice of their
property taxes for 2011 or 2012, the lawsuit reads. Their taxes
were delinquent $561.53.
Their property was sold to PD Enterprises in 2012 for $1,800. The
deed was transferred to Paige-Hunter Properties in 2014.
The Martins had owned their property since 1968. They realized
their property had been sold in April 2016, when they attempted to
pay their property taxes.
Mr. Aliff allegedly went to the Martins' home in May 2017 and told
Elizabeth Martin that he was the owner of her property and they
would have to purchase the property from him. He had the property
appraised at $71,000 and said they would have to pay a
"substantial percentage of the appraised value," the lawsuit
reads.
The lawsuit lists 26 occasions when Mr. Aliff and Paige-Hunter
Properties purchased tax liens spanning from 2004 to 2010, "which
property they then seek to sell to the prior record title owner at
or for a significant percentage of its fair market value."
The Martins are suing on their own behalf, but also on behalf of
similarly situated individuals, which could result in class action
litigation.
The Martins' attorney wrote Paige-Hunter Properties explaining
that the tax deed was legally void and offered to repay the
business the amount of taxes and fees it paid for the property
with interest. Mr. Aliff and Paige-Hunter Properties rejected the
offer.
The Martins are seeking damages, attorney fees and for the court
to void the deed for their home.
Defendants named in the suit have been served with notices, and
have until July 5 to file a reply, according to the most recent
filings in federal court. [GN]
PARKLANE FINANCIAL: July 31 Settlement Claims Filing Deadline Set
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Did you participate in the ParkLane Donations for Canada
Charitable Gift Program between 2005 - 2009?
If so, you are eligible to claim part of a $17,500,000 Settlement
in the Cannon v. Funds for Canada Foundation class action.
The Plaintiff has made a settlement with ParkLane Financial Group
Limited, Trafalgar Associates Limited, Trafalgar Trading Limited,
and Appleby Services Bermuda Ltd. as trustee for the Bermuda
Longtail Trust, now known as Estera Services (Bermuda) Limited as
trustee for the Bermuda Longtail Trust, who were the remaining
Defendants, and the class action is now at an end.
To claim your share of the settlement fund, you must complete a
claim form and send it to the Claims Administrator by no later
than July 31, 2017. Claim forms will be mailed and emailed to the
last known address for Class Members and will be available online
at: www.parklanesettlement.ca or call Toll Free: 1-888-663-7194 to
request a claim form.
Details of the settlement including a long form notice of
settlement, the Settlement Agreement, and the Court Order
approving the settlement can be accessed on the websites of Class
Counsel at:
http://www.parklaneclassaction.comor,
http://www.thetorontolawyers.ca/class_actions.htm
PATRIOT DRILLING: Fails to Pay Overtime, "Sanchez" Suit Alleges
---------------------------------------------------------------
JOSEPH SANCHEZ, on behalf of himself and all similarly situated
persons v. PATRIOT DRILLING FLUIDS, LLC and Q'MAX AMERICA, INC.,
Case No. 1:17-cv-01382 (D. Colo., June 7, 2017), seeks all
available relief under the Fair Labor Standards Act for alleged
failure to pay the Plaintiff and other Consultants any extra
overtime premium compensation for their overtime hours.
Patriot is a Colorado corporate entity with its corporate
headquarters located in Greenwood Village, Colorado (Arapahoe
County). Patriot is a "division of" Q'Max. Q'Max is a Texas
corporate entity registered to do business in Colorado with a
corporate office located in Greenwood Village. The Defendants are
oil and gas industry service companies that provide, inter alia,
individuals to work at their clients' oil and gas facilities.[BN]
The Plaintiff is represented by:
Brian D. Gonzales, Esq.
THE LAW OFFICES OF BRIAN D. GONZALES, PLLC
242 Linden Street
Fort Collins, CO 80524
Telephone: (970) 214-0562
E-mail: BGonzales@ColoradoWageLaw.com
- and -
Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: PWinebrake@WinebrakeLaw.com
ASantillo@WinebrakeLaw.com
PAYPAL HOLDINGS: Robins Arroyo Named Lead Counsel in "Silverman"
----------------------------------------------------------------
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California, San Francisco Division, granted a
stipulation and order consolidating Related Directive Actions and
appointing co-lead counsel for the Plaintiffs in the case
captioned STEPHEN SILVERMAN, derivatively on behalf of PAYPAL
HOLDINGS, INC., Plaintiff, v. DANIEL SCHULMAN, JOHN D. RAINEY,
PATRICK L.A. DUPUIS, WENCES CASARES, JONATHAN CHRISTODORO, JOHN J.
DONAHOE, DAVID W. DORMAN, GAIL J. MCGOVERN, DAVID M. MOFFETT,
PIERRE M. OMIDYAR and FRANK D. YEARY, Defendants, and PAYPAL
HOLDINGS, INC., Nominal Defendant. STEVE SEEMAN, derivatively on
behalf of PAYPAL HOLDINGS, INC., Plaintiff, v. DANIEL SCHULMAN,
JOHN D. RAINEY, PATRICK L.A. DUPUIS, WENCES CASARES, JONATHAN
CHRISTODORO, JOHN J. DONAHOE, DAVID W. DORMAN, GAIL J. MCGOVERN,
DAVID M. MOFFETT, PIERRE M. OMIDYAR, and FRANK D. YEARY,
Defendants, and PAYPAL HOLDINGS, INC., Nominal Defendant. STEVE
SIMS, Derivatively on Behalf of PAYPAL HOLDINGS, INC., Plaintiff,
v. DANIEL SCHULMAN, JOHN RAINEY, JOHN DONAHOE, DAVID MOFFETT,
PIERRE OMIDYAR, GAIL MCGOVERN, FRANK YEARY, DAVID DORMAN, JONATHAN
CHRISTODORO, WENCES CASARES, and PATRICK DUPUIS, Defendants, and
PAYPAL HOLDINGS, INC., a Delaware corporation, Nominal Defendant.
EDITH LISS, Derivatively on Behalf of PAYPAL HOLDINGS, INC.,
Plaintiff, v. DANIEL SCHULMAN, JOHN RAINEY, JOHN DONAHOE, DAVID
MOFFETT, PIERRE OMIDYAR, GAIL MCGOVERN, FRANK YEARY, DAVID DORMAN,
JONATHAN CHRISTODORO, WENCES CASARES, and PATRICK DUPUIS,
Defendants, and PAYPAL HOLDINGS, INC., a Delaware corporation,
Nominal Defendant, Case No. 5:17-cv-00162-RS. , Case Nos. 3:17-cv-
02206-RS, 3:17-cv-02428-LHK, 5:17-cv-02446-EJD (N.D. Cal.).
The following actions will be consolidated for all purposes,
including pre-trial proceedings and trial, into one consolidated
action: Case Name Case No. Filing Date Silverman v. Schulman, et
al. 5:17-cv-00162-RS January 12, 2017 Seeman v. Schulman, et al.
3:17-cv-02206-RS April 20, 2017 Sims v. Schulman, et al. 3:17-cv-
02428-LHK April 27, 2017 Liss v. Schulman, et al. 5:17-cv-02446-
EJD April 28, 2017.
Every pleading filed in the Consolidated Derivative Action, or in
any separate action included, must bear the following caption:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA IN RE PAYPAL HOLDINGS, INC. Lead Case No. 5:17-cv-
00162-RS SHAREHOLDER DERIVATIVE LITIGATION (Consolidated with No.
3:17-cv-02206-RS; _____ 3:17-cv-02428-LHK; and 5:17-cv-02446-EJD)
This Document Relates To: Hon. Richard Seeborg ALL ACTIONS.
Courtroom: 3, 17th Floor. The files of the Consolidated Derivative
Action will be maintained in one master file under Lead Case No.
5:17-cv-00162-RS.
The Co-Lead Counsel for plaintiffs for the conduct of In re PayPal
Holdings, Inc. Shareholder Derivative Litigation, Lead Case No.
5:17-cv-00162-RS, is designated as follows:
ROBBINS ARROYO LLP BRIAN J. ROBBINS FELIPE J. ARROYO SHANE P.
SANDERS SCOTT F. TEMPLETON 600 B Street, Suite 1900 San Diego, CA
92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991
brobbins@robbinsarroyo.com farroyo@robbinsarroyo.com
ssanders@robbinsarroyo.com stempleton@robbinsarroyo.com -and-
PROFY PROMISLOFF & CIARLANTO, P.C. JEFFREY J. CIARLANTO JOSEPH M.
PROFY DAVID M. PROMISLOFF 100 N. 22nd Street, Unit 105
Philadelphia, PA 19103 Telephone: (215) 259-5156 Facsimile: (215)
600-2642 ciarlanto@prolawpa.com profy@prolawpa.com
david@prolawpa.com
If a case that properly belongs as part of In re PayPal Holdings,
Inc. Shareholder Derivative Litigation, Lead Case No. 5:17-cv-
00162-RS, is filed in the Court or transferred here from another
court, the Plaintiffs' Co-Lead Counsel will promptly call to the
attention of the Clerk of the Court the filing or transfer of any
case that might properly be consolidated as part of In re PayPal
Holdings, Inc. Shareholder Derivative Litigation, Lead Case No.
5:17-cv-00162-RS.
In the interest of efficiency and avoidance of unnecessary
duplication of effort or judicial resources by the Court or the
parties, it is further Ordered that (i) within 30 days of the
entry of an order consolidating the Related Derivative Actions,
the Plaintiffs will file a consolidated complaint; (ii) if they
decide to file a consolidated complaint, the parties will meet and
confer within seven days of that filing and propose a schedule
with the Court regarding further proceedings in the Consolidated
Derivative Action, including the filing of the Defendants'
anticipated motions to dismiss; and (iii) in the event the
Plaintiffs do not file a consolidated complaint within 30 days
from entry of an order on the stipulation, the Plaintiffs will
dismiss the action without prejudice within seven days of the date
the consolidated complaint would have been due.
All initial case management conferences currently scheduled,
attendant deadlines, and related ADR procedures will be deferred
until the Court issues a ruling on the Defendants' anticipated
motions to dismiss.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/laUMc4 from Leagle.com.
Stephen Silverman, Plaintiff, represented by Evan Jason Smith --
esmith@brodsky-smith.com -- Brodsky & Smith LLC.
Steve Sims, Consol Plaintiff, represented by Shane Palmesano
Sanders -- ssanders@robbinsarroyo.com -- Robbins Arroyo LLP.
Daniel H. Schulman, Defendant, represented by Alexander K.
Talarides -- atalarides@orrick.com -- Orrick Herrington and
Sutcliffe LLP, James Neil Kramer -- jkramer@orrick.com -- Orrick,
Herrington & Sutcliffe LLP & Suzette Pringle --
springle@orrick.com -- Orrick Herrington and Sutcliffe LLP.
John D. Rainey, Defendant, represented by Alexander K. Talarides,
Orrick Herrington and Sutcliffe LLP, James Neil Kramer, Orrick,
Herrington & Sutcliffe LLP & Suzette Pringle, Orrick Herrington
and Sutcliffe LLP.
Patrick L.A. Dupuis, Defendant, represented by Alexander K.
Talarides, Orrick Herrington and Sutcliffe LLP, James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP & Suzette Pringle, Orrick
Herrington and Sutcliffe LLP.
Wences Casares, Defendant, represented by Alexander K. Talarides,
Orrick Herrington and Sutcliffe LLP, James Neil Kramer, Orrick,
Herrington & Sutcliffe LLP & Suzette Pringle, Orrick Herrington
and Sutcliffe LLP.
Jonathan Christodoro, Defendant, represented by Alexander K.
Talarides, Orrick Herrington and Sutcliffe LLP, James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP & Suzette Pringle, Orrick
Herrington and Sutcliffe LLP.
John J Donahoe, Defendant, represented by Alexander K. Talarides,
Orrick Herrington and Sutcliffe LLP, James Neil Kramer, Orrick,
Herrington & Sutcliffe LLP & Suzette Pringle, Orrick Herrington
and Sutcliffe LLP.
David W. Dorman, Defendant, represented by Alexander K. Talarides,
Orrick Herrington and Sutcliffe LLP, James Neil Kramer, Orrick,
Herrington & Sutcliffe LLP & Suzette Pringle, Orrick Herrington
and Sutcliffe LLP.
Gail J. McGovern, Defendant, represented by Alexander K.
Talarides, Orrick Herrington and Sutcliffe LLP, James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP & Suzette Pringle, Orrick
Herrington and Sutcliffe LLP.
David M. Moffett, Defendant, represented by Alexander K.
Talarides, Orrick Herrington and Sutcliffe LLP, James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP & Suzette Pringle, Orrick
Herrington and Sutcliffe LLP.
Pierre M. Omidyar, Defendant, represented by Alexander K.
Talarides, Orrick Herrington and Sutcliffe LLP, James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP & Suzette Pringle, Orrick
Herrington and Sutcliffe LLP.
PERFUMANIA HOLDINGS: $463K Class Settlement Gets Final Approval
---------------------------------------------------------------
In the case captioned FAMILY MEDICINE PHARMACY LLC, Plaintiff, v.
PERFUMANIA HOLDINGS, INC., et al., Defendants, Civil Action No.
15-0563-WS-C (S.D. Ala.), Judge William H. Steele of the U.S.
District Court for the Southern District of Alabama, Southern
Division, granted the Plaintiff's Unopposed Motion for Final
Approval of Class Action Settlement and Entry of Final Judgment
and Motion for Award of Attorneys' Fees, Expenses and Incentive
Payments for Class Representatives.
On Dec. 14, 2016, the Court entered an Order granting preliminary
approval of the settlement reached between the parties which is
memorialized in a 43-page Settlement Agreement and Release.
The class of all Persons with fax numbers who, between Jan. 1,
2011 through and including the date of entry of the Preliminary
Approval Order, who received any successful transmission of an
unsolicited fax from the Defendants advertising their products
and/or services., that was conditionally certified in the
Preliminary Approval Order is now finally certified.
Family Medicine is designated as Class Representative of the
Settlement Class.
James H. McFerrin of McFerrin Law Firm, LLC in Birmingham,
Alabama; and Diandra S. Debrosse Zimmermann of Zarzaur Mujumdar &
Debrosse in Birmingham, Alabama; are appointed as the Settlement
Class Counsel.
In accordance with the terms of the Settlement Agreement, the
Defendants will pay $463,349.50 for the Settlement Amount, less
Pre-Effective Date Administration Costs in excess of $10,000, by
wire transfer into the Escrow Account within 14 business days
after the Effective Date, as well as one $10 gift card per
Claimant who submits a valid and timely Claim Form.
The Court awarded the Settlement Class Counsel the requested
amount of $139,004.83 as attorney's fees to be paid from the
Settlement Amount within 30 days after the Effective Date. It
awarded the Settlement Class Counsel reimbursement of $658.73 in
expenses they reasonably and necessarily incurred in prosecuting
this action. Such attorney's expenses are to be reimbursed to
Settlement Class Counsel from the Settlement Amount within 30 days
after the Effective Date.
The Court granted the Settlement Class Counsel's request for an
incentive award to the Class Representative and awards $10,000 to
Family Medicine Pharmacy. This payment will be made from the
Settlement Amount within 30 days after the Effective Date.
The Settlement Class Counsel and the Settlement Administrator will
file a final accounting detailing the distribution of the
Settlement Amount by Sept. 30, 2017.
Within 21 days after entry of the Order, the Settlement
Administrator will send a letter and W-9 form to each Settlement
Class Member who is entitled to recover $600 or more, explaining
that such class member is required to submit a W-9 form to the
Settlement Administrator within 30 days after the date of the
letter. The Settlement Class Members to whom such letters are
issued will have 30 days after the date the letter was sent to
respond and submit a completed W-9 form to the Settlement
Administrator. The Settlement Administrator will withhold taxes
on payments to Settlement Class Members who fail timely to submit
a completed W-9 form.
The Settlement Administrator will begin disbursing the
Distributable Settlement Fund within 30 days after expiration of
the deadline to submit a W-9 form. The re-distribution of the
Distributable Settlement Fund, if any, will be sent 30 days
following expiration of the void date on the Settlement Class
Members' checks.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/31JJum from Leagle.com.
Family Medicine Pharmacy, LLC, Plaintiff, represented by Diandra
S. Debrosse -- fuli@zarzaur.com.
Family Medicine Pharmacy, LLC, Plaintiff, represented by James H.
McFerrin, The McFerrin Law Firm.
Perfumania Holdings, Inc., Defendant, represented by Clyde
Whitaker Steineker, Fred M. Haston, III -- lhawkins@bradley.com --
Bradley Arant Boult Cummings, LLP, Andre K. Cizmarik --
AKCizmarik@mintz.com -- Mintz, Levin, Cohn, Ferris, Glovsky &
Popep, P.C., pro hac vice, Anthony Joseph Viola --
AJViola@mintz.com -- Mintz Levin Cohen Ferris Glovsky & Popeo PC &
Kevin M. McGinty, Mintz, Levin, Cohn, Ferris, Glovsky & Popep,
P.C..
Perfumania, Inc., Defendant, represented by Clyde Whitaker
Steineker.
Quality King Fragrance, Inc., Defendant, represented by Clyde
Whitaker Steineker, Andre K. Cizmarik, Mintz, Levin, Cohn, Ferris,
Glovsky & Popep, P.C., pro hac vice, Anthony Joseph Viola, Mintz
Levin Cohen Ferris Glovsky & Popeo PC & Kevin M. McGinty, Mintz,
Levin, Cohn, Ferris, Glovsky & Popep, P.C.. fuli@zarzaur.com
Quality Fragrance Group, Defendant, represented by Fred M. Haston,
III, Bradley Arant Boult Cummings, LLP & Clyde Whitaker Steineker.
PROGRESSIVE LABORATORIES: "Noonan" Sues Over Excessive Iodine
-------------------------------------------------------------
Michael Noonan, individually and on behalf of all others similarly
situated, Plaintiff, v. Progressive Laboratories, Inc., Defendant,
Case No. 2017-CH-08233, (Ill. Cir., June 13, 2017), seeks damages
resulting from the sellers' breach; any incidental and
consequential damages; prejudgment and post-judgment interest; and
such other and further relief resulting from unjust enrichment,
breach of express and implied warranties, violation of various
State Consumer Fraud Acts including the Illinois Consumer Fraud
and Deceptive Business Practices Act and the Texas Deceptive Trade
Practices Act.
Progressive Laboratories produces nutritional supplements
including the Kelp Original Formula, an iodine supplement.
According to the Supplement Facts listed on the label of the said
product, 1 capsule contains 500 mcg of iodine. But plaintiff
claims that it really contains 960 mcg of iodine, an excessive and
potentially dangerous amount of iodine. Excess iodine in
susceptible individuals, allegedly inhibits thyroid hormone
synthesis and thereby can produce goiter, [BN]
Plaintiff is represented by:
Gary M. Klinger, Esq.
KOZONIS LAW, LTD
4849 N. Milwaukee Ave., Ste. 300
Chicago, IL 60630
Phone: (773) 545-9607
Fax: (773) 496-8617
Email: gklinger@kozonislaw.com
R.J. CORMAN: "Abney" Suit to Recover Unpaid Overtime Wages
----------------------------------------------------------
Jason W. Abney, individually and on behalf of all similarly
situated, Plaintiff(s), v. R.J. Corman Railroad Group, LLC,
Defendant., Case No. 5:17-cv-00260 (E.D. Fla., June 12, 2017),
seeks unpaid overtime, liquidated damages, judgment, attorneys'
fees and costs under the Fair Labor Standards Act.
Defendant provides railroad construction and maintenance services
where Abney worked as an operator. [BN]
Plaintiff is represented by:
Bernard R. Mazaheri, Esq.
MORGAN & MORGAN
333 W Vine St., Suite 1200
Lexington, KY 40507
Tel: (859)286-8368
Email: bmazaheri@forthepeople.com
RAYONIER INC: September 8 Settlement Fairness Hearing Set
---------------------------------------------------------
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN RE RAYONIER INC. SECURITIES LITIGATION
Case No. 3:14-cv-01395-TJC-JBT
CLASS ACTION
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF
SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT
FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES
AND REIMBURSEMENT OF LITIGATION EXPENSES
TO: All persons and entities who, during the period from October
26, 2010, through November 7, 2014, inclusive (the "Settlement
Class Period"), purchased or otherwise acquired Rayonier common
stock, and were damaged thereby (the "Settlement Class"):
PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
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 Middle District of Florida, that the above-captioned
litigation has been certified as a class action for settlement
purposes only on behalf of the Settlement Class, except for
certain persons and entities who are excluded from the Settlement
Class. The detailed class notice is available on the settlement
website, www.RayonierSecuritiesSettlement.com, or by calling the
claims administrator at 1-844-308-9228.
YOU ARE ALSO NOTIFIED that Lead Plaintiffs have reached a proposed
settlement for $73 million in cash that, if approved, will resolve
all claims in the Action.
A hearing will be held on September 8, 2017 at 10:00 a.m., before
the Honorable Timothy J. Corrigan at the United States District
Court for the Middle District of Florida, Bryan Simpson U.S.
Courthouse, Courtroom 10D, 300 North Hogan Street, Jacksonville,
FL 32202, to determine (i) whether the proposed settlement should
be approved as fair, reasonable, and adequate; (ii) whether the
Action should be dismissed with prejudice against Defendants, and
the Releases specified in the settlement stipulation should be
granted; (iii) whether the proposed plan for allocating the
settlement funds should be approved as fair and reasonable; and
(iv) whether class counsel's application for attorneys' fees and
expenses should be approved.
If you are a member of the Settlement Class, your rights will be
affected by the pending action and the settlement, and you may be
entitled to share in the settlement fund. You may obtain copies
of the Notice and Claim Form by contacting the claims
administrator at Rayonier Securities Litigation, P.O. Box 5270,
Portland, OR 97208-5270, 1-844-308-9228. Copies of the Notice and
Claim Form can also be downloaded from the website maintained by
the claims administrator, www.RayonierSecuritiesSettlement.com.
If you are a member of the Settlement Class, in order to
potentially be eligible to receive money from the settlement, you
must submit a Claim Form postmarked no later than October 13,
2017. If you are a Settlement Class Member and do not submit a
proper Claim Form, you will not receive any money, but you will be
bound by any judgment entered by the Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than August 18, 2017,
in accordance with the instructions set forth in the Notice. If
you properly exclude yourself from the Settlement Class, you will
not be bound by any judgment entered by the Court in the Action
and you will not receive any money from the settlement.
Any objections to the proposed settlement, plan for allocating
settlement funds, or fees and expenses, must be filed with the
Court and delivered to representatives of class counsel and
defendants' counsel such that they are received no later than
August 18, 2017, in accordance with the instructions set forth in
the Notice.
Please do not contact the Court, the Clerk's office, Rayonier, or
its counsel regarding this notice. All questions about this
notice, the proposed settlement, or your eligibility to
participate in the Settlement should be directed to class counsel
or the claims administrator.
Inquiries, other than requests for the Notice and Claim Form,
should be made to class counsel:
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
David R. Stickney, Esq.
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
(866) 648-2524
blbg@blbglaw.com
- or -
SAXENA WHITE P.A.
Lester R. Hooker, Esq.
Boca Center
5200 Town Center Circle, Suite 601
Boca Raton, FL 33486
(561) 206-6708
lhooker@saxenawhite.com
Requests for the Notice and Claim Form should be made to:
Rayonier Securities Litigation
P.O. Box 5270
Epiq
Portland, OR 97208-5270
(844) 308-9228
www.RayonierSecuritiesSettlement.com
info@RayonierSecuritiesSettlement.com
By Order of the Court
URL: www.RayonierSecuritiesSettlement.com
[GN]
REYNOLDS AMERICAN: Faces "Drew" Suit Over British American Merger
-----------------------------------------------------------------
ELIZABETH DREW, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. REYNOLDS AMERICAN INC., SUSAN
M. CAMERON, DEBRA A. CREW, JEROME ABELMAN, JOHN BOEHNER, MARTIN D.
FEINSTEIN, LUC JOBIN, MURRAY S. KESSLER, HOLLY K. KOEPPEL, JEAN-
MARC LEVY, NANA MENSAH, LIONEL L. NOWELL, III, RICARDO OBERLANDER,
RONALD S. ROLFE, and JOHN J. ZILLMER, Defendants, Case No. 1:17-
cv-00547 (M.D.N.C., June 16, 2017), alleges that Defendants
violated the U.S. Securities and Exchange Act by filing a
materially incomplete and misleading Definitive Proxy Statement in
connection with the proposed merger between RAI and British
American Tobacco p.l.c.
The transaction has an approximate total value of $49 billion.
In particular, says the complaint, the Proxy contains materially
incomplete and misleading information concerning: (i) financial
projections for the Company; and (ii) the valuation analyses
performed by RAI's Financial Advisors in support of their fairness
opinions.
RAI, the parent company of the RAI Group (which consists of RAI
and its subsidiaries), is a holding company whose wholly-owned
operating subsidiaries include the second largest tobacco company
in the United States, RJR Tobacco Company.[BN]
The Plaintiff is represented by:
Janet Ward Black, Esq.
Nancy Meyers, Esq.
WARD BLACK LAW
208 West Wendover Ave.
Greensboro, NC 27401-1307
Phone: 336-2244
Fax: 336 379 9415
E-mail: jwblack@wardblacklaw.com
nmeyers@wardblacklaw.com
- and -
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Fl.
New York, NY 10017
Phone: (212) 983-9330
Fax: (212) 983-9331
Email: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
SALANDER ENTERPRISES: Parties Agree to Dismiss "Williams" Suit
--------------------------------------------------------------
The Hon. Judge Gary Feinerman entered an order in the lawsuit
styled Nyoaky Williams, the Plaintiff, v. Salander Enterprises,
LLC, et al., the Defendants, Case No. 1:17-cv-02591 (N.D. Ill.),
striking a status hearing set for July 11, 2017.
According to the docket entry made by the Clerk on July 4, 2017,
the parties have filed a stipulation of dismissal. The civil case
is closed.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=nLAALJGE
SIRIUS XM: Ninth Circuit Appeal Filed in "Wright" Class Suit
------------------------------------------------------------
Plaintiff Paul Wright filed an appeal from a court ruling in the
lawsuit titled PAUL WRIGHT, individually and on behalf of all
others similarly situated v. SIRIUS XM RADIO INC., Case No. 8:16-
cv-01688-JVS-JCG, in the U.S. District Court for the Central
District of California, Santa Ana.
As previously reported in the Class Action Reporter, the class
action lawsuit was commenced on September 12, 2016.
Sirius XM Radio Inc. is a broadcasting company that provides three
satellite radio and online radio services operating in the United
States.
The appellate case is captioned as PAUL WRIGHT, individually and
on behalf of all others similarly situated v. SIRIUS XM RADIO
INC., Case No. 17-55928, in the United States Court of Appeals for
the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- July 6, 2017 -- Mediation Questionnaire due;
-- July 28, 2017 -- Transcript shall be ordered;
-- October 26, 2017 -- Transcript shall be filed by court
reporter;
-- December 5, 2017 -- Appellant's opening brief and excerpts
of record shall be served and filed pursuant to FRAP 32 and
9th Cir. R. 32-1;
-- January 4, 2018 -- Appellee's answering brief and excerpts
of record shall be served and filed pursuant to FRAP 32 and
9th Cir. R. 32-1;
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief,
pursuant to FRAP 32 and 9th Cir. R. 32-1.[BN]
SKY SOLAR: Faces "Barilli" Suit Alleging Securities Act Violation
-----------------------------------------------------------------
ANDREW BARILLI, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. SKY SOLAR HOLDINGS, LTD., WEILI
SU, and JIANMIN WANG, Defendants, Case No. 1:17-cv-04572
(S.D.N.Y., June 16, 2017), alleges that in violation of the U.S.
Securities and Exchange Act, Defendants issued a false and
misleading Registration Statement and Prospectus in connection
with the Company's initial public offering completed on or about
November 18, 2014 (the IPO); and/or (2) on the open market between
November 14, 2014 and June 12, 2017, both dates inclusive.
According to the complaint, Defendants made materially false and
misleading statements regarding the Company's business,
operational and compliance policies. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) Sky Solar's Code of Business Conduct and Ethics, and the
code's enforcement by the Company's Board of Directors, were
inadequate to detect and/or deter misconduct by Sky Solar's
officers and directors; (ii) consequently, Sky Solar's founder
Weili Su was involved in undisclosed misconduct during his tenure
at the Company; and (iii) as a result of the foregoing, Sky
Solar's public statements were materially false and misleading at
all relevant times.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other purported Class members have
allegedly suffered significant losses and damages.
Sky Solar Holdings, Ltd., an independent power producer, develops,
owns, and operates solar parks worldwide.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Tel: 212-661-1100
Fax: 212-661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Tel: (312) 377-1181
Fax: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Phone: (212) 697-6484
Fax: (212) 697-7296
Email: peretz@bgandg.com
SMART EATING: Falsely Represented "Natural" Pizzas, Lazar Claims
----------------------------------------------------------------
JOSEPH LAZAR and KANEM KANAM, On behalf of themselves and all
others similarly situated v. SMART EATING MICHIGAN LLC d/b/a NKD
PIZZA OF STERLING HEIGHTS, and NAKEDPIZZA NORTH AMERICA FRANCHISE
COMPANY, LLC, Case No. 2:17-cv-11806-SFC-RSW (E.D. Mich., June 7,
2017), alleges that the Defendants made false representations in
an attempt to distinguish themselves from other pizza retailers
based on claims that the ingredients they use are healthy and
natural.
Smart Eating Michigan LLC, doing business as NKD Pizza of Sterling
Heights (Smart Eating) is a restaurant in Sterling Heights,
Michigan. Smart Eating sells its products directly through its
company website and at its "brick and mortar" store located in
Sterling Heights.
NAKEDPIZZA North America Franchise Company LLC is a Delaware
Limited Liability Company with a registered agent office located
in Dover, Delaware.[BN]
The Plaintiffs are represented by:
Alyson Oliver, Esq.
Adam R. Miller, Esq.
OLIVER LAW GROUP P.C.
363 W. Big Beaver #200
Troy, MI 48084
Telephone: (248) 327-6556
Facsimile: (248) 436-3385
E-mail: aoliver@oliverlg.com
SNAPPER INC: Faces "Orgera" Suit over Retained Gratuities
---------------------------------------------------------
WILLIAM ORGERA, on behalf of himself and others similarly
situated, the Plaintiff, v. SNAPPER INN, INC.; RICHARD H. REMMER.;
GEORGE H. REMMER, JR.; KAREN REMMER MARK; and any other related
corporate entities, the Defendants, Case No. 606066/2017 (N.Y.
Sup. Ct., June 23, 2017), seeks to recover unlawfully retained
gratuities pursuant to the New York Labor Law.
According to the complaint, the Defendants have engaged in a
policy and practice of failing to pay the Service Charge to
Plaintiffs and similarly situated employees and instead retained
the money for their own benefit in violation of NYLL.
Snapper Inn is seafood spot family-run restaurant since 1929
offering deck seating on the water, Sunday brunch and live music.
[BN]
The Plaintiff is represented by:
Daniel Markowitz, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873 9550
SOCAL GAS: Cedric the Entertainer Sues Over Hazardous Chemicals
---------------------------------------------------------------
Eurweb reports that Cedric the Entertainer claims his family
suffered nausea, nosebleeds, vomiting and vertigo because the
Southern California Gas Company allowed massive amounts of natural
gas and hazardous chemicals to pollute the air -- and according to
TMZ, he just filed a lawsuit over it.
In the docs, Cedric says the Gas Co. is responsible for releasing
massive amounts of toxic pollutants into the air starting in
October, 2015. In southern California, the disaster is known as
the Porter Ranch gas leak.
"This writer supports Cedric's claims about the gas company's
negligence, as I too am involved in a similar (class action)
lawsuit against the Southern California Gas Company."
As NY Daily News reports, the well spewed more than 100,000 tons
of methane and other gases into the area between October and
January. Countless other victims of the Porter Ranch gas
catastrophe filed a class action lawsuit in November 2016 over the
impact. The leak happened because the Gas Company failed to
replace an emergency safety valve back in 1979.
Aside from their medical issues, Cedric says the leak has also
caused his property value to plummet.
The gas leak plagued the L.A. area, leading the Mayor of Los
Angeles to declare a State of Emergency at the time. Thousands of
residents were displaced due to the disaster and authorities at
Los Angeles County reportedly filed criminal charges against
SoCalGas but they reached a plea agreement last September.
Cedric the Entertainer married Lorna Wells in 2000 and they have
three children together. He also has another daughter from a
previous relationship. He is best known for co-starring with
Steve Harvey on The WB sitcom "The Steve Harvey Show" and starring
as Eddie in "Barbershop." He also starred in the TV Land original
series "The Soul Man," which aired its fifth and final season in
2016. [GN]
SOUTH KOREA: Hearing Held in Class Action Against Ex-President
--------------------------------------------------------------
Ock Hyun-ju, writing for The Korea Herald, reports that the first
hearing was held at a local court on June 26 for those seeking
compensation over mental and physical distress caused by the
corruption scandal surrounding former President Park Geun-hye and
her confidante Choi Soon-sil.
In the class action suit, filed in December with 5,001 plaintiffs
including their legal representative Kwak Sang-eon, each demands
500,000 won ($440) in compensation. Some 4,160 plaintiffs also
separately filed a compensation suit in January, with its hearing
schedule not yet confirmed.
Some of the plaintiffs said they had suffered from depression,
while others said they had their weekends taken away by the
ex-president because they had to attend candlelight vigils on
Saturdays. Among the plaintiffs are also business owners who want
to be compensated for losses in sales due to the monthslong
rallies.
"We will look into whether the defendant's illegal activities in
performing her duty is serious enough for the public to be
compensated, whether the mental damage was serious enough to be
compensated, whether the mental stress was caused by the
defendant," the court earlier said of the case.
Park's lawyers have said the case should be dismissed, saying it
is "uncertain" who the victims are. They also said factual
relations are "unclear," citing the ongoing criminal trial of
Park.
Park, who is in detention, is on trial on 18 charges including
bribery and abuse of power in connection with the scandal
involving her longtime friend Choi and local conglomerates.
The scandal, which surfaced in October, triggered massive anti-
Park rallies, leading the parliament to vote to impeach her in
December. The Constitutional Court upheld her removal from office
in a unanimous ruling in March.
Law firm Inkang is still taking applications from those who wish
to join the class action. [GN]
SP BEACH: "Avila" Suit Alleges FLSA Violation
---------------------------------------------
Patricia Avila, individually and on behalf of all others similarly
situated, Plaintiffs, vs. SP BEACH HOTEL CORP., Defendant, Case
No. 8:17-cv-01430-JSM-AAS (M.D. Fla., June 15, 2017), alleges that
Plaintiff worked over forty (40) hours in a work week for
Defendant, but was not paid overtime compensation at the proper
overtime rate by Defendant for all those house worked in violation
of the Fair Labor Standards Act.
Defendant owned and operated the Don Cesar Hotel. Plaintiff was
employed as a banquet server.[BN]
The Plaintiff is represented by:
Jeremiah J. Talbott, Esq.
Travis P. Lepicier, Esq.
LAW OFFICE OF JEREMIAH J. TALBOTT, P.A.
900 E. Moreno Street
Pensacola, FL 320503
Phone: 850 437 9600
Fax: 437 0906
E-mail: jjtalbott@talbottlawfirm.com
civilfilings@talbottlawfirm.com
SP PLUS: "Chavez" Suit Seeks Unpaid Wages, OT under Labor Code
--------------------------------------------------------------
YULIANA CHAVEZ, GLORIA A. CERRITOS, FRANKCELIA PAYES, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
SP PLUS CORPORATION, a Delaware corporation; STANDARD PARKING
CORPORATION, an Illinois corporation, and DOES 1-20, inclusive,
the Defendants, Case No. BC666238 (Cal. Super. Ct., June 23,
2017), seeks to recover unpaid wages and unpaid overtime wages
under California Labor Code.
According to the complaint, with regard to class members, the
Defendants have failed to pay state-mandated minimum wages for all
hours worked; failed to pay overtime wages for all overtime hours
worked; filed to provide meal periods; failed to provide paid rest
periods; failed to reimburse for all business expenses; and failed
to timely furnish accurate itemized wage statements.
SP Plus is an American provider of parking facility management
services. It manages parking facilities with more than one million
parking spaces across the United States and Canada.[BN]
The Plaintiffs are represented by:
Sam Kim, Esq.
Yoonis Han, Esq.
VERUM LAW GROUP, APC
841 Apollo Street, Suite 340
El Segundo, CA 90245
Telephone: (424) 320 2000
Facsimile: (424) 221 5010
E-mail: sktm@verumlg.com
TAD PGS: Faces "Gonzalez" Lawsuit Alleging FLSA Violation
---------------------------------------------------------
EZEQUIEL RAMON GONZALEZ and all others similarly situated under 29
U.S.C. 216(b), Plaintiff, vs. TAD PGS, INC., Defendant, Case No.
1:17-cv-22261-RNS (S.D. Fla., June 16, 2017), alleges that
Defendants willfully and intentionally refused to pay Plaintiff's
overtime wages as required by the Fair Labor Standards Act as
Defendants knew of the overtime requirements of the Fair Labor
Standards Act and recklessly failed to investigate whether
Defendants' payroll practices were in accordance with the Fair
Labor Standards Act.
TAD PGS, INC. -- http://www.tadpgs.com/-- provides help supply
and personnel supply services. Plaintiff worked for Defendant as
a youth counselor.[BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
E-mail: zabogado@aol.com
TEMPUR-SEALY: Ct. Won't Review Denial of "Todd" Class Cert
----------------------------------------------------------
In the case captioned ALVIN TODD, ET AL., Plaintiffs, v. TEMPUR-
SEALY INTERNATIONAL, INC., et al., Defendants, Case No. 13-cv-
04984-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District
Court for the Northern District of California denied the
Plaintiffs' motion for reconsideration of the order denying class
certification.
The Plaintiffs bring this action on their own behalf and on behalf
of a putative class of purchasers of Tempur products against the
Defendants for claims arising out of the Defendants' marketing and
sale of mattresses, pillows, and other bedding products containing
Tempur material. Specifically, they allege that the Defendants'
representations of their Tempur products as "formaldehyde free,"
"free of harmful VOCs," "allergen and dustmite resistant,"
"hypoallergenic," and with a "completely harmless" odor, are false
and misleading.
On Sept. 30, 2016, the Court denied the Plaintiffs' motion for
class certification concluding that they had satisfied the
numerosity, typicality, and adequacy prongs of Federal Rule of
Civil Procedure 23(a), but found that they had failed to
demonstrate commonality, predominance, and superiority.
On April 12, 2017, the Plaintiffs filed a motion for
reconsideration of the Court's order denying class certification
claiming the Court erred in its commonality, predominance, and
superiority findings.
The Court explicitly found that the Plaintiffs had provided
virtually no evidence that their third party retailers were
disseminating the Defendants' marketing campaign. Therefore, the
Court continued to conclude that they failed to demonstrate
commonality and predominance.
Next, as the Plaintiffs concede, the individualized inquiry
relates to liability, not damages. This Court is not aware of any
precedent that prohibits a Court from considering the need for
individualized liability determinations when determining if a
class action is the superior method of adjudication, and they have
not identified any. Hence, the Court will not reconsider its
superiority finding.
Finally, the Court held that the Plaintiffs offer little
information about how they intend to define the subclasses except
to say that one subclass could be created for class members misled
by an omission and another subclass for those class members
directly exposed to affirmative misrepresentations. But that
division would not solve the problem of the Plaintiffs' failure to
show class-wide exposure to the Defendants' marketing scheme,
which pervades its various modes of exposure theories.
Accordingly, the Court denied this request.
A full-text copy of the Court's June 30, 2017 order is available
at https://is.gd/EnOANB from Leagle.com.
Alvin Todd, Plaintiff, represented by Allen Mark Stewart, Allen
Stewart, P.C..
Alvin Todd, Plaintiff, represented by Angelique Adams --
aadams@shipmanlaw.com -- Shipman & Wright, LLP, pro hac vice,
Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac vice,
Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice, Bonan
Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie Isaac
Quinn, Audet & Partners, LLP, Gary K. Shipman --
gshipman@shipmanlaw.com -- Shipman & Wright, LLP, pro hac vice,
John Matthew Simon, The Simon Law Firm, P.C., pro hac vice, Lee
Brandon Lesher, Allen Stewart, P.C., pro hac vice, Michael Andrew
McShane, Audet & Partners LLP, S. Clinton Woods, Audet & Partners,
LLP., Scott R. Frieling, Allen Stewart PC, pro hac vice, Sean Reed
Cox, Law Offices of Sean R. Cox, L.L.C., pro hac vice & William G.
Wright -- wright@shipmanlaw.com -- Shipman & Wright, LLP, pro hac
vice.
Brian Stone, Plaintiff, represented by Allen Mark Stewart, Allen
Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro hac
vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Robbie Simmons, Plaintiff, represented by Allen Mark Stewart,
Allen Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro
hac vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Thomas Comiskey, Plaintiff, represented by Allen Mark Stewart,
Allen Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro
hac vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Toni Kibbee, Plaintiff, represented by Allen Mark Stewart, Allen
Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro hac
vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Tina White, Plaintiff, represented by Allen Mark Stewart, Allen
Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro hac
vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Johnny Martinez, Plaintiff, represented by Allen Mark Stewart,
Allen Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro
hac vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Keith Hawkins, Plaintiff, represented by Allen Mark Stewart, Allen
Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro hac
vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Patricia Kaufman, Plaintiff, represented by Allen Mark Stewart,
Allen Stewart, P.C., Angelique Adams, Shipman & Wright, LLP, pro
hac vice, Anthony Gerard Simon, The Simon Law Firm, P.C., pro hac
vice, Benjamin Reid Askew, The Simon Law Firm, P.C., pro hac vice,
Bonan Wang Link, Allen Stewart, P.C., pro hac vice, Dana Marie
Isaac Quinn, Audet & Partners, LLP, Gary K. Shipman, Shipman &
Wright, LLP, pro hac vice, John Matthew Simon, The Simon Law Firm,
P.C., pro hac vice, Lee Brandon Lesher, Allen Stewart, P.C., pro
hac vice, Michael Andrew McShane, Audet & Partners LLP, S. Clinton
Woods, Audet & Partners, LLP., Scott R. Frieling, Allen Stewart
PC, pro hac vice, Sean Reed Cox, Law Offices of Sean R. Cox,
L.L.C., pro hac vice & William G. Wright, Shipman & Wright, LLP,
pro hac vice.
Tempur-Sealy International, Inc., Defendant, represented by Mark
Lemar Eisenhut -- meisenhut@calljensen.com -- Call & Jensen,
Matthew Ryan Orr -- morr@calljensen.com -- Call & Jensen, Samuel
Gary Brooks -- sbrooks@calljensen.com -- Call & Jensen, Daniel Jay
Gerber -- dgerber@rumberger.com dgerber@rumberger.com -- Rumberger
Kirk & Caldwell, P.A., pro hac vice, Douglas Bruce Brown --
dbrown@rumberger.com dbrown@rumberger.com -- Rumberger Kirk &
Caldwell, P.A., pro hac vice & Samantha Crawford Duke --
sduke@rumberger.com sduke@rumberger.com -- Rumberger Kirk &
Caldwell, pro hac vice.
Tempur-Pedic North America, LLC, Defendant, represented by Mark
Lemar Eisenhut, Call & Jensen, Matthew Ryan Orr, Call & Jensen,
Samuel Gary Brooks, Call & Jensen, Daniel Jay Gerber, Rumberger
Kirk & Caldwell, P.A., pro hac vice, Douglas Bruce Brown,
Rumberger Kirk & Caldwell, P.A., pro hac vice & Samantha Crawford
Duke, Rumberger Kirk & Caldwell, pro hac vice.
TINA NAIL SPA: Accused by "Li" Suit of Violating FLSA and NYLL
--------------------------------------------------------------
WEIDONG LI a/k/a Wei Dong Li, individually and on behalf of others
similarly situated v. TINA NAIL SPA SALON INC. d/b/a Tina Nail Spa
Salon, DAVID NAILS SPA INC. d/b/a David Nail Spa, YUE JIE GAO
a/k/a Tina Gao, and HAI YANG a/k/a David Yang, Case No. 1:17-cv-
04277-PKC (S.D.N.Y., June 7, 2017), is brought for alleged
violations of the Fair Labor Standards Act and the New York Labor
Law.
Tina Nail Spa Salon Inc., doing business as Tina Nail Spa Salon,
is a domestic business corporation organized under the laws of the
state of New York with a principal location in Queensbury, New
York.
David Nails Spa Inc., doing business as David Nail Spa, is a
domestic business corporation organized under the laws of the
state of New York with a principal location in Amsterdam, New
York. The Individual Defendants are officers, directors, managers
or majority shareholders or owners of the Corporate Defendants and
among the 10 largest corporate shareholders or LLC members.[BN]
The Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: johntroy@troypllc.com
TOYO INK: Faces "Polino" Lawsuit Under Calif. Labor Laws
--------------------------------------------------------
ARMANDO POLINO, individually and on behalf of all others similarly
situated, Plaintiff, vs. TOYO INK AMERICA, LLC and DOES 1 to 100,
inclusive, Defendants, Case No. 2:17-cv-04461 (C.D. Cal., June 15,
2017), alleges that Defendants, jointly and severally, have acted
intentionally and with deliberate indifference and conscious
disregard of the rights of all NON-EXEMPT PRODUCTION/LAB ASSOCIATE
in, among other things, failing to provide the statutorily
required meal and rest periods and failing to pay the statutorily
required meal period and rest period premium wages when not
provided, failing to pay all minimum, regular and overtime wages
due, failing to pay wages in a timely fashion, including at the
end of employment, mis-classifying employees so as to avoid
payment of overtime wages, and failing to keep statutorily
required payroll records.
The case alleges that Defendant's systemic illegal employment
practices resulted in violations of the California Labor Code,
Business and Professions Code, and applicable Industrial Welfare
Commission wage order.
TOYO INK AMERICA, LLC -- http://www.toyoink.com/-- manufactures
ink products. Plaintiff was employed as production/lab
associate.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: 877-206-4741
Fax: 866-633-0228
E-mail: tfriedman@ toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
UBER TECHNOLOGIES: Aggrieved Drivers File Suit Against Ex-CEO
-------------------------------------------------------------
The Guam Daily reports that recent scandals have put Uber on such
shaky ground that a lawyer representing aggrieved drivers has
filed a lawsuit against Travis Kalanick and Garrett Camp -- the
ride-hailing firm's co-founders -- in case the company doesn't
survive long enough to defend itself.
Describing the lawsuit filed on June 22 in the Superior Court for
the State of California in Los Angeles County as a precaution in
the event Uber goes bust, attorney Shannon Liss-Riordan
acknowledged that her new filing shares many similarities with a
2013 class-action suit she filed alleging Uber wrongly classified
drivers as independent contractors.
"I filed this as a precaution to ensure that if we are successful,
and Uber is not around to see the end of this case, Travis
Kalanick and others will be personally liable for that debt to the
drivers," Ms. Liss-Riordan said.
"Last year, it looked like Uber was unstoppable, and its only
trajectory was up, and now it looks like the opposite. I wanted
to take measures to protect drivers if things do turn south."
The suit, filed on behalf of plaintiffs Christopher James of
Arcadia, Calif., and Christine Beatleston of San Francisco,
alleges that Kalanick, Uber's chief executive until he resigned,
and Mr. Camp, board chairman, advised the company to misclassify
drivers.
The lawsuit alleges that this misclassification cheated drivers
out of expense reimbursements. The lawsuit also alleges that the
co-founders advised Uber to cheat drivers out of gratuities.
Uber did not immediately respond to a request for comment.
The case shares many similarities with the 2013 lawsuit, which,
filed in Federal court by Liss-Riordan, is ongoing. Both lawsuits
seek reimbursement for expenses such as gas and mileage. Both want
the defendants to pay drivers tips that were collected but never
paid out. (In its early days of operation, Uber marketed that
tips were included in the passenger's fare; the company added
tipping to its app).
Ms. Liss-Riordan has filed more than a dozen lawsuits against
Silicon Valley technology companies, alleging that many have
misclassified drivers and delivery workers as independent
contractors. As independent contractors, workers are not entitled
to expense reimbursements or benefits such as health insurance,
social security or paid time off. Unlike employees, independent
contractors are also not guaranteed a minimum wage.
The most high-profile of Liss-Riordan's cases is her class-action
suit against Uber. In San Francisco's Federal Court, Judge Edward
Chen certified the class in 2015, which at the time numbered some
240,000 Uber drivers in California (the number of drivers in
California is likely much higher now). Uber, however, appealed
the certification, arguing that the majority of its drivers had
signed an arbitration agreement, which forbids them from taking
part in class-action suits against the company. The 9th U.S.
Circuit Court of Appeals will be hearing arguments in September.
If the appeals court rules to exclude drivers who signed Uber's
arbitration agreement from participating, then the class size
could drop to between 8,000 and 10,000 drivers.
Uber also tried to settle that particular case with Liss-Riordan
last year for $100 million, but Judge Chen threw out the
settlement because he believed the amount was too low.
There have been no further discussions about a settlement,
Ms. Liss-Riordan said.
While Uber's arbitration agreements are broad, legal experts said
a lawsuit brought against individuals instead of the company could
potentially get around such an agreement.
"You may recall that Gretchen Carlson tried the same thing against
Fox News when she was bound by an arbitration agreement with Fox,"
said Richard J. Reibstein -- reibsteinr@pepperlaw.com -- a lawyer
who specializes in employment law at Pepper Hamilton. "She
claimed her lawsuit against Roger Ailes was not governed by the
Fox arbitration agreement because Mr. Ailes was not a party to the
arbitration provisions."
Fox settled the lawsuit with Carlson last year for $20 million.
This isn't the first time Mr. Kalanick, who remains an Uber board
member, and other Uber executives have been the subject of
lawsuits. The 40-year-old co-founder was sued by a woman who had
been raped by an Uber driver in India, alleging that Mr. Kalanick
and other Uber executives later violated her privacy by obtaining
her medical records and attempting to discredit her.
Uber itself has faced a litany of lawsuits over its seven-year
history, including wrongful-death lawsuits and an ongoing case
involving the alleged theft of trade secrets from Waymo, Google's
self-driving vehicle project. [GN]
UNION PACIFIC: 9th Cir. Remands "Christmas" to Superior Court
-------------------------------------------------------------
In the case captioned EYON NEAL CHRISTMAS, on behalf of himself
and all other similarly situated individuals, Plaintiff-Appellant,
v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation,
Defendant-Appellee, No. 15-56888 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit reversed the district court's order,
vacated its judgment on the pleadings, and remanded with
instructions to remand to the Superior Court of California.
The Plaintiff-Appellant filed a class action complaint in the
Superior Court of California on Feb. 5, 2015, alleging that the
Defendant required certain employees to work 12-hour shifts in
violation of California Labor Code. On March 12, 2015, Christmas
amended his complaint to include four individual defendants,
George R. Davis, Zachary J. Pittman, John E. Yettaw, and Kenneth
R. Fair ("Local Defendants"), who are, respectively, the
Superintendent, Director of Intermodal Terminal Operations, Senior
Manager of Intermodal Terminal Operations, and Manager of
Intermodal Terminal Operations at the rail yard location where
Christmas works as a Manager of Intermodal Operations. Union
Pacific removed to the district court pursuant to the Class Action
Fairness Act ("CAFA"). The district court denied Christmas'
motion to remand based on CAFA's "local controversy" exception,
and granted judgment on the pleadings, with prejudice, to Union
Pacific on preemption grounds.
The Ninth Circuit held that the district court erred in finding
that "significant relief" "cannot be derived from" the Local
Defendants. There are four Local Defendants, meaning that the
amount sought against the collective group represents 80% of the
total penalties for which Union Pacific could be liable. The
complaint also seeks injunctive relief against the Local
Defendants, which weighs in favor of "significant relief." The
relief requested against the Local Defendants is "significant"
both comparatively and absolutely.
The Ninth Circuit further held that the district court further
erred in finding that the Local Defendants' conduct did not form a
"significant basis" for the claims asserted. The complaint
alleges that the Local Defendants are responsible for scheduling
hours and days of work. This is precisely the conduct that the
Plaintiffs claim is illegal. Even if the conduct of the Local
Defendants is controlled by Union Pacific, and even if they act
solely pursuant to Union Pacific's policies, the conduct of the
Local Defendants nonetheless remains the conduct of the Local
Defendants, for which they may be held liable.
Finally, the dissent asserts that on the complaint alone, even
without sua sponte fact-finding, it would conclude Local
Defendants are unambiguously small change because they cannot be
expected to provide "significant monetary relief." This Court
said that just because the local defendant in Coleman v. Estes
Express Lines was a corporation and the Local Defendants here are
individuals, does not allow them to presume their indigence.
Because the claims against the Local Defendants are "significant"
for the purposes of CAFA's "local controversy" exception, the
district court was required to remand the case to the state court.
This Court therefore vacated its order granting Union Pacific's
motion for judgment on the pleadings.
A full-text copy of the Ninth Circuit's June 30, 2017 Memorandum
is available at https://is.gd/THdFIC from Leagle.com.
UNITED STATES: ACLU Expands Petition to Halt Iraqi Deportations
---------------------------------------------------------------
CNN reports that the American Civil Liberties Union has expanded a
petition to prevent the deportation of Iraqis in Michigan and
Northern Ohio into a nationwide class action covering more than
1,400 Iraqis facing removal orders.
The ACLU and detainees argue that if the Iraqis were forced to
return to Iraq, they would face "persecution, torture, or death."
A hearing was set for June 26 at the US District Court for the
Eastern District of Michigan.
Stay of removal
A federal judge on June 22 granted a 14-day stay of removal for
more than 100 Iraqi detainees under the jurisdiction of Detroit's
Immigration Customs Enforcement office (ICE), after the ACLU filed
its initial complaint on June 15.
The stay prevents any of the Iraqis detained by Detroit ICE agents
from being deported for two more weeks. It also gives detainees
an opportunity to go before an immigration judge and make their
case for why they believe they should be allowed to stay in the
United States.
In his decision granting the temporary stay, US District Judge
Mark Goldsmith argued that the potential "harm far outweighs" the
government's interest in immediately enforcing the removal orders,
according to court documents.
As well as expanding its class action nationwide, the ACLU filed a
motion on June 24 asking Judge Goldsmith to extend his stay-of-
removal order nationwide. It said it had asked the judge for a
ruling by June 26 because ICE had indicated that it might start
deportations as early as June 27.
ICE said it was reviewing the judge's stay of removal order in the
Michigan case and intended to comply with its terms.
Shift in ICE focus
In its amended complaint, the ACLU said plaintiffs had in many
cases been living in the United States for decades.
"According to government officials, there are more than 1,400
Iraqi nationals with final orders of removal.
"Although most were ordered removed to Iraq years ago (some for
overstaying visas, others based on criminal convictions for which
they long ago completed any sentences), the government released
them, often under orders of supervision," the ACLU said in its
amended complaint.
The ACLU said the plaintiffs had been complying with the
conditions of their release when "with no warning" ICE began
arresting and detaining them because Iraq had agreed to take them
back.
Iraq recently said it would accept deportees in exchange for being
removed from the countries listed in President Donald Trump's
travel ban.
That agreement triggered a shift in the focus of ICE raids,
according to ICE's press secretary Gillian Christensen. The
office had arrested 199 Iraqi nationals since May, 114 of them
from Detroit, Christensen said in a statement earlier in June. ICE
says most have criminal records.
Jurisdiction issue
Over the next two weeks, Judge Goldsmith will try to determine
whether or not a federal district court has jurisdiction over the
matter in the first place.
The US attorney's office argued that a federal district court did
not have jurisdiction over whether or not these Iraqis can be
deported. They believe it should be handled by an immigration
court, according to Gina Balaya, public information officer for
the US attorney's office for the Eastern District of Michigan.
Judge Goldsmith granted the 14-day stay "pending the Court's
determination regarding whether it has subject-matter
jurisdiction," according to court documents.
Many of the Iraqis who were detained are Chaldeans, members of an
Iraqi Christian group that has historically faced problems in
Iraq. The Detroit metropolitan area is home to the largest US
group of Chaldeans.
Some of them started immigrating to the United States in the 1920s
for opportunities and freedom, the Chaldean Community Foundation
said.
Many faced persecution during the Saddam Hussein era, during the
Iraq war and after ISIS seized territory in Iraq.
"The court took a life-saving action by blocking our clients from
being immediately sent back to Iraq," Lee Gelernt, deputy director
of the ACLU's Immigrants' Rights Project, who argued the case,
said in a statement. "They should have a chance to show that
their lives are in jeopardy if forced to return." [GN]
UNITED STATES: Faces Class Action Over PACER Overcharges
--------------------------------------------------------
Michael Smith, writing for Aiken Standard, reports that members of
the public using the federal court database to access court
records may be part of a class action lawsuit, which alleges the
U.S. government overcharges for federal court records.
Filed April 21, 2016, the suit alleges the cost of producing court
records electronically has increased twice since 2002, when
Congress passed the E-Government Act of 2002, which sought to cap
rising court record costs.
Congress said the public was being charged fees "higher than the
marginal cost of disseminating the information," the suit says.
The National Veterans Legal Services Program, National Consumer
Law Center and Alliance for Justice initiated the litigation.
It's a class action suit, meaning it includes all members of a
class. That class is defined as anyone who paid fees after using
the federal court record database between April 21, 2010 and April
21, 2016.
It seeks an unspecified amount of damages that "are found to
exceed the amount authorized by law," as well as attorney fees.
The database in question is called PACER, or Public Access to
Court Electronic Records system. It's run by the Administrative
Office of the U.S. Courts, or AO.
"Instead of complying with the law, the AO has used excess PACER
to cover the cost of unrelated projects -- ranging from audio
systems to flat screens for jurors -- at the expense of public
access," the suit states.
The federal government has denied the claims.
PACER is a database where most federal court records, including
federal cases in Aiken County, are filed. It's used by attorneys,
the media and members of the general public to track bankruptcy,
civil and criminal proceedings.
Users must set up an account to access court records remotely.
Documents obtained through PACER cost 10 cents per page, with fees
capping at 30 pages.
Users are also charged 10 cents per page every time they download
records, as well as when they access full docket texts,
essentially summaries of a specific court filing.
Charges are assessed even when a search fails to yield any
records. Billing is quarterly. Audio files cost $2.40.
The class action suit claims after per page costs were increased
to 8 cents a page in 2005, the federal judiciary's IT fund by the
end of 2006 generated a $150 million windfall, $32 million of
which came from PACER.
Fees rose again in 2012 to 10 cents per page, the current per page
charge.
The suit claims after the rate hike took effect, the judiciary
reported it spent $12.1 million in "public access services." It
also reported more than $28.9 million on courtroom technology, the
source originating from "electronic public access receipts," the
suit says. [GN]
UNITED STATES: Appeals Ruling in "Greenwood" Suit to Fed. Circuit
-----------------------------------------------------------------
The United States of America filed an appeal from a court ruling
in the lawsuit entitled Greenwood v. U.S., Case No. 1:10-cv-00015-
NBF, in the United States Court of Federal Claims.
As previously reported in the Class Action Reporter, the rails-to-
trails case arises from the conversion of a railroad corridor in
Lawrence County, Arkansas, to a recreational trail. The action
was brought on behalf of 53 landowners, who collectively own 78
parcels of land along the 6.70-mile corridor.
The appellate case is captioned as Greenwood v. U.S., Case No. 17-
2243, in the U.S. Court of Appeals for the Federal Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Entry of Appearance is due on July 12, 2017;
-- Certificate of Interest is due on July 12, 2017;
-- Docketing Statement is due on July 28, 2017; and
-- Appellant's brief is due on August 28, 2017.[BN]
Plaintiff-Appellee ROSALIE GREENWOOD, Individually, for herself,
and as Representative of a Class of Similarly Situated Persons, is
represented by:
Steven Wald, Esq.
STEWART, WALD & MCCULLEY, LLC
12747 Olive Boulevard
St. Louis, MO 63141
Telephone: (314) 720-6190
Facsimile: (314) 899-2925
E-mail: wald@swm.legal
Defendant-Appellant UNITED STATES is represented by:
Sean Christian Duffy, Esq.
DEPARTMENT OF JUSTICE
P.O. Box 480
Ben Franklin Station
Washington, DC 20044
Telephone: (202) 305-0445
Facsimile: (202) 305-0506
E-mail: sean.c.duffy@usdoj.gov
UNO CONSTRUCTION: "Mendoza" Sues for Breach of Contract
-------------------------------------------------------
Franklin Mendoza and Juan F. Aquino, individually and on behalf of
all other persons similarly situated, Plaintiffs, v. Uno
Construction Corp., and John Doe Bonding Company, Defendants, Case
No. 155407/2017 (N.Y. Sup., June 13, 2017), seeks to recover wages
and benefits, damages plus interest, costs and attorneys' fees and
such other and further relief resulting from breach of contract
and for violation of New York Labor Laws.
Plaintiffs performed demolition, painting, cleaning, carpentry and
other related construction-trade tasks for Defendant's
construction projects within the state of New York, including but
not limited to the New York City Housing Authority Saratoga Square
project.
Defendant is based at 930 Halsey Street, Brooklyn, New York,
11233-1457 and is engaged in the construction business. [BN]
The Plaintiff is represented by:
Michele A. Moreno, Esq.
Lloyd Ambinder, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, Seventh Floor
New York, NY 10004
Tel: (212) 943-9080
Fax: (212) 943-9082
WAL-MART STORES: "Prado" Suit Seeks Unpaid Wages under Labor Code
-----------------------------------------------------------------
MARK PRADO, individually, and on behalf of other members of the
general public similarly situated, the Plaintiff, v. WAL-MART
STORES, INC., a Delaware corporation; and DOES 1 through 10,
inclusive, the Defendant, Case No. BC666295 (Cal. Super. Ct., June
23, 2017), seeks restitution of unpaid wages to all class members
and prejudgment interest under the California Labor Code.
According to the complaint, the Plaintiff and the other class
members have been injured by Defendant's intentional violation of
California Labor Code because they were denied both their legal
right to receive, and their protected interest in receiving,
accurate, itemized wage statements under the California Labor
Code.
Wal-Mart Stores, doing business as Walmart, is an American
multinational retailing corporation that operates as a chain of
hypermarkets, discount department stores, and grocery stores. [BN]
The Plaintiff is represented by:
Shawn C. Westrick, Esq.
THE WESTRICK LAW FINN, P.C.
11075 Santa Monica Blvd., Ste. 125
Los Angeles, CA 90025
Telephone: (310) 746 5303
Facsimile: (310) 943 3373
WELLS FARGO: Sued by Cotton Over Illegal Payment Change Notices
---------------------------------------------------------------
CHRISTOPHER DEE COTTON and ALLISON HEDRICK COTTON, on behalf of
themselves and all others similarly-situated v. WELLS FARGO BANK,
N.A., Case No. 17-03056 (W.D.N.C., June 7, 2017), is an adversary
proceeding seeking relief for themselves and all other consumer
bankruptcy debtors, who have filed Chapter 13 bankruptcy cases in
the District Court and elsewhere nationwide, who have been
subjected to Wells Fargo's alleged unlawful practice of filing
mortgage payment change notices.
The Cottons are the debtors in In re Christopher Dee Cotton and
Allison Hedrick Cotton, Chapter 13 Bankruptcy Case No. 14-30287,
filed in the United States Bankruptcy Court for the Western
District of North Carolina, Charlotte Division.
Defendant Wells Fargo Bank, N.A., is a foreign limited liability
company.[BN]
The Plaintiffs are represented by:
Theodore O. Bartholow III ("Thad"), Esq.
O. Max Gardner III, Esq.
KELLETT & BARTHOLOW PLLC
11300 N. Central Expressway, Suite 301
Dallas, TX 75243
Telephone: (214) 696-9000
Facsimile: (214) 696-9001
E-mail: thad@kblawtx.com
- and -
Wayne Sigmon, Esq.
Frederick L. Henderson, Jr., Esq.
SIGMON & HENDERSON, PLLC
518 South New Hope Road
Gastonia, NC 28054
Telephone: (704) 865-6265
Facsimile: (704) 874-1300
E-mail: trudoc@siglawfirm.com
ZIMBABWE: Zec's Refusal to Release Voters Roll May Prompt Suit
--------------------------------------------------------------
News Day reports that the Zimbabwe Electoral Commission (Zec) has
refused to avail a copy of the 2013 voter's roll after a request
for it by a local civic group.
In a letter dated June 25 and addressed to Concerned Citizens
Support Network of Zimbabwe (CCSNZ), Zec chairperson,
Rita Makarau said the electoral body has no copy of the 2013
voter's roll.
"Your letter dated June 8, 2017 regarding the above subject matter
is hereby acknowledged.
"We do not have a copy of the voter's roll used in the 2013
general elections. Accordingly, we regret to advise that we are
unable to accede to your request," read Zec's response.
CCSNZ had made a request on May 29 for public clarification on
biometric voter registration (BVR) ahead of the 2018 elections.
Zec also rejected accusations of delaying the announcement of BVR
tender winner.
"While it appeared as if it had taken too long to announce the
tender winner (Laxton Group Limited), it was necessary to follow
due procedure in evaluating the tenders," Ms. Makarau said.
Zec also failed to clarify on the commencement of the voter
registration exercise, saying the commission was awaiting Justice
minister Emmerson Mnangagwa's approval before regulations could be
gazetted as "per procedure".
Ms. Makarau also insisted that dialogue between Zec and political
parties is on-going although these meetings and their outcomes
were not even made available to the media and the public at large.
Zec has been accused by the opposition of helping Zanu PF to rig
elections.
The civic society group threatened to rope in the international
community to manage local elections if Zec proved to be
incompetent to run the elections.
"If Zec is, therefore, not competent to meet it's agreed demands,
timelines and meets its commitments to stakeholders, then we
believe this opens up a possibility of a class action to demand
that Zec be disbanded, as their incompetency will have been proven
and ruled on by the courts," CCSNZ said in a statement.
"As citizens, we must demand that Zec set specific timelines for
registration and adhere to them. We demand that Zec must provide
timelines not more than 90 days of aligning the electoral laws to
the Constitution and demand the required parliamentary hearings
to begin.
"Zec must remove strict requirements on residence
requirement, begin the implementation of BVR as soon as is
possible and ensure sufficient time is given to every Zimbabwean
who is eligible to vote to register," read part of the demands.
For a long time now, National Electoral Reform Agenda (Nera) has
called for the intervention of Sadc in managing Zimbabwe's
elections, claiming Zec has lost credibility to hold the
elections. [GN]
ZURICH AMERICAN: Ill. App. Affirms Dismissal of "Marque" Suit
-------------------------------------------------------------
Judge Mary K. Rochford of the Appellate Court of Illinois, First
District, Sixth Division, affirmed the circuit court's dismissal
of the Plaintiffs' claims with prejudice in the case captioned
MARQUE MEDICOS FULLERTON, LLC; MEDICOS PAIN & SURGICAL
SPECIALISTS, S.C.; AMBULATORY SURGICAL CARE FACILITY, LLC; and
MARQUE MEDICOS KEDZIE, LLC, for Themselves and All Others
Similarly Situated, v. ZURICH AMERICAN INSURANCE COMPANY, AMERICAN
ZURICH INSURANCE COMPANY, ASSURANCE COMPANY OF AMERICA, and
MARYLAND CASUALTY COMPANY, Defendants-Appellees. MARQUE MEDICOS
FULLERTON, LLC; MEDICOS PAIN & SURGICAL SPECIALISTS, S.C.; and
AMBULATORY SURGICAL CARE FACILITY, LLC, for Themselves and All
Others Similarly Situated, Plaintiffs-Appellants, v. TRAVELERS
PROPERTY CASUALTY COMPANY OF AMERICA, TRAVELERS INDEMNITY COMPANY
OF AMERICA, TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, THE PHOENIX
INSURANCE COMPANY, FARMINGTON CASUALTY COMPANY, THE STANDARD FIRE
INSURANCE COMPANY, and THE CHARTER OAK FIRE INSURANCE COMPANY,
Defendants-Appellees. MARQUE MEDICOS FULLERTON, LLC; MEDICOS PAIN
& SURGICAL SPECIALISTS, S.C.; and AMBULATORY SURGICAL CARE
FACILITY, LLC, for Themselves and All Others Similarly Situated,
Plaintiffs-Appellants, v. HARTFORD UNDERWRITERS INSURANCE COMPANY;
HARTFORD INSURANCE COMPANY OF THE MIDWEST; HARTFORD ACCIDENT AND
INDEMNITY COMPANY; HARTFORD INSURANCE COMPANY OF ILLINOIS;
HARTFORD FIRE INSURANCE COMPANY; HARTFORD CASUALTY INSURANCE
COMPANY; TWIN CITY FIRE INSURANCE COMPANY; TRUMBULL INSURANCE
COMPANY; and SENTINEL INSURANCE COMPANY, LTD., Defendants-
Appellees. MARQUE MEDICOS FULLERTON, LLC; MEDICOS PAIN & SURGICAL
SPECIALISTS, S.C.; and AMBULATORY SURGICAL CARE FACILITY, LLC, for
Themselves and All Others Similarly Situated, Plaintiffs-
Appellants, v. AIG INSURANCE COMPANY, f/k/a Chartis Casualty
Company; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH;
ILLINOIS NATIONAL INSURANCE COMPANY; COMMERCE & INDUSTRY INSURANCE
COMPANY; NEW HAMPSHIRE INSURANCE COMPANY; INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA; AMERICAN HOME ASSURANCE COMPANY; and AIG
PROPERTY CASUALTY COMPANY, f/k/a Chartis Property Casualty
Company, Defendants-Appellees, Nos. 1-16-0756, 1-16-0954, 1-16-
0955 & 1-16-0956, consolidated (Ill. App.).
In March 2015, the Plaintiffs filed four putative class-action
lawsuits, one each against the Defendants. On June 16, 2015, the
suits against the Travelers, Hartford, and AIG were reassigned, as
related cases, to the courtroom where the initially-filed suit
against the Zurich Defendants was pending. The complaints filed
in each lawsuit generally seek redress for the Defendants' alleged
failure to comply with requirements contained in the Workers'
Compensation Act (Act). The Plaintiffs' complaints sought relief
in four counts.
In each complaint, count I contends that the Plaintiffs were
third-party beneficiaries of the standard policies the Defendants
issued to employers and that the Plaintiffs were therefore
entitled to recover for the Defendants' breach of those policies.
Count II alleges that they had an implied private right of action
to recover for the Defendants' violation of section 8.2(d)(3) of
the Act. Count III asserts that the Defendants had breached
contracts with them that were implied-in-fact. Finally, count IV
seeks an award of attorney fees and statutory damages for the
Defendants' vexatious and unreasonable refusal to pay accrued
interest for late payments. The complaints seek the statutory
interest that accrued and is payable to them on bills that were
paid by the Defendants but after the Due Date, for services
covered by the Act, attorney fees, prejudgment interest, and
injunctive relief mandating that the Defendants institute,
maintain and follow procedures that will ensure that, in the
future, they will timely comply with the requirements of section
8.2(d)(3) of the Act.
Motions to dismiss each suit for failure to state claims were
filed by the Defendants. The motion to dismiss filed by the
Travelers' Defendants asserted, inter alia, that the circuit court
lacked subject-matter jurisdiction over the Plaintiffs' claims
because the Act vested exclusive jurisdiction to consider those
claims with the Illinois Workers' Compensation Commission. The
Hartford Defendants had additionally sought to strike the class
allegations, pursuant to section 2-619 of the Code.
On Feb. 19, 2016, following a prior hearing on the motions, the
circuit court entered a memorandum opinion and order in which it
dismissed each of the Plaintiffs' lawsuits with prejudice. In
reaching that result, the circuit court concluded (i) the
Plaintiffs were not third-party beneficiaries of the policies,
(ii) they had no implied private right of action for a violation
of section 8.2 (d)(3) of the Act, (iii) the facts alleged in their
complaints did not support the imposition of an implied-in-fact
contract, and (iv) the remedies contained in section 155 of the
Insurance Code do not extend to purported third parties such as
plaintiffs.
The circuit court's order did not specifically address the
Travelers Defendants' challenge to the court's subject-matter
jurisdiction or the Hartford Defendants' challenge to the class
allegations. The Plaintiffs filed timely notices of appeal from
the dismissal of each of the four lawsuits on March 15, 2016.
This Court consolidated the appeals in an order entered on May 11,
2016.
This Court held that because those alleged claims fall within the
general class of cases that the circuit court has the inherent
power to hear and determine, subject-matter jurisdiction is
present.
The Plaintiffs had the burden of sufficiently pleading that the
Defendants and the employers they insured intentionally entered
into the standard contract for the direct, and not merely
incidental, benefit of them. Because they failed to do so, their
claims that they were intended third-party beneficiaries were
properly dismissed.
Because this Court concluded that the Plaintiffs are not members
of the class for whose benefit the Act was enacted, their claim of
an implied private right of action must fail due to the failure to
satisfy the first factor of the analysis.
Because valid consideration, on the part of both parties, is one
of the essential requirements for the formation of a contract, and
because consideration cannot flow from an act performed pursuant
to preexisting legal duty, the circuit court properly dismissed
the Plaintiffs' claims that that the Defendants breached an
implied-in-fact contracts to comply with the interest provision of
section 8.2(d)(3) of the Act.
The Garcia v. Lovellette decision is inapposite here, where the
Plaintiffs are not insureds or assignees under the Defendants'
policies and, they were no more than incidental beneficiaries of
those policies and not intended third-party beneficiaries, the
Appellate Court held.
For these reasons, this Court affirmed the circuit court's
dismissal of the Plaintiffs' claims with prejudice.
A full-text copy of the Appellate Court's June 30, 2017 Opinion is
available at https://is.gd/Y6AxfT from Leagle.com.
* Calif. Gov. to Earmark Settlement Money for Indigent Services
---------------------------------------------------------------
Merced Sun-Star reports that legislation on Gov. Jerry Brown's
desk threatens an important source of funding for nonprofits in
California. The governor should heed a coalition of nonprofit
organizations that oppose it, and use his veto pen.
Under current law, judges distribute money from settlements in
class action lawsuits that goes unclaimed to nonprofit
organizations that do work that is relevant to the cases. The
theory is that the money, while not going to victims of whatever
wrong is addressed in the litigation, will help prevent some
future harm.
But as part of this year's budget, legislators added a provision
to a trailer bill that would take half of the unclaimed funds and
earmark it for indigent legal services and collaborative courts
such as those established for veterans or mentally ill people who
run afoul of the law.
As it is, those services compete for that money with other
nonprofits. Indigent services and collaborative courts are
important, and deserve to be funded and expanded, but not at the
expense of other worthy nonprofit organizations.
The American Civil Liberties Union backed the provision,
contending that legal aid services have suffered an 80 percent
reduction in state funding during the last decade, while the need
for those services has increased.
While poor people ought to have access to legal aid, consider some
of the nonprofits that could end up losing.
One is the Housing and Economic Rights Advocates, based in
Oakland, which in 2014 and 2016 received a total of $130,000. It
used that money to provide financial literacy workshops to low-
income residents. A Rose Foundation report said the Oakland
organization's efforts helped eliminate almost $1.7 million in its
clients' high interest debt, clearly a worthy undertaking.
In 2015, the California Healthy Nail Salon Collaborative received
$50,000, which it used to educate mainly low-income Asian
immigrant nail salon workers about their worker safety rights. The
Utility Reform Network, based in San Francisco, received $60,000
in 2015 for work to protect the privacy rights of mobile phone
users.
The issue of earmarking the payments for indigent legal aid
services and collaborative courts was raised during budget
hearings. However, the provision was added to the trailer bill,
Assembly Bill 103, late in the budget process.
The effort to alter the payment process, known as cy-pres, is part
of a disturbing practice in which lawmakers and governors,
including Jerry Brown and his predecessors, approve policy without
subjecting it to full legislative review.
Trailer bills ought to be used to implement specific aspects of
the budget, not create significant policy that bypasses full
legislative review.
The Legislature and the Judicial Council, which oversees the court
system but wasn't consulted on the issue, should address any
shortcomings with how money from class action lawsuits has been
distributed. Short of that, the Legislature should leave to
judges the responsibility for overseeing how money unclaimed from
class action suits is allocated.
While they're at it, Gov. Brown and lawmakers should make sure
there's sufficient funding for indigent legal aid and
collaborative courts. [GN]
* Mandatory Arbitration Ban Hits Defrauded Student Borrowers
------------------------------------------------------------
Andrew Kreighbaum, writing for Inside Higher Ed, reports that as
the U.S. Department of Education readies for an arduous
bureaucratic process to overhaul the rule allowing defrauded
students to discharge their debt, advocates are wondering when
thousands of borrowers who are seeking relief will get a
resolution.
Betsy DeVos, the education secretary, earlier in June said she
would delay implementation of the rule, known as borrower defense,
and begin rewriting it and gainful-employment regulations for
nondegree vocational programs. But she promised that the
department would deliver on promises of loan relief it previously
made to other students and would continue processing the 16,000
borrower-defense applications still awaiting a decision.
Organizations that advocate for students and work with borrowers
are anxious to find out when that will happen. Many applicants
have waited months or years for an answer on their applications
while they remain on the hook for thousands of dollars in student
debt. Since the Trump administration arrived, gradual work on
those claims has appeared to slow to a complete halt. And an
unfortunate aspect of the rule delay, advocates said, is that it
will block a provision that would ban institutions from enforcing
mandatory arbitration clauses. That means students who haven't
gotten relief from the department can't seek help from the courts,
either.
The Obama administration crafted the borrower-defense rule after
the collapse of Corinthian Colleges in 2015 to clarify how to
handle a flood of claims under the little-used previous version of
the borrower statute. In its most recent update, the department
said in January that it had approved borrower-defense claims for
more than 28,000 Corinthian students. But few details have been
forthcoming since.
Toby Merrill, director of the Project on Predatory Student Lending
at Harvard University's law school, said the department still has
the tools it needs to process those claims even after delaying the
new rule.
"The department's processing of all borrower defenses has
essentially stopped," she said. "While that's not an acceptable
state of affairs, that's the state of affairs they're facing."
And by blocking the arbitration provision as part of the rule
delay, Merrill said the department has prevented students from
pursuing another avenue to have their loans discharged absent
action from the administration.
Liz Hill, a department spokeswoman, said the process is relatively
simple for most borrowers -- the department notifies servicers,
who then move to discharge the loan and notify the borrower. Other
claims are more complex, she said, such as for borrowers with
multiple or nondirect loans.
She said no decision has been made about a shift in handling of
claims and that the new chief operating officer of the
department's office of Federal Student Aid would be consulted on
changes. The department also didn't have an update on whether it
would consider discharging loans for entire cohorts of students at
an institution where the department determined fraud had occurred.
The final borrower-defense rule would have made it easier for the
department to provide loan discharge to groups of students -- even
those who have not filed an application -- where common facts and
claims exist that indicate fraud or misrepresentation occurred at
a program.
The borrower-defense regulations were crafted with the for-profit
college sector in mind, but they were opposed by a broad swath of
higher ed institutions, notably including historically black
colleges. The week of the delay, two HBCU groups urged Ms. DeVos
in a letter to rewrite the regulation through another rule-making
process.
In announcing the delay, the department cited pending litigation
by a group of California for-profit colleges. Two former for-
profit students intervened as defendants in the lawsuit and said
they had planned to sue their institution over misrepresentations
after the ban on mandatory arbitration went into effect.
"The reason why arbitration is so critical and why this is a key
part of the rule making in my view is we hoped for the courts to
resolve disputes and address harms that are posed to victims even
when regulators are unwilling or unable to act," said Joe Valenti,
director of consumer finance at the Center for American Progress.
The inclusion of arbitration language in the vast majority of for-
profit college contracts mean individual borrowers are not able to
take their claims to court -- or band together in a class action
lawsuit, he said. The Century Foundation has urged for-profits to
not restrict students in contracts from going through to courts to
pursue complaints. Two large for-profit chains, University of
Phoenix and DeVry University (now Adtalem Global Education), said
last year they would not enforce arbitration clauses in
anticipation of new federal regulation.
When announcing the rule would be delayed, the department did say
it would carry out provisions involving administrative forbearance
for Federal Family Education Loan borrowers, provisions relating
to documentation for discharges for death, consolidation of
nursing student and nursing faculty loans, and some technical
corrections. But Betsy Mayotte, director of consumer outreach and
compliance for American Student Assistance, said over all the
burden to receive relief under the existing rule is much higher
than it would have been under the Obama regulation.
For one thing, the current rule is based on state laws that in
many cases include a statute of limitations for borrower claims,
she said. The new rule includes a six-year statute of limitations
for payments already made by the borrower but no limitations for
payments still owed but not paid.
"Now that the rule has been delayed, the FFEL borrowers are up the
creek," said Mayotte.
Young Invincibles, a progressive advocacy group focused on
millennial issues, called on the department to act quickly on
existing claims and to be transparent about the progress it's
making.
"The department's faltering commitment to providing these young
people, who were taken advantage of in their pursuit of a higher
education and a better financial future, the relief that they are
entitled to, is alarming," said Reid Setzer, Young Invincibles'
government affairs director, in a written statement. "We would
like to see the department's recent promises to provide relief
honored, old applications resolved, group discharges issued where
justified and a thorough public accounting of just how many
applications were processed, their outcomes and what schools were
involved." [GN]
* South Korea Mulls Class Actions for Processed Food Damages
------------------------------------------------------------
Won Ho-jung, writing for The Investor, reports that the government
is discussing the possibility of allowing class actions for
consumers who have suffered damage related to processed food.
According to a spokesperson for the Ministry of Food and Drug
Safety on June 26, the ministry has presented a report on possible
ways to implement class actions for these consumers. The Food
Safety Ministry has legal jurisdiction over matters related to
these products.
Currently, class action is only permitted in cases related to
finance.
"We cannot comment on any specifics related to the report, but we
do know that class actions have been discussed," the spokesperson
said. The proposed plan was presented to a consultative body that
is acting as the de facto transition team for President Moon Jae-
in's administration.
Permitting consumer class actions was part of Moon's pledges
during the presidential campaign. There have been more demands
for class actions and punitive damages for consumer-related damage
following several high-profile cases including the humidifier
sanitizer scandal that linked Oxy Reckitt-Benckiser to over a
hundred deaths.
If the ministry's proposal is implemented, it may open the door to
allowing class actions in other consumer-related industries in the
future.
However, its introduction faces fierce opposition from
corporations, who run the risk of paying massive damages if they
lose a class action suit.
Consumer groups have long argued against the current system, which
requires consumers to file individual lawsuits in order to receive
compensation, which they say is inefficient and expensive.
Under the current government structure, matters related to
consumer conflicts fall under the jurisdiction of the Fair Trade
Commission. Kim Sang-jo, the newly named FTC chief, has publicly
spoken in favor of changing the law to permit class actions.
In a written statement to the National Assembly during his
confirmation process, Kim stated that the industries that allow
class actions should be expanded, focusing on industries that have
the potential to cause low-cost damage to a large number of
consumers. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Velan Valve Dropped as Defendant in "McSwain"
--------------------------------------------------------------
In MINERVA McSWAIN, Individually and as Executrix of the Estate of
BUREN EDWARD McSWAIN, Plaintiff, v. AIR & LIQUID SYSTEMS
CORPORATION, et al., Defendants, Civil Case No. 1:15-cv-00130-MR-
DLH (W.D.N.C.), Judge Martin Reidinger of the United States
District Court, W.D. North Carolina, Asheville Division, issued an
order dismissing with prejudice claims against defendant Velan
Valve Corporation. A full-text copy of the Order dated June 30,
2017, is available at https://is.gd/SryGA8 from Leagle.com.
Minerva McSwain, Plaintiff, represented by Jonathan M. Holder,
Dean Omar Branham LLP, pro hac vice.
Minerva McSwain, Plaintiff, represented by Mona Lisa Wallace,
Wallace & Graham, PA, Charles W. Branham, III, Dean Omar Branham,
pro hac vice, Jessica Michelle Dean, Dean Omar Braham, pro hac
vice, Lisa W. Shirley, Dean, Omar, Branham, LLP, pro hac vice,
Sabrina G. Stone, Dean Omar Branham, LLP, pro hac vice, W. Marlowe
Rary, II, Wallace and Graham P.A. & William M. Graham, Wallace &
Graham.
BW/IP Inc., Defendant, represented by Daniel Bowman White,
Gallivan White & Boyd, P.A., pro hac vice.
BW/IP Inc., Defendant, represented by James M. Dedman, IV,
Gallivan, White, & Boyd, P.A..
CBS Corporation, A Pennsylvania Corporation, formerly known as
Westinghouse Electric Corporation, Defendant, represented by
Jennifer M. Techman, Evert Weathersby Houff.
Crane Co., Defendant, represented by Gregory R. Youman, K&L Gates,
LLP, pro hac vice, Rebecca L. Gauthier, K&L Gates & Marla Tun
Reschly, K&L Gates LLP.
Crane Co. -- Cochrane and Chapman Valve Co., Defendant,
represented by Gregory R. Youman, K&L Gates, LLP, pro hac vice,
Marla Tun Reschly, K&L Gates LLP & Rebecca L. Gauthier, K&L Gates.
Crane Co. -- Chempump, Defendant, represented by Gregory R.
Youman, K&L Gates, LLP, pro hac vice, Marla Tun Reschly, K&L Gates
LLP & Rebecca L. Gauthier, K&L Gates.
Daniel International Corporation, Defendant, represented by
Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A.,
Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E.
Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner,
Haynsworth, Sinkler, Boyd P.A..
Fisher Controls International, LLC., Defendant, represented by
Philip C. Reid, von Briesen & Roper, S.C., pro hac vice & Timothy
W. Bouch, Leath Bouch Crawford & von Keller.
Flowserve Corporation -- Byron Jackson Pump Company, Individually
And As Successor To, Defendant, represented by James M. Dedman,
IV, Gallivan, White, & Boyd, P.A..
Fluor Daniel Services Corporation, Defendant, represented by
Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A.,
Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E.
Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner,
Haynsworth, Sinkler, Boyd P.A..
General Electric Company, Defendant, represented by David
Speziali, Speziali, Greenwald & Hawkins, pro hac vice, Ivan A.
Gustafson, Evert Weathersby Houff, Jennifer M. Techman, Evert
Weathersby Houff, John A. Heller, Sidley Austin, LLP, pro hac vice
& Timothy E. Kapshandy, Sidley Austin LLP, pro hac vice.
Goodyear Tire & Rubber Company, Defendant, represented by Kelly B.
Jones, Womble Carlyle Sandridge & Rice, PLLC.
Goulds Pumps, Inc.;, Defendant, represented by Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP, William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP & Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP.
Grinnell LLC, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Ingersoll Rand Company, Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
ITT Corporation, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
Owens-Illinois, Inc., Defendant, represented by Robert O.
Meriwether, Nelson, Mullins, Riley & Scarborough, LLP.
SEPCO Corporation, Defendant, represented by Teresa E. Lazzaroni,
Hawkins Parnell Thackston & Young LLP.
Uniroyal, Inc., Defendant, represented by Charles Monroe Sprinkle,
III, Haynsworth Sinkler Boyd, P.A. & Scott E. Frick, Haynsworth,
Sinkler, Boyd P.A..
Crosby Valve, LLC, Defendant, represented by Timothy W. Bouch,
Leath Bouch Crawford & von Keller.
Fluor Enterprises, Inc., Defendant, represented by Charles Monroe
Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A. & W. David Conner, Haynsworth,
Sinkler, Boyd P.A..
ASBESTOS UPDATE: Asbestos Removal Approved at Saffell St. School
----------------------------------------------------------------
Brittany Fuller, writing for The Anderson News, reported that the
Anderson County Board of Education called a special meeting, where
it discussed maintenance plans and asbestos removal at Saffell
Street Elementary School.
The board voted to remove and replace assumed asbestos tile in
four of Saffell Street's classrooms, as well as update several
items throughout the campus.
Sheila Mitchell, superintendent of Anderson County schools,
reviewed the asbestos plan with the board. She said that under the
Asbestos Hazard Emergency Response Act, schools are mandated to
have an asbestos plan and monitor that plan every three years.
Schools, she said, are also responsible for providing six-months
of surveillance monitoring.
"The initial mandate started in the 1980s," said Mitchell.
"Ensuring all schools have a plan and are working to remove any
assumed asbestos in school facilities."
Mitchell said that replacing the tile in the classrooms would
eliminate all classrooms with any assumed asbestos.
"Our goal is to stay on top of the asbestos plans ensuring the
monitoring is taking place and completing one project at a time to
eliminate the original plan," said Mitchell. "Saffell Street's
plan is almost complete."
The board is currently reviewing quotes for the work that needs to
be done.
The school will also see a face-lift, as the board approved a
maintenance plan for updating several aspects of the school.
Mitchell said that during the 2016-17 school year, the board voted
to use some of its capital outlay funds to re-roof a section of
the school, as well as to install a new boiler for a hot water
system. The boiler was installed last May, and maintenance
director Terry Drury reported that plans have arrived for the
roofing project, and they will begin working out a timeline for
completion.
Drury also reported that the bathrooms will receive new sinks,
bathroom stalls will be sanded and re-painted, handicap bars will
be installed in the bathrooms, and the windows in the gym will be
resealed. There was also discussion for matching tile in the
entryway, as well as future work on the HVAC units.
"Maintenance plans are key to ensuring the board is informed of
the facility needs across the district," said Mitchell.
ASBESTOS UPDATE: Warehouse Closed Down After Asbestos Find
----------------------------------------------------------
David Richards, writing for Channel News, reported that asbestos
has closed a key Harvey Norman warehouse in the ACT after a
customer found asbestos on a product they had just purchased.
The scare that quickly escalated was found in the Companies
Fyshwick warehouse where both furniture and electrical goods are
sold. It's believed that the installation of a new skylight
dislodged asbestos that had been used in the construction of the
warehouse.
Within hours of the customer complaining about the store WorkSafe
ACT Commissioner Greg Jones issued a prohibition order on the
building within hours.
Any customers, or staff who have worked in the warehouse, and have
health concerns are being told to contact their doctor.
"It's important to remember that isolated exposure to asbestos
fibres for a short duration is extremely unlikely to result in the
development of an asbestos-related disease," Mr Jones said.
"While the risks are very, very small it is understandable that
people might be concerned.
"If they are immediately concerned they could contact their
general practitioner or the ACT Health website has a lot of
information."
Mr Jones said skylights were recently being installed into the
ceiling of the warehouse.
"As part of that they have partially dislodged a little bit of the
asbestos-bonded sheets," he said.
"Some fibres of dust have dropped down onto the floor of the
warehouse and onto some of the packaged stock that's in that
building."
Harvey Norman staff have admitted that the warehouse could be
closed for weeks while the area is cleared and affected goods are
disposed of.
In a statement, Harvey Norman said its top priority was the safety
of staff, customers and suppliers and they were cooperating with
WorkSafe.
Executives from the company will meet with the Australian
Competition and Consumer Commission, the Health Directorate and
WorkSafe ACT in Canberra today to explain what happened and how
they are going to address it.
What has not been disclosed is whether an audit of other Harvey
Norman warehouses is being conducted around the Country.
Gerry Harvey and Harvey Norman entities own a great deal of the
properties that Harvey Norman goods are warehoused in. It's not
known whether the building is of a similar construction to the ACT
warehouse.
ASBESTOS UPDATE: 3 Hidalgo ISD Schools Test Positive for Asbestos
-----------------------------------------------------------------
Carolina Cruz, writing for KRGV.com, reported that remodeling on a
few Hidalgo ISD buildings are at a standstill after an inspection
resulted positive in asbestos.
The schools include: J.C. Kelly Elementary, Hidalgo Early College
High School and Diaz Jr. High School.
Resident Marie Trevi§o first heard about the issue when she asked
a worker why construction at Hidalgo Early College High School was
halted.
She said workers told her the temporary halt was due to the
asbestos finding.
"I know Hidalgo (ISD) is a small school district and funds are
limited. We just want the administration, the new superintendent,
to work together and make sure everything is being done in the
best interest of our children. That's all we're asking for," she
said.
Along with Trevino's children, Karla Cantu's daughter attends
Hidalgo Early College High School.
Cantu said she not only worries for the students' health, but for
the staff as well.
"It also affects other employees, people who clean, from the
kitchen to teachers. They all educate our kids. They're all
affected. And we want to know what's going to happen, what they're
going to do about this issue," she said.
Officials with Hidalgo ISD sent the following statement regarding
their findings, which reads in part:
"Currently, Hidalgo ISD is working on improving the safety of its
students on several campuses within the district. As a part of the
process, the district is constructing vestibules and upgrading
portions of existing buildings. Like in any remodeling
construction project, the current buildings are first analyzed and
inspected to see what improvements can be made to existing
structures before new construction begins. One of the tests
conducted was to detect asbestos.
Unfortunately, when one of our buildings was originally
constructed, an asbestos-based material was used with respect to
the flooring. The material was used as an adhesive under the
floor. At no point in time has any student or employee been
exposed to the material because it was used and placed under the
floor of the building. However, now that the district has an
opportunity to correct the situation, it is taking advantage.
The district has engaged a company to abate all asbestos-based
materials used in prior construction. Student and employee safety
is top priority for Hidalgo ISD, and we will continue to be
proactive in our efforts to make sure we provide a safe and secure
learning environment for our students."
A Hidalgo ISD spokesperson said the district is working with a
company to remove all the asbestos-based material used in prior
construction of the buildings.
J.C. Kelly Elementary was back in compliance.
According to the Occupational Safety and Health Administration,
asbestos was used in products such as insulation for pipes, floor
tiles, building materials and in vehicle brakes and clutches.
Exposure occurs during the removal of asbestos materials,
renovation, repairs or demolition.
Immediate health risks are too small to be seen with the naked
eye, but breathing asbestos fibers can cause a buildup of scar-
like tissue in the lungs resulting in loss of lung function that
can lead to death. Cancer and other diseases may develop.
Asbestos is now regulated by both OSHA and the Environmental
Protection Agency.
ASBESTOS UPDATE: Greater Hume Gets Loose-Fill Asbestos Protocol
---------------------------------------------------------------
Janet Howie, writing for Border Mail, reported that guidelines
relating to Greater Hume's loose-fill asbestos funding assistance
have been finalised, more than seven weeks after the NSW
Government announced the package.
This progress comes at a time when another Holbrook property has
tested positive to the dangerous insulation material, the 34th
home affected in the town and 38th overall in the shire.
A NSW Fair Trading spokesman said 18 of those properties had gone
to tender to be demolished under the government's voluntary
purchase and demolition program.
"The contractor will begin taking control of these properties in
July, with demolition expected to take place in the second half of
the year," he said.
On May 8, Minister for Innovation and Better Regulation Matt Kean
visited Holbrook to announce extra funding of up to $10,000 for
each property, recognising the town as a special case given the
high number of homes affected.
The Fair Trading spokesman said the administrative guidelines for
this community assistance were delivered to Greater Hume Council
and Member for Albury Greg Aplin this week.
"The Greater Hume Shire Council will be managing the application
process," the spokesman said.
"Under the guidelines, a recommendation for community assistance
by the assessment panel must be made to the minister within 40
business days of receipt of the application. Additional financial
assistance through the soft furnishings allowance is being
distributed."
Greater Hume Council general manager Steven Pinnuck confirmed the
guidelines had arrived.
"Whilst it's probably taken a little bit longer than what council
had hoped and probably the residents had hoped . . . I suppose
when you're talking public money you've always got to have checks
and balances in place to ensure that it's expended as it was
intended," he said.
Mr Pinnuck said the council was disappointed another positive test
had emerged, with about 60 properties in the shire still to be
assessed.
"It looks like there could be a few more yet, perhaps," he said.
"Hopefully not, but we're just going to have to deal with that."
ASBESTOS UPDATE: Navy Veteran's Case Allowed to Proceed
-------------------------------------------------------
Terri Oppenheimer, writing for Mesothelioma.net, reported that the
family of a deceased veteran who served four years in the Navy and
who died of malignant mesothelioma will be able to proceed with
their mesothelioma lawsuit against multiple asbestos companies,
despite those companies trying desperately to argue against his
claim. The companies had attempted to bar testimony he'd given as
hearsay and his identification of their products onboard his Navy
ship as inappropriately documented, but the Superior Court of
Rhode Island refused to provide them with the summary judgment
that they sought.
Despite the fact that it has been well established that asbestos
causes malignant mesothelioma, asbestos companies continue to
fight tooth and nail against having to provide compensation to
those who their products harmed. The case of Paul F. McCarthy is a
telling example of this. Mr. McCarthy served in the Navy from June
of 1951 through June of 1955. After his period of basic training
he was assigned to the U.S.S. Glennon. While onboard the Glennon
he served as a member of the deck force, then moved on to the
position of quartermaster. His responsibilities included a number
of assignments that exposed him to asbestos. In May of 2013 he was
diagnosed with malignant mesothelioma and he provided a sworn
statement to his attorney, with a court reporter present, on July
1, 2013 regarding his time onboard the ship, testifying to the
fact that when the ship's guns fired asbestos dust would fall, and
as to what products he worked with. His mesothelioma lawsuit was
filed on July 17th and he died on November 13th of that year.
The asbestos companies named in the lawsuit asked that the case be
dismissed, arguing that his testimony was hearsay and that the
accuracy of his identification of their products as the cause of
his illness was insufficient for the court to proceed. On
consideration of both arguments, the court disagreed, indicating
that his testimony was provided in good faith and falling under
the category of a "Statement Under Belief of Impending Death," and
that it was up to a jury to determine whether there was sufficient
evidence of an asbestos-contaminated product's role in his death.
His surviving family will be able to continue with their claim,
seeking compensation for his medical expenses and the losses that
they suffered as a result of his death.
Being diagnosed with mesothelioma is an emotional and financial
challenge. Understanding your rights and the resources available
to you is essential to being able to get through the ordeal, and
that's what the Patient Advocates at Mesothelioma.net can provide.
Contact us at 1-800-692-8608 to learn more about how we can help.
ASBESTOS UPDATE: CRIZ Board Grants $1.9MM for Asbestos Removal
--------------------------------------------------------------
Tim Stuhldreher, writing for Lancaster Online, reported that the
renovation project at the former Bulova building at 101 N. Queen
St. will receive a $1.925 million grant to finance asbestos
removal.
The money will come from the City Revitalization & Improvement
Zone program, which is funded primarily by state taxes paid by
businesses in designated areas. Some local business taxes go into
the CRIZ as well.
The authority that oversees Lancaster's CRIZ approved the grant
Tuesday.
Providing grant assistance will allow the planned mixed-use
retail, office and residential project to offer competitive lease
rates, the authority's project committee said.
After a $25 million to $30 million renovation, 101 N. Queen St. is
expected to open its doors in early 2019. Once it does, its
eligible state and local taxes will flow into the CRIZ program.
In two to three years, projections indicate, the property will
have paid in enough money to offset the grant.
The abatement involves removing fireproofing material that
contains asbestos on the building's columns and the underside of
its floors, said David Martens, president of Pittsburgh-based
Zamagias Properties, the project's developer.
Along with related demolition, the work is expected to cost $2.2
million.
When CRIZ money goes toward construction, projects are subject to
prevailing-wage rules. That is raising costs by about 58 percent,
Martens said.
Apart from the asbestos abatement, Zamagias is paying for the
renovation through federal new Markets Tax Credits and private
financing.
Leasing is going well, Martens told the board. Zamagias has
commitments for 70 percent of the building's retail space, and is
in the process of finalizing arrangements with a large office
tenant, he said.
The tax credits are being provided through the Lancaster-based
nonprofit lender Community First Fund. President and CEO Dan
Betancourt serves on the CRIZ authority board; he abstained from
the grant vote.
ASBESTOS UPDATE: Ukraine Implements Asbestos Ban
------------------------------------------------
Chemical Watch reported that Ukraine's Ministry of Health has
confirmed that the country's ban on asbestos has come into force.
Its Regulation on the safety and protection of workers from the
harmful effects of asbestos, and materials and products containing
it, was approved this month by government departments.
During 2009-2015, Ukraine imported more than 40,000 tonnes of the
substance a year. Russia and Kazakhstan, two former USSR republics
alongside Ukraine, are the main producers in the world with
approximately 65% of global production.
Laurent Vogel, from the European Trade Union Institute (Etui),
said the ban is a "victory" for Ukrainian workers since there was
a "fierce" pro-asbestos lobby in Kiev.
While NGO the International POPs Elimination Network (Ipen) said:
"If Ukraine can ban asbestos, so too can other asbestos-using
countries in the region, such as Uzbekistan, Belarus,
Turkmenistan, Kyrgyzstan and Tajikistan."
Joe Digangi, senior scientific adviser at Ipen, said: The ban "is
another crack in the wall of denial about the harms ...[and]
signals to countries frustrated by years of obstruction at
Rotterdam COPs [Conference of Parties] that they too should step
forward."
Asbestos is used in products such as:
-- brake pads and automobile clutches;
-- roofing materials and vinyl tiles;
-- cement piping;
-- corrugated sheeting; and
-- home insulation.
Asbestos around the world
Fifty-five countries have banned asbestos, according to the
International Ban Asbestos Secretariat.
The EU took the measure for the import or use of products in 2005.
In North America, Canada outlined its regulatory approach to a ban
in April this year. The government's consultation, which sought
data on companies' uses in products, the amount currently held in
inventory and any materials that naturally contain traces, closed
on 4 June.
While in the US, it is one of the first ten chemicals to face risk
evaluation under the new Toxic Substances Control Act (TSCA).
Japan announced a total ban in 2002 and Australia followed suit a
year later. In South America, Argentina, Chile and Uruguay have
them in place.
ASBESTOS UPDATE: Polaris Whistleblower Says Recall Should Extend
----------------------------------------------------------------
Lucy Cormack, writing for The Sydney Morning Herald, reported that
a nationwide recall of children's quad bikes containing asbestos-
laden parts should extend far beyond the 15,000 announced by
manufacturer Polaris Industries, a whistleblower within the
company claims.
The Australian recall of certain Polaris youth quad bikes was
prompted after asbestos was discovered in brake pads, brake shoes,
gaskets and washers in some models.
The US-based Polaris, known for its off-road vehicles, launched a
recall of 13,000 vehicles sold in Australia since 2001, on June
19. This was later extended to include models sold since January
2000, taking the total number of affected vehicles to 15,000.
However, a company whistleblower, who is familiar with the product
testing that discovered the extent of contamination, claims the
actual count of affected vehicles in Australia exceeds 22,000.
Internationally, the whistleblower claims more than 540,000
vehicles contain the asbestos-laden parts, in "at least 70
countries", including Brazil, Argentina, Israel, Canada, the US
and within the EU.
"Approximately half were recommended for immediate recall based on
asbestos count. Their intention is to end up recalling under 20
per cent [of affected vehicles]," the source said.
Fairfax Media has seen a leaked product list of all contaminated
Polaris units globally, which states there are 22,654 vehicles
affected in Australia. In total, it says there are 546,309
vehicles containing asbestos-laden parts around the world.
"Polaris itself cannot deny the extent of this asbestos
issue...but they seem to care more about their bottom line," the
source said.
"I discovered that not only have we lied about the recall count
for the countries we've already approached, we've still been
selling our asbestos-laden inventory to some countries since we
first learned of this issue months ago. To say this infuriated me
would be an understatement."
Australia has been a focus for the recall, due to strict laws that
have prohibited the use or importation of asbestos since 2004.
According to the source, the asbestos contamination is mostly in
the brakes and brake pedals of a majority of units supplied over
the past 20 years. Some gaskets have tested positive as well.
"Most brakes and affected gaskets had chrysotile [a type of
asbestos] measurements of 20-30 per cent. Some in the immediate
recalls contained up to 70 per cent.
"Tremolite [asbestos] measurements of 7-10 per cent were common
and very frightening. These amounts are especially dangerous for
people who do their own repairs of physically handle their vehicle
parts," the whistleblower claims.
The World Health Organisation recognises exposure to different
types of asbestos, including chrysotile, can cause cancer of the
lung, larynx and ovary, mesothelioma (a cancer of the pleural and
peritoneal linings) and asbestosis (fibrosis of the lungs).
But Polaris Industries' Australian country manager Alan Collins
disputed the chrysotile and tremolite measurement results, arguing
that third-party expert testing commissioned by the company had
found riding the vehicles did not result in exposure to the rider.
"In terms of the asbestos measurement results, the numbers [cited]
are inconsistent with the evaluation of our third-party experts,
and are significantly higher than their findings," he said.
"Third-party experts have also concluded that servicing gaskets
found in the affected vehicles does not pose a threat to health,
and servicing brakes with asbestos has not been shown to pose a
threat to health. However, Polaris intends to replace any affected
parts, in accordance with the recall, at no cost to customers."
Mr Collins would not provide the third-party results to which he
referred.
He said the issue was supplier-related, describing it as an
instance of a "particular supplier's vendor not meeting our
quality standards . . . [when] we learned of the issue, we began
working with our partner to better understand how it occurred and
to develop a solution."
All contaminated parts are understood to have come from one
Taiwanese supplier, Aeon Motor, with whom Polaris has reportedly
halted all incoming orders.
Aeon Motor declined Fairfax Media's request to comment.
Asked whether Polaris would launch recalls in other countries
around the world, Mr Collins said varying asbestos regulations
meant "vehicles in the US, Canada and other countries" were not
affected.
"We anticipate the total number of affected vehicles in the
affected countries to be approximately 40,000."
It is understood Polaris was first informed of the issue when a
shipment to Australia was rejected this year.
A Department of Immigration and Border Protection spokesman said
seven consignments of Polaris quad bikes had been held at the
border over the past six months to test for asbestos, which was
discovered in some brake pads.
"The Australian Border Force is working with the importer to
ensure all future products entering Australia comply with
Australia's strict asbestos border controls," he said.
"We commend the company for proactively reporting these results
and moving quickly to ensure affected vehicles are recalled and
made safe."
Asbestos detections on Australia's border have increased in the
past year, with 55 to date in 2016-17, largely in motor vehicle
parts, brake pads and individual vintage vehicles.
Consumers who own a recalled vehicle are encouraged to contact
their nearest authorised Polaris dealer to arrange the safe
replacement of affected parts.
Customers with concerns should contact Polaris directly. The
formal recall notice can be found here.
Affected Polaris models (sold since January 1, 2000):
-- Scrambler 50
-- Predator 50,
-- Outlaw 50
-- Scrambler 90
-- Predator 90
-- Outlaw 90
-- Outlaw 110
-- Sportsman 90
-- Sportsman 110
-- Phoenix 200
-- Sawtooth 200
-- Ace 150
ASBESTOS UPDATE: Asbestos Concerns Remain After Pipe Explosion
--------------------------------------------------------------
Kimberly Eiten, writing for CBS Baltimore, reported that asbestos
has been found on the Holiday Inn building in downtown Baltimore,
after a steam pipe explosion last Tuesday.
Since the explosion both state officials and the company that owns
the steam pipe, Veolia North America, said that air quality tests
are normal, but asbestos has contaminated the side of the Holiday
Inn.
The Maryland Department of Environment said workers found the
cancer causing mineral in the buildings stucco. It can't be
cleaned.
The game plan now is to cover the building and keep it contained
and keep the asbestos from going airborne.
"Yeah, that's concerning," said Gilgamesh Taggett, who stayed at
the Holiday Inn.
He recently checked out of the Holiday Inn and thought he'd been
sleeping next door to street construction.
"My father had asbestos poisoning from working construction when
he was younger, so it's quite shocking," Taggett said.
The steam pipe exploded underground, sending a geyser of steam
through the pavement and a layer of debris airborne, coating Eutaw
street.
The Maryland Department of Environment said some of the dirt
contained asbestos and some cars stuck behind the caution tape
have since been totaled because of asbestos contamination.
Thirty-three cars were caught in the explosion and four tested
positive for asbestos.
In a statement, MDE's spokesperson wrote to WJZ:
"It is important to note that it is when asbestos fibers are
released into the air that they become a health hazard. . . .
Perimeter air monitoring continues, and we have been told it shows
no evidence of asbestos."
Veolia has not said what caused the steam pipe explosion. Only
that it is still under investigation.
ASBESTOS UPDATE: Ohio Contractor Sent to Prison in Asbestos Case
----------------------------------------------------------------
Eric Freedman, writing for Great Lakes Echo, reported that a
federal judge in Cleveland has sentenced a demolition company
owner to 21 months behind bars and ordered him to pay $876,228 in
restitution for failing to abate asbestos on a project in Canton.
Russell Stewart, who owned and operated a company called
Chemstruction in Chardon, Ohio, pleaded guilty to violating the
Clean Air Act. He admitted improper asbestos demolition at the
former Stark Ceramics manufacturing facility and failing to timely
dispose of asbestos waste, according to the U.S. Attorney's
office, which prosecuted the case
Scientists have linked asbestos, which the U.S. EPA designated as
a hazardous air pollutant in 1971, with respiratory diseases and
cancer.
Stewart's actions "released asbestos fibers into the environment
and resulted in an $800,000 cleanup funded by the U.S.
Environmental Protection Agency," said Scot Adair, the acting
special agent in charge of EPA's criminal enforcement program in
Ohio. "It's imperative that asbestos be removed safely, and EPA
and its law enforcement partners will hold to account those who
refuse to obey the law."
Last December, a Geauga County Common Pleas Court judge sentenced
Stewart to three years in prison and fined him $5,000 on state
charges of illegal operating a hazardous waste facility. He
received a simultaneous two-year term plus a $5,000 fine for
illegally transporting hazardous waste.
The state judge also ordered Stewart to pay the state $7,519 in
restitution, according to Kate Hanson, a public information
officer for the Ohio Attorney General's office.
"At this time, Stewart is the only one who has been charged in
connection with this matter," Hanson said.
Stewart began serving his state sentence on Jan. 17 and is
incarcerated at Trumbull Correctional Institution, according to
the Ohio Department of Rehabilitation and Correction.
The investigation involved the federal and Ohio EPAs and the state
Attorney General's Bureau of Criminal Investigation.
Stewart's project contract at the 500-acre Stark Ceramics site
required his company to remove all asbestos-containing materials
"in accordance with environmental regulation and industry
standards," the U.S. Attorney's office said. "An earlier
environmental survey showed asbestos was present throughout the
site."
The demolition work took place between November 2011 and January
2013. After an inspector found crushed panels with asbestos on the
site in October 2012, Stewart was told to stop demolition until
development of a cleanup plan -- but he disobeyed the order.
Stewart continued the demolition, causing asbestos panels to be
crumbled, pulverized and reduced to powder, according to the
criminal charge.
"Debris from the crushed panels littered the site. The debris
remained in such condition for weeks and was exposed to wind and
the elements," the criminal charge said.
A U.S. EPA contractor removed the debris containing asbestos and
containers with hazardous waste.
ASBESTOS UPDATE: Prohibition Notice Issued at Fyshwick Warehouse
----------------------------------------------------------------
OHS Safety Culture reported that WorkSafe ACT issued a Prohibition
Notice to a commercial property in Fyshwick after it informed of
possible asbestos contamination.
The agency engaged a licensed asbestos assessor who confirmed that
asbestos-containing material was present at the site. The asbestos
is not loose fill amosite asbestos or Mr. Fluffy.
It is understood that upgrade works to the ceiling space disturbed
asbestos ceiling panels which resulted in parts of the panels
becoming friable. Friable asbestos-containing material on stock
and stock covering in the warehouse was detected as well as the
floor areas.
Access Canberra is working with the retail company at its Fyshwick
warehouse and Corporate Office to correct the issue and
investigate how it occurred.
The company will be contacting customers who may have purchased
stock over the affected period and working with licensed asbestos
assessors and removalists on the management of remaining stock.
ASBESTOS UPDATE: Man Says Major Corps. Exposed Him to Asbestos
--------------------------------------------------------------
Noddy A. Fernandez, writing for Madison-St. Clair Record, reported
that a former electrician and mechanic is suing a number of
corporations, alleging they failed to protect him from the harmful
effects of asbestos.
Michael Carroll filed a complaint on June 21 in St. Clair County
Circuit Court against ABB Inc.; AERCO International Inc., ALFA
Laval Inc. et al. alleging that the defendants failed to exercise
reasonable care and caution for the safety of their employees and
others working with or around their products.
According to the complaint, the plaintiff alleges that during his
career he worked for various companies as an electrician and
mechanic and claims he was exposed to and inhaled, ingested or
otherwise absorbed asbestos fibers emanating from certain products
of the defendants. Due to his close proximity to asbestos, he
developed lung cancer, becoming aware of the disease on Jan. 20,
2016.
The plaintiff holds the defendants responsible because they
allegedly failed to provide warnings to people working with or
around the products, failed to provide adequate instructions on
how to avoid inhaling asbestos and failed to conduct tests on the
asbestos-containing products.
The plaintiff requests a trial by jury and seeks judgment for
compensatory damages in an amount in excess of $50,000, plus
punitive damages and for such other further relief that the court
deems appropriate. He is represented by Randy L. Gori and Barry
Julian of Gori, Julian & Associates PC in Edwardsville.
St. Clair County Circuit Court case number 17-L-332
ASBESTOS UPDATE: Gov't Sends Asbestos Warning to Grenfell Area
--------------------------------------------------------------
Herpreet Kaur Grewal, writing for FM World, reported that the
government has warned people living near the Grenfell Tower site
that they could have breathed in the deadly building material
asbestos in the aftermath of the fire.
Public Health England issued a notice on a government website
stating that "people who were close to the scene and exposed to
smoke from the fire may have experienced irritation to their air
passages, skin and eyes, and respiratory symptoms including
coughing and wheezing, breathlessness, phlegm production and chest
pain".
Dr Deborah Turbitt, health protection director for PHE in London,
said: "We know that bound asbestos, contained in building
materials such as plaster or fibre board, was present in Grenfell
Tower in ceilings and header panels inside airing cupboards.
"It is possible that very small amounts of asbestos fibre will
have been dispersed within the smoke plume but would have formed
only a small fraction of the smoke and particles released in the
fire; all smoke is toxic and any asbestos would present a minimal
additional risk to health."
But Dr Turbitt added: "Safety officers working with teams
currently on the site have tested the air within Grenfell Tower
for dust and asbestos and have not detected any levels of concern.
When work commences to clear the site there will be a system of
engineering work that will prevent any asbestos being released
from the site and a programme of regular environmental air
monitoring conducted to ensure that both contractors and local
residents are not put at any risk."
Three new air quality monitors were installed in the immediate
area around Grenfell Tower on 24 June by an independent
environment company, according to PHE.
A newsletter sent out to residents entitled Grenfell Fire Response
News states that public health experts have advised on the use of
air purifiers in local properties following the fire.
"The advice comes as Public Health England continues to conduct
air quality tests," it states. Air quality testing around the area
showed air pollution to be very low, it adds.
Asbestos-related diseases are typically associated with a long-
term workplace exposure to high levels of airborne asbestos
fibres.
ASBESTOS UPDATE: Legal Wrangling Over Settlement Cost Continues
---------------------------------------------------------------
Gordon Gibb, writing for Lawyers and Settlements, reported that
litigation surrounding the death of an underground pipe worker
allegedly exposed to asbestos, demonstrates what often goes on
behind the scenes that serves to shift the focus away from the
victim, and onto defendants seeking to cover their financial
losses. Many an asbestosis lawsuit has alleged failures on the
part of employers and those responsible for work sites have
resulted in unprotected exposure to asbestos, causing asbestosis
disease, mesothelioma and other diseases associated with exposure
to the deadly carcinogen.
According to court documents, Carlos Tarazon was an underground
pipe worker employed by the City of Phoenix for various
construction jobs. Tarazon is described as having worked on a
number of capital-improvement projects for the City of Phoenix as
well as other enterprises over a period of about 25 years from
1968 through 1993.
Tarazon was diagnosed in recent years with asbestos mesothelioma -
- a malady not unlike asbestosis lung disease that often takes
years, if not decades to materialize. By then, the prognosis is
usually almost always dire.
Tarazon, in a mesothelioma and asbestosis lawsuit, cited
continuous exposure to asbestos on job sites as the trigger, and
cause for his asbestos disease. The mesothelioma and asbestosis
lawsuit evolved into a wrongful death lawsuit when Tarazon
succumbed to the disease in 2014.
About a year later, in April of 2015 the City of Phoenix agreed to
settle the asbestosis lawsuit with Tarazon's family to the tune of
$500,000. The City was also facing legal bills of $986,000 for a
combined total of nearly $1.5 million.
Phoenix attempted to recover those funds through its insurer, The
Hartford -- specifically through a series of 'first-layer'
products and umbrella policies issued to the City of Phoenix by
four units of The Hartford.
The Hartford, it seems pushed back against the claim. The City of
Phoenix sued in order to compel The Hartford to pay up. However
last fall a district judge in Arizona ruled that the insurer had
no duty to defend or indemnify the City. In sum, the judge noted
that the City of Phoenix had essentially settled the Tarazon claim
with the $500,000 value of its deductible. US District Judge Neil
V. Wake also said in his September, 2016 ruling that defense costs
in the asbestos lawsuit were not part of the insurance coverage
and should be excluded.
Phoenix appealed to the Ninth Circuit and on June 20, suggested
that the lower court erred by misconstruing policies, and had
applied an improper allocation protocol.
"[R]regardless of whether the first-layer or umbrella policies
applied, Hartford was obligated to reimburse the city for its
settlement payment and defense costs in excess of $500,000"
attorneys for the city wrote.
Lost in the current legal wrangling over financial matters is the
loss of a husband and father to a horrid disease that unleashed
its power on an unwitting worker who did nothing more than go to
work each day. His mesothelioma and asbestosis claim may have been
higher in the beginning, but in the end they settled -- after
Tarazon died -- for $500,000.
The insurance lawsuit is City of Phoenix v. First State Insurance
Co. et al., Case No. 16-16767, in the US Court of Appeals for the
Ninth Circuit.
ASBESTOS UPDATE: Armley Prison Fitter Who Tried to Sue Gov't Dies
-----------------------------------------------------------------
Kathie Griffiths, writing for The Telegraph & Argus, reported that
a pensioner has died two years after trying to sue the Government
for up to GBP200,000 damages, claiming he was exposed to asbestos
while working as a fitter at a prison.
Geoffrey Dixon began suffering breathing problems and was
eventually diagnosed with malignant mesothelioma, a cancer that
develops in the lungs, in January 2013.
He died in February this year, a inquest in Bradford heard
yesterday.
The 70-year-old retired engineer, of Peach Walk, East Bowling, had
worked for more than a decade worked at Armley prison in Leeds but
had also worked at a number of firms, including gasket makers
Clough & Woods in Bradford, where he was also exposed to asbestos,
the hearing was told.
Until his diagnosis he was fit and active, enjoying good health,
running marathons and coaching football and cricket teams.
Mr Dixon had palliative surgery in 2015 but his condition
worsened. He was admitted to Bradford Royal Infirmary on February
5 this year with a cardiac arrest due to his malignant
mesothelioma and died ten days later surrounded by his family.
Concluding that Mr Dixon had died from industrial disease, Coroner
Martin Fleming said: "More likely than not, it was the asbestos
that caused and brought about this terrible industrial disease."
In 2015 Mr Dixon claimed compensation from the National Offender
Management Service, which is part of the Ministry of Justice.
In a writ filed at London's High Court, his lawyers claimed his
illness was the result of asbestos exposure during his time
working at the jail.
The writ alleged that Mr Dixon's job involved maintaining
asbestos-lagged boilers for five years from March 1992.
He then carried out general maintenance tasks, which included
working in the roof where pipes lagged with asbestos were in poor
condition and fibres were airborne, the writ stated.
His legal team claims he was not provided with any form of
protection or information about the dangers before 2005.
Mr Dixon's lawyers at Irwin Mitchell alleged his illness, which
they said had shortened his life expectancy by about 14 years, was
caused by negligence of the National Offender Management Service.
However, in a brief defence, filed by Government lawyers, the NOMS
admitted it bore responsibility for Mr Dixon's health and safety
while he worked at the prison but made no admissions regarding his
claims about his working conditions and practices, the extent of
his financial loss, or what caused his illness.
ASBESTOS UPDATE: Asbestos Falling Like Confetti, Inquest Told
-------------------------------------------------------------
Kathie Griffiths, writing for The Telegraph & Argus, reported that
asbestos at a West Yorkshire power station in the 1960s was
"falling like confetti," an inquest has heard.
Geoffrey Hilton, of Halifax Road, Liversedge, had worked at
Thornhill Power Station near Dewsbury and his wife Carol recalled
him telling her asbestos dust fell there like confetti, Coroner
Martin Fleming was told.
Mr Hilton, who was 83 and was diagnosed with Chronic Pulmonary
Obstruction Disease in 2007, died at Dewsbury District Hospital on
January 25 this year.
The cause of his death was pneumonia with asbestosis and COPD. At
post mortem, dust was found in his lungs and histology showed high
asbestos exposure. He had worked with other companies in Brighouse
and in Cleckheaton since but never came into contact with asbestos
again. Mr Fleming said about the death: "More likely than not, its
causation was the asbestos."
ASBESTOS UPDATE: Oman Bans Import of Asbestos Goods
---------------------------------------------------
Muscat Daily reported that Oman has banned the import of asbestos
goods and products. H E Dr Ali bin Masoud bin Ali al Sunaidy,
Minister of Commerce and Industry has issued Ministerial Decision
139/2017 prohibiting the import of asbestos goods and products.
The issuance of this decision comes after the examination of
several samples of goods and products by the Directorate General
for Standardisation and Metrology in cooperation wth the Public
Authority for Consumer Protection.
The results of the examination showed that the samples did not
comply with the standard specifications.
According to the decision, any individual who violates the
provisions of this decision will be liable to an administrative
fine of RO500 which can be doubled in case of repeated violations.
ASBESTOS UPDATE: Heirs Say Missouri Cos. Fail to Protect Workers
----------------------------------------------------------------
Noddy A. Fernandez, writing for St. Louis Record, reported that
heirs are suing a number of corporations, some of which are based
in the St. Louis area, citing alleged failure to protect and
failure to warn individuals of the harmful effects of asbestos.
Nanette Montgomery, Emily Houston, Cory Croley, Thomas Montgomery
Jr., Hannah Swan and Sally Montgomery filed a complaint June 26 in
the St. Louis 22nd Judicial Circuit Court against ABB Inc., AERCO
International Inc., Alcatel-Lucent USA Inc., et al. alleging that
the defendants failed their duty to exercise reasonable care and
caution for the safety of the decedent and others working with or
around the products.
According to the complaint, the plaintiffs allege that in 1968,
Thomas Montgomery was first exposed to asbestos-containing
products in Florida while working as an electrician apprentice for
Henderson Electric. The decedent was first diagnosed with lung
cancer on July 14, 2014, which led to his death on Oct. 18, 2014.
The plaintiffs hold the defendants responsible because they
allegedly failed to provide warnings to people working with or
around the products, failed to provide adequate instructions on
how avoid inhaling the asbestos and failed to conduct tests on the
asbestos-containing products.
The plaintiffs request a trial by jury and seek judgment for
damages in an amount in excess of $50,000 and such other relief to
which the court deems proper. They are represented by Randy L.
Gori and Barry Julian of Gori, Julian & Associates PC in
Edwardsville, Illinois.
St. Louis 22nd Judicial Circuit Court case number 1722-CC10655
ASBESTOS UPDATE: DOT Ordered to Pay for Victim's Gravestone
-----------------------------------------------------------
Thisiswiltshire.co.uk reported that the widow of an asbestos
victim, poisoned whilst working for British Rail, had to go to
court to get the government even to pay for his gravestone.
Douglas Grant started working in British's Rail's Swindon boiler
shop as a school leaver, but had a golden business touch that
later made him millions.
But the asbestos exposure when he was in his teens cost him his
life more than 50 years later, London's High Court heard.
The Department of Transport accepted liability for his death --
but told his bereaved widow, Patricia, 74, it would not pay for
his gravestone.
Now, however, a judge has ordered the government to pay GBP1,200
for the monument -- as part of a total damages award topping
GBP250,000.
Mr Grant was just 15 when he started working in the boiler shop in
1959 and was only there for a year, said Judge Martin Chamberlain
QC. But, in 2011, he began to suffer symptoms of the incurable
asbestos-related lung cancer, mesothelioma.
He endured appalling suffering and his wife looked after him, day
and night, until his death, aged 70, in November 2014.
The couple had met at school and lived together for almost 40
years, the judge added.
Mr Grant, the court heard, was a "workaholic" who succeeded
spectactularly in a range of business ventures.
Starting out in the fruit and vegetable trade, he bought a 100-
acre farm on Lechlade Road, Highworth, and built a home there.
He set up a successful Saturday and Sunday market before selling
the site for GBP1.35 million in the 1990s. The serial entrepreneur
later built a golf course and established a thriving stone and
tarmac recycling business, which he again sold for a good return.
Before his illness, the "shrewd" businessman still had money-
making plans afoot, including the sale of part of his land for
development.
Despite accepting its liability to compensate Mrs Grant, the
Department of Transport dug in its heels and hotly disputed the
amount she was due. Amongst other things, it refused to pay
anything towards the cost of her husband's GBP4,867 gravestone.
But Judge Chamberlain ruled the stone was part of Mr Grant's
"funeral expenses", and ordered the Department to contribute
GBP1,200.
The judge also awarded GBP92,500 to reflect the businessman's
"pain and suffering" before he died.
His widow was also entitled to compensation for the loss of a
"plainly capable" husband who decorated, gardened and did DIY
around the house.
Although lawyers were left to calculate the exact amount of Mrs
Grant's payout, it was bound to total more than GBP250,000.
ASBESTOS UPDATE: Asbestos Fiber Burden Doesn't Decline with Time
----------------------------------------------------------------
Alex Strauss, writing for Surviving Mesothelioma, reports that
mesothelioma has one of the longest latency periods of any
disease. It is not unusual for patients to develop the asbestos
cancer many decades after their last exposure to asbestos. Now, a
new German study offers a more detailed explanation of why that
is.
Although the body is adept at ridding itself of many kinds of
toxins, when asbestos fibers are inhaled or swallowed, their shape
and size allow them to stay in the tissue indefinitely, causing
inflammation that can eventually trigger malignant mesothelioma.
The new study, published in the European Respiratory Journal, is
the first to study to level of asbestos fibers in the tissue of
several individuals over time. It proves that, contrary to some
theories, the fiber burden does not tend to decrease with time, no
matter what kind of asbestos fiber is involved.
Asbestos Fibers and Mesothelioma
The study utilized data from the German Mesothelioma Register to
identify patients who were suspected of having pleural
mesothelioma or another asbestos-related disease and whose
biopsies showed at least 500 fibers of asbestos per gram of lung
tissue. To be included, individuals had to have been biopsied
twice at minimum intervals of 4 years.
The team found datasets on 12 patients who had had biopsies at a
median of 8-year intervals, with the longest interval being 21
years. In some cases, those biopsies were done during mesothelioma
surgery, in others, they were completed as part of an autopsy.
They key finding is that, whether it had been three years (the
minimum of the patients tested) or 29 years (the maximum) since a
person's last asbestos exposure, the number of asbestos fibers in
the lungs remained constant.
"Pulmonary asbestos fibre burden was stable between both
examinations," writes lead author Inke Sabine Feder, a pathologist
at Ruhr-University Bochum in Bochum, Germany. "This study is the
first to present longitudinal intra-individual data about the
asbestos fibre burden in living human lungs."
Chrysotile as "Sticky" as Other Asbestos Types
Asbestos, the leading cause of malignant mesothelioma, comes in
several sizes and shapes, including curly (serpentine) or
straight. Chrysotile, which accounts for 90 percent of
commercially-used asbestos, is a serpentine-shaped fiber while
crocidolite, amosite, tremolite, and some others are amphiboles
that are straight and sharp.
Some previous studies have suggested that the shape of chrysotile
fibers makes it easier for the body to rid itself of them. But
when they examined lung tissue samples with an electron
microscope, the German team found mainly amphibole fibers in a
third of the samples and mainly chrysotile fibers in the remaining
two thirds.
The authors conclude, "Overall, this study very clearly
demonstrates high biopersistence of not only amphibole but also
chrysotile asbestos in the human lung and thus gives mechanistic
explanations for the toxicity of the fibre and the long latency
period of asbestos related diseases."
Source: Feder, IS, et al, "The asbestos fibre burden in human
lungs: new insights into the chrysotile debate", June 29, 2017,
European Respiratory Journal
ASBESTOS UPDATE: Single Mum Dies from Asbestos-related Cancer
-------------------------------------------------------------
Express reported that Tragic Kirsty List was told earlier this
year she was unlikely to survive until Christmas but lost her
brave battle last month, leaving five year-old daughter Aimee.
The origins of her mesothelioma -- a disease that more commonly
affects older people -- remains a mystery.
She believed she may have got it either while a pupil at school or
when she worked as a pub barmaid.
Ms List first began feeling unwell in September 2015 and was
treated for gallstones for six months.
But doctors found a tumour around her gallbladder and carried out
a biopsy and six weeks later she was told she had cancer.
Ms List said she never expected it to be related to asbestos,
which was widely used in homes and other buildings until 1999.
She tried five different types of chemotherapy without success and
was on end-of-life care since finishing her last course almost a
year ago.
She was still trying to figure out the origins of her disease when
she died.
She went to a primary school in Reading, Berkshire, which was
built in the '80s and was "riddled with asbestos".
She later went to secondary schools in Reading and North Devon and
the latter also had asbestos.
In addition she spent 13 years working in pubs throughout the
south west -- some of which were being renovated.
Speaking earlier this year, Ms List said: "I don't find it
particularly frustrating that I don't know where I picked up
asbestos from because I choose not to focus on it.
"I can't change what's happened but I do feel a little bit angry
because of my daughter.
"I feel a huge amount of guilt knowing I will leave her behind.
That makes me sometimes want to stamp my feet and shout, 'It's not
fair'."
Kirsty's weight plummeted from a size 16-18 to a size 8, and
shortly before she died she said her main goal was on keeping life
as normal as possible for the sake of her daughter.
She added: "Aimee knows everything and understands that I'm dying,
and most of the time she is okay about it.
"There's no hiding from the fact that she is likely to be six-
years-old when I pass away."
Ms List, from Exeter, Devon, had peritoneal mesothelioma, which is
a cancer of the abdominal lining.
Her dying wish was that more would be done to raise awareness
about where asbestos is to help keep people safe, and not suffer
like she and her family have.
After being diagnosed she said: "If asbestos is in a building
everyone should be aware of where it is and how it should be
treated to keep themselves and other people safe.
"It has to be a group effort. The asbestos register should also be
overhauled to make sure reviews are ongoing."
Her mother Debbie Merritt paid tribute to her bravery.
She said: "Our beautiful daughter Kirsty lost her battle with
mesothelioma. She slipped away peacefully in our arms, with a
gentle smile on her lips.
"Our heartfelt thanks go to all those who have supported us all in
that long journey, and to those who continue to do so.
"There have been so many wonderful tributes to Kirsty, lovely
friends who travelled to see her, it has made us incredibly proud
of her, that she should be acclaimed as inspiring, brave, strong,
awesome.
"We cannot thank the staff of Hospiscare Exeter enough for their
care and compassion looking after Kirsty."
Asbestos solicitor expert Helen Grady at Simpson Millar had worked
with Ms List on her case.
She said: "The case is on-going and we are still investigating
where she was exposed."
Solicitor and asbestos expert Helen Grady at Simpson Millar, who
worked with Kirsty on her case, said she was the youngest mum she
had come across in 23 years.
She said: "Kirsty is the youngest mum I have known of to contract
the disease.
"I have been involved since 1994 and historically a lot of my
clients were men from the dockyard.
"The female cases were from women washing their husband's work
overalls, but recently we are seeing a shift in our clients."
ASBESTOS UPDATE: Family Given Six-Figure Sum After Death
--------------------------------------------------------
David Allison, writing for Sunderland Echo, reported that the
widow of a Sunderland man has been awarded a six-figure payout
after he was found to have died from asbestos-related cancer which
he contracted during his work days.
David Givens, a joiner, died in August 2015, aged 63, after being
diagnosed with the disease in February 2012.
Mesothelioma is an asbestos-related cancer that affects the lining
of the lungs and is caused by exposure to asbestos often decades
before symptoms begin to show.
Before his death, David instructed solicitors to investigate where
he was exposed to asbestos and why more was not done by his
employers to protect him.
However, this, and another subsequent investigation by another law
firm, failed to resolve the case.
In March 2016 his widow Pamela, 60, instructed lawyers at Irwin
Mitchell to handle David's case.
Fourteen months later, a settlement was secured for Pamela and her
and David's children, Kelly, Christopher, Mark and David.
Pamela's legal team believed that David came into contact with the
fatal asbestos dust during his time at John Cummings and Son of
East Hendon Road, Sunderland, where his uncle Ronnie Armbruster,
who died of asbestos-related cancer in the 1990s, was foreman.
Emma Tordoff, a solicitor and specialist asbestos disease lawyer
at Irwin Mitchell's Newcastle office who is representing Pamela,
said: "This case is sadly like a number we are involved in, with a
person going on to develop a very serious condition and sadly pass
away as a result of asbestos exposure which is believed to have
occurred several decades ago.
"We hope that the settlement we have secured will enable Pamela
and her children to try and move on with their lives following
David's tragic passing at only 63."
The end to the legal action was only possible thanks to a number
of David's former colleagues answering an appeal by Pamela to come
forward with information on the presence of asbestos at John
Cummings and Son.
Pamela, who is known as Pam to her friends and family and had been
married to David for almost 35 years when he passed away, said:
"Although I am happy that the legal action has reached a positive
conclusion, nothing is going to bring back my husband and this is
still something I find myself having to come to terms with.
"I hope that David's story will help raise awareness of
mesothelioma and make people think twice before they open up
themselves to asbestos exposure.
"Finally, I want to say a sincere and heartfelt thank you to all
of David's former colleagues who came forward and provided my
legal team with the vital information that enabled this to reach a
positive conclusion."
ASBESTOS UPDATE: Ex-Machinist Says St. Louis Cos. Fail to Warn
--------------------------------------------------------------
Noddy A. Fernandez, writing for St. Louis Record, reported that a
former machinist is suing a number of corporations, some of which
operated in the St. Louis area, citing alleged failure to protect
and failure to warn individuals of the harmful effects of
asbestos.
Darrel E. Keller filed a complaint June 23 in the St. Louis 22nd
Judicial Circuit Court against 3M Co., Air & Liquid Systems Corp.,
Armstrong International Inc., et al. alleging that the defendants
failed their duty to exercise reasonable care and caution for the
safety of individuals working with or around the products.
According to the complaint, the plaintiff alleges that between
1959 and 1966, he was first exposed to asbestos-containing
products in the Cedar Rapids, Iowa, area while serving in the
Navy. He claims he inhaled, ingested or otherwise absorbed
asbestos fibers emanating from certain products of the defendants'
that resulted to him being diagnosed with asbestosis June 30,
2015.
The plaintiff holds the defendants responsible because they
allegedly failed to provide warnings to people working with or
around the products, failed to provide adequate instructions on
how avoid inhaling the asbestos and failed to conduct tests on the
asbestos-containing products.
The plaintiff requests a trial by jury and seeks judgment for
actual and compensatory damages in an amount in excess of $25,000
for each and such other relief to which the court deems proper. He
is represented by Laci M. Whitley of Flint Law Firm LLC in
Edwardsville, Illinois.
St. Louis 22nd Judicial Circuit Court case number 1722-CC10644
ASBESTOS UPDATE: Hefty Fine, Prison Time for Improper Abatement
---------------------------------------------------------------
Sara E. Teller, writing for Legal Reader, reported that Russell
Stewart, a one-time demolition company owner in the Cleveland,
Ohio, area was sentenced to 21 months behind bars and fined nearly
$900,000 in restitution. Stewart owned and operated Chemstruction
in Chardon, Ohio. However, an investigation that began in 2012
found that he failed to get rid of asbestos while working on a
large scale, 500-acre project in nearby Canton. Stewart used
improper removal methods. He pleaded guilty to violating the Clean
Air Act which protects the public from exposure to airborne
contaminants.
Asbestos was one of the first hazardous air pollutants listed
under the federal air toxins program. Scientists have linked the
toxin with dangerous respiratory diseases including asbestosis,
an inflammatory condition of the lungs that can cause shortness of
breath, coughing, and permanent lung damage, and mesothelioma, a
deadly form of cancer that affects the stomach and intestines. It
also increases the risk of developing lung cancer. Costs
associated with removing asbestos from construction sites varies
depending on the extent of the work to be done, but can easily
cost thousands of dollars. Evidently, Stewart felt the cost
wasn't worth taking care of the issue and the short-term decision
may have extremely hazardous long-term effects.
Stewart admitted he was in the wrong by implementing improper
asbestos demolition and failing to remove toxins in a timely
manner at the former Stark Ceramics manufacturing plant. His
contract specified that he must remove all asbestos-containing
materials "in accordance with environmental regulation and
industry standards," according to the U.S. Attorney's office. "An
earlier environmental survey showed asbestos was present
throughout the site."
The project occurred over the span of roughly fourteen months
between November 2011 and January 2013. A site inspector found
evidence of asbestos back in October 2012 and instructed Stewart
to come up with an immediate plan to clean it up. However, he
refused, continuing the demolition utilizing improper removal
methods and causing asbestos panels to crumble and be pulverized
to powder. Construction continued on schedule despite the unlawful
work conditions.
"Debris from the crushed panels littered the site. The debris
remained in such condition for weeks and was exposed to wind and
the elements," the criminal charge read. This exposed both
workers and surrounding residents to the cancer-causing particles.
The U.S. Attorney's Office prosecuted the case, and the federal
and Ohio EPAs and the state Attorney General's Bureau of Criminal
Investigation were all involved. According to Scot Adair, the
special agent in charge of The Environmental Protection Agency's
criminal enforcement program in the state of Ohio, Stewart's
decision to cut corners "released asbestos fibers into the
environment and resulted in an $800,000 cleanup funded by the U.S.
Environmental Protection Agency. It's imperative that asbestos be
removed safely, and EPA and its law enforcement partners will hold
to account those who refuse to obey the law."
Stewart was ultimately held liable for the costly clean up bill
and is so far the only contractor to have been prosecuted for
improper asbestos removal at the site. He has been incarcerated
at Trumbull Correctional Institution since January 2017.
ASBESTOS UPDATE: Wives Who Inhaled Asbestos Seek Justice
--------------------------------------------------------
BBC News reports that people who developed a fatal lung disease
after coming into contact with asbestos through family members
have begun a campaign for compensation.
The victims, mainly women, were often exposed to asbestos while
washing their spouse's clothing.
They fall outside a compensation scheme which only covers those
who contracted the disease directly at their work.
Exposure to asbestos can cause mesothelioma -- a type of cancer
that mainly affects the lining of the lungs.
Victims can attempt to identify the insurance policy for the
company they worked for and then pursue a civil claim.
Contaminated clothing
If that is not possible then the UK government diffuse
mesothelioma payments scheme, introduced in 2014, can provide
compensation.
However, neither of these options are open to the family members
of employees who, for instance, brought home clothing covered with
asbestos.
Euan Love, from Digby Brown solicitors who are representing some
of the victims, said the government should consider extending the
scheme to this group.
"The negligent act is identical for the man working in the
premises and the man bringing home the overalls to his wife and
her being exposed in that way," he said.
"There is a potential argument that it is discriminatory against
women as they are disproportionately affected by their inability
to seek compensation either through the insurance policy or
through the diffuse mesothelioma payments.
"They are left to rely on state benefits funded by the taxpayer."
A DWP spokeswoman said the scheme was designed for people who
contracted the disease because they were exposed to asbestos at
work.
She added: "But we know there will be people who develop the
disease after coming into contact with asbestos in other ways,
which is why we have a separate scheme to provide people with the
financial support they need."
Trish Doig is one of the women who are thought to have become ill
because of exposure to asbestos brought home on the clothing of a
family member.
"I think I came into contact with asbestos when I stayed with my
aunt and uncle in the 60s," she said. "My uncle worked for a
Dundee boiler company and they worked with asbestos all the time.
"I think the fibres came home on his clothes, he would give me a
lift to work in his little van which was full of asbestos and I
think that is where my contact came from in the 60s.
"I think the fibres were all around his van and anyone inside his
van was exposed to these little tiny fibres that you couldn't even
see."
Breathless
Doctors initially assumed she must have worked with asbestos when
they gave her diagnosis.
She said: "I was shocked. I'd never heard of this mesothelioma.
Quite horrifying."
She's always breathless.
"I don't do very much now. I still try to do housework and I still
cook but as far as doing anything energetic, I find that quite
difficult.
"I find I don't have the energy for that. And when I do try to do
too much then I just get breathless and I have to sit down."
Her husband Ally Doig insists their fight is "not about the
money".
"My feeling about it is the sheer injustice of it, that the
government recognised in 2014 that there were lots of people who
were left unable to claim because companies had ceased to exist or
their insurance companies couldn't be traced."
He agrees that the government deserves credits for at least
introducing a compensation scheme.
"Unfortunately the eligibility criteria for it is limited to
people who have acquired the disease directly through their own
employment," he said.
"So anyone who has acquired it -- for example women washing their
husband's clothes -- they're excluded, they're just not eligible
for the scheme at all.
"I just think that really in this day and age that's just not
right. I think all citizens should be entitled to expect the same
treatment under the law."
Trish Doig said she cannot understand why people in her position
receive so little.
"I think it's wrong that they do what they do, because the way I
look at it is that I didn't ask to get this disease but I have
it," she said.
"And if there is a way of some compensation, whether it's a lot of
money or a little money, then it would be quite nice to think at
least someone's listening out there."
ASBESTOS UPDATE: Mills Dropped as Defendant in "Hanson"
-------------------------------------------------------
In case captioned LISA HANSON, Individually and as, Executrix of
the Estate of Delmont D. Hanson, TONY HANSON, Plaintiffs, v. 3M
COMPANY, et al., Defendants, Civil Case No. 1:16-cv-00328-MR-DLH
(W.D.N.C.), Judge Martin Reidinger of the U.S. District Court for
the Western District of North Carolina accepts Magistrate Judge
Dennis L. Howell's Memorandum and Recommendation granting the
Defendant Mannington Mills, Inc.'s Motion to Dismiss, and
correctly noted that Local Rule 7.1(C)(2) provides that a motion
cannot be contained in a responsive brief.
On May 8, 2017, the Plaintiff timely filed her Objections to the
Memorandum and Recommendation, asserting that the Magistrate Judge
erred by failing to provide her an opportunity to amend her
Amended Complaint.
The Plaintiff has previously requested an opportunity to amend her
Amended Complaint in her Response to Defendant Mills' Motion to
Dismiss, in the event the Magistrate Judge found her allegations
insufficient. Despite Plaintiff's acknowledgement of her failure
to adhere to the requirements of Local Rule 7.1(C)(2), Plaintiff
renews her request to amend, not by the filing of a separate
motion, but as part of her Objections to the Memorandum and
Recommendation. Again, the Plaintiff requests she be granted leave
to amend should the Court agree with the Magistrate Judge's
recommendation.
Judge Reidinger finds that the Magistrate Judge's proposed
conclusions of law are correct and consistent with current case
law, and the Plaintiff's request is not well-taken. Judge
Reidinger notices that the request to amend is not only in
contravention of the Court's Local Rules but also an obvious
attempt to circumvent the recommendation of the Magistrate Judge
regarding the disposition of Defendant Mills' Motion to Dismiss.
Judge Reidinger maintains that the Plaintiff cannot now attempt to
circumvent the Magistrate Judge's recommendation by seeking to
amend her Amended Complaint. Moreover, Judge Reidinger states that
allowing such amendment would impermissibly place the Court in the
position of rendering an advisory opinion.
A full-text copy of the Order dated June June 27, 2017, is
available at https://is.gd/V3YUHR from Leagle.com.
Lisa Hanson, Plaintiff, represented by Sabrina G. Stone, Dean Omar
Branham, LLP, pro hac vice.
Lisa Hanson, Plaintiff, represented by William M. Graham, Wallace
& Graham.
Tony Hanson, Plaintiff, represented by Sabrina G. Stone, Dean Omar
Branham, LLP, pro hac vice & William M. Graham, Wallace & Graham.
3M Company, Defendant, represented by Michael Casin Griffin,
Bradley Arant Boult Cummings LLP.
American Biltrite, Inc, Defendant, represented by Eric T. Hawkins,
Hawkins, Parnell, Thackston & Young.
Cyprus-Amax Minerals Co., Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
Domco Products Texas, L.P, Defendant, represented by Timothy Peck,
Smith Moore Leatherwood LLP.
General Electric Company, Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
H.B. Fuller Company, Defendant, represented by Christopher Barton
Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
Pfizer, Defendant, represented by Tracy Edward Tomlin, Nelson,
Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson
Mullins Riley & Scarborough LLP & William M. Starr, Nelson,
Mullins, Riley & Scarborough, LLP.
Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett,
Bennett & Guthrie, P.L.L.C..
CBS Corporation, Defendant, represented by Jennifer M. Techman,
Evert Weathersby Houff.
ASBESTOS UPDATE: 12 Cos. Dropped as Defendants in "Everett"
-----------------------------------------------------------
In the case captioned WILLIE EVERETT, et al., Plaintiffs, v.
AURORA PUMP COMPANY, et al., Defendants, Case No. 4:17CV230HEA
(E.D. Mo.), Judge Henry Edward Autrey for the U.S. District Court
for the Eastern District of Missouri issued an order granting the
Parties' Motions to Dismiss, and dismissing the Plaintiffs' claims
against Defendants Foster Wheeler Energy Corporation, John Crane,
Inc., Warren Pumps, LLC, Honeywell International Inc., General
Electric Company, Carrier Corporation, Greene Tweed & Co Inc., CBS
Corporation, Georgia Pacific, LLC, Ingersoll-Rand Company,
Flowserve Corporation, and Trane U.S., Inc., for lack of
jurisdiction.
On January 19, 2017, the Defendants have removed this matter to
federal court from the Circuit Court of the City of St. Louis,
Missouri.
According to the Petition, the Defendants maintain registered
agents in the state of Missouri, and are engaged in business in
Missouri. The Plaintiff Willie Everett is a resident of Missouri
who was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers and/or asbestiform fibers emanating from certain
products he was working with and around which were manufactured,
sold, distributed or installed by the Defendants. The Plaintiffs
have asserted that the Defendants consented to personal
jurisdiction because they maintain a registered agent in Missouri.
In response to the Petition, the Defendants have moved to dismiss
the action under Rule 12(b)(2) of the Federal Rules of Civil
Procedure for lack of personal jurisdiction, contending that they
have not consented to personal jurisdiction in light of the
Missouri Supreme Court's recent ruling in State ex rel. Norfolk S.
Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017 en banc).
In Dolan, the Missouri Supreme Court has held that "[t]he plain
language of Missouri's registration statutes does not mention
consent to personal jurisdiction for unrelated claims, nor does it
purport to provide an independent basis for jurisdiction over
foreign corporations that register in Missouri." Furthermore, the
registration statute does not provide an independent basis for
broadening Missouri's personal jurisdiction to include suits
unrelated to the corporation's forum activities when the usual
bases for general jurisdiction are not present.
Consequently, the Missouri Supreme Court has clarified the clear
basis under Missouri law for the exercise of personal jurisdiction
over defendants is not consent or solely registration and
therefore no longer valid. Plaintiffs concede that registration no
longer provides a basis for a court to exercise personal
jurisdiction over a defendant.
The Court notes that absent waiver or consent, "personal
jurisdiction can be specific or general." "Specific jurisdiction
refers to jurisdiction over causes of action arising from or
related to a defendant's actions within the forum state, while
general jurisdiction refers to the power of a state to adjudicate
any cause of action involving a particular defendant, regardless
of where the cause of action arose."
Specific jurisdiction "requires a relationship between the forum,
the cause of action, and the defendant." Due process requires that
the defendant has sufficient "minimum contacts with [the forum
state] such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice."
Plaintiffs argue that the "jurisdiction by necessity" doctrine
should apply. Under this doctrine, jurisdiction could be exercised
where there exists no other forum in which a plaintiff could bring
his/her action against all defendants. However, the Plaintiffs
have not shown that Defendants had sufficient minimum contacts
with the State of Missouri to satisfy due process. Consequently,
the Court concludes that it lacks specific personal jurisdiction
over the Defendants.
The Court cites two recent Supreme Court cases -- Daimler AG v.
Bauman, 134 S.Ct. 746, 754 (2014); and Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) -- which
refined the standard for whether a court has general jurisdiction
over a corporation.
Ordinarily, a court may exercise general jurisdiction over a
corporation only when the corporation's place of incorporation or
its principal place of business is in the forum state. In
"exceptional cases," general jurisdiction may exist in another
state if the corporation's activities in that other state are "so
substantial and of such a nature as to render the corporation at
home in that State." However, Missouri courts "rarely exercise
general jurisdiction over non-resident defendants."
Here, the Plaintiffs agree that the Defendants are incorporated in
other states and they do not contest that the Defendants'
principal places of business are outside of Missouri. Based on the
high threshold of business activity required under Goodyear and
Daimler, the Court concludes that the Plaintiff has failed to show
that the Court may exercise general jurisdiction over Defendants.
The Plaintiffs also ask to conduct discovery on the issue of the
nature and extent of Defendants' contacts with the state of
Missouri but the Court finds the vague assertion regarding
jurisdictional discovery appearing to be based on speculation and
conclusions. Accordingly, the Court denied Plaintiffs' request to
conduct jurisdictional discovery.
A full-text copy of the Opinion, Memorandum and Order dated June
June 27, 2017, is available at https://is.gd/hutiaF from
Leagle.com.
Willie Everett, Plaintiff, represented by Carson C. Menges, MENGES
LAW.
Willie Everett, Plaintiff, represented by Lisa W. Shirley, DEAN
AND OMAR, Rachel C. Moussa, DEAN AND OMAR & Michael B. Patronella,
LUBEL VOYLES, LLP.
Flora Everett, Plaintiff, represented by Carson C. Menges, MENGES
LAW, Lisa W. Shirley, DEAN AND OMAR, Rachel C. Moussa, DEAN AND
OMAR & Michael B. Patronella, LUBEL VOYLES, LLP.
Air & Liquid Systems Corporation, Defendant, represented by
Gregory C. Flatt, HEYL AND ROYSTER.
Air & Liquid Systems Corporation, also known as Buffalo Pumps,
Inc., Defendant, represented by Patrick D. Cloud, HEYL AND
ROYSTER.
ALFA Laval, Inc., Defendant, represented by Marcie J. Vantine,
SWANSON AND MARTIN, LLP & Paul W. Lore.
Aurora Pump Company, Defendant, represented by Melanie E. Riley,
SANDBERG PHOENIX, P.C. & Michael P. McGinley, SANDBERG PHOENIX,
P.C..
Borg-Warner Morse TEC LLC, as successor by merger Borg Warner
Corporation, Defendant, represented by Andrew M. Voss,
GREENSFELDER AND HEMKER, PC, Lizabeth M. Conran, GREENSFELDER AND
HEMKER, PC & Michael C. Pagan, GREENSFELDER AND HEMKER, PC.
Crane Co., Defendant, represented by Benjamin John Wilson, HEPLER
BROOM & Carl J. Geraci, HEPLER BROOM.
Crown, Cork & Seal Company, Inc., Defendant, represented by
Stephen J. Maassen, RYNEARSON AND SUESS LLC.
Draco Mechanical Supply, Inc., Defendant, represented by Jennifer
M. Valentino, KUROWSKI SCHULTZ, LLC & Lindsay A. Dibler, KUROWSKI
SCHULTZ, LLC.
Eaton Corporation, Defendant, represented by J. Todd Applegate,
PITZER SNODGRASS, P.C. & Brian J. Connolly, PITZER SNODGRASS,
P.C..
FMC Corporation, Defendant, represented by Marcie J. Vantine,
SWANSON AND MARTIN, LLP.
Gardner Denver, Inc., Defendant, represented by Andrew J. Hahn,
Segal McCambridge Singer & Mahoney & William R. Irwin, SEGAL AND
MCCAMBRIDGE.
General Gasket Corporation, Defendant, represented by Agota
Peterfy, BROWN AND JAMES, P.C. & Albert J. Bronsky, BROWN AND
JAMES, P.C..
Grinnell, LLC, Defendant, represented by Julia Yasmin Tayyab,
MORGAN AND LEWIS, LLP.
IMO Industries Inc., Defendant, represented by Matthew R. Fields,
JACOBSON AND PRESS, P.C. & Cary Allen Press, JACOBSON AND PRESS,
P.C..
ITT Corporation, Defendant, represented by Julia Yasmin Tayyab,
MORGAN AND LEWIS, LLP.
JP Bushnell Packing Supply Company, Inc., Defendant, represented
by Douglas Michael Sinars, SINARS AND ROLLINS, LLC.
J.R. Clarkson Company, Defendant, represented by Julia Yasmin
Tayyab, MORGAN AND LEWIS, LLP.
Lamons Gasket Company, Defendant, represented by Leo W. Nelsen,
Jr., NELSEN & LEE, P.C. & Paul B. Lee, NELSEN & LEE, P.C..
Metropolitan Life Insurance Company, Defendant, represented by
Charles L. Joley, JOLEY AND OLIVER & Georgiann Oliver, JOLEY AND
OLIVER.
Pnuemo Abex Corporation, Defendant, represented by Thomas L.
Orris, COSMICH AND SIMMONS LLC & Ross S. Titzer, COSMICH AND
SIMMONS LLC.
Taco, Inc., Defendant, represented by Benjamin Daniel Woodard,
STINSON AND LEONARD LLP & Jon A. Santangelo, STINSON AND LEONARD
LLP.
Viking Pump, Inc., Defendant, represented by Gregory C. Flatt,
HEYL AND ROYSTER & Patrick D. Cloud, HEYL AND ROYSTER.
Crane Co., Cross Claimant, represented by Benjamin John Wilson,
HEPLER BROOM.
Crane Co., Cross Defendant, represented by Benjamin John Wilson,
HEPLER BROOM.
ALFA Laval, Inc., Cross Defendant, represented by Paul W. Lore.
ASBESTOS UPDATE: Parties Settle Asbestos PI Claims in "Cozart"
--------------------------------------------------------------
Judge Louise W. Flanagan of the U.S. District Court for the
Eastern District of North Carolina issued an order dismissing the
case captioned MARTHA ESTELLE COZART, Plaintiff, v. DANIEL
INTERNATIONAL CORPORATION, et al., Defendants, Case No. 4:15-CV-
185-FL, (E.D.N.C.) after having been advised that the Parties in
have settled all matters in controversy among them.
Accordingly, Judge Flanagan directed the parties to file their
Stipulation of Dismissal with Prejudice on or before August 11,
2017.
A full-text copy of the Order dated June 27, 2017, is available at
https://is.gd/l8KwoF from Leagle.com.
Martha Estelle Cozart, Plaintiff, represented by William M.
Graham, Wallace & Graham, PA.
Martha Estelle Cozart, Plaintiff, represented by W. Marlowe Rary,
II, Wallace and Graham, P.A..
Daniel International Corporation, Defendant, represented by
Charles M. Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Moffatt
G. McDonald, Haynsworth Sinkler Boyd, P.A., Scott E. Frick,
Haynsworth Sinkler Boyd, P.A. & William David Conner, Haynsworth
Sinkler Boyd, P.A..
Fluor Enterprises, Inc., Defendant, represented by Charles M.
Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth Sinkler Boyd, P.A., Scott E. Frick, Haynsworth Sinkler
Boyd, P.A. & William David Conner, Haynsworth Sinkler Boyd, P.A..
Fluor Daniel Services Corporation, Defendant, represented by
Charles M. Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Moffatt
G. McDonald, Haynsworth Sinkler Boyd, P.A., Scott E. Frick,
Haynsworth Sinkler Boyd, P.A. & William David Conner, Haynsworth
Sinkler Boyd, P.A..
Owens-Illinois, Inc., Defendant, represented by Robert O.
Meriwether, Nelson Mullins Riley & Scarborough.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall Templeton & Haldrup, P.A.
ASBESTOS UPDATE: RI Court Finds McCarthy Statement Admissible
-------------------------------------------------------------
In the case captioned In Re: MARY SUPREY, individually and as the
Personal Representative of the Estate of PAUL F. McCARTHY,
Plaintiff, v. ALFA LAVAL, INC., et al., Defendants. MARY SUPREY,
individually and as the Personal Representative of the Estate of
PAUL F. McCARTHY, Plaintiff, v. CBS CORPORATION F/K/A VIACOM,
INC., et al., Defendants, C.A. Nos. PC-13-3511, PC-13-3512, (R.I.
Sup.), the Superior Court of Rhode Island enters a Decision
denying Defendants Warren Pumps, LLC, Gardner Denver, Inc., and
General Electric Company's motion for summary judgment after
finding that Paul F. McCarthy's sworn statement is admissible
evidence under R.I. R. Evid. 804(c) as an exception to the hearsay
rule, and as such, the Plaintiff has provided sufficient evidence
of product identification, exposure evidence, and causal
connection for each moving Defendant in order to survive summary
judgment.
Mr. McCarthy initiated this action via two Complaints dated July
17, 2013, after being diagnosed with malignant mesothelioma on or
around May 23, 2013, alleging that he was exposed to asbestos-
containing products manufactured, sold, or distributed by the
named Defendants beginning in the 1950s and ending in 1979. Mr.
McCarthy further alleged that this exposure occurred during his
time working with the U.S. Navy and with the U.S. Postal Services
as a warehouse laborer.
Mr. McCarthy was diagnosed with malignant mesothelioma in May of
2013. He provided the sworn statement to his attorney, with a
court reporter present, on July 1, 2013, prior to the commencement
of this action. The first original Complaint in this matter was
filed on July 17, 2013; therefore, Mr. McCarthy provided the
statement before the commencement of this legal action. Mr.
McCarthy later died on November 13, 2013.
In that sworn statement, Mr. McCarthy stated that he served in the
Navy for four years, from June of 1951 until June of 1955, and
that following basic training in Newport, Rhode Island, he was
assigned to the U.S.S. Glennon, DD-840 (the Glennon).
The parties dispute whether Mr. McCarthy's sworn statement is
admissible as a hearsay exception under Rhode Island Rules of
Evidence 804(b) or 804(c). The Defendants note that the sworn
statement was made before the commencement of this legal action,
and that none of the named Defendants were therefore present for
that statement or able to cross-examine Mr. McCarthy.
The Plaintiff argues that the sworn statement meets the hearsay
exception under R.I. R. Evid. 804(b) as:
-- a "Statement Under Belief of Impending Death" because Mr.
McCarthy made the statement while believing that his death was
imminent and in relation to the circumstances of his death.
-- a "Declaration of Decedent Made in Good Faith" because Mr.
McCarthy spoke under oath, in good faith, before the commencement
of the legal action, and he spoke from his own personal knowledge.
Federal case law provides that for affidavits to be utilized
relative to summary judgment motions, the first requisite is that
the information they contain (as opposed to the affidavits
themselves) would be admissible at trial. Rhode Island Superior
Court Rules of Civil Procedure 56(e) states that "[s]upporting and
opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the
matters stated therein."
Rhode Island Rules of Evidence Rule 804(c) provides that a
declarant's statements shall not be inadmissible in evidence as
hearsay "if the court finds that [the declaration] was made in
good faith before the commencement of the action and upon the
personal knowledge of the declarant." R.I. R. Evid. 804(c).
After a review of all the evidence and circumstances before it,
the Superior Court is satisfied that Mr. McCarthy's statements
were made from his personal knowledge because they concern his
personal work experience and his own memories of his time in the
U.S. Navy. In his sworn statement, Mr. McCarthy outlined his
various work placements during his time on the Glennon and the
responsibilities and duties associated with each position. He
recounted, under oath, the dates that he lived on the ship while
it was undergoing repairs and the types of machinery that he came
into contact with while working onboard.
The Superior Court finds that such statements were made from
personal knowledge, and further, that they were made in good
faith, since there is nothing in the record to indicate that Mr.
McCarthy was less than truthful regarding his employment and
service history. Therefore, the Superior Court maintains that Mr.
McCarthy's sworn statement is admissible as an exception to the
hearsay rule as a statement of a decedent made in good faith and
may be considered by the Court in the Motion for Summary Judgment.
The Defendants contend that there are no genuine issues of
material fact and that the Plaintiff has provided no product
identification with respect to each of the Defendants. They argue
that the Plaintiff has not provided sufficient evidence of Warren,
Gardner Denver, or GE asbestos-containing products on the Glennon,
where Mr. McCarthy served during his time in the Navy. Finally,
the Defendants contend that Mr. McCarthy's jobs and duties onboard
the ship would not have exposed him to any of the Defendants'
products, and that there is insufficient evidence to even suggest
that the Defendants placed any asbestos-containing products on the
Glennon.
The Superior Court finds that the Plaintiff has provided
sufficient evidence of product identification, exposure evidence,
and causal connection for each moving Defendant via Mr. McCarthy's
sworn statement of his duties onboard the Glennon and the areas of
the ship that he had access to or in which he worked.
The Superior Court points out that Mr. McCarthy's own statement
outlined the various jobs he held and the duties they required --
such as helping a welder in the boiler room -- in addition to
general tasks such as cleaning dust from vents and living on the
ship for extended periods of time. Mr. McCarthy recounted that the
Glennon would shake dust loose as the guns were fired on training
cruises.
The Plaintiff has provided historical documents as evidence that
Gardner Denver promised a shipment of alleged asbestos-containing
pumps to the Glennon during the time period in question. The
Plaintiff has also provided historical documents to show that
Warren supplied equipment to the Glennon, including emergency feed
pumps, and that Warren has admitted that its pumps contained a
variety of asbestos-containing products. In sworn answers to
interrogatories, Warren admitted that some of its pumps contain
asbestos gaskets, packing, and insulation.
Finally, the Plaintiff has presented historical documents alleging
that the Glennon was a GE turbine destroyer and that GE supplied
two ship service generators. The documents also note that the
turbine "was reported to have excessive vibrations." The Plaintiff
has als provided evidence of a GE technical information letter
that is generally applicable to steam turbine-generators and that
lists the asbestos-containing materials in those turbines. That
same technical information letter states that asbestos-containing
gaskets were used in casings, main steam piping, main steam valve
assemblies, and generators, among other places.
The Superior Court concludes that through the use of sworn
statements, historical documents, and medical experts, the
Plaintiff has sufficiently established sufficient product
identification, exposure evidence, and causal connection with
respect to each individual Defendant in order for Plaintiff's
claims to survive the summary judgment stage.
A full-text copy of the Decision dated June 27, 2017, is available
at https://is.gd/eSS2ZM from Leagle.com.
Robert J. Sweeney, Esq., for Plaintiff.
Jeffrey M. Thomen, Esq.; Zachary Weisberg, Esq.; Shannon Marie
O'Neil, Esq.; Andrew R. McConville, Esq., for Defendant.
ASBESTOS UPDATE: Yarway Corp. Dropped as Defendant in "Harris"
--------------------------------------------------------------
Judge Martin Reidinger for the U.S. District Court for the Western
District of North Carolina issued an order granting the
Plaintiff's Motion to Dismiss, and dismissing all claims of Robin
Harris, individually and as executrix of the estate of Billy David
Harris, against the Defendant Yarway Corporation without
prejudice, in the case captioned ROBIN L. HARRIS, Individually and
as Executrix of the Estate of Billy David Harris, deceased,
Plaintiffs, v. AJAX BOILER, INC., et al., Defendants, Civil Case
No. 1:12-cv-00311-MR-DLH, (W.D. N.C.).
A full-text copy of the ORDER dated June 27, 2017, is available at
https://is.gd/2ly2Ks from Leagle.com.
Robin L. Harris, Plaintiff, represented by Barrett Naman, The
Nemeroff Law Firm, pro hac vice.
Robin L. Harris, Plaintiff, represented by Roderick Scott
Marshall, Nemeroff Law Firm, pro hac vice & William M. Graham,
Wallace & Graham.
ASBESTOS UPDATE: Union Carbide Wins Summary Judgment in "Shaw"
--------------------------------------------------------------
In the asbestos-related personal injury case captioned RALPH
ELLIOTT SHAW and JOAN SANDERSON SHAW, Plaintiffs, v. ANDRITZ INC,
et al., Defendants, Civil Action No. 1:15-cv-00725-LPS-SRF, (D.
Del.), Magistrate Judge Sherry R. Fallon of the U.S. District
Court for Delaware recommends granting Union Carbide Corporation's
motion for summary judgment since the Plaintiffs fail to create a
material issue of fact as to whether, under Connecticut law, Union
Carbide's product was a substantial contributing factor to Ralph
Elliott Shaw's injury.
Plaintiffs Ralph Elliott Shaw and Joan Sanderson Shaw filed this
asbestos action in the Delaware Superior Court against multiple
defendants on February 26, 2015, asserting claims arising from Mr.
Shaw's alleged harmful exposure to asbestos.
Plaintiffs allege that Mr. Shaw developed mesothelioma as a result
of exposure to asbestos-containing products during the course of
his employment with General Dynamics Electric Boat Shipyard from
1952 to 1954 and from 1957 to 1968. In addition, Mr. Shaw alleges
he was exposed to asbestos from 1968 to 1996, as a result of his
work at H. R. Hillery Company and the Sheet Metal Workers' Union.
Mr. Shaw also alleges that he was exposed to asbestos while
performing construction on his home from the 1960s to the late
1970s, as well as performing maintenance work on his automobiles
intermittently from 1951 to the 2000s.
The Plaintiffs contend that Mr. Shaw was injured due to exposure
to asbestos-containing products that Union Carbide manufactured,
sold, distributed, licensed, or installed. Mr. Shaw was deposed on
July 22, 2015, however, no other product identification witnesses
were deposed. Mr. Shaw did not identify an asbestos-containing
Union Carbide product.
Defendant CBS Corporation removed the action to the District Court
on August 21, 2015. Thereafter, on January 30, 2017, Union Carbide
filed a motion for summary judgment. The Plaintiffs did not
respond to the motion, but on June 23, 2017, Plaintiffs' counsel
sent a letter to the court asking the court to grant Union
Carbide's motion for summary judgment.
Pursuant to Federal Rules of Civil Procedure Rule 56(a), "The
court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The Magistrate Judge
explains that even where a party does not file a responsive
submission to oppose the motion, the court must still find that
the undisputed facts warrant judgment as a matter of law.
Moreover, under Connecticut law, a plaintiff alleging products
liability in a personal injury action must establish that: (1) the
defendant was engaged in the business of selling the product; (2)
the product was in a defective condition unreasonably dangerous to
the consumer or user; (3) the defect caused the injury for which
compensation was sought; (4) the defect existed at the time of the
sale; and (5) the product was expected to and did reach the
consumer without substantial change in condition.
A full-text copy of the Report and Recommendation dated June 27,
2017, is available at https://is.gd/v6xnFs from Leagle.com.
Ralph Elliott Shaw, Plaintiff, represented by David W. deBruin,
The deBruin Firm LLC.
Ralph Elliott Shaw, Plaintiff, represented by Charles E.
Soechting, Jr., Simon Greenstone Panatier Bartlett, P.C., pro hac
vice.
Joan Sanderson Shaw, Plaintiff, represented by David W. deBruin,
The deBruin Firm LLC.
General Electric Company, Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
Union Carbide Corporation, Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell
LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
Union Carbide Corporation, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell
LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
Union Carbide Corporation, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell
LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
Union Carbide Corporation, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell
LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
Union Carbide Corporation, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell
LLC.
ASBESTOS UPDATE: Inmates' Suit vs. Correctional Dismissed
---------------------------------------------------------
Magistrate Judge Kenly Kiya Kato of the U.S. District Court for
the Central District of California issues an Order dismissing the
Third Amended Complaint filed in the case captioned PAUL ADAMS, et
al., Plaintiffs, v. CALIFORNIA CORRECTIONAL INSTITUTION, et al.,
Defendants, Case No. EDCV 16-1678-AB (KK), (C.D. Cal.). As the
Court is unable to determine whether amendment would be futile,
leave to amend is granted.
Plaintiffs Paul Adams, Phillip L. Dorsey, and Ezequiel Monarrez
have filed a Third Amended Complaint pursuant to Section 1983
alleging defendants Daren Plumlee, Carlos Martinez, Trinidad
Rodriguez, California Correctional Institution, and Does 1-102
violated their Eighth and Fourteenth Amendment rights.
On July 24, 2016, Plaintiffs filed a complaint pursuant to Section
1983 against defendants Jeffrey Beard and K. Holland, in both
their individual and official capacities, CCI, and CDCR, alleging
that Defendants CCI and CDCR exposed inmates to dangerous levels
of asbestos in violation of their Eighth and Fourteenth Amendment
rights.
On August 15, 2016, Plaintiffs filed a Notice of Proposal of First
Amended Complaint against Defendants Jeffrey Beard, K. Holland,
and Jerry Brown, in their individual and official capacities, CCI,
and CDCR, alleging that (1) prisoners are being exposed to
airborne asbestos particles; and (2) prisoners are forced to drink
and bathe in water contaminated by human feces. On November 1,
2016, the Court dismissed the First Amended Complaint with leave
to amend.
On January 12, 2017, Plaintiffs filed a Second Amended Complaint
against Defendants CDCR and CCI, alleging that CCI and CDCR are
subjecting Plaintiffs to an environment "invested with air born
asbestos particles," thereby demonstrating a deliberate
indifference to inmates' health. On March 15, 2017, the Court
dismissed the Second Amended Complaint with leave to amend for
failure to state a claim.
On April 5, 2017, Plaintiffs filed the instant Third Amended
Complaint against Defendant CCI and the Individual Defendants in
their individual and official capacities, raising Eighth and
Fourteenth Amendment claims against all Defendants, specifically:
(a) The Defendants have exposed them to dangerous levels of
asbestos and forced them to drink contaminated drinking water,
which resulted in mental and emotional injury, and imminent
foreseeable health injuries, and long term life threatening
injury.
(b) The Defendant CCI violated Plaintiffs rights to a
reasonable safe and healthy environment at CCI, on Yards I and II,
by failing to prevent unreasonable exposure to asbestos and
engaging in asbestos clean up that were illegal. Around April or
May 2016, CCI staff members began construction in Willard Hall
housing unit, which involved knocking out an entire wall infested
with asbestos material and . . . removing asbestos contaminated
floor tiles, without providing warnings to the inmate occupants in
the building. The Defendant CCI failed to seal off the area of the
construction and instead used fans which blew all of the Particles
into the corners of the entire housing unit, thus, exposing
Plaintiffs to asbestos directly.
(c) The Individual Defendants are jeopardizing inmate
INHABITANTS health and safety on a daily basis . . . by operating
a Water Treatment Plant and Waste Water Plant and Plant Ops. . . .
and preforming such practices without proper state certification,
licenses, and qualifications . . . in violation of State and
Federal laws and regulations.
(d) The Defendant Plumlee, who has a duty to supervise the
employees at Water and Waste Water Treatment Facilities for CCI,
(i) allowed his subordinates to operate without a license and
state certifications, (ii) failed to adequately train and
supervise his employees [Trinidad and Rodriguez], and (iii) knew
that high levels of Arsenic, lead, and human feces exists in the
water and that [Defendant Rodriguez] pollutes the water supply,
tainting the water for the Plaintiffs and for all inmates on Yards
I and II at CCI.
(e) The Defendant Rodriguez, who is responsible for illegally
dumping HSI Mobile Compressor Oil into the spray fields . . .
which contaminates the drinking water on yards I and II at CCI."
(f) The Defendant Martinez, who is responsible for taking
water samples at CCI to send them out for testing, is not a
certified water operator, (i) has failed his last two water state
exams, (ii) knows that the water is tainted on Yards I and II, and
(iii) falsifies test results by taking water samples from Yards
III and IV where the water is clean.
(g) The Defendants Plumlee and Martinez "fabricate the
records on a regular basis."
The Court determines that CCI is an agency of the state of
California, it is protected by the Eleventh Amendment and cannot
be sued under Section 1983. The Court concludes that the Eleventh
Amendment bars Plaintiffs from raising any claims against
defendant CCI and from seeking monetary damages against the
Individual Defendants in their official capacity.
"The Eleventh Amendment prohibits federal courts from hearing
suits brought against an unconsenting state." This jurisdictional
bar includes "suits naming state agencies and departments as
defendants," and it applies whether plaintiffs "seek damages or
injunctive relief." As to state officials sued in their official
capacity, the Eleventh Amendment immunizes state officials sued in
their official capacity from retrospective claims for relief
(including monetary damage claims), but does not immunize them
from claims for prospective relief (such as forward-looking
injunctive relief).
The Court mentions that the prison officials violate the Eighth
Amendment's prohibition against cruel and unusual punishment when
they deny humane conditions of confinement with deliberate
indifference. Pursuant to the Eighth Amendment, a prison official
may be found deliberately indifferent if "he knows that inmates
face a substantial risk of serious harm and disregards that risk
by failing to take reasonable measures to abate it."
The Court finds that the Plaintiffs fail to state an Eighth
Amendment deliberate indifference claim against Defendant
Rodriguez because they fail to allege that Defendant Rodriguez
knew that his actions placed inmates at a "substantial risk of
serious harm." The Court holds that without any facts indicating
Defendant Rodriguez "knew of and disregarded an excessive risk to
inmate health or safety," Plaintiffs' claim against him in his
individual capacity necessarily fails.
The Plaintiffs claim they have a Due Process right "to be
informed, and adequately noticed," presumably of the allegedly
dangerous conditions at CCI. However, the Court points out that
the right to be informed or adequately noticed of prison
conditions is not an interest protected by the U.S. Constitution.
Moreover, the Court finds that the Plaintiffs have failed to
identify a specific procedure that the Individual Defendants did
not follow which would have resulted in Plaintiffs' loss of a
valid liberty interest. Further, even assuming Plaintiffs
identified a procedure that created a protected interest, the
Court says that the Individual Defendants' failure to comply with
such a procedure alone does not establish a due process violation.
The Plaintiffs claim to have a Due Process right "to the Proper
Function of a governmental office," which includes the right to
have the Individual Defendants "perform their duties consistent
with law, rule, regulation, policy, and Constitution State and
Federal." The Court, however, finds that the Plaintiffs failed to
identify a valid liberty interest protected by the Due Process
Clause.
The Plaintiffs claim that the Individual Defendants' "refusal to
follow the Equal Protection Clause of the Fourteenth Amendment had
affirmatively deprived Plaintiffs and all prisoners at CCI on yard
I and II of Due Process and Equal Protection of the laws."
The Court notes that it is unclear from Plaintiffs' claims how the
Individual Defendants are depriving them of equal protection of
the laws. The Court explains that even if Plaintiffs' claim had
identified unequal treatment, Plaintiffs' Equal Protection claims
based on unequal treatment as inmates fails to state an Equal
Protection claim because prison inmates, in general, are not a
protected class. In making their equal protection allegations, the
Court finds that the Plaintiffs fail to present facts showing that
the Individual Defendants treated them any differently than other
"similarly situated" individuals.
The Court cites Federal Rules of Civil Procedure Rule 8(a) which
requires that a complaint contain "a short and plain statement of
the claim showing that the pleader is entitled to relief."
Further, Rule 8(d)(1) provides "each allegation must be simple,
concise, and direct." As the Supreme Court has held, Rule 8(a)
"requires a 'showing,' rather than a blanket assertion, of
entitlement to relief."
Although the Court finds that Plaintiffs have stated the following
three constitutional claims with sufficient clarity in the Third
Amended Complaint: (1) Eighth Amendment deliberate indifference
claim against the Individual Defendants in their official capacity
for prospective relief only; (2) Eighth Amendment deliberate
indifference claim against defendant Plumlee in his individual
capacity; and (3) Eighth Amendment deliberate indifference claim
against defendant Martinez in his individual capacity.
Nevertheless, the Court comments that the Third Amended Complaint
is needlessly long, rambling, and confusing and includes numerous
conclusory allegations and legal jargon. Inclusion of unclear
facts and unnecessary legal jargon prevents the Court from clearly
discerning any other potential causes of action. Therefore, to the
extent Plaintiffs wish to raise additional claims other than the
three which the Court has identified, the Plaintiffs must file an
amended complaint.
A full-text copy of the Order dated June 28, 2017, is available at
https://is.gd/mLRFkh from Leagle.com.
Paul Adams, Plaintiff, Pro Se.
Phillip L. Dorsey, Plaintiff, Pro Se.
Ezequiel Monarrez, Plaintiff, Pro Se.
ASBESTOS UPDATE: Eaton Corp. Dropped as Defendant in "Everett"
--------------------------------------------------------------
Judge Henry Edward Autrey of the U.S. District Court for the
Eastern District of Missouri issues an Order granting the Motion
for Ruling without further Briefing or Oral Argument on its Motion
to Dismiss for Lack of Personal Jurisdiction filed Eaton
Corporation, as successor-in-interest to Cutler-Hammer, Inc., and
dismissing Eaton Corporation from the case captioned WILLIE
EVERETT, et al., Plaintiffs, v. AURORA PUMP COMPANY, et al.,
Defendants, Case No. 4:17 CV 230HEA, (E.D. Mo.) for Lack of
Personal Jurisdiction.
On January 19, 2017, the Defendants removed this matter to federal
court from the Circuit Court of the City of St. Louis, Missouri.
According to the Petition, the Defendants maintain registered
agents in the state of Missouri, and are engaged in business in
Missouri. Plaintiff Willie Everett is a resident of Missouri who
was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers and/or asbestiform fibers emanating from certain
products he was working with and around which were manufactured,
sold, distributed or installed by Defendants.
For the reasons set forth in the Court's June 27, 2017 Opinion,
Memorandum and Order, the Defendant's Motion to Dismiss for Lack
of Personal Jurisdiction is well taken and will be granted.
A full-text copy of the Opinion, Memorandum and Order dated June
29, 2017, is available at https://is.gd/uISyLI from Leagle.com.
Willie Everett, Plaintiff, represented by Carson C. Menges, MENGES
LAW.
Willie Everett, Plaintiff, represented by Lisa W. Shirley, DEAN
AND OMAR, Rachel C. Moussa, DEAN AND OMAR & Michael B. Patronella,
LUBEL VOYLES, LLP.
Flora Everett, Plaintiff, represented by Carson C. Menges, MENGES
LAW, Lisa W. Shirley, DEAN AND OMAR, Rachel C. Moussa, DEAN AND
OMAR & Michael B. Patronella, LUBEL VOYLES, LLP.
Air & Liquid Systems Corporation, Defendant, represented by
Gregory C. Flatt, HEYL AND ROYSTER & Patrick D. Cloud, HEYL AND
ROYSTER.
ALFA Laval, Inc., Defendant, represented by Marcie J. Vantine,
SWANSON AND MARTIN, LLP & Paul W. Lore.
Aurora Pump Company, Defendant, represented by Melanie E. Riley,
SANDBERG PHOENIX, P.C. & Michael P. McGinley, SANDBERG PHOENIX,
P.C..
Borg-Warner Morse TEC LLC, Defendant, represented by Andrew M.
Voss, GREENSFELDER AND HEMKER, PC, Lizabeth M. Conran,
GREENSFELDER AND HEMKER, PC & Michael C. Pagan, GREENSFELDER AND
HEMKER, PC.
Crane Co., Defendant, represented by Benjamin John Wilson, HEPLER
BROOM & Carl J. Geraci, HEPLER BROOM.
Crown, Cork & Seal Company, Inc., Defendant, represented by
Stephen J. Maassen, RYNEARSON AND SUESS LLC.
Draco Mechanical Supply, Inc., Defendant, represented by Jennifer
M. Valentino, KUROWSKI SCHULTZ, LLC & Lindsay A. Dibler, KUROWSKI
SCHULTZ, LLC.
FMC Corporation, Defendant, represented by Marcie J. Vantine,
SWANSON AND MARTIN, LLP.
Gardner Denver, Inc., Defendant, represented by Andrew J. Hahn,
Segal McCambridge Singer & Mahoney & William R. Irwin, SEGAL AND
MCCAMBRIDGE.
General Gasket Corporation, Defendant, represented by Agota
Peterfy, BROWN AND JAMES, P.C. & Albert J. Bronsky, BROWN AND
JAMES, P.C..
Grinnell, LLC, Defendant, represented by Julia Yasmin Tayyab,
MORGAN AND LEWIS, LLP.
IMO Industries Inc., Defendant, represented by Matthew R. Fields,
JACOBSON AND PRESS, P.C. & Cary Allen Press, JACOBSON AND PRESS,
P.C..
ITT Corporation, Defendant, represented by Julia Yasmin Tayyab,
MORGAN AND LEWIS, LLP.
JP Bushnell Packing Supply Company, Inc., Defendant, represented
by Douglas Michael Sinars, SINARS AND ROLLINS, LLC.
J.R. Clarkson Company, Defendant, represented by Julia Yasmin
Tayyab, MORGAN AND LEWIS, LLP.
Lamons Gasket Company, Defendant, represented by Leo W. Nelsen,
Jr., NELSEN & LEE, P.C. & Paul B. Lee, NELSEN & LEE, P.C..
Metropolitan Life Insurance Company, Defendant, represented by
Charles L. Joley, JOLEY AND OLIVER & Georgiann Oliver, JOLEY AND
OLIVER.
Pnuemo Abex Corporation, Defendant, represented by Thomas L.
Orris, COSMICH AND SIMMONS LLC & Ross S. Titzer, COSMICH AND
SIMMONS LLC.
Taco, Inc., Defendant, represented by Benjamin Daniel Woodard,
STINSON AND LEONARD LLP & Jon A. Santangelo, STINSON AND LEONARD
LLP.
Viking Pump, Inc., Defendant, represented by Gregory C. Flatt,
HEYL AND ROYSTER & Patrick D. Cloud, HEYL AND ROYSTER.
Crane Co., Cross Claimant, represented by Benjamin John Wilson,
HEPLER BROOM.
Crane Co., Cross Defendant, represented by Benjamin John Wilson,
HEPLER BROOM.
ALFA Laval, Inc., Cross Defendant, represented by Paul W. Lore.
ASBESTOS UPDATE: Prison Officials Entitled to Qualified Immunity
----------------------------------------------------------------
In the case captioned NOU THAO, Plaintiff, v. JOE DOBIE, et al.,
Defendants, Case No. 16-cv-01098-PJH, (N.D. Cal.), the Plaintiff
alleges that the Defendants were deliberately indifferent to lead-
and asbestos-related risks while the Plaintiff and other inmates
were working in the inmate mattress factory in May and June 2012.
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California finds that the Plaintiff has
failed to demonstrate a triable issue with respect to either the
objective or subjective prong of his Eighth Amendment claim. He
further finds that Plaintiff has not shown that the alleged
deprivation was sufficiently serious or that defendants were
deliberately indifferent to his safety.
The Defendants Joe Dobie, Philip Early, Gary Loredo, and Brad
Smith have filed a motion for summary judgment, while the
Defendant Jeremy Young has separately filed a motion for summary
judgment.
The Plaintiff was incarcerated at San Quentin State Prison. He
further stated that from 2010 to June 7, 2012, he was an inmate
worker at the Prison Industry Authority ("PIA") mattress and
bedding factory, and never returned to the factory after June 7,
2012.
In late May 2012, the PIA stopped factory operations for annual
cleaning and inventory. The Plaintiff and other inmates used a
power washer to clean the ceiling for approximately 10 days in
late May to early June. While washing the ceiling, fibers and
other particles were released into the air. Plaintiff was wearing
a mask, but the packaging states the mask does not protect against
asbestos.
On June 6, 2012, a maintenance supervisor expressed concern that
the cleaning process could possibly result in lead or asbestos
exposure. The factory was closed for inspection and abatement of
any hazardous substances. Although a small amount of asbestos was
present under floor tiles in the factory supervisors' office, and
trace amounts were detected in glazing putty around the
supervisors' office windows, however, no asbestos was found in the
areas where inmates worked. Photos of the factory show an open and
airy workspace with a ceiling that is at least 12 feet high and a
limited number of pipes running near the ceiling.
The inmate workers at the factory were tested, and none tested
positive for lead exposure. Some inmate workers requested testing
for possible asbestos exposure. The request was denied because
asbestos-related diseases generally only occur years after
prolonged, substantial exposure and because the testing is
invasive and ineffective until the disease manifests itself.
The Defendants present a declaration from a medical expert, Brad
Piatt, M.D., who states that "asbestos-related illness only
develops after chronic, prolonged exposure to significant
concentrations, most diseases occurring years or decades after
substantial exposure." With regard to the claimed lead exposure,
Dr. Piatt declares that, "in adults, lead inhalation rarely
results in medical disease unless there is prolonged exposure to
high concentrations."
The Court finds that the Plaintiff is unaware if there was any
asbestos in the factory although he recalls seeing only one sign
warning of the possibility of asbestos and lead paint. The
Plaintiff conceded in his deposition that he is unaware of any
evidence that he was exposed to any lead or asbestos in the
factory or that the Defendants were aware of any risk of lead-or
asbestos related-harm.
The Court holds that the Plaintiff's conclusory allegations that
there could have been asbestos and that he could have been exposed
to a dangerous amount are insufficient to meet his burden and
survive summary judgment. The Court concludes that the Plaintiff
fails to present evidence that would allow the court or a jury to
perform a scientific and statistical inquiry into the seriousness
of probable harm and the probability that any health-related
injury will be caused by exposure to asbestos or lead.
The Plaintiff's blood was tested on June 8, 2012. The report
states that the level of lead in plaintiff's blood was less than
2.0 mcg/dL (i.e., micrograms per deciliter) for lead in the blood.
The report also stated that, with respect to zinc protoporphyrin,
plaintiff had a level of 39 and the reference range was less than
100 mcg/dL. Id. at 98. The Plaintiff does not know if he has
suffered any type of lead-related harm. In fact, on the date of
the deposition, February 6, 2017, the Plaintiff stated he was
healthy.
The Court finds that the Plaintiff has failed to establish any
evidence that he was exposed to unreasonably high levels of a
toxic substance, and that it undisputed that the Plaintiff is
currently healthy and has had no adverse medical problems.
In addition, the Occupational Safety and Health Administration has
regulations that do allow some asbestos exposure for workers. One
regulation sets a "permissible exposure limit" for employee
exposure to asbestos, to wit: "The employer shall ensure that no
employee is exposed to an airborne concentration of asbestos in
excess of 0.1 fiber per cubic centimeter of air as an eight (8)-
hour time-weighted average."
Based on the undisputed facts of this case and the minimal
exposure to lead and asbestos in the mattress factory, the Court
opines that the Defendants could have believed reasonably and
mistakenly that the risk was not sufficiently substantial to
violate the Eighth Amendment. Accordingly, the Court holds that
the Defendants are entitled to qualified immunity for the
Plaintiff's claim that they were deliberately indifferent based on
the asbestos and lead exposure because the facts in the record do
not show the violation of a constitutional right by them.
The defense of qualified immunity protects "government officials .
. . from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known."
A full-text copy of the Order dated June 29, 2017, is available at
https://is.gd/WlgczC from Leagle.com.
Nou Thao, Plaintiff, Pro Se.
Joe Dobie, Defendant, represented by Matthew M. Grigg, Law Offices
of Nancy E. Hudgins.
Gary Loredo, Defendant, represented by Matthew M. Grigg, Law
Offices of Nancy E. Hudgins.
Brad Smith, Defendant, represented by Matthew M. Grigg, Law
Offices of Nancy E. Hudgins.
Jeremy Young, Defendant, represented by Kenneth Robert Williams,
Kenneth R. Williams, Attorney at Law.
Philip Early, Defendant, represented by Matthew M. Grigg, Law
Offices of Nancy E. Hudgins.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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