/raid1/www/Hosts/bankrupt/CAR_Public/170818.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 18, 2017, Vol. 19, No. 163
Headlines
ADOBE SYSTEMS: Faces "T.K." Suit in N. Dist. of Calif.
ADVANTA SEEDS: Lawyer 'Confident' of Litigation Funding
ADVISORY BOARD: Robbins Geller Files Class Action Lawsuit
ASB BANCORP: WeissLaw Files Class Suit Over Proposed Acquisition
AVNET INC: Final Distribution of Residual Settlement Funds Okayed
AXIS INSURANCE: Transferred Yadegar Class Suit to C.D. California
BANK OF AMERICA: Distributions of Settlement Checks to Granted
BANK OF AMERICA: Court Dismisses "Jamison" Suit Without Prejudice
BRAVO ARKOMA: McKnight Realty Suit Moved to E.D. of Oklahoma
BROOKLYN EVENTS: Sued Over Criminal History Screening Policy
CAREFIRST INC: Data Breach Class Action Reinstated
CENTERFOLD ENTERTAINMENT: Exotic Dancers Win Wage Dispute
COMCAST CORP: Judge Allows Surcharge Class Suit to Move Forward
CONVERGENT HEALTHCARE: Illegally Collects Debt, "Roth" Suit Says
CORCORAN.COM: Faces "Matzura" Suit in S.D.N.Y.
CVS PHARMACY: Grilled on Race Bias Defense at Class Cert. Hearing
DAVE & BUSTER'S: Short Moves for Class Certification Under FLSA
DELI MANAGEMENT: Faces "Heast" Suit Over Failure to Pay OT
DELIVERY DUDES: Does Not Properly Pay Employees, Suit Claims
DI OVERNITE: Faces "Watts" Suit in California Superior Court
DOLGEN CALIFORNIA: "Farley" Labor Suit Remanded to Superior Court
EGS FINANCIAL: Faces "Azieva" Suit in E.D.N.Y.
EM CONSULTING: Counterclaim in "Yassa" FLSA Suit Tossed
ENCORE RECEIVABLE: Faces "Ferris" Suit in E.D.N.Y.
ENTERPRISE RECOVERY: Faces "Poole" Suit in N.D. of Ala.
EQUIFAX INFORMATION: Has Until Aug. 24 to Reply to "Bruno" Suit
FMA ALLIANCE: Faces "Kakuriyev" Suit in E.D.N.Y.
FREEDOM MORTGAGE: Faces "Florez" Suit over Mortgage Contracts
GENERAL MOTORS: NY Judge Reopens Door for Pre-Recall Claims
GENERAL NUTRITION: Court Dismisses "Pasciolla" Consumer Suit
GLIDE RITE: Faces "McCollumn" Suit in California Superior Court
HARVARD UNIVERSITY: Sued for Discriminating Asian Americans
HEALTH NET: Faces "Arana" Suit in California Superior Court
HEALTHEXTRAS INC: Fee Dispute Remanded to Florida State Court
HOSPITALITY PROPERTIES: Class Cert. Denial in ADA Suit Affirmed
INTELLECT SERVICE: Faces Class Suit Over Notpetya Malware Spread
KAISER PERMANENTE: Sued Over Sexual Assaults by Former Employee
KITOV PHARMACEUTICAL: Wants NY Stock Drop Class Action Tossed
KOLBE & KOLBE: 7th Cir. Says Insurers Have Duty to Defend
LIBERTY POWER: Faces Class Action Suit Over TCPA Violation
LOGISTICARE SOLUTIONS: 5th Cir. Agrees to Review NLRB Order
MCINTOSH, GA: "Smith" Suit May Not Proceed in Forma Pauperis
MDL 2284: Court Affirms Arborist Panel Ruling in Imprelis Suit
METRO-GOLDWYN-MAYER: Must Face Lawsuit Over Missing Films
MICHIGAN, USA: Joint Habeas Bid in "Rouse" Summarily Nixed
MISHKAN TECHEILES: Faces Class Suit Over Product Misrepresentation
MONOGRAM RESIDENTIAL: Faces "Hertz" Suit Over Sale to Greystar
NAC MARKETING: Court Dismisses "Amkraut" False Advertising Suit
NASSAU, NY: Court Narrows Claims in "Gurrieri" Labor Suit
NERIUM INTERNATIONAL: Faces "Jia" Suit over Pyramid Scheme
NEW SOUTH WALES: Light Rail Work on Track to Face Class Suit
NORTHSIDE IMPORTS: Fails to Pay Employees OT, Action Claims
NUTIVA INC: Court Resolves Deposition Issue in "Jones" Suit
PALM BEACH, FL: Faces Class Action Over Utilities Tax Plan
PARK AVENUE SOUTH: Dec. 1 Fairness Hearing on "Bahena" Settlement
PCL CONSTRUCTION: 2nd Class Suit Filed Over OBX Outage Seeks $5MM
PEREGRINE FINANCIAL: 7th Cir. Affirms Dismissal of "Miller" Suit
PFIZER INC: Court Remands "Little" Lipitor Suit to State Court
PORTFOLIO RECOVERY: Court Denies Class Certification in "Garcia"
PRIMERO MINING: Court Tosses "Loftus" First Amended Suit
PROVIDENCE COMMUNITY: 11th Cir. Revives "Brinson" Suit
PURDUE MANUFACTURING: Jefferson County Asked to Join Opioid Suit
QUALCOMM INC: Settlement in "Pan" Granted Final Approval
QUEEN CITY ROOFING: Appeals Court Reverses Judgment in "Huskey"
QUEENSLAND, AU: Court Suspends 2011 Ipswich Flood Class Action
REDFORD TOWNSHIP, MI: Court Narrows Claims in "Garner" Suit
REGIONAL MANAGEMENT: Court Dismisses "Mealer" Suit
RELIN GOLDSTEIN: Illegally Collects Debt, Action Claims
RLS SUPERMARKETS: "Batra" Suit over Credit Card Info Dismissed
RMC & S CORP: Settlement in "Ibarra" Gets Final Approval
ROCCAWAY CONSTRUCTION: "Sanchez" Suit Seeks to Recover Unpaid OT
ROSEVILLE, MI: Settlement of 2 Class Suits Has Initial Okay
ROYAL ADMINISTRATION: 9th Cir. Affirms Judgment in "Jones" Case
RS CLARK: Faces "Gardner" Suit in S.D. of Ala.
SCOTTS MIRACLE-GRO: Court Narrows Claims in EZ Seed Suit
SPEEDWAY OFFICE: Innovative Accounting's Class Cert. Bid Denied
STAPLES INC: Faces "Haag" Suit Over Proposed Sycamore Merger
STELLAR RECOVERY: Court Grants Chavez's Bid to Enforce Settlement
SURFSIDE COFFEE: "Jerez" Suit Seeks to Recover Unpaid OT Wages
TAISHAN GYPSUM: Lochhead et al. Sue over Defective Drywall
TECHNIPFMC PLC: Pomerantz Files Suit Over Securities Violations
TERMINIX INT'L: Faces "Denhatter" Suit in Cal. Super. Ct.
TIME WARNER: Bid to Compel Arbitration in "Landry" Partly Granted
TIME WARNER: Reuter's Bid to Dismiss "Landry" Denied
TOWER LOAN: Settlement in "Kemp" Suit Gets Preliminary Approval
TWIN HILL: Faces Class Action Over AA Flight Attendants' Uniforms
TYSON FOODS: Fla. Court Declines to Rule on Bid to Transfer Venue
U.S. RENAL CARE: "Whitaker" Labor Suit Remanded to Superior Court
UNITED STATES: Court Partially Grants Dismissal of "Kandel"
UNITED STATES: Scrutiny of Tea Party Orgs. Not Illegal, IRS Says
VAN DE POL: "Guzman-Padilla" Class Certification Bid Underway
VANGUARD GROUP: Court Grants Interlocutory Appeal in "Taksir"
VELOCITY EXPRESS: Bid to Dismiss "Flores" Opt-Ins Partly Okayed
WAL-MART STORES: 11th Circuit Tosses Gender Bias Class Action
WALT DISNEY: Lieff Cabraser Sues Over COPPA Violations
WEBER & OLCESE: Faces "DeCraene" Suit in W. D. of Michigan
WELTMAN WEINBERG: Sued Over Unlawful Debt Collection Practices
WERKSTATT DEVELOPMENT: "Park" Suit Seeks Unpaid OT under FLSA
WEYERHAEUSER COMPANY: Sued in Del. Over Defective Joists
* Class-Action Lawsuits Critical to Shedding Light on Bank Fraud
Asbestos Litigation
ASBESTOS UPDATE: Significant Judgment for Victims Support Group
ASBESTOS UPDATE: Son Develops Cancer Due to 2nd-Hand Exposure
ASBESTOS UPDATE: EPA Clears Towaoc Rec Center of Asbestos
ASBESTOS UPDATE: Settlement Reached in Dick Bruhn Asbestos Case
ASBESTOS UPDATE: Stock Warehouse Shut for Asbestos Remedial Work
ASBESTOS UPDATE: Development Firm Challenges $1.47MM Fine
ASBESTOS UPDATE: Audit Cites DEQ for Failed Oversight on Asbestos
ASBESTOS UPDATE: Alphamstone Man Dies from Asbestos Exposure
ASBESTOS UPDATE: Rise in Asbestos Disease Claims by Teachers
ASBESTOS UPDATE: Suspected Asbestos Closes Trails
ASBESTOS UPDATE: Contractors Asbestos Exposure Low, WorkSafe Says
ASBESTOS UPDATE: High Levels of Asbestos Found in Arp Water
ASBESTOS UPDATE: Portland Jury Awards $5.4MM for Man with Cancer
ASBESTOS UPDATE: Final Cleanup Plan OK'd for BoRit Superfund Site
ASBESTOS UPDATE: Some Tenants Get Asbestos Deal, Feel Slighted
ASBESTOS UPDATE: Rivera-Soto Named Special Master in "Williams"
ASBESTOS UPDATE: Show Cause Order Issued in "Lineberger"
ASBESTOS UPDATE: Show Cause Order Issued in "Mullinax"
ASBESTOS UPDATE: Consortium Claim vs. Kelly-Moore Dismissed
ASBESTOS UPDATE: 3rd Cir. Affirms Summary Judgment in "Gonzalez"
ASBESTOS UPDATE: Discovery in "Dismuke" Extended Until November 8
ASBESTOS UPDATE: Oronite Can Seek Indemnity for Dufrene Deal
ASBESTOS UPDATE: Union Pacific Had $8-Mil. Liability at June 30
ASBESTOS UPDATE: Travelers Had $1.19BB Net Reserves at June 30
ASBESTOS UPDATE: 174 Talcum Suits vs. Colgate-Palmolive Pending
ASBESTOS UPDATE: Honeywell Had $1.55-Bil. Liabilities at June 30
ASBESTOS UPDATE: Honeywell Had $913MM NARCO Liabilities at June30
ASBESTOS UPDATE: Honeywell Had $632MM Bendix Claims at June 30
ASBESTOS UPDATE: PPG Industries Has 114K Inactive, Closed Claims
ASBESTOS UPDATE: PPG Industries Had 650 Open Claims at June 30
ASBESTOS UPDATE: Lennox Int'l Paid $2.4MM for Asbestos Expenses
ASBESTOS UPDATE: Crane Co. Had 31,980 Pending Claims at June 30
ASBESTOS UPDATE: New "Nelson" Trial v. Crane Co. Possible in 2018
ASBESTOS UPDATE: Bid for Rehearing in "DeLisle" Granted
ASBESTOS UPDATE: Crane Co. Awaiting Ruling in "Poage" Suit
ASBESTOS UPDATE: "Rabovsky" Lawsuit vs. Crane Co. Still Ongoing
ASBESTOS UPDATE: Briefing on "Coulbourn" Claim to Proceed This Yr
ASBESTOS UPDATE: Crane Co. to Appeal $20MM "Anisansel" Verdict
ASBESTOS UPDATE: Pentair Plc Units Had 600 Claims at June 30
ASBESTOS UPDATE: 850 Suits vs. US Steel Still Active at June 30
ASBESTOS UPDATE: Ingersoll-Rand Still Faces Claims at June 30
ASBESTOS UPDATE: Ingersoll-Rand Has $596MM Liabilities at Jun.30
ASBESTOS UPDATE: Corning Inc. Has US$35MM Liability in PCC Plan
ASBESTOS UPDATE: Corning Had $149MM Non-PCC Reserves at June 30
ASBESTOS UPDATE: Lincoln Electric Had 3,784 Claims at June 30
ASBESTOS UPDATE: Norfolk Southern Still Faces Asbestosis Claims
ASBESTOS UPDATE: Carlisle Cos. Still Defends Claims at June 30
ASBESTOS UPDATE: IDEX Corp., Units Still Face Suits at June 30
ASBESTOS UPDATE: Equity LifeStyle, DAs Still in Settlement Talks
ASBESTOS UPDATE: Badger Meter Still Faces PI Suits at June 30
*********
ADOBE SYSTEMS: Faces "T.K." Suit in N. Dist. of Calif.
------------------------------------------------------
A class action lawsuit has been filed against Adobe Systems
Incorporated. The case is styled as T. K. by and through her
Guardian ad Litem, Lynn Kresch, individually and on behalf of all
others similarly situated, Plaintiff v. Adobe Systems
Incorporated, Defendant, Case No. 5:17-cv-04595 (N.D. Cal., August
10, 2017).
Adobe Systems Incorporated develops, markets, and supports
computer software products and technologies. The Company's
products allow users to express and use information across all
print and electronic media. Adobe offers a line of application
software products, type products, and content for creating,
distributing, and managing information. The Company is based in
San Jose, California.[BN]
The Plaintiff is represented by:
Keith L. Altman, Esq.
Excolo Law, PLLC
26700 Lahser Road, Suite 401
Southfield, MI 48033
Tel: (516) 456-5885
Email: kaltman@lawampmmt.com
ADVANTA SEEDS: Lawyer 'Confident' of Litigation Funding
-------------------------------------------------------
Carolyn Millet, writing for Northern Daily Leader, reports that
it's "make or break now" in the Queensland-NSW shattercane class
action: the plaintiffs have just weeks to secure backing of
$160,000 or "that'll be the end of it".
Lawyer Dan Creevey said the amount and timeframe were negotiated
during a second mention in the Queensland Supreme Court on July
28.
He said he was in talks with several litigation funders to secure
their support -- and while they needed to "do their due
diligence", he was "pretty confident".
The defendant, Advanta Seeds, said it would continue to
"vigorously contest" claims it supplied a variety of sorghum seeds
allegedly contaminated with shattercane seed.
"We don't believe it is appropriate to foreshadow the evidence
that will come out in the action," managing director Nick Gardner
said in a statement to the Country Leader.
"We are confident that our stance will be vindicated.
"Advanta values its reputation gained over the past 50 plus years
as one of Australia's leading plant breeding and supplying
companies."
'Claims vary markedly'
Mr Creevey said 30-plus farmers had now registered their interest
in the class action, and "their claims vary markedly".
"Some are relatively small claims because they only planted
smaller amounts; some are into the multi-million dollars."
He said he had interest from five litigation funders who "invest
in actions like this if they think they can make a quid out of
it".
"They cover the adverse cost orders, pay the legal fees, the
experts' fees and to run it, and for that risk they then get a
percentage of the damages that ultimately come through . . . 20 to
30 per cent is what they ask to assume the risk," Mr Creevey said.
"We've got much interest from a number of the funders, who have
all indicated a great interest in the matter.
"But until they do their due diligence and are satisfied the risk
is worth it, of course, it's akin to going to the bank for a loan
and getting approval in principle -- then you have to jump through
all the hoops."
Mr Creevey said he had to return to court in late September.
There was the chance of an extension if he had "a very compelling
argument for Her Honour", Justice Debra Mullins, but that was
unlikely.
"It's make or break now within the next six to eight weeks, and if
we don't get funding, that'll be the end of it," he said. [GN]
ADVISORY BOARD: Robbins Geller Files Class Action Lawsuit
---------------------------------------------------------
Robbins Geller Rudman & Dowd LLP disclosed that a class action has
been commenced by an institutional investor on behalf of
purchasers of The Advisory Board Company ("Advisory Board")
(NASDAQ:ABCO) common stock during the period between January 21,
2015 and February 23, 2016 (the "Class Period"). This action was
filed in the Southern District of New York and is captioned Monroe
County Employees' Retirement System v. The Advisory Board Company,
et al., No. 17-5886.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from today. If you wish to discuss this action
or have any questions concerning this notice or your rights or
interests, please contact plaintiff's counsel, Samuel H. Rudman or
David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-
1058, or via e-mail at djr@rgrdlaw.com. If you are a member of
this class, you can view a copy of the complaint as filed at
http://www.rgrdlaw.com/cases/advisoryboard/.Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member.
The complaint charges Advisory Board and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. Advisory Board is a provider of software and solutions to
the higher education and healthcare industries. On January 9,
2015, Advisory Board completed the acquisition of Royall & Company
("Royall"), described as the higher-education leader in strategic,
data-driven student engagement and enrollment management
solutions, financial aid optimization, and alumni fundraising.
The complaint alleges that during the Class Period, defendants
made materially false and misleading statements and/or failed to
disclose adverse information regarding Advisory Board's business
and operations, including that there were severe integration
problems associated with Advisory Board's acquisition of Royall
and, as a consequence of these integration problems, defendants
had no basis to increase the revenue guidance for Royall during
the Class Period. As a result of defendants' false statements
and/or omissions, Advisory Board common stock traded at
artificially inflated prices during the Class Period.
Then, on February 23, 2016, Advisory Board disclosed the extent of
the problems with Royall. On that date, the Company announced a
net loss of $101.8 million for the quarter ended December 31,
2015, compared to a net loss of $5.4 million for the quarter ended
December 31, 2014. According to the Company, the increase in net
loss was primarily attributable to an impairment charge of $95.7
million (subsequently increased to $99.1 million) to Royall's
goodwill, due to Royall's "first year performance being below the
expectations we had set as of the acquisition date." Indeed,
Royall produced only $118 million in revenue in 2015, compared to
defendants' guidance of $125 million to $130 million. In response
to this news, the price of Advisory Board common stock fell
approximately 27%, from $36.29 per share on February 23, 2016, to
close at $26.50 per share the next day, on extremely high volume
of 8.4 million shares.
Plaintiff seeks to recover damages on behalf of all purchasers of
Advisory Board common stock during the Class Period (the "Class").
The plaintiff is represented by Robbins Geller, which has
extensive experience in prosecuting investor class actions
including actions involving financial fraud.
Robbins Geller is widely recognized as a leading law firm advising
and representing U.S. and international investors in securities
litigation and portfolio monitoring. With 200 lawyers in 10
offices, Robbins Geller has obtained many of the largest
securities class action recoveries in history. For the third
consecutive year, the Firm ranked first in both the total amount
recovered for investors and the number of shareholder class action
recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys
have shaped the law in the areas of securities litigation and
shareholder rights and have recovered tens of billions of dollars
on behalf of the Firm's clients. Robbins Geller not only secures
recoveries for defrauded investors, it also implements significant
corporate governance reforms, helping to improve the financial
markets for investors worldwide.
David A. Rosenfeld
Robbins Geller Rudman & Dowd LLP
E-mail: djr@rgrdlaw.com [GN]
ASB BANCORP: WeissLaw Files Class Suit Over Proposed Acquisition
----------------------------------------------------------------
WeissLaw LLP disclosed that a class action was commenced in the
United States District Court for the Western District of North
Carolina on behalf of shareholders of ASB Bancorp, Inc. ("ASB
Bancorp") (NASDAQ: ASBB) seeking to pursue remedies under the
Securities and Exchange Act of 1934 (the "Exchange Act") in
connection with the proposed acquisition of ASB Bancorp by First
Bancorp ("FBNC") (NASDAQ: FBNC).
On May 1, 2017, ASB Bancorp and FBNC announced that they had
entered into a definitive agreement pursuant to which FBNC will
acquire all outstanding shares of ASB Bancorp in a cash-and-stock
transaction valued at approximately $175 million ("Proposed
Transaction"). Under the terms of the agreement, ASB Bancorp
shareholders will receive 1.44 shares of FBNC or $41.90 in cash,
or a combination thereof, for each share held.
The complaint seeks injunctive relief on behalf of the named
plaintiff and all ASB Bancorp shareholders. The plaintiff is
represented by WeissLaw, which has expertise in prosecuting
investor class actions and extensive experience in actions
involving financial fraud. The complaint further alleges that in
an attempt to secure shareholder approval for the merger, the
defendants filed a materially false and/or misleading Registration
Statement with the SEC in violation of the Exchange Act. The
omitted and/or misrepresented information is believed to be
material to ASB Bancorp shareholders' ability to make an informed
decision whether to approve the Proposed Transaction.
If you wish to serve as lead plaintiff, you must move the Court no
later than sixty (60) days from August 3, 2017. If you wish to
discuss this action or have any questions concerning this notice
or your rights or interests, please contact plaintiff's counsel,
Joshua M. Rubin of WeissLaw. Any member of the putative class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member.
WeissLaw LLP has litigated hundreds of stockholder class and
derivative actions for violations of corporate and fiduciary
duties. We have recovered over a billion dollars for defrauded
clients and obtained important corporate governance relief in many
of these cases. [GN]
AVNET INC: Final Distribution of Residual Settlement Funds Okayed
-----------------------------------------------------------------
Judge Frederick J. Martone of the U.S. District Court for the
District of Arizona granted the Plaintiffs' Unopposed Motion for
Approval of Third and Final Distribution of Net Residual
Settlement Funds in the case captioned Levanna C. Traylor, et al.
on behalf of themselves and on behalf of all others similarly
situated, Plaintiffs, v. Avnet, Inc.; Avnet Pension Plan,
Defendants, No. CV 08-00918-PHX-FJM(D. Ariz.).
The Court previously entered Judgment on April 4, 2010, approving
the settlement of the Litigation brought by the Plaintiffs,
individually and on behalf of the Lump Sum Class and Restricted
Participant Class, against the Defendants.
Upon consideration of the Plaintiffs' Unopposed Motion, Judge
Martone finds that, like the 345 members of the Lump Sum Class who
could not be located in the Initial Distribution, another 567
Unreachable Class members could not be located by the Settlement
Administrator, Rust Consulting, Inc. ("Rust") in the Second
Distribution, despite its diligent efforts, and that further
efforts to locate these missing class members are unlikely to
succeed.
Accordingly, Jugde Martone ordered that Rust will perform a
distribution to the 2,547 Lump Sum Class members who were
successfully located and paid in the Second Distribution and have
yet to be fully compensated for their alleged underpayments the
net residual settlement proceeds attributable to the Unreachable
Class members.
The third distribution will be performed in the manner described
and calculated by Enrolled Actuary Ann Sturner in her July 5, 2017
declaration and accompanying attachments such that each Paid Class
members will receive a third and final payment from the Total Net
Residual Settlement Funds on the same pro rata basis that the
original net settlement benefits were allocated to individual
members of the Lump Sum Class, except that all third payments will
be equal to the Class member's pro rata share of residual net
settlement proceeds or $14, whichever is greater, but in no case
will the Class member receive a combined payment that exceeds his
or her actual damages, as described in the Sturner Declaration.
The Judge approved the proposed payment of $19,960 to the
Settlement Administrator from the residual settlement funds for
services to be rendered in connection with the third distribution
of net residual settlement funds to the Paid Class members. The
distribution of residual settlement funds in the manner specified
in the Rust and Sturner Declarations will commence as soon as
practicable without further Court order. Rust will make one final
attempt to distribute residual settlement funds as specified in
the Rust Declaration.
Any residual settlement funds still remaining after the Settlement
Administrator completes the third distribution will be distributed
to the Pension Rights Center under the doctrine of cy pres. No
later than Dec. 30, 2017, the Settlement Administrator will submit
a written status report confirming the distribution of all
residual settlement funds.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/AYp2Ei from Leagle.com.
Levanna C. Traylor, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC.
Levanna C. Traylor, Plaintiff, represented by Eli Gottesdiener --
eli@gottesdienerlaw.com -- Gottesdiener Law Firm PLC, Jennifer
Lynn Kroll, Martin & Bonnett PLLC, William Henry Blessing --
bill@blessing-attorneys.com -- The Blessing Law Firm & Susan Joan
Martin, Martin & Bonnett PLLC.
Kevin R. Moses, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
James Frederic Coy, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Gwyn M. Moriarty, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Linda M. Phillips, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Thomas G. Small, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Dwayne E. Cohen, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC,
Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan Martin,
Martin & Bonnett PLLC & William Henry Blessing, The Blessing Law
Firm.
Steve A. Dison, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Paul Gillespie, Plaintiff, represented by Daniel Lee Bonnett,
Martin & Bonnett PLLC, Eli Gottesdiener, Gottesdiener Law Firm
PLC, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Susan Joan
Martin, Martin & Bonnett PLLC & William Henry Blessing, The
Blessing Law Firm.
Avnet Incorporated, Defendant, represented by D. Lewis Clark, Jr.
-- lew.clark@squirepb.com -- Squire Patton Boggs (US) LLP, Robert
D. Wick -- rwick@cov.com -- Covington & Burling LLP, Tara A.
Aschenbrand, Squire Sanders & Dempsey LLP, Brian Andrew Cabianca -
- brian.cabianca@squirepb.com -- Squire Patton Boggs (US) LLP &
Frederick G. Sandstrom -- Sandstrom@BlankRome.com -- Covington &
Burling LLP.
Avnet Pension Plan, Defendant, represented by D. Lewis Clark, Jr.,
Squire Patton Boggs (US) LLP, Robert D. Wick, Covington & Burling
LLP, Tara A. Aschenbrand, Squire Sanders & Dempsey LLP & Brian
Andrew Cabianca, Squire Patton Boggs (US) LLP.
AXIS INSURANCE: Transferred Yadegar Class Suit to C.D. California
-----------------------------------------------------------------
The class action lawsuit captioned Yadegar, Minoofar & Soleymani
LLP, on its own behalf and on behalf of all others similarly
situated v. Axis Insurance Company and Does 1-100, inclusive, Case
No. BC666229, was transferred on August 7, 2017, from Los Angeles
County Superior Court to the U.S. District Court for the Central
District of California (Western Division - Los Angeles). The
District Court Clerk assigned Case No :17-cv-05830 to the
proceeding
The case alleges violation of the Telephone Consumer Protection
Act.
Axis Insurance Company operates an insurance company in
California. [BN]
Yadegar, Minoofar is a pro se Plaintiff.
BANK OF AMERICA: Distributions of Settlement Checks to Granted
--------------------------------------------------------------
District Judge Carol E. Jackson of the United States District
Court for the Eastern District of Missouri granted David P.
Oetting's motion to re-issue first distribution settlement checks
and to issue a second distribution settlement check in the case
captioned, IN RE BANK OF AMERICA CORP. SECURITIES LITIGATION, Case
No. 4:99-MD-1264-CEJ (E.D. Mo.).
The present dispute involves Oetting, the representative of the
NationsBank classes; former NationsBank classes counsel and now-
defunct law firm Green Jacobson, P.C. and its attorneys; and the
claims administrator, Heffler, Radetich & Saitta, LLP (Heffler).
On June 14, 2004, the Court entered an order approving a
settlement agreement providing that class members are barred from
making any further claim against the Net Settlement Fund or the
released persons beyond the amount allocated to them.
Oetting filed the instant motion solely on his own behalf on
August 14, 2015, seeking to have each of his first distribution
checks reissued, but reissued without the exculpatory clause. In
response, class counsel Tomlinson states that he does not believe
that granting the motion will prejudice the NationBank classes.
Opposition to the motion comes from Green Jacobson's bankruptcy
trustee and Joe D. Jacobson, a former shareholder of the firm.
In her Memorandum and Order dated July 31, 2017, available at
https://is.gd/UyKTZp from Leagle.com, Judge Jackson found that
Oetting has presented extenuating circumstances warranting
reissuance of his first distribution checks and issuance of a
second distribution check. All such checks will be void if not
cashed within 90 days of issuance. The Court also found that
Oetting has not shown good cause to have those checks issued
without the same letter that was attached to his previous checks.
In re Bank America Corporation is represented by James H. Ferrick,
III, Esq. -- jhf@greensfelder.com -- GREENSFELDER AND HEMKER, PC -
- Marie Seth Weiner, Esq. -- seth@sethwienerlaw.com -- COTCHETT
AND PITRE -- Richard M. Donaldson, Esq. -- rdonaldson@gelaw.com --
and -- Stuart M. Grant, Esq. -- sgrant@gelaw.com -- GRANT AND
EISENHOFER, P.A.
Joseph Hempen, et al. are represented by Aaron L. Brody, Esq. --
STULL AND STULL -- Andrew J. Entwistle, Esq. --
aentwistle@entwistle-law.com -- Harold F. McGuire, Jr., Esq. --
hmcguire@entwistle-law.com -- and -- Vincent R. Cappucci, Esq. --
vcappucci@entwistle-law.com -- ENTWISTLE AND CAPPUCCI
Hugh L. McColl, Jr., et al. are represented by Jeffrey S. Russell,
Esq. -- jsrussell@bryancave.com -- and -- John Michael Clear, Esq.
-- jmclear@bryancave.com -- BRYAN CAVE LLP -- Jonathan M. Moses,
Esq. -- JMMoses@wlrk.com -- Robert B. Mazur, Esq. --
RBMazur@wlrk.com -- and -- Warren R. Stern, Esq. --
WRStern@wlrk.com -- WACHTELL AND LIPTON
BANK OF AMERICA: Court Dismisses "Jamison" Suit Without Prejudice
-----------------------------------------------------------------
In the case captioned CYNTHIA A. JAMISON, Plaintiff, v. BANK OF
AMERICA, N.A., Defendant, No. 2:16-cv-00422-KJM-AC(E.D. Cal.),
Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California granted the Defendant's motion to
dismiss the Plaintiff's First Amended Complaint ("FAC").
The Plaintiff filed her original complaint against BANA on Feb.
26, 2016, alleging, in relevant part, that BANA:
(i) violated the Truth in Lending Act of 1968 ("TILA"), and
TILA's implementing regulation, Regulation Z, by failing
to disclose insurance claim proceeds in mortgage payoff
and periodic statements; and
(ii) violated the California Unfair Competition Law ("UCL")
by charging a fax fee for a payoff statement sent by
mail.
BANA moved to dismiss the Plaintiff's complaint in part for lack
of standing as to her TILA and Regulation Z claims, and failure to
state a cognizable UCL claim.
The Court granted BANA's motion to dismiss the Plaintiff's TILA
claim on standing grounds, with leave to amend. As to the
Plaintiff's UCL claim, the Court denied the Defendants' motion in
this respect and concluded the Plaintiff's allegation that it
charged a $5 fax fee for mailing a payoff statement was sufficient
to state a claim under the "unlawful" prong of the UCL. The Court
did note, however, the Plaintiff's UCL claim could be undermined
if a third party requested the payoff statement.
The Plaintiff then filed the operative FAC, alleging many of the
same facts giving rise to the original complaint. She again claims
BANA (i) violated the TILA, and TILA's implementing regulation,
Regulation Z, by not providing homeowners with accurate payoff
statements of their insurance claims; and (ii) violated
California's UCL by charging a fax fee for providing a payoff
statement when the statement was instead sent by mail. She also
brings these claims on behalf of a putative class, alleging she
could fairly and adequately represent class action claims.
The FAC also includes allegations of the harm BANA's violations of
TILA and Regulation Z caused the Plaintiff individually,
including: (i) by depriving her of the ability to provide accurate
information to several lenders when she applied to refinance her
mortgage; (ii) by depriving her of the ability to correct mistakes
that may have been made by credit agencies in assessing her credit
score; (iii) by causing her to lose track of the insurance
proceeds available for either repairing her home or reducing her
outstanding mortgage balance; (iv) by causing her to receive the
"run-around" from Bank employees when she attempted to discuss her
loan status; (v) by causing her economic injury and emotional
distress; and (vi) by causing BANA to deny her request to remove
her mortgage insurance coverage.
BANA now moves to dismiss all of Plaintiff's claims under Rule
12(b)(1) for lack of standing. It contends the Plaintiff has not
established standing as to her TILA and Regulation Z claims
because her manufactured allegations of harm have nothing to do
with the disclosures on her payoff statements. Regarding the UCL
claim, BANA contends the Plaintiff lacks standing because it
released information to Fidelity Funding, which serviced her loan,
in response to a fax demand statement from Escrow Today, a company
the Plaintiff concedes worked on behalf of Fidelity. It further
contends it notified Plaintiff of this charge before sending the
fax through monthly bank statements.
The Plaintiff opposes BANA's motion. Regarding the TILA and
Regulation Z claim, she contends the statutory violation alone
establishes concrete injury. Regarding the fax fee, she denies
authorizing it, and maintains that the $5 charge establishes
concrete injury. BANA has replied.
Judge Mueller held that the Plaintiff has not established concrete
injury due to BANA's failure to disclose her insurance claim
proceeds in her payoff statements. Without a concrete injury
resulting from BANA's TILA violation, the Plaintiff cannot
establish standing to bring this claim. Accordingly, Judge
Mueller dismissed the Plaintiff's TILA and Regulation Z claim for
lack of standing.
Judge Mueller also found that the Defendant has brought a factual
challenge and supplied evidence to successfully undermine the
Plaintiff's standing. To the extent the Plaintiff alleges BANA's
$5 fax fee caused her injury, that injury was not caused by a
Regulation Z violation, and therefore she could not redress this
alleged "injury" through a favorable decision. Accordingly, she
granted the Defendants' motion to dismiss the Plaintiff's UCL
claim.
Lastly, the Plaintiff is the sole representative of the putative
class in this case. Because she lacks standing, Judge Mueller has
no jurisdiction over this matter and cannot resolve the class
action claims.
For these reasons, Judge Mueller granted BANA's motion to dismiss
both plaintiff's TILA and Regulation Z claim and her UCL claim
under 12(b)(6), without leave to amend. Because the Plaintiff
cannot establish standing, she dismissed the putative class action
for want of jurisdiction, without prejudice.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/Rb2JIl from Leagle.com.
Cynthia A. Jamison, Plaintiff, represented by Matthew Insley-
Pruitt -- MInsley-Pruitt@wolfpopper.com -- Wolf Popper LLP, pro
hac vice.
Cynthia A. Jamison, Plaintiff, represented by Patricia I. Avery,
Wolf Popper LLP, pro hac vice, A. Chowning Poppler, Berman
DeValerio & Kristin J. Moody -- kmoody@bermandevalerio.com --
Berman DeValerio.
Bank of America, N.A., Defendant, represented by Amanda L. Groves
-- agroves@winston.com -- Winston and Strawn LLP, Navdeep Kaur
Punia -- npunia@winston.com -- Winston & Strawn, LLP & Kobi
Kennedy Brinson -- kbrinson@winston.com -- Winston & Strawn LLP,
pro hac vice.
BRAVO ARKOMA: McKnight Realty Suit Moved to E.D. of Oklahoma
------------------------------------------------------------
The class action lawsuit titled McKnight Realty Co., on behalf of
itself and on behalf of others similarly situated, Plaintiff v.
Bravo Arkoma, LLC and Bravo Natural Resources, LLC, Defendants,
Case No. 17-CJ-156, filed on July 17, 2017, was removed from the
Pittsburg County District Court, to the U.S. District Court for
the Eastern District of Oklahoma (Muskogee) on August 10, 2017.
The District Court Clerk assigned Case No. 6:17-cv-00308-SPS to
the proceeding. The case is assigned to Magistrate Judge Steven P.
Shreder.
Based in Tulsa, Oklahoma, Bravo Natural Resources, LLC is an
exploration and production company in onshore basins in North
America.[BN]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
The Lanier Law Firm (OKC)
100 E California Ave, Ste 200
Oklahoma City, OK 73104
Tel: (713) 659-5200
Fax: (713) 659-2204
Email: reagan.bradford@lanierlawfirm.com
- and -
Rex A. Sharp, Esq.
Rex A. Sharp, PA
5301 W 75th St
Prairie Village, KS 66208
Tel: (913) 901-0505
Fax: (913) 901-0419
Email: rsharp@midwest-law.com
- and -
Tod S. Mercer, Esq.
Mercer Law Firm, PC
500 E Choctaw Ave
McAlester, OK 74501
Tel: (918) 420-5850
Fax: (918) 420-5855
Email: tod@todmercerlaw.com
BROOKLYN EVENTS: Sued Over Criminal History Screening Policy
------------------------------------------------------------
Felipe Kelly, individually and on behalf of all others similarly
situated v. Brooklyn Events Center, LLC d/b/a Barclays Center,
Levy Premium Foodservice Limited Partnership, and Professional
Sports Catering LLC, Case No. 1:17-cv-04600 (E.D.N.Y., August 4,
2017), arises out the Defendants' flawed and discriminatory
criminal history screening policies and practices used to deny
employment opportunities to otherwise qualified job applicants.
The Defendants own and operate a multi-purpose indoor arena in the
New York City. [BN]
The Plaintiff is represented by:
Ossai Miazad, Esq.
Lewis M. Steel, Esq.
Christopher M. McNerney, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
Facsimile: (646) 509-2060
- and -
Michael C. Pope, Esq.
Eric Eingold, Esq.
YOUTH REPRESENT
11 Park Place, Suite 1512
New York, NY 10007
Telephone: (646) 759-8080
Facsimile: (646) 217-3097
E-mail: info@youthrepresent.org
CAREFIRST INC: Data Breach Class Action Reinstated
--------------------------------------------------
Tedrick Housh, III, Esq., of Lathrop Gage, in an article for JD
Supra, wrote asked, "Must plaintiffs allege actual identity theft
from a data breach to avoid dismissal of their class action
lawsuit?"
No, according to an opinion from a three-judge panel of the United
States Court of Appeals for the District of Columbia Circuit.
In Attias v. CareFirst, Inc., Case No. 16-7108 (DC Cir. Aug. 1,
2017), the DC Circuit reinstated a dismissed class action against
a health insurer for its alleged negligence in permitting a 2014
data breach that exposed the personal information of approximately
1.1 million customers. The district court had found the alleged
damages too speculative because the customers had not suffered
actual identity theft, but merely faced an increased risk. The DC
Circuit reversed, holding that the complaint plausibly alleged a
substantial risk of "imminent" identity theft that was "fairly
traceable" to defendant.
The Attias Court was willing to infer damages to support the class
action for plaintiffs whose identities remained intact: "Why else
would hackers break into a . . . database and steal consumers'
private information? Presumably, the purpose of the hack is,
sooner or later, to make fraudulent charges or assume those
consumers' identities." Id. (quoting Remijas v. Neiman Marcus
Grp., 794 F.3d 688, 693 (7th Cir. 2015)). The Court rejected a
narrower reading of two recent Supreme Court decisions on the
"injury in fact" standing requirement, Spokeo v. Robins (2016) and
Clapper v. Amnesty International USA (2013).
The net effect of this opinion is more risk for business. In its
amicus brief, the US Chamber of Commerce argued that such no-
injury lawsuits based on anxiety about speculative future harm
impose significant and unjustified costs on businesses. Rather
than obtain a dismissal at the outset of expensive class action
litigation, companies will be forced to engage in discovery and
seek summary judgment on the facts established.
In the end, this opinion is another reminder to companies that
they must inventory and take reasonable measures to protect
personally identifiable information (PII) and protected health
information (PHI) that they own or maintain. For example, the
Attias complaint alleged that CareFirst failed to properly encrypt
some of the data entrusted to its care. Encrypted data is not only
less susceptible to a breach, it does not count as PII so as to
trigger breach notification under many state statutes. A working
Information Security Plan helps a company determine how to best
identify and prioritize its data, prevent improper access to its
systems and mitigate the risks of a breach. [GN]
CENTERFOLD ENTERTAINMENT: Exotic Dancers Win Wage Dispute
---------------------------------------------------------
In the case captioned DEANNA MILLER, individually and on behalf of
all others similarly situated, Plaintiff, v. CENTERFOLD
ENTERTAINMENT CLUB, INC.; and JESSIE ORRELL, individually and as
officer and/or director of Centerfold Entertainment Club,
Defendants, No. 6:14-CV-6074(W.D. Ark.), Judge P.K. Holmes, III of
the U.S. District Court for the Western District of Arkansas, Hot
Springs Division, held that:
-- the Plaintiffs were employees entitled to coverage under
the Fair Labor Standards Act ("FLSA"),
-- the Defendants violated the FLSA by not paying the
Plaintiffs a minimum wage, and
-- the Plaintiffs are entitled to damages.
This case was originally filed on June 4, 2014, by Tamatrica
Bonton. The complaint alleged that while Ms. Bonton and others
performed as exotic dancers for Defendants, they were not paid a
minimum wage or overtime compensation in violation of the Fair
Labor Standards Act ("FLSA") and the Arkansas Minimum Wage Act
("AMWA"). Ms. Miller filed notice of her consent to join on the
next day.
On Oct. 9, 2014, the Court granted conditional collective action
certification of the FLSA class under 29 U.S.C. Section 216(b) so
that notice could be disseminated to potential plaintiffs. An
amended complaint was then filed on Nov. 20, 2014, adding Ms.
Miller as a Named Plaintiff with her own individual claims under
the FLSA and AMWA.
On May 19, 2015, the Court granted Rule 23 class certification on
the AMWA claim. On Sept. 17, the Court granted attorneys Josh
Sanford and Josh West's motion to withdraw as counsel for Ms.
Bonton, and the Court subsequently terminated Ms. Bonton's
individual claims and converted her to an opt-in Plaintiff after
it became apparent that she was no longer interested in pursuing
her claims as a class representative.
Ms. Kristina Garton and Ms. Michelle Johnson filed notices of
their consent to join the collective action on Dec. 15, 2015. On
Dec. 28, 2015, the case was reassigned to the undersigned. The
Court sua sponte decertified the Rule 23 class action on March 10,
2017.
On July 17, 2017, the Court held a bench trial in this action and
took the matter under advisement. It heard testimony from
Defendant Orrell, Ms. Johnson, Ms. Garton, Ms. Miller, and Diana
Day. Several exhibits were also received into evidence. After
carefully considering the evidence at trial and the legal
arguments made, and based upon observation of the witnesses and an
opportunity to weigh their credibility, the Court now makes its
findings of fact and conclusions of law pursuant to Rule 52(a) of
the Federal Rules of Civil Procedure.
The Court concluded that the Plaintiffs qualify for coverage under
the FLSA, they were employees and the Defendants were employers
under the FLSA, and that the Defendants willfully violated the
FLSA by not paying the Plaintiffs a minimum wage for their
employment. It also concluded that the Plaintiffs qualify for
coverage under the AMWA, they were employees and the Defendants
were employers under the AMWA, and that the Defendants violated
the AMWA when they failed to pay the Plaintiffs a minimum wage for
their employment. However, no double recovery will be awarded, so
the Plaintiffs' damages will be based solely on violations of the
FLSA for back wages plus liquidated damages.
The Court further concluded that the Defendants are jointly and
severally liable to Plaintiff Miller in the amount of $15,660; to
Plaintiff Garton in the amount of $26,691.60; and to Plaintiff
Johnson in the amount of $28,431.60. Because the Plaintiffs'
counsel has withdrawn from representing Ms. Bonton, and she did
not appear at trial to pursue her claims, Ms. Bonton's claims are
dismissed without prejudice as to their refiling.
The Plaintiffs are directed to file any motion for attorneys' fees
by Aug. 18, 2017. The Defendants will thereafter have until Aug.
28, 2017 to respond.
A full-text copy of the Court's Aug. 9, 2017 Opinion and Order is
available at https://is.gd/zxe9qd from Leagle.com.
Deanna Miller, Plaintiff, represented by Josh Sanford --
josh@sanfordlawfirm.com -- Sanford Law Firm PLLC.
Deanna Miller, Plaintiff, represented by Joshua Lee West --
west@sanfordlawfirm.com -- Sanford Law Firm & Vanessa Kinney --
vanessa@sanfordlawfirm.com -- Sanford Law Firm PLLC.
Centerfold Entertainment Club, Inc., Defendant, represented by
Travis Jeremy Morrissey, Travis J. Morrissey, P.A..
Jessie Orrell, Defendant, represented by Travis Jeremy Morrissey,
Travis J. Morrissey, P.A.
COMCAST CORP: Judge Allows Surcharge Class Suit to Move Forward
---------------------------------------------------------------
Daniel Frankel, writing for Fierce Cable, reports that a federal
judge has denied Comcast's motion to dismiss a class-action suit
alleging the cable operator added pay-TV surcharges.
The suit, filed in October of last year in a Northern California
U.S. District Court, accuses Comcast of breach of contract,
claiming the operator is advertising a price for services, then
jacking that price up with surcharges for broadcast TV and
regional sports networks.
"It is plausible to infer from the complaint that, by clicking
'Submit Your Order,' [plaintiffs] Adkins and Robertson agreed to
pay Comcast's advertised prices, plus taxes and government-related
fees, in exchange for the services Comcast offered them," Judge
Vince Chhabria said, in a ruling obtained by Ars Technica.
"It is also plausible to infer from the complaint that Comcast
breached its agreements with the plaintiffs when it sent them
bills charging them broadcast TV and/or regional sports fees
(alleged to be neither taxes nor government-related fees) in
excess of the agreed-upon price, and when it subsequently sought
to raise the amount of the fees," the judge added.
According to the complaint, Comcast in 2015 sought to raise the
broadcast surcharge from $1.50 to $6.50, and the regional sports
fee from $1 to $4.50.
Chhabria also disagreed with Comcast's claim that customers agreed
to the surcharges in their subscriber agreement, noting that the
language pertains to "permitted fees" and not specifically to
surcharges.
The judge did trim some of the complaint, dismissing the
plaintiffs' claim for "breach of implied covenant of good faith
and fair dealing." [GN]
CONVERGENT HEALTHCARE: Illegally Collects Debt, "Roth" Suit Says
----------------------------------------------------------------
Betsy Roth, individually and on behalf of all others similarly
situated v. Convergent Healthcare Recoveries, Inc., Case No. 2:17-
cv-04626 (E.D.N.Y., Augst 7, 2017), seeks to stop the Defendant's
unlawful practice of collecting debt.
Convergent Healthcare Recoveries, Inc. operates a debt collection
agency in New York. [BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203-7600
Facsimile: (516) 281-7601
E-mail: csanders@sanderslawpllc.com
CORCORAN.COM: Faces "Matzura" Suit in S.D.N.Y.
----------------------------------------------
A class action lawsuit has been filed against Corcoran.com., Inc.
The case is styled as Steven Matzura and on behalf of all other
persons similarly situated, Plaintiff v. Corcoran.com., Inc. and
The Corcoran Group West Side, Inc., Defendants, Case No. 1:17-cv-
06044 (S.D. N.Y., August 10, 2017).
The Corcoran Group, Inc. provides real estate services in New
York, The Hamptons, and South Florida. It sells and rents homes,
commercial and healthcare facilities, townhouses, and open
houses.[BN]
The Plaintiff appears PRO SE.
CVS PHARMACY: Grilled on Race Bias Defense at Class Cert. Hearing
-----------------------------------------------------------------
Braden Campbell, writing for Law360, reports that U.S. District
Judge John Koeltl rubbed his temples in apparent frustration on
August 2 when hearing arguments over whether to certify a proposed
class action alleging race discrimination at CVS' New York City
stores, pressing the pharmacy giant on its claims a worker of
Spanish descent can't sue because she disclaimed her ethnicity.
The judge for the Southern District of New York hammered CVS on
its claims that anti-theft worker Mominna Ansoralli can't show it
subjected her to a hostile work environment through an alleged
policy of racially profiling minority customers. He asked its
attorneys for a citation -- which he would not receive -- showing
Ansoralli lost the discrimination protections of the Civil Rights
Act of 1866 when she said she did not self-identify as Hispanic.
"I don't get the case," Judge Koeltl told CVS attorney Stan Hill
of Polsinelli PC. "I don't follow the law."
Former CVS worker Zaire Lamarr-Arruz, who at the time went by
Sheree Steele, and three New York colleagues filed suit in June
2015 alleging CVS' market investigators, who monitor stores for
theft, were directed by supervisors to target black and Hispanic
shoppers. The other three workers voluntarily dismissed their
claims against CVS in August 2015, and Ansoralli was added in a
December 2015 amended complaint. This complaint, the suit's
latest, alleges CVS violated state and federal civil rights law by
discriminating against minorities and retaliating against workers
who spoke up.
Judge Koeltl on August 2 heard oral arguments on separate summary
judgment motions by CVS Lamarr-Arruz' and Ansoralli's claims, and
a motion by the workers to certify a class of black and Hispanic
market investigators at CVS stores in New York City.
CVS had argued in its motion to for summary judgment on Lamarr-
Arruz' claims that he could not allege race discrimination after
failing to report his alleged harassment through the company's
internal complaint line. The company argues Lamarr-Arruz reported
other issues via this process, but nothing racial.
Judge Koeltl appeared skeptical of this line of argument, pointing
out that Lamarr-Arruz claims he did report race harassment. He
added the company's claim it has no record of such reports suggest
the facts aren't settled.
But Hill argued the Second Circuit has found that the "mere fact"
parties disagree is not enough to show there is a fact dispute
absent additional evidence.
"All there is on the record is [Lamarr-Arruz'] threadbare
statement. Under Rojas, the Second Circuit has ruled that's not
enough," Hill said, referring to Rojas v. Roman Catholic Diocese
of Rochester, which the appeals court decided in 2011.
Polsinelli's Nancy Rafuse handled class certification arguments
for CVS, saying the depth of disagreement on the summary judgment
motions shows the suit turns on the sort of "highly
individualized" issues that are better decided in individual,
rather than class, litigation.
Rafuse also discussed Ansoralli's race claim, saying although she
hasn't seen a case that supports the proposition that a worker
loses discrimination protections when she disclaims her race, she
has never before seen a case where a worker seeks to represent a
class of Hispanic workers "and has told me she is not Hispanic."
Though Judge Koeltl grilled CVS' attorneys hardest, Wigdor LLP,
which represents the workers, was not spared.
The judge pressed the workers' attorneys on whether the proposed
class meets the heightened bar for commonality the U.S. Supreme
Court set in Wal-Mart v. Dukes. In that case, the justices held
that class members must be joined by a common question whose
answer can resolve their suit.
CVS argues the suit, which involves dozens of stores, is similar
to Bolden v. Walsh Group. In that suit, the Seventh Circuit found
a proposed class of workers at hundreds of work sites were not
united by a common question.
But on August 2, the workers' attorney David Gottlieb argued the
case was more like Brown v. Nucor, in which the Fourth Circuit
certified a class of hundreds of workers across multiple
departments at a single, large work site. Judge Koeltl was
incredulous.
"I know you have to say that, but can you say that with a straight
face?" Judge Koeltl asked.
CVS is represented by Nancy E. Rafuse, Esq. --
nrafuse@polsinelli.com -- and Stan Hill, Esq. --
jshill@polsinelli.com -- of Polsinelli PC.
The workers are represented by David Gottlieb, Esq. --
dgottlieb@wigdorlaw.com -- Michael Willemin, Esq. --
mwillemin@wigdorlaw.com -- and Kenneth Sommer, Esq. --
ksmommer@wigdorlaw.com -- of Wigdor LLP.
The case is Steele v. CVS Pharmacy Inc., case number 1:15-cv-
04261, in the U.S. District Court for the Southern District of New
York. [GN]
DAVE & BUSTER'S: Short Moves for Class Certification Under FLSA
---------------------------------------------------------------
The Plaintiff in the lawsuit styled MARCELLA SHORT, Individually,
and on behalf of herself and other current and former similarly
situated employees v. DAVE & BUSTER'S, INC., DAVE & BUSTER'S
ENTERTAINMENT, INC., DAVE & BUSTER'S MANAGEMENT CORPORATION, INC.,
DAVE & BUSTER'S HOLDINGS, INC., and TANGO OF TENNESSEE, INC.,
a/k/a Dave & Buster's Grand Sports Cafe, Case No. 3:17-cv-00536
(M.D. Tenn.), asks the Court to issue an order:
(1) authorizing the case to proceed as a collective action
against the Defendants to recover unpaid wages, unpaid
overtime compensation, liquidated damages, unlawfully
withheld wages, statutory penalties, attorneys' fees and
costs, and other damages owed, for minimum and overtime
wage violations under the Fair Labor Standards Act on
behalf of hourly-paid tipped employees (servers and
bartenders) of Defendants during the last three years;
(2) directing the Defendants to immediately provide a list of
names, last known addresses, and last known telephone
numbers for all putative class members within the last
three years;
(3) providing that notice be prominently posted at each of the
Defendants' restaurants in the United States where
putative class members work, be attached to its current
hourly-paid tipped employees' next scheduled pay check,
and be mailed to each such current and former hourly-paid
tipped employee who was so employed during the last three
years so each can assess their claims on a timely basis as
part of this litigation;
(4) issue an Order tolling the statute of limitations for the
putative Class as of the date this motion is granted
(except for those who already have opted into this
action); and
(5) requiring that the opt in Plaintiffs' Consent Forms be
deemed "filed" on the date they are postmarked.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=iV8XI7jM
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
James L. Holt, Jr., Esq.
J. Russ Bryant, Esq.
Paula R. Jackson, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
jholt@jsyc.com
rbryant@jsyc.com
pjackson@jsyc.com
The Defendants are represented by:
Roger D. Scruggs, Esq.
Celeste R. Yeager, Esq.
LITTLER MENDELSON, P.C.
333 Commerce Street, Suite 1450
Nashville, TN 37201
Telephone: (615) 514-4127
Facsimile: (615) 383-3033
E-mail: rscruggs@littler.com
cyeager@littler.com
DELI MANAGEMENT: Faces "Heast" Suit Over Failure to Pay OT
----------------------------------------------------------
Samuel Hearst, on behalf of himself and all others similarly
situated v. Deli Management, Inc., d/b/a Jason's Deli, Case No.
1:17-cv-02946-WSD (N.D. Ga., August 4, 2017), is brought against
the Defendants for failure to pay overtime wages in violation of
the Fair Labor Standards Act.
Deli Management, Inc. owns and operates approximately 158 Jason's
Deli restaurants in Alabama, Arizona, Florida, Georgia, Illinois,
Louisiana, Maryland, North Carolina, Pennsylvania, South Carolina,
Tennessee, Texas, Virginia and Wisconsin. [BN]
The Plaintiff is represented by:
C. Andrew Head, Esq.
Donna L. Johnson, Esq.
HEAD LAW FIRM, LLC
White Provision, Suite 305
1170 Howell Mill Road NW
Atlanta, GA 30318
Telephone: (404) 924-4151
Facsimile: (404) 796-7338
E-mail: ahead@headlawfirm.com
djohnson@headlawfirm.com
DELIVERY DUDES: Does Not Properly Pay Employees, Suit Claims
------------------------------------------------------------
Dylan Kaplan, on behalf of himself and all others similarly
Situated v. Delivery Dudes, LLC, Boynton Beach Delivery Dudes,
LLC, and Dude Holdings, LLC, Case No. 9:17-cv-80918-RLR (S.D.
Fla., August 4, 2017), is brought against the Defendants for
failure to pay minimum wages and overtime compensation in
violation of the Fair Labor Standards Act.
The Defendant offers restaurant food delivery services with over
40 locations in Florida, Oregon, Colorado, Tennessee, and
Pennsylvania. [BN]
The Plaintiff is represented by:
Michael W. Davey, Esq.
GRANADOS DAVEY, LLP
50 W. Mashta Drive, Ste. 4 Key
Biscayne, FL 33149
Telephone: (305) 639-8293
Facsimile: (305) 967-7452
E-mail: MDavey@granadosdavey.com
DI OVERNITE: Faces "Watts" Suit in California Superior Court
------------------------------------------------------------
A class action lawsuit has been filed against Di Overnite LLC. The
case is captioned as Watts, Michael, and all others similarly
situated, the Plaintiff, v. Di Overnite LLC, a Nevada Limited
Liability Company and Does 1-10, the Defendant, Case No. 34-2017-
00216682-CU-OE-GDS (Cal. Super. Ct., Aug. 1, 2017).
Di Overnite is doing business in the shipping and delivery service
industry.[BN]
The Plaintiff is represented by:
Gary R. Basham, Esq.
BASHAM LAW GROUP
8801 Folsom Boulevard, Suite 177
Sacramento, CA 95826
Telephone: (916) 993 4840
Facsimile: (916) 266 7478
E-mail: gary@bashamlawgroup.com
DOLGEN CALIFORNIA: "Farley" Labor Suit Remanded to Superior Court
-----------------------------------------------------------------
Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California granted the Plaintiffs' motion to
remand the case captioned ERIC FARLEY and DAVE RINALDI,
individually and on behalf of other members of the general public
similarly situated, Plaintiffs, v. DOLGEN CALIFORNIA LLC, and DOES
1 through 50, inclusive, Defendants, No. 2:16-cv-02501-KJM-EFB
(E.D. Cal.).
The putative class includes the Defendant's current or former
"non-exempt" retail employees who were unable to take proper rest
or meal breaks because they were the only employees on duty with
"key carrier" responsibility. The Plaintiffs filed this class
action in San Joaquin County Superior Court on July 8, 2016. They
filed the operative first amended complaint on Sept. 15, 2016,
alleging: (i) Meal period and rest break violations; (ii) waiting
time penalties under Labor Code Section 203; (iii) wage statement
penalties under Labor Code Section 226; (iv) unfair business
practices under California Business and Professions Code Section
17200; and (v) violations of the Private Attorneys General Act of
2004, Labor Code Section 2699. On Oct. 19, 2016, the Defendant
removed the case to federal court, asserting jurisdiction under
the Class Action Fairness Act ("CAFA"). The Plaintiffs now move
to remand to San Joaquin County Superior Court, challenging the
Defendant's ability to meet CAFA's amount-in-controversy
requirement.
The Plaintiffs brought an unlimited civil case, and asserted the
claims of individual class members, including each Plaintiff, are
under the $75,000 jurisdictional threshold for federal court.
Relying on the complaint and the declarations of Kellie Collier
and Leslie Cheesman, the Defendant's notice of removal evaluated
the alleged meal and rest break violations, wage statement
penalties, waiting-time penalties, and potential attorneys' fees
to make its showing that the aggregated amount in controversy
exceeds $5 million. Specifically, it estimated an amount in
controversy of $6,726,231.
In their remand motion, the Plaintiffs challenge the Defendant's
calculations and argue it did not meet its burden because it
relied on unsupported assumptions. The Defendant contends the
Plaintiffs' motion to remand must fail because the Plaintiffs did
not submit required evidence or offer an alternative basis for
calculating the amount in controversy. Because the Plaintiffs
challenge the Defendant's estimate, the Defendant bears the burden
to establish jurisdiction by a preponderance of the evidence. The
Defendant does not submit new evidence or new calculations in its
opposition brief, but instead rehashes the assumptions, evidence,
and reasoning it relied on for removal.
Judge Mueller held that although the Defendant's notice of removal
adequately stated an amount in controversy beyond $5 million, when
the Plaintiffs challenged that calculation, the Defendant faced a
heightened burden to support its calculation by a preponderance of
evidence. It has not met that burden. Therefore, she granted the
Plaintiffs' motion to remand to San Joaquin County Superior Court.
She also denied as moot the Defendant's pending motion to compel
arbitration.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/UV0LMG from Leagle.com.
Eric Farley, Plaintiff, represented by Edward Joseph Wynne --
Wynne@wynnelawfirm.com -- Wynne Law Firm.
Dane Rinaldi, Plaintiff, represented by Edward Joseph Wynne, Wynne
Law Firm.
Dolgen California LLC, Defendant, represented by Brian David Fahy
-- bfahy@mcguirewoods.com -- McGuireWoods LLP & Joel S. Allen --
jallen@mcguirewoods.com -- McGuireWoods LLP.
EGS FINANCIAL: Faces "Azieva" Suit in E.D.N.Y.
----------------------------------------------
A class action lawsuit has been filed against EGS Financial Care,
Inc. The case is styled as Gulinur Azieva, on behalf of herself
and all others similarly situated, Plaintiff v. EGS Financial
Care, Inc., Defendant, Case No. 1:17-cv-04696 (E.D. N.Y., August
10, 2017).
Defendant EGS Financial Care, Inc. is a company that purchases
consumer debts and collecting thereon from Debtors.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
Joseph H. Mizrahi Law, P.C.
337 Avenue W, Suite 2f
Brooklyn, NY 11223
Tel: (917) 299-6612
Fax: (347) 665-1545
Email: jmizrahilaw@gmail.com
EM CONSULTING: Counterclaim in "Yassa" FLSA Suit Tossed
-------------------------------------------------------
In the case captioned GEORGE YASSA, et al., Plaintiffs, v. EM
CONSULTING GROUP, INC., Defendant. EM CONSULTING GROUP, INC.,
Counter-Claimant, v. GEORGE YASSA, Counter-Defendant, Civil No.
JKB-17-593(D. Md.), Judge James K. Bredar of the U.S. District
Court for the District of Maryland dismissed EM's Counterclaim sua
sponte, and mooted Yassa's motion to dismiss the Counterclaim and
his alternative motion for summary judgment.
Former employees of EM, brought this collective and class action
under the Federal Fair Labor Standards Act of 1938 ("FLSA"), the
Maryland Wage and Hour Law, and the Maryland Wage Payment and
Collection Law.
Defendant EM, trading as Helion Automotive Technologies is in the
business of providing information technology support to car
dealerships. Yassa worked for Helion and held the position of
Project Department Manager from April 1, 2016, to Sept. 15, 2016.
As part of his job, Yassa participated in weekly meetings with
executives to review reports summarizing the progress of ongoing
projects. These reports were generated through a computer program
called "Exepron," which Helion uses to track all its ongoing
projects.
In a combined submission with its Answer, EM filed a Counterclaim
against Yassa, alleging fraud (Count I) and breach of
contract/breach of fiduciary duty (Count II). The allegations
contained in the Counterclaim arise from projects related to one
of Helion's clients, an entity known as "Ciocca."
Helion alleges that in order to conceal the fact that the Ciocca
project had fallen behind, Yassa deleted from Exepron various
dates representing the actual deadlines related to the Ciocca
project and replaced them with later dates. Furthermore, Helion
alleges that Yassa never called attention to this discrepancy
during any of his weekly meetings with company executives,
providing the false impression that the Ciocca project was on
schedule. Finally, Helion alleges that had Yassa not concealed
the project delays from his superiors, Helion could have
reallocated its resources in time to have gotten the Ciocca
project back on schedule. Because that did not happen, the
Counterclaim indicates Helion was forced to credit Ciocca's
account in the amount of $50,000 in order to retain the valuable
client.
Yassa has moved to dismiss the Counterclaim for failure to state a
claim on which relief may be granted or, alternatively, moved for
summary judgment.
According to Judge Bredar, because the Counterclaim is not based
on the same transaction or occurrence as the Complaint, it is
permissive in nature. While Judge Bredar has independent subject
matter jurisdiction over the Counterclaim, he is persuaded that
the public policy of protecting workers' rights to receive and to
direct the allocation of their minimum wages means Counterclaims
by employers in FLSA cases should be disfavored. Furthermore, he
finds that the evidence relevant to resolving the charges in the
Counterclaim is unrelated to that which is pertinent to the
Complaint. Therefore, entertaining the two causes of action in
the same case would unduly complicate the litigation and add
little benefit in terms of judicial economy.
Judge Bredar says Helion may choose to refile its claims against
Yassa in a separate action in federal or in state court, but the
he will not entertain them as part of the instant case. For these
reasons, he dismissed the Counterclaim without prejudice to refile
in a separate action. Yassa's motion to dismiss for failure to
state a claim and his alternative motion for summary judgment are
thus mooted.
A full-text copy of the Court's Aug. 8, 2017 Memorandum is
available for free at https://is.gd/TY5Ea0 from Leagle.com.
George Yassa, Plaintiff, represented by George Edward Swegman --
gswegman@nicholllaw.com -- Law Offices of Peter T. Nicholl.
Eric Arnicar, Plaintiff, represented by George Edward Swegman, Law
Offices of Peter T. Nicholl.
David Bates, Plaintiff, represented by George Edward Swegman, Law
Offices of Peter T. Nicholl.
Marc Blazejak, Plaintiff, represented by George Edward Swegman,
Law Offices of Peter T. Nicholl.
Daniel Dausch, Plaintiff, represented by George Edward Swegman,
Law Offices of Peter T. Nicholl.
Steven Webster, Jr., Plaintiff, represented by George Edward
Swegman, Law Offices of Peter T. Nicholl.
James Tomassoni, Plaintiff, represented by George Edward Swegman,
Law Offices of Peter T. Nicholl.
EM Consulting Group, Inc., Defendant, represented by Paul Francis
Evelius -- pevelius@wcslaw.com -- Wright Constable and Skeen LLP.
ENCORE RECEIVABLE: Faces "Ferris" Suit in E.D.N.Y.
--------------------------------------------------
A class action lawsuit has been filed against Encore Receivable
Management, Inc. The case is styled as Irina Ferris, on behalf of
herself and all others similarly situated, Plaintiff v. Encore
Receivable Management, Inc., Defendant, Case No. 1:17-cv-04699
(E.D. N.Y., August 10, 2017).
Encore Receivable provides collections management solutions.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
Joseph H. Mizrahi Law, P.C.
337 Avenue W, Suite 2f
Brooklyn, NY 11223
Tel: (917) 299-6612
Fax: (347) 665-1545
Email: jmizrahilaw@gmail.com
ENTERPRISE RECOVERY: Faces "Poole" Suit in N.D. of Ala.
-------------------------------------------------------
A class action lawsuit has been filed against Enterprise Recovery
Systems Inc. The case is styled as Letisia Poole, individually and
on behalf of all others similarly situated, Plaintiff v.
Enterprise Recovery Systems Inc., Defendant, Case No. 6:17-cv-
01346-LSC (N.D. Ala., August 10, 2017).
Enterprise Recovery is a specialist in the recovery of educational
loans and institutional accounts for colleges, universities and
state guarantee programs.[BN]
The Plaintiff is represented by:
David I Schoen, Esq.
2800 Zelda Road, Suite 100-6
Montgomery, AL 36106
Tel: (334) 395-6611
Fax: (917) 591-7586
Email: DSchoen593@aol.com
EQUIFAX INFORMATION: Has Until Aug. 24 to Reply to "Bruno" Suit
---------------------------------------------------------------
In the case captioned DANIEL BRUNO, Individually and on behalf of
others similarly situated, Plaintiff, v. EQUIFAX INFORMATION
SERVICES, LLC, et al., Defendants, Case No. 2:17-cv-00327-WBS-
EFB(E.D. Cal.), Judge William B. Shubb of the U.S. District Court
for the Eastern District of California granted the parties'
Stipulated Order moving the time for Equifax to respond to the
amended complaint to Aug. 24, 2017.
On Feb. 15, 2017, the Plaintiff filed the action and on July 31,
he filed an Amended Class Action Complaint. The Plaintiff,
through counsel, agreed to extend the time for Equifax to respond
to the amended complaint by 10 additional days up to and including
Aug. 24, 2017.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/Tymi6C from Leagle.com.
Daniel Bruno, Plaintiff, represented by James Louis Kohl, Law
Offices Of James Louis Kohl.
Daniel Bruno, Plaintiff, represented by Joseph Messer --
jmesser@messerstrickler.com -- Messer Strickler, Ltd., pro hac
vice.
Equifax Information Services, LLC, Defendant, represented by
Matthew H. Dawson -- mdawson@kslaw.com -- King & Spalding LLP,
Allison L. Hill, King & Spalding LLP, pro hac vice, Meryl W. Roper
-- mroper@kslaw.com -- King & Spalding LLP, pro hac vice & Zachary
A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding LLP, pro hac
vice.
Geneva Financial Services, LLC, Defendant, represented by Rebecca
Dena Wester -- rdj@smbgroup.com -- Law Offices of Henry N. Jannol,
APC.
FMA ALLIANCE: Faces "Kakuriyev" Suit in E.D.N.Y.
------------------------------------------------
A class action lawsuit has been filed against FMA Alliance, Ltd.
The case is styled as Arsen Kakuriyev, on behalf of himself and
all others similarly situated, Plaintiff v. FMA Alliance, Ltd.,
Defendant, Case No. 1:17-cv-04697 (E.D. N.Y., August 10, 2017).
FMA Alliance is a privately owned receivables management company
originally formed in 1983 and headquartered in Houston, Texas.[BN]
The Plaintiff appears PRO SE.
FREEDOM MORTGAGE: Faces "Florez" Suit over Mortgage Contracts
-------------------------------------------------------------
RICARDO FLOREZ and ELIZABETH PAGANO, on behalf of themselves and
all others similarly situated, the Plaintiffs, v. FREEDOM MORTGAGE
CORPORATION, FREEDOM HOME MORTGAGE CORPORATION, and
FREEDOM MORTGAGE & FINANCIAL SERVICES, INC., the Defendants, Case
No. 1:17-cv-05604-RMB-JS (D.N.J., Aug. 1, 2017), seeks to recover
damages as a result of Defendants' breaches of mortgage contracts
and implied covenant of good faith and fair dealing, together with
pre-judgment interest.
According to the complaint, Freedom Mortgage administers,
services, and/or has an ownership or assignment interest many
mortgages throughout the United States where the borrower has
chosen to pay on accelerated schedule. Prior to enrolling in an
automatic debited accelerated payment program, Freedom Mortgage
requires borrowers to "pay forward" so that when a one half
biweekly payment is received, the amount is not actually due at
that time under the mortgage. However, despite the fact a
borrower's account is debited for one half of their mortgage
payment well before it is due, Freedom Mortgage has purposefully
and deliberately failed or refused to apply excess payments to the
principal loan balance. Rather than applying excess payments to a
borrower's principal loan balance, Freedom Mortgage holds the
funds in an "Unapplied Funds" account until additional funds are
received to equal a full monthly mortgage payment regardless of
whether the borrower is ahead of the original payment schedule.
The Defendants are mortgage lenders and servicers of Federal
Housing Administration Loans, Veterans Affairs Loans, and
conventional mortgage.[BN]
The Plaintiffs are represented by:
Richard M. Golomb, Esq.
Kenneth J. Grunfeld, Esq.
GOLOMB & HONIK, P.C.
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Telephone: (215) 985 9177
Facsimile: (215) 985 4169
E-mail: rgolomb@golombhonik.com
kgrunfeld@golombhonik.com
- and -
Joseph "Jay" H. Aughtman, Esq.
AUGHTMAN LAW FIRM, LLC
1722 Platt Place
Montgomery, AL 36117
Telephone: (334) 215 9873
Facsimile: (334) 213 5663
E-mail: jay@aughtmanlaw.com
- and -
Aaron C. Hemmings, Esq.
HEMMINGS & STEVENS, P.L.L.C
5540 McNeely Drive, Suite 202
Raleigh, NC 27612
Telephone: (919) 277 0161
Facsimile: (919) 277 0162
E-mail: ahemmings@hemmingsandstevens.com
GENERAL MOTORS: NY Judge Reopens Door for Pre-Recall Claims
-----------------------------------------------------------
In the case captioned IN RE: GENERAL MOTORS LLC IGNITION SWITCH
LITIGATION. This Document Relates To All Actions, Nos. 14-MD-2543
(JMF), 14-MC-2543 (JMF)(S.D.N.Y.), Judge Jesse M. Furman of the
U.S. District Court for the Southern District of New York granted
the Plaintiffs' Motion for Reconsideration and/or Clarification of
the Court's Order Dismissing the Claims of "Pre-Recall
Plaintiffs."
In an Opinion and Order entered on June 30, 2017, the Court
granted in part and denied in part a partial motion to dismiss
that Defendant General Motors ("New GM") had filed with respect to
the Plaintiffs' Fourth Amended Consolidated Complaint ("FACC") in
this multidistrict litigation. The Court's 129-page Opinion and
Order addressed a multitude of complex issues, including one
narrow but important one that the parties had addressed only
briefly in their memoranda of law: Whether the Plaintiffs who had
sold, traded in, or returned their vehicles prior to the recalls
of those vehicles that began in February 2014 ("Pre-Recall
Plaintiffs") had valid claims for economic loss. The Court held
that they did not, on the theory that a plaintiff who had resold
her car before any recall was announced could not have suffered
economic loss damages because "the then-unknown defect could not
have affected the resale price."
The Plaintiffs now move for reconsideration of that one aspect of
the Court's Opinion and Order.
Judge Furman explains that the Plaintiffs' motion prompted the
Court to take a closer look at the different states' laws
governing the legal claims at issue and, upon reflection, he
concludes that it was too hasty in holding that the Pre-Recall
Plaintiffs' claims failed across the board. That is because, for
purposes of at least some claims in some states, the law does not
appear to require a plaintiff to allege damages in order to
survive a motion to dismiss. The point is that the Court painted
with too broad a brush in holding that all claims of all the Pre-
Recall Plaintiffs in all states fail as a matter of law because
they cannot plausibly allege a theory of economic loss damages.
Instead, the Court should have rejected New GM's argument for
dismissal of the Pre-Recall Plaintiffs' claims for much the same
reason that it rejected New GM's "categorical" argument for
dismissal of the Plaintiffs' "lost time" claims, and either
examined New GM's argument on a state-by-state and claim-by-claim
basis or deferred it to "another day -- either in connection with
motions for class certification or dispositive motions examining
the laws of each applicable state."
The question presented, Judge Furman says, is whether the
Plaintiffs should be granted reconsideration even though they
failed to make the foregoing argument themselves in their original
motion papers. Given the unique circumstances presented, he
concludes that allowing the Court's previous decision regarding
the Pre-Recall Plaintiffs to stand would indeed result in a
"manifest injustice." The Court's decision on the validity of the
Pre-Recall Plaintiffs' claims affects untold numbers of the
Plaintiffs, including many whose states were not at issue in New
GM's last motion to dismiss and many who may well have valid
claims under their applicable state law. The magnitude of this
litigation, the number and complexity of the issues to be
analyzed, and the parties' inadequate briefing of the issue
addressed here persuade him that it is more important to get the
issue right than it is to reject the Plaintiffs' motion for
reconsideration as a mere "second bite" at the proverbial apple.
Accordingly, Judge Furman granted the Plaintiffs' motion for
reconsideration.
In light of that conclusion, the Judge briefly addressed the
claims of Pennsylvania Plaintiff Greg Theobald, which were
previously dismissed in full. In its motion to dismiss, New GM
challenged Theobald's claims on several grounds, only two of which
need to be addressed given the Court's holdings on Pennsylvania
law in its prior Opinion and Order. First, New GM argued that
Theobald's claims should be dismissed because his vehicle never
manifested a Side Airbag defect. As the Court previously held,
such allegations suffice, at least for now, to plead manifestation
of a defect.
Second, New GM challenged Theobald's claim under the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, on the ground
that he failed to allege that New GM knew about the Side Airbag
defect in his model vehicle, a 2010 GMC Acadia, prior to his
purchase of the car on June 3, 2010. Judge Furman found similar
allegations sufficient to allege knowledge at this stage of the
proceedings. He reaches the same conclusion as to Theobald's
claim.
Accordingly, Judge Furman granted the Plaintiffs' motion for
reconsideration and the Court's prior Opinion and Order is
modified as reflected. The Clerk of Court is directed to
terminate Docket No. 4256.
A full-text copy of the Court's Aug. 9, 2017 Memorandum Opinion
and Order is available at https://is.gd/HwQeRl from Leagle.com.
Teleso Satele, Plaintiff, represented by Elaine T. Byszewski --
elaine@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Teleso Satele, Plaintiff, represented by Major A. Langer, Perona,
Langer, Beck & Lallande, Mark P. Robinson, Jr., Robinson Calcagnie
Robinson Shapiro Davis Inc, Scot D. Wilson, Robinson Calcagnie
Robinson Shapiro Davis Inc, pro hac vice, Jason Allen Zweig --
jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Mark Parker
Robinson, Robinson Calcagnie Robinson Shapiro Davis, Inc., Sean R.
Matt -- sean@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP &
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP.
Carlota Onofre, Plaintiff, represented by Elaine T. Byszewski,
Hagens Berman Sobol Shapiro LLP, Major A. Langer, Perona, Langer,
Beck & Lallande, Mark P. Robinson, Jr., Robinson Calcagnie
Robinson Shapiro Davis Inc, Scot D. Wilson, Robinson Calcagnie
Robinson Shapiro Davis Inc, pro hac vice, Jason Allen Zweig,
Hagens Berman Sobol Shapiro LLP, Mark Parker Robinson, Robinson
Calcagnie Robinson Shapiro Davis, Inc., Sean R. Matt, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP.
Devora Kelley, Plaintiff, represented by Daniel C. Girard --
dcg@girardgibbs.com -- Girard Gibbs LLP, David K. Stein --
ds@classlawgroup.com -- Girard Gibbs Llp, pro hac vice, Eric H.
Gibbs -- ehg@classlawgroup.com -- Girard Gibbs LLP, pro hac vice,
Eric H. Gibbs, Girard, Gibbs & De Bartolomeo & Scott M. Grzenczyk
-- smg@girardgibbs.com -- Girard Gibbs LLP, pro hac vice.
Frederick Whittington, Plaintiff, represented by Eric H. Gibbs,
Girard Gibbs LLP, pro hac vice & Eric H. Gibbs, Girard, Gibbs & De
Bartolomeo.
Katie Michelle McConnell, Plaintiff, represented by Elaine T.
Byszewski, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig,
Hagens Berman Sobol Shapiro LLP, Sean R. Matt, Hagens Berman Sobol
Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP.
Sylvia Benton, Plaintiff, represented by Elaine T. Byszewski,
Hagens Berman Sobol Shapiro LLP, Kevin Frank Calcagnie, Robinson
Calcagnie Robinson Shapiro Davis Inc, pro hac vice, Mark P.
Robinson, Jr., Robinson Calcagnie Robinson Shapiro Davis Inc,
Robert Bruce Carey, Hagens, Berman, Sobol, Shapiro,LLP, Scot D.
Wilson, Robinson Calcagnie Robinson Shapiro Davis Inc, pro hac
vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac
vice, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark
Parker Robinson, Robinson Calcagnie Robinson Shapiro Davis, Inc.,
Sean R. Matt, Hagens Berman Sobol Shapiro LLP & Elizabeth Joan
Cabraser, Lieff, Cabraser, Heimann & Bernstein, L.L.P..
Martin Ponce, Plaintiff, represented by Jonathan A. Michaels, Mlg
Automotive Law, Aplc, pro hac vice, Justin Benjamin Farar, Kaplan
Fox and Kilsheimer LLP, pro hac vice, Kathryn Jeanine Harvey, MLG
Automotive Law APLC, pro hac vice, Laurence David King, Kaplan Fox
& Kilsheimer LLP, Linda M. Fong, Kaplan Fox & Kilsheimer LLP, pro
hac vice & Robert N. Kaplan, Kaplan Fox & Kilsheimer LLP.
Esperanza Ramirez, Plaintiff, represented by Benjamin L. Bailey,
Bailey and Glasser LLP, pro hac vice, Benno B. Ashrafi, Weitz and
Luxenberg PC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann and
Bernstein LLP, Eric Lechtzin, Berger & Montague, P.C., pro hac
vice, Eugene R. Egdorf, Lanier Law Firm PC, pro hac vice, James
Jackson Bilsborrow, Weitz and Luxenberg PC, pro hac vice, John W.
Don Barrett, Barrett Law Group PA, Phong-Chau Gia Nguyen, Lieff
Cabraser Heimann & Bernstein, LLP, pro hac vice, Robin Greenwald,
Weitz & Luxenberg, P.C., pro hac vice, Roger L. Mandel, Lackey
Hershman LLP, pro hac vice, Shanon J. Carson, Berger and Montague
PC, pro hac vice, Sherrie Raiken Savett, Berger & Montague, P.C.,
pro hac vice, Todd A. Walburg, Lieff Cabraser Heimann and
Bernstein LLP, W. Mark Lanier, Lanier Law Firm, P.C., Wilson
Daniel Miles, III, Beasley Allen Crow Methvin Portis and Miles PC,
pro hac vice, Rachel Geman, Lieff Cabraser Heimann & Bernstein,
LLP, Sudarsana Srinivasan, Lieff Cabraser Heimann & Bernstein,
Wilson Daniel Miles, III, Beasley, Allen, Crow, Methvin, Portis &
Miles, P.C. & Steve W. Berman, Hagens Berman Sobol Shapiro LLP.
Judy Murray, Plaintiff, represented by Benjamin L. Bailey, Bailey
and Glasser LLP, pro hac vice, Benno B. Ashrafi, Weitz and
Luxenberg PC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann and
Bernstein LLP, Eric Lechtzin, Berger & Montague, P.C., pro hac
vice, Eugene R. Egdorf, Lanier Law Firm PC, pro hac vice, James
Jackson Bilsborrow, Weitz and Luxenberg PC, pro hac vice, John W.
Don Barrett, Barrett Law Group PA, Phong-Chau Gia Nguyen, Lieff
Cabraser Heimann & Bernstein, LLP, pro hac vice, Robin Greenwald,
Weitz & Luxenberg, P.C., pro hac vice, Roger L. Mandel, Lackey
Hershman LLP, pro hac vice, Shanon J. Carson, Berger and Montague
PC, pro hac vice, Sherrie Raiken Savett, Berger & Montague, P.C.,
pro hac vice, Todd A. Walburg, Lieff Cabraser Heimann and
Bernstein LLP, W. Mark Lanier, Lanier Law Firm, P.C. & Wilson
Daniel Miles, III, Beasley Allen Crow Methvin Portis and Miles PC,
pro hac vice.
General Motors LLC, Defendant, represented by Andrew Baker Bloomer
-- andrew.bloomer@kirkland.com -- Kirkland & Ellis LLP, pro hac
vice, Anne M. Talcott -- atalcott@schwabe.com -- Schwabe
Williamson & Wyatt, PC, Arthur Jay Steinberg --
asteinberg@kslaw.com -- King & Spalding LLP, Arthur H. Thorn,
Thorn, Gershon Law Firm, Benjamin Houston Joyce, Hood Law Firm,
Carey E. Olson -- colson@mijs.com -- Moore Ingram Johnson &
Steele, LLP, Christopher William Keegan, Kirkland & Ellis LLP, pro
hac vice, Cristin Fitzgerald Bordelon, Leake & Andersson, LLP,
Darin T. Beffa, Kirkland and Ellis LLP, Darrell Lee Barger,
Hartline Dacus Barger Dreyer LLP, David L. Balser, King & Spalding
LLP, pro hac vice, Edward L. Ripley, King & Spalding LLP, Eric
Michael English, King And Spalding LLP, Francis J. Grey, Ricci
Tyrrell Johnson & Grey, James B. Hood, Hood Law Firm, James W.
Johnson, Ricci Tyrrell Johnson & Grey, PLLC, Jeffrey J. Cox,
Hartline Dacus et al, Jeffrey Alan Daxe, Moore Ingram Johnson &
Steele, LLP, Jeffrey S. Sinek, Kirkland and Ellis LLP, Jennifer L.
Bullard, Bowman and Brooke LLP, Jerry L. Saporito, Leake &
Andersson, LLP, John Randolph Bibb, Jr., Lewis, Thomason, King,
Krieg & Waldrop, P.C., Kara MacCartie Stewart, Dinsmore & Shohl
LLP, Kyle Harold Dreyer, Hartline, Dacus, Barger, Dreyer & Kern,
LLP, Kyle Harold Dreyer, Hartline Dacus Barger Dreyer LLP, pro hac
vice, Laurie K. Miller, Jackson Kelly PLLC, pro hac vice, Lawrence
J. Murphy, Honigman, Miller,, Lawrence A. Slovensky, King &
Spalding LLP, pro hac vice, Leonid Feller, Kirkland & Ellis LLP,
pro hac vice, Linsey W. West, Dinsmore & Shohl LLP, Lisa Verna
Lecointe, Kirkland & Ellis LLP, Mark W. Skanes, The Rose Law Firm,
PLLC, pro hac vice, Matthew H. McNamara, Thorn Gershon Tymann and
Bonanni, LLP, Richard Cartier Godfrey --
richard.godfrey@kirkland.com -- Kirkland & Ellis LLP, Robert
Burkart Ellis -- robert.ellis@kirkland.com -- Kirkland & Ellis
LLP, Robert H. Hood, Jr., Hood Law Firm, Robert Donald Ingram,
Moore Ingram Johnson & Steele, LLP, Rodney E. Loomer, Turner,
Reid, Duncan, Loomer & Patton, P.C., Roshan N. Rajkumar, Bowman
and Brooke LLP, Ryan N. Clark, Lewis, Thomason, King, Krieg &
Waldrop, P.C., pro hac vice, Ryan M. Ingram, Moore Ingram Johnson
& Steele, LLP, Scott Ian Davidson, King & Spalding LLP, Sherry A.
Rozell, Turner, Reid, Duncan, Loomer & Patton, Stanley Weiner,
Jones Day, Stephen B. Devereaux, King & Spalding, LLP, pro hac
vice, Thomas P. Branigan, Bowman & Brooke LLP, Thomas J. Hurney,
Jr., Jackson Kelly PLLC, pro hac vice, Thomas M. Klein, Bowman &
Brooke LLP, Whitney H. Kimerling, Lewis, Thomason, King, Krieg &
Waldrop, P.C., William L. Kirk, Jr., Rumberger Kirk & Caldwell,
Allan Pixton, Kirkland & Ellis LLP, Anne Raven, Kirkland & Ellis
LLP, Anne Mcclain Sidrys, Kirkland & Ellis LLP, pro hac vice,
Barry E. Fields, Kirkland & Ellis LLP, Beth Larsen, Kirkland &
Ellis LLP, Brian Douglas Sieve, Kirkland & Ellis LLP, Bridget
Kathleen O'Connor, Kirkland & Ellis LLP, Casey James McGushin,
Kirkland & Ellis LLP, Catherine L. Fitzpatrick, Kirkland & Ellis
LLP, Catherine E. Stahl, Kirkland & Ellis LLP, Christina E.
Sharkey, Kirkland & Ellis LLP, Daniel Michael Monico, Kirkland &
Ellis LLP, Deron L. Wade, Hartline Dacus Barger Dreyer, Ebony
Sunala Johnson, Kirkland & Ellis LLP, Eric Yeager, Kirkland &
Ellis LLP, Frank Chadwick Morriss, Covington & Burling, L.L.P.,
Geoffrey Alan David, Kirkland & Ellis LLP, Giovanna Tarantino
Bingham, Hartline Dacus Barger, pro hac vice, Greg Ryckman,
Kirkland & Ellis LLP, Gregory Polins, Kirkland & Ellis LLP, Haley
Lorraine Darling, Kirkland & Ellis LLP, pro hac vice, Hariklia
Karis, Kirkland & Ellis LLP, Heather A. Bloom, Kirkland & Ellis
LLP, Jeffrey Scott Bramson, Kirkland & Ellis LLP, Jeremy D. Roux,
Kirkland & Ellis LLP, Jonathan C. Bunge, Kirkland & Ellis LLP, pro
hac vice, Jonathan Kadima Tshiamala, Kirkland & Ellis LLP,
Kimberly Olvey Branscome, Kirkland & Ellis LLP, pro hac vice,
Lauren Frances Biksacky, Kirkland & Ellis LLP, Maria Pellegrino
Rivera, Kirkland & Ellis LLP, pro hac vice, Marianna Caruso
Chapleau, Kirkland & Ellis LLP, pro hac vice, Mark J. Nomellini,
Kirkland & Ellis LLP, Nicholas Franklin Wasdin, Kirkland & Ellis
LLP, Paul David Collier, Kirkland & Ellis LLP, pro hac vice, Peter
Bartoszek, Kirkland & Ellis LLP, Pryce Godfrey Tucker, HARTLINE
DACUS BARGER, pro hac vice, R. Chris Heck, Kirkland & Ellis,
L.L.P., Renee Deborah Smith, Kirkland & Ellis LLP, pro hac vice,
Robert C. Brock, Covington & Burling, LLP, pro hac vice, Samuel
James Ikard, Kirkland & Ellis LLP, pro hac vice, Sierra Elizabeth,
Kirkland & Ellis LLP, pro hac vice, Terri A. Abruzzo, Kirkland &
Ellis LLP, Thomas William Osier, Kirkland & Ellis LLP, Vanessa
Anne Barsanti, Kirkland & Ellis LLP, Vinu Joseph, Kirkland & Ellis
LLP, Wendy L. Bloom, Kirkland & Ellis LLP & Wendy D. May, Hartline
Dacus Barger Dreyer LLP, pro hac vice.
Don McCue Chevrolet, Inc., Defendant, represented by Michael T.
Navigato, Bochte, Kuzniar & Navigato, LLP, Theodore L. Kuzniar,
Bochte, Kuzniar & Navigato, LLP & William F. Bochte, Bochte,
Kuzniar & Navigato, LLP.
General Motors Company, Defendant, represented by Andrew Baker
Bloomer -- andrew.bloomer@kirkland.com -- Kirkland and Ellis LLP,
pro hac vice, Benjamin Houston Joyce, Hood Law Firm, James B.
Hood, Hood Law Firm, James W. Johnson, Ricci Tyrrell Johnson &
Grey, PLLC, Jeffrey S. Sinek, Kirkland and Ellis LLP, Richard
Cartier Godfrey, Kirkland & Ellis LLP, Robert Burkart Ellis,
Kirkland & Ellis LLP, Robert H. Hood, Jr., Hood Law Firm, Allan
Pixton, Kirkland & Ellis LLP, Barry E. Fields, Kirkland & Ellis
LLP, Catherine L. Fitzpatrick, Kirkland & Ellis LLP, Renee Deborah
Smith, Kirkland & Ellis LLP, pro hac vice & Wendy L. Bloom,
Kirkland & Ellis LLP.
General Motors Holding, LLC, Defendant, represented by Jeffrey S.
Sinek -- jeff.sinek@kirkland.com -- Kirkland and Ellis LLP, Lisa
Verna Lecointe, Kirkland & Ellis LLP, Allan Pixton, Kirkland &
Ellis LLP, Barry E. Fields, Kirkland & Ellis LLP, Catherine L.
Fitzpatrick, Kirkland & Ellis LLP, Renee Deborah Smith, Kirkland &
Ellis LLP, pro hac vice & Wendy L. Bloom, Kirkland & Ellis LLP.
Ramey Chrysler-Plymouth-Dodge, Inc., Defendant, represented by
Johnnie E. Brown, PULLIN FOWLER FLANAGAN BROWN & POE.
Stoneridge, Inc., Defendant, represented by Ashley Willis Ward,
Stites & Harbison, PLLC, pro hac vice, J. Clarke Keller, Stites &
Harbison PLLC & Doris Rios Duffy, Edward Garfinkel, Law Offices.
Monique Cepero-Wisher, Defendant, represented by Robert Hilliard -
- bobh@hmglawfirm.com -- Hilliard Munoz Gonzales LLP, pro hac
vice.
Laura Gutierrez, Defendant, represented by Robert Hilliard,
Hilliard Munoz Gonzales LLP, pro hac vice.
James J. McDonnell, Defendant, represented by Catherine Danielle
Tobin, Attorney at Law, Marion M. Reilly, Hilliard Munoz Gonzales
LLP, pro hac vice, Robert Hilliard, Hilliard Munoz Gonzales LLP,
pro hac vice, Rudy Gonzales, Jr., Attorney at Law & Thomas J.
Henry, Law Offices of Thomas J. Henry, pro hac vice.
Sarah Lyon-Schmidt, Defendant, represented by J. Ryan Kelly.
GENERAL NUTRITION: Court Dismisses "Pasciolla" Consumer Suit
------------------------------------------------------------
Judge Mark R. Hornak of the U.S. District Court for the Western
District of Pennsylvania dismissed the case captioned SAMANTHA
PASCIOLLA, Plaintiff, v. GENERAL NUTRITION CENTERS, INC.,
Defendant, No. 2:16-cv-1313(W.D. Penn.).
The Plaintiff is a resident of New Jersey, and the Defendant is a
corporation with its principal place of business in Pittsburgh,
Pennsylvania. In August 2016, the Plaintiff accessed the
Defendant's website, www.gnc.com, and purchased a product from it.
The Plaintiff does not allege that she encountered any problems
with the product or that she was dissatisfied with her purchase in
any way.
At the time of the Plaintiff's purchase, customers on the
Defendant's website were required to agree to the Defendant's
Terms and Conditions ("T&C"). In her Complaint, the Plaintiff, on
behalf of herself and all other similarly situated New Jersey
citizens, claims that the T&C violate the New Jersey Truth-in-
Consumer Contract, Warranty and Notice Act ("TCCWNA").
Specifically, she argues that the T&C violate Sections 15 and 16
of the TCCWNA. Section 15 prohibits a seller from offering or
entering into a contract with a consumer that includes any
provision that violates any clearly established legal right of a
consumer or responsibility of a seller, lessor, creditor, lender
or bailee as established by State or Federal law. Section 16
states that no consumer contract, notice or sign will state that
any of its provisions is or may be void, unenforceable or
inapplicable in some jurisdictions without specifying which
provisions are or are not void, unenforceable or inapplicable
within the State of New Jersey.
The Defendant filed a Motion to Dismiss, in which it primarily
argues that the Plaintiff lacks standing to pursue her claim.
The Plaintiff urges the Court to apply the two-step Susinno test
in Susinno v. Work Out World Inc. and conclude that she has
standing. However, Judge Hornak concludes that this case is
distinguishable from Susinno. In Susinno, the plaintiff received
a call to her cellphone that she alleged was, among other things,
a nuisance and an invasion of her privacy. To put it plainly, the
plaintiff did not just allege a procedural violation of a statute
-- she alleged that the violation of a statue had actually
affected her tangible (and statutorily -- considered) interests in
a concrete manner. In contrast, in this case, the Plaintiff has
alleged only a procedural violation of the TCCWNA, namely the
existence of the T&C. She has not alleged that the T&C affected
her at all or even that she was aware of its provisions at or near
the time of her purchase. Accordingly, even considering Susinno,
Judge Hornak cannot conclude that the Plaintiff in this case has
satisfied the concrete injury requirement. The Plaintiff's
allegations are insufficient to establish standing. Therefore, he
granted the Defendant's Motion to Dismiss and dismissed the case
without prejudice.
A full-text copy of the Court's Aug. 8, 2017 Opinion is available
for free at https://is.gd/KTnFJN from Leagle.com.
SAMANTHA PASCIOLLA, Plaintiff, represented by R. Bruce Carlson --
bcarlson@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP.
SAMANTHA PASCIOLLA, Plaintiff, represented by Gary F. Lynch --
bcarlson@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP.
GENERAL NUTRITION CENTERS, INC., Defendant, represented by Mark J.
Golen, II -- mgolen@grsm.com -- Gordon & Rees LLP & S. Manoj
Jegasothy -- mjegasothy@grsm.com -- Gordon & Rees LLP.
GLIDE RITE: Faces "McCollumn" Suit in California Superior Court
---------------------------------------------------------------
A class action lawsuit has been filed against Glide Rite. The case
is captioned as McCollumn, Carlos, and on behalf of other members
of the general public similarly situated, the Plaintiff, v. Does
1-100 and Glide Rite, an unknown entity, the Defendant, Case No.
34-2017-00216612-CU-OE-GDS (Cal. Super. Ct., Aug. 1, 2017).
Glide Rite manufacture semi air suspension solutions for the
single axle and tag axle AL-KO chassis.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
411 N Central Ave., Ste 500
Glendale, CA 91203-2095
Telephone: (818) 230 7502
Facsimile: (818) 230 7259
E-mail: dhan@justicelawcorp.com
HARVARD UNIVERSITY: Sued for Discriminating Asian Americans
-----------------------------------------------------------
BD News24 reports that the Harvard University is a facing a class
action for allegedly discriminating against Asian-Americans in
admissions by imposing a penalty for their high achievement and
giving preferences to other racial minorities.
The case with the Supreme Court, puts Asian-Americans front and
centre in the latest stage of the affirmative action debate,
according to a New York Times report.
It will look into the issue whether there has been discrimination
against Asian-Americans in the name of creating a diverse student
body.
The Justice Department, which has signalled that it would
investigate "intentional race-based discrimination in college and
university admissions," may well focus on Harvard, the report
added.
"The Harvard case asserts that the university's admissions process
amounts to an illegal quota system, in which roughly the same
percentage of African-Americans, Hispanics, whites and Asian-
Americans have been admitted year after year, despite fluctuations
in application rates and qualifications."
"It falls afoul of our most basic civil rights principles, and
those principles are that your race and your ethnicity should not
be something to be used to harm you in life or help you in life,"
said Edward Blum, the president of Students for Fair Admissions,
the organization that is suing Harvard.
His group, a conservative-leaning non-profit based in Virginia,
has filed similar suits against the University of North Carolina
at Chapel Hill and the University of Texas at Austin, asserting
that white students are at a disadvantage at those colleges
because of their admissions policies.
The case against Harvard, highlighted one Austin Jia, an American
student of Asian origin who holds his high GPA, nearly perfect SAT
score, and involved in other activities including debate team,
tennis captain and state orchestra. But he did not get a place in
Harvard.
Jia believes he should have had a fair shot at Harvard, Princeton,
Columbia and the University of Pennsylvania. Those Ivy League
colleges rejected him after he applied in the fall of 2015.
"It was particularly disturbing," Jia said, "when classmates with
lower scores than his -- but who were not Asian-American, like him
-- were admitted to those Ivy League institutions."
"My gut reaction was that I was super disillusioned by how the
whole system was set up," Jia, 19, said, according to NYT.
The US federal government potentially has the ability to influence
university admissions policies by withholding federal funds under
Title VI of the Civil Rights Act of 1964, which forbids racial
discrimination in programs that receive federal money.
In many ways, the system the lawsuit is attacking is one Harvard
points to with pride.
The university has a long and pioneering history of support for
affirmative action, going back at least to when Derek Bok,
appointed president of Harvard in 1971, embraced policies that
became a national model.
The lawsuit, however, cites Harvard's Asian-American enrolment at
18 percent in 2013 and notes very similar numbers ranging from 14
to 18 percent at other Ivy League colleges, like Brown, Columbia,
Cornell, Princeton and Yale. [GN]
HEALTH NET: Faces "Arana" Suit in California Superior Court
-----------------------------------------------------------
A class action lawsuit has been filed against Health Net of
California Inc. The case is captioned as Arana, Tomas R., and all
others similarly situated, the Plaintiff, v. Does 1-50 and Health
Net of California Inc., Case No. 34-2017-00216685-CU-OE-GDS (Cal.
Super. Ct., Aug. 1, 2017).
Health Net of California, Inc. operates as a health maintenance
organization (HMO) in California.[BN]
The Plaintiff is represented by:
Shaun Setareh, Esq.
SETAREH LAW GROUP
9454 Wilshire Blvd Ste 907
Beverly Hills, CA 90212
Telephone: (310) 888 7771
Facsimile: (310) 888 0109
E-mail: shaun@setarehlaw.com
HEALTHEXTRAS INC: Fee Dispute Remanded to Florida State Court
-------------------------------------------------------------
In the case captioned ZERBERSKY PAYNE, LLP, Plaintiff, v. AUGHTMAN
LAW FIRM, LLC, et al., Defendants, Case No. 0:17-CV-61170-
ROSENBERG(S.D. Fla.), Judge Robin L. Rosenberg of the U.S.
District Court for the Southern District of Florida granted both
the Plaintiff's Motion to Remand and Defendant Burlington's Motion
to Remand.
Several law firms jointly provided representation in a series of
lawsuits involving the HealthExtras Insurance Product. A fee
dispute arose among them. The Plaintiff filed suit in state
court, seeking declaratory relief to clarify the appropriate fee
distribution.
The Plaintiff entered a Joint Prosecution Agreement ("JPA") with
Defendants Aughtman Law; Golomb & Honik, P.C.; and Hemmings &
Stevens, PLLC ("Removing Defendants"). The JPA relates to a
nationwide class action over the HealthExtras Insurance Product.
It also entered a second Joint Prosecution Agreement ("JPA II")
with Defendant Aughtman Law and Defendant Hemmings & Stevens. JPA
II is specific to a class action lawsuit based in Florida.
Ultimately, three class action lawsuits were filed in Florida.
Two of the cases filed in Florida were dismissed. The Plaintiff
and Removing Defendants hired Burlington & Rochenbach, P.A., an
appellate specialist, to appeal those dismissals. The Plaintiff
and the Removing Defendants entered a third agreement, which
entitled Burlington to a percentage of the total fees allocated
under JPA II.
The Plaintiff brought its state court against the Removing
Defendants and against Burlington. It seeks declarations to
determine: (i) whether the JPA is binding on all parties, (ii)
whether JPA II is binding on Plaintiff in part or in total; (iii)
whether JPA II is binding on the relationship between Plaintiff
and Defendant Golomb & Honik; (iv) what amount is owing to
Burlington; and (iii) if the matter is not arbitrable, a
determination of the amount owed under the JPA (or any other
agreement) by each of the Defendants.
The Removing Defendants removed the case to the Court, alleging
Burlington had been fraudulently joined. Both Plaintiff and
Burlington moved to remand the case to state court.
The three Removing Defendants reiterate the fraudulent joinder
argument and, alternatively, argue Burlington should be aligned as
a party plaintiff, restoring diversity of citizenship. Having
reviewed the record, Judge Rosenberg finds Burlington was not
fraudulently joined and declines to realign Burlington as a party-
plaintiff. Because Burlington was not fraudulently joined and
because Judge Rosenberg does not find realignment is appropriate,
subject matter jurisdiction is lacking. Accordingly, he granted
both the Plaintiff's Motion to Remand and Burlington's Motion to
Remand. This case is remanded to the Seventeenth Circuit Court in
and for Broward County, Florida. He denied as moot all pending
motions, terminated all deadlines, and cancelled all hearings.
Judge Rosenberg directed the Clerk of Court to close the case.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/PBbNCD from Leagle.com.
Zerbersky & Payne, Plaintiff, represented by Edward Herbert
Zebersky -- ezebersky@zpllp.com -- Zebersky Payne, LLP.
Zerbersky & Payne, Plaintiff, represented by Todd S. Payne --
tpayne@zpllp.com -- Zebersky & Payne, LLP.
Golomb & Honik, P.C., Defendant, represented by Douglas Alan Bates
-- dbates@clarkpartington.com -- Clark, Partington, Hart, Larry,
Bond & Stackhouse, Trevor Anthony Thompson --
tthompson@clarkpartington.com -- Clark Partington & Jeffrey Carl
Weinstein -- weinstein@mw-attorneys.com -- Mittenthal Weinstein
LLP.
Aughtman Law Firm, LLC, Defendant, represented by Douglas Alan
Bates, Clark, Partington, Hart, Larry, Bond & Stackhouse, Jeffrey
Carl Weinstein, Mittenthal Weinstein LLP & Trevor Anthony
Thompson, Clark Partington.
Hemmings & Stevens, P.L.L.C., Defendant, represented by Douglas
Alan Bates, Clark, Partington, Hart, Larry, Bond & Stackhouse,
Jeffrey Carl Weinstein, Mittenthal Weinstein LLP & Trevor Anthony
Thompson, Clark Partington.
Burlington & Rockenbach, PA, Defendant, represented by Kenneth Jay
Sobel -- KEN@SEOBELLEGAL.COM -- Sobel Legal.
HOSPITALITY PROPERTIES: Class Cert. Denial in ADA Suit Affirmed
---------------------------------------------------------------
In the case captioned CIVIL RIGHTS EDUCATION AND ENFORCEMENT
CENTER, on behalf of itself; ANN CUPOLO-FREEMAN; RUTHEE GOLDKORN;
JULIE REISKIN, on behalf of themselves and a proposed class of
similarly situated persons defined below, Plaintiffs-Appellants,
v. HOSPITALITY PROPERTIES TRUST, Defendant-Appellee, No. 16-
16269(9th Cir.), Judge Kim McLane Wardlaw of the U.S. Court of
Appeals for the Ninth Circuit affirmed the district court's order
denying the Plaintiffs' motion for class certification.
The Named Plaintiffs are physically disabled and use wheelchairs
for mobility. The Named Plaintiffs, along with the Civil Rights
Education and Enforcement Center ("CREEC"), filed a putative class
action against HPT in the U.S. District Court for the Northern
District of California, alleging that HPT had failed to offer
equivalent accessible transportation services at its hotels in
violation of Title III of the Americans with Disabilities Act
("ADA"). CREEC alleges that, while most HPT hotels provide some
form of free local transportation service, very few provide
equivalent service that is accessible to people who use
wheelchairs or scooters for mobility.
Before the district court, CREEC moved to certify the class
pursuant to Federal Rule of Civil Procedure 23. It defined the
class as people with limited mobility who have been or will be
denied equivalent transportation services at HPT hotels. CREEC
alleges that the common questions of fact and law include whether
the Defendant's transportation vehicles are readily accessible to
and usable by individuals with disabilities, including individuals
who use wheelchairs, and whether it has ensured that the
transportation system in place at each hotel, when viewed in its
entirety, meets the equivalent service requirements of the ADA.
They also assert that certification is proper under Rule 23(b)(2)
because HPT acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final
injunctive or declaratory relief with respect to the class as a
whole.
The district court denied the motion. It held that the proposed
class did not meet the threshold Rule 23(a) requirement of
commonality because HPT delegates the operation of its hotels to
management companies. Deciding CREEC's claims, the district court
held, would necessitate 142 "mini-trials" to determine whether the
particular practices at each of the 142 challenged hotels violate
Title III. In the alternative, the district court held that CREEC
failed to meet the Rule 23(a) requirement of typicality, and
failed to establish that injunctive relief would be appropriate
respecting the class as a whole. CREEC timely appealed.
Judge Wardlaw explains that the case presents two questions of
constitutional standing to assert claims under Title III of the
ADA, and the question of whether those claims are maintainable as
a class action. She must decide (i) whether a plaintiff may rely
on the "deterrent effect doctrine" to establish constitutional
standing under the ADA where she lacks firsthand knowledge that an
establishment is not in ADA compliance; and (ii) whether a
plaintiff has constitutional standing where her only motivation
for visiting a facility is to test it for ADA compliance. She
concluded that standing may be asserted in both circumstances.
However, although the Plaintiffs have standing to maintain this
ADA suit, the district court did not abuse its discretion in
denying class certification. The court did not err in finding
that the Plaintiffs failed to meet Rule 23's commonality
requirement, given the lack of consistent policies or practices
across the hotels owned by HPT, but operated by others.
A full-text copy of the Court's Aug. 9, 2017 Opinion is available
at https://is.gd/jjmJDL from Leagle.com.
Timothy P. Fox -- tfox@creeclaw.org -- (argued), Civil Rights
Education and Enforcement Center, Denver, Colorado; Bill Lann Lee
-- blee@lewisfeinberg.com -- Civil Rights Education and
Enforcement Center, Berkeley, California; Julia Campins --
julia@cbbllp.com -- Campins Benham-Baker LLP, Lafayette,
California; Julie Wilensky -- jwilensky@lewisfeinberg.com --
Disability Rights California, Oakland, California; for Plaintiffs-
Appellants.
David Raizman -- david.raizman@ogletree.com -- (argued),
Christopher F. Wong -- christopher.wong@ogletree.com -- and
Kathleen J. Choi -- kathleen.choi@ogletree.com -- Ogletree Deakins
Nash Smoak & Stewart P.C., Los Angeles, California, for Defendant-
Appellee.
Lindsay Nako -- lnako@law.berkeley.edu -- Jocelyn D. Larkin, and
Lynnette Miner, Impact Fund, Berkeley, California, for Amici
Curiae Impact Fund, Disability Rights Advocates, Disability Rights
Education & Defense Fund, Disability Rights Legal Center,
Disability Rights Oregon, Disability Rights Washington, Equal
Rights Advocates, Legal Aid Association of California, Legal Aid
Society-Employment Law Center, National Association of the Deaf,
National Disability Rights Network, and National Federation of the
Blind.
INTELLECT SERVICE: Faces Class Suit Over Notpetya Malware Spread
----------------------------------------------------------------
Graeme Burton, writing for The Inquirer, reports that a Ukranian
law firm plans to launch a class-action lawsuit against the
accounting software firm whose update mechanism was exploited to
spread the NotPetya malware in June.
The law firm, called Juscutum Attorneys Association, is
encouraging victims of the malware -- who are overwhelmingly but
not exclusively, based in Ukraine -- to join the lawsuit against
Intellect Service.
The company has been drumming up interest in Ukraine, according to
Bleeping Computer, with offers of "legal retribution", according
to a direct translation of one of its social media posts.
The NotPetya malware broke out in June after the software-updating
mechanism of Intellect Service's ME Doc accounting software was
hacked to send out a Trojanised update.
While most of the company's clients are Ukrainian -- the software
is used by as much as 80 per cent of organisations in Ukraine -- a
number of international companies with operations in Ukraine were
also directly affected.
The self-propagating nature of the malware, which incorporated
exploits leaked from the US National Security Agency, in many
cases enabled it to spread across corporate networks.
These include fast-moving consumer goods maker Reckitt Benckiser,
confectionary firm Cadbury's, shipping company Maersk,
pharmaceutical giant Merck, and perhaps most devastating of all,
Dutch delivery company TNT Express, which was still running on
manual processes more than a month after the outbreak and has
admitted that some business data may be permanently lost as a
result.
The servers of the software company were seized by Ukrainian cyber
police at the beginning of July.
The law firm claims that Ukrainian Cyber Police documents indicate
that ME Doc servers were backdoored on at least three separate
occasions. It is using this as the basis for launching its legal
claim.
According to Bleeping Computer, the action won't be based on a no-
win, no-fee basis but, instead, victims will not only have to pay
all court fees and help collate evidence but must also hand over
30 per cent of any damages awarded.
However, there is a risk that Intellect Service could go out of
business under the weight of the various legal claims, leaving
victims -- particularly individuals and small businesses in
Ukraine affected by the malware outbreak, with nothing but legal
bills. [GN]
KAISER PERMANENTE: Sued Over Sexual Assaults by Former Employee
---------------------------------------------------------------
Matt Ackland, writing for FOX5 DC, reports that patients of a
doctor are suing Kaiser Permanente after they said he sexually
assaulted them.
While no criminal charges have been filed against Dr. Bryan
Williams, Kaiser Permanente said he was fired and the Maryland
State Board of Physicians said his license was suspended.
On August 2, attorneys in a class action lawsuit announced they
were suing Kaiser Permanente on behalf of a dozen alleged victims.
The lawyers alleged the sexual misconduct was carried out during
medical exams by the anesthesiologist and pain doctor at Kaiser
Permanente in Largo and Kensington from 2010 to 2014.
"During that time Dr. Williams sexually assaulted at least a dozen
women that we know of and some patients who we don't know of,"
attorney Hassan Murphy said. "Some women we know of were
courageous enough to step forward. Those who we fear, multiple or
dozens we suspect, unfortunately do not have the courage to step
forward because they are victims who are ashamed of the stigma
that comes from these types of crimes."
Kaiser Permanente released the following statement to FOX 5:
"The safety of our patients is our highest priority, and we
have no tolerance for behavior that puts our patients at risk. We
take allegations of misconduct very seriously, and we take action
to protect our patients. In this case, we terminated the physician
and reported him to the physician licensing boards in Maryland,
Virginia and the District of Columbia. We have also reached out to
each person who has raised allegations against Dr. Williams and
sought to address their concerns."
FOX 5 reached out to the Prince George's County State's Attorney
and the Montgomery County State's Attorney and they said they had
no active investigation against Williams.
Attorneys did not disclose the amount of money they were seeking
in the case against Kaiser Permanente. [GN]
KITOV PHARMACEUTICAL: Wants NY Stock Drop Class Action Tossed
-------------------------------------------------------------
Rachel Graf, writing for Law360, reports that an Israel-based
pharmaceutical company urged a New York federal judge on August 2
to toss a proposed class action alleging it falsified late-stage
trial results for a hypertension treatment and subsequently caused
the company's share price to drop, saying the investors haven't
sufficiently demonstrated how the purported falsification
occurred.
Kitov Pharmaceutical Holdings Ltd., CEO Isaac Israel and CFO
Simcha Rock said two independent clinical research organizations
conducted the Phase III trial of KIT-302 -- developed to treat
pain caused by osteoarthritis and hypertension -- collected the
data and submitted it to a data monitoring committee that
determined whether the trial had achieved its primary endpoint.
The investors have not provided "even a scintilla of evidence"
that Kitov and its executives made false statements about the data
before it was sent to the data monitoring committee, according to
the filing.
"Plaintiffs' claims are premised entirely on conclusory statements
which are unsupported by any factual allegations and are, in fact,
refuted by the very same disclosures challenged in the complaint,
as well as by the public documents upon which plaintiffs rely in
the complaint," Kitov said in the filing.
The investors filed the proposed class action in February after an
Israeli publication reported CEO Israel had been detained and
questioned by the Israel Securities Authority about falsifying the
results of the KIT-302 Phase III trial. Shares dropped more than
11 percent on the report and another 14 percent after a trading
halt was lifted, the suit said. The investors claim the alleged
false statements violated federal securities laws.
But Kitov said on August 2 the investors' "meager allegations"
lack the necessary factual support, and instead simply restate
"the same conclusory allegation ad nauseam in slightly different
terms."
"Absent plaintiffs' singular, unsupported allegation that the
trial results were falsified, plaintiffs' entire theory of the
case falls apart," Kitov said in the filing.
Additionally, the investors' arguments that the executives knew of
the alleged wrongdoing given the small size of the company are
"insufficient," according to the filing. The investors had also
cited confidential sources who said the executives knew of the
purported wrongdoing, but Kitov argues these sources lack a proven
connection to the executives and alleged "nothing more than
unsupported, vague, and irrelevant conclusions."
The investors have failed to demonstrate that the report that CEO
Israel was detained caused the stock to drop, since the report
didn't disclose any falsities, according to the filing.
Counsel for the parties didn't respond on August 3 to requests for
comment.
Kitov and its executives are represented by Aurora Cassirer, Esq.
-- aurora.cassirer@troutmansanders.com -- Bennet Moskowitz, Esq. -
- bennet.moskowitz@troutmansanders.com -- and Mary Weeks, Esq. --
mary.weeks@troutmansanders.com -- of Troutman Sanders LLP.
The investors are represented by Jeremy A. Lieberman, Esq. --
jalieberman@pomlaw.com -- and Tamar A. Weinrib, Esq. --
taweinrib@pomlaw.com of Pomerantz LLP.
The case is Rotem Cohen and Jason Breuning v. Kitov
Pharmaceuticals Holdings Ltd. et al., case number 1:17-cv-00917,
in the U.S. District Court for the Southern District of New York.
[GN]
KOLBE & KOLBE: 7th Cir. Says Insurers Have Duty to Defend
---------------------------------------------------------
In the case captioned MARY HALEY, et al., Plaintiffs, v. KOLBE &
KOLBE MILLWORK CO., Defendant-Appellant/Cross-Appellee, and
FIREMAN'S FUND INSURANCE CO., Intervenor-Appellee, and UNITED
STATES FIRE INSURANCE CO., Intervenor-Appellee/Cross-Appellant,
Nos. 16-3563, 16-3648(7th Cir.), Judge Joel Flaum of the U.S.
Court of Appeals for the Seventh Circuit reversed the district
court's judgment that the insurance companies had no duty to
defend, but otherwise affirmed the decisions of the district
court.
In 2014, Mary Haley and others filed a putative class action
against Kolbe, claiming that the windows purchased from it were
defective and had allowed air and water to leak into (and damage)
their homes. Kolbe tendered the defense of the defective-product
claims to several insurance companies, and two of them -- United
States Fire Insurance Co. and Fireman's Fund Insurance Co. --
sought and obtained permission to intervene in the case. United
States Fire later filed a motion for summary judgment, arguing
that a recent decision of the Wisconsin Supreme Court, Wisconsin
Pharmacal Co., LLC v. Nebraska Cultures of California, absolved
the insurers of their duty to defend Kolbe in the underlying suit.
The district court granted United States Fire's motion (and sua
sponte awarded judgment to Fireman's Fund).
Although the district court agreed with United States Fire that
the insurers no longer had a duty to defend, the court declined to
order the reimbursement of any fees, as United States Fire had not
asked for that kind of relief in its pleading, and it was too late
in the litigation to allow an amendment. The court then entered
judgment in the insurers' favor on their duty-to-defend claims,
and terminated the case.
Kolbe appealed the district court's ruling that the insurers had
no duty to continue defending Kolbe in the underlying leaky-
windows suit. United States Fire appealed the court's refusal to
compel reimbursement of any post-Pharmacal defense fees, and seeks
a remand to the district court for a determination of whether the
other fees charged by Kolbe's defense counsel were reasonable.
Judge Flaum finds that there may be coverage for at least one of
the claims in an underlying suit, the insurer has a duty to defend
the policyholder against all claims alleged in that suit. He
therefore reversed the judgment declaring that United States Fire
and Fireman's Fund had no duty to defend in this case, and
remanded with instructions to vacate that judgment.
As to the United States Fire's appeal on the denial of its request
for reimbursement, Judge Flaum noted that as he's concluded that
the insurer owed a continuing duty to defend, he does not reach
that issue: it is moot. As to the reasonableness of Kolbe's
defense fees, generally, the insurance company never made a formal
request for the recoupment of excessive charges. Having resolved
all outstanding motions and causes of action, it was not
inappropriate for the district court to terminate the case. If,
on remand, the district court wishes to entertain a motion for
recoupment, however, the court certainly has the discretion to do
so.
For these reasons, Judge Flaum reversed the judgment that the
insurance companies did not have a duty to defend and remanded
with instructions to vacate that judgment. He affirmed as to the
reimbursement of defense fees and initial termination of the case.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/ATcwM8 from Leagle.com.
David E. Schoenfeld -- dschoenfeld@shb.com -- for Intervenor-
Appellee.
Jeffrey Alan Goldwater -- Jeffrey.Goldwater@lewisbrisbois.com --
for Intervenor-Appellee.
Michael J. Flannery -- mflannery@cuneolaw.com -- for Plaintiff.
Susan G. Schellinger -- sschellinger@dkattorneys.com -- for
Defendant-Appellant.
Beth Ann Berger -- BethAnn.Berger@lewisbrisbois.com -- for
Intervenor-Appellee.
Aaron E. Hall -- ahall@dkattorneys.com -- for Defendant-Appellant.
Joseph DePalma -- jdepalma@litedepalma.com -- for Plaintiff.
Riley Caroline Mendoza, for Intervenor-Appellee.
Graham C. Mills -- graham.mills@ndlf.com -- for Amicus Curiae.
LIBERTY POWER: Faces Class Action Suit Over TCPA Violation
----------------------------------------------------------
Angelica Saylo Pilo, writing for Madison Record, reports that a
consumer claims a retail electricity company has contacted him
with unwanted telemarketing calls in a proposed class action.
Allen Kreke filed a complaint individually and on behalf of all
others similarly situated filed a complaint on July 28 in the U.S.
District Court for the Southern District of Illinois against
Liberty Power Holdings LLC alleging that the retail electricity
company willfully violated the Telephone Consumer Protection Act.
According to the complaint, the plaintiff received a telemarketing
call from the defendant on May 15 despite being registered on the
National Do-Not-Call registry.
The plaintiff holds Liberty Power Holdings LLC responsible because
the defendant allegedly made calls to plaintiff's cellular
telephone using an autodialer and artificial or prerecorded voice
without plaintiff's prior express consent.
The plaintiff requests a trial by jury and seeks an order
certifying this complaint as a class action and appointing
plaintiff as class representative her counsel as class counsel. He
is represented by Anthony G. Simon, Esq. -- asimon@simonlawpc.com
-- and Anthony R. Friedman, Esq. -- afriedman@simonlawpc.com --
of The Simon Law Firm PC in St. Louis.
U.S. District Court for the Southern District of Illinois case
number 3:17-cv-00808 [GN]
LOGISTICARE SOLUTIONS: 5th Cir. Agrees to Review NLRB Order
-----------------------------------------------------------
In the case captioned LOGISTICARE SOLUTIONS, INCORPORATED,
Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner, No. 16-60029(5th Cir.), a divided
U.S. Court of Appeals for the Fifth Circuit granted LogistiCare's
petition for review and denied the Board's cross-petition for
enforcement.
Judge Jennifer Walker Elrod, who penned the decision for the
majority, held that the Company's class or collective action
waiver does not violate the National Labor Relations Act Section
8(a)(1) explicitly, and cannot otherwise be reasonably understood
to violate the Act.
LogistiCare requires its employees and applicants for employment
to sign a class or collective action waiver by which the employee
or applicant waives any right to be a representative for, or
member of, a class or collective action lawsuit against
LogistiCare. One applicant who signed the waiver brought an
unfair-labor-practice charge with the Board. The Board in turn
brought a complaint alleging that LogistiCare violated Section
8(a)(1) of the National Labor Relations Act, 29 U.S.C. Section
158(a)(1) ("NLRA"), by requiring employees and applicants to sign
the waiver. In particular, the Board alleged that: (i) the
waiver's prohibition on engaging in class or collective litigation
violates Section 8(a)(1) of the NLRA by infringing rights
protected by Section 7 of the Act; and (ii) the waiver
independently violates Section 8(a)(1) because employees would
reasonably interpret the waiver to restrict their right to file
charges with the Board.
The dispute was first heard by an Administrative Law Judge
("ALJ"), who accepted both of the Board's grounds for finding a
Section 8(a)(1) violation. In a two-to-one decision, a three-
member panel of the Board affirmed the ALJ's order. The Board
first concluded that Section 7 of the Act guarantees employees the
right to participate in class or collective actions. In so doing,
it distinguished the Court's decisions in D.R. Horton, Inc. v.
NLRB, 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc. v.
NLRB, 808 F.3d 1013 (5th Cir. 2015) because the waivers in those
cases were contained within arbitration agreements, which are
governed by the Federal Arbitration Act. Rather than relying on
these cases, the Board looked to its own decision in Convergys
Corp., et al., 363 NLRB No. 51 (2015). The Board next concluded
that the waiver is "independently unlawful" because employees
would reasonably read the rule as restricting their right to file
unfair labor practice charges with the Board. Member Miscimarra
dissented on both issues.
Having found two Section 8(a)(1) violations, the Board ordered
LogistiCare to cease and desist from the unlawful conduct and to
take steps to notify all applicants and current employees that the
waiver was no longer enforceable. LogistiCare petitioned for
review of the Board's order and the Board cross-petitioned for
enforcement.
Judge Elrod explains that in the case, Convergys Corporation v.
NLRB, the Court held that their binding decision in D.R. Horton
and Murphy Oil, holds that Section 7 does not confer a substantive
right to participate in class or collective action litigation and
therefore forecloses the Board's argument that the waiver violates
Section 8(a)(1) "explicitly." Because they are bound by their
decision in D.R. Horton, she held that the Board erred in
concluding that the waiver violates Section 8(a)(1) explicitly.
As to the Board's conclusion that the waiver is "independently
unlawful" because employees would reasonably read the rule as
restricting their right to file unfair labor charges with the
Board, Judge Elrod notes that in D.R. Horton and Murphy Oil, they
considered whether certain class and collective action waivers
would be reasonably understood to prohibit bringing charges to the
Board. D.R. Horton involved an arbitration agreement by which the
employees waived all rights to trial in court before a judge or
jury on all claims between them and agreed that all disputes and
claims would be determined exclusively by final and binding
arbitration. Affirming the Board, the Court held that the
agreement could be reasonably interpreted to prohibit employees
from filing unfair labor practice claims with the Board. In
particular, it reasoned that while the agreement used the terms
"court," "trial," "jury," and "lawsuit," these references were
"insufficient" because the agreement also referred to court
actions in one sentence and agency actions in another and provided
that employees waived their right to file a lawsuit or other civil
proceeding. Read as a whole, the agreement could be reasonably
understood to preclude filing charges with the Board.
Circuit Judge Patrick E. Higginbotham concurred in part and
dissented in part. He said, "As in Convergys Corporation v. NLRB,
this case concerns whether a company's class and collective action
waiver violates Section 8(a)(1) of the National Labor Relations
Act ("the Act"), 29 U.S.C. Sections 151, et seq. For the reasons
stated in my dissent in Convergys, I would hold that a bare class
and collective action waiver outside of an arbitration agreement
violates the Act. On this issue, I dissent from the majority
opinion."
"However, I agree with the majority's analysis and conclusion that
the waiver does not violate Sec. 8(a)(1) for the independent
reason that employees could reasonably interpret it to restrict
their right to bring charges with the Board. On this issue, I
concur in the majority opinion."
Circuit Judge Stephen A. Higginson also concurred in part and
dissented in part. He said, "I would uphold the Board's
determination that an employee could reasonably interpret the
language of LogistiCare's waiver to restrict the employee's right
to bring unfair labor practice charges with the Board. We must
read the agreement from the position of non-lawyer employees, not
judges, remembering that "[r]ank-and-file employees do not
generally carry lawbooks to work or apply legal analysis to
company rules as do lawyers, and cannot be expected to have the
expertise to examine company rules from a legal standpoint."
Ingram Book Co., 315 N.L.R.B. 515, 518 n.2 (1994). With this in
mind, I disagree with LogistiCare's claim that because the waiver
includes the words "lawsuit" and "trial lawyers," "any reader
would necessarily understand" that the waiver relates only to
judicial, and not administrative, proceedings. The Board observes
that it is not uncommon for employees to refer to Board
proceedings as "lawsuits" and notes that "administrative
proceedings share with their judicial counterparts an entire
nomenclature, including terms like judge, case, trial, attorney,
lawyer, witness, subpoena, and testimony." Thus, when an employee
signs LogistiCare's agreement banning all "Class and Collective
action lawsuit[s]," I agree with the Board that "[t]he reasonable
impression could be created that [the] employee is waiving not
just . . . trial rights, but . . . administrative rights as well."
D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344, 363 (5th Cir. 2013).
Because I believe the Board's finding that the agreement could be
misconstrued was reasonable, I would enforce its order requiring
LogistiCare to take corrective action. See id. at 364."
"I agree with the majority that our recent decision in Convergys
Corporation v. N.L.R.B., No. 15-60860, forecloses the Board's
alternative argument that LogistiCare's waiver violates Section
8(a)(1) by requiring employees to waive the ability to participate
in class or collective action litigation. I view this position as
irreconcilable with this court's precedent. See D.R. Horton, 737
F.3d at 361. Nonetheless, as I explained in my concurring opinion
in Convergys -- and as Judge Higginbotham explained in his
dissenting opinion -- I believe the better view is that a right to
class and collective action falls within Section 7's scope. See
also Patterson v. Raymours Furniture Co., 659 F. App'x 40, 43 (2d
Cir. 2016), as corrected (Sept. 7, 2016), as corrected (Sept. 14,
2016) (unpublished) (summary order); Lewis v. Epic Sys. Corp., 823
F.3d 1147 (7th Cir. 2016), cert. granted, 137 S.Ct. 809 (2017);
Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert.
granted, 137 S.Ct. 809 (2017)."
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/Vis5nd from Leagle.com.
Linda Dreeben, for Respondent Cross-Petitioner.
Martha Elaine Kinard, for Respondent Cross-Petitioner.
Lawrence J. McNamara, for Petitioner Cross-Respondent.
Thomas J. Walsh, Jr. -- twalsh@brodywilk.com -- for Petitioner
Cross-Respondent.
Buena Vista Lyons -- vlyons@fordharrison.com -- for Petitioner
Cross-Respondent.
Rachel Z. Ullrich -- rullrich@fordharrison.com -- for Petitioner
Cross-Respondent.
Kira Dellinger Vol, for Respondent Cross-Petitioner.
Gregoire Sauter, for Respondent Cross-Petitioner.
Bryan Dooley, for Respondent Cross-Petitioner.
MCINTOSH, GA: "Smith" Suit May Not Proceed in Forma Pauperis
------------------------------------------------------------
In the case captioned NATHAN SMITH, Plaintiff, v. MS. FNU HOFF;
KAREN BREDESEN-MAURY; LISA JACOBS; RICHARD LONG; THOMAS KANE; and
KATINA WHEELER, Defendants, Civil Action No. 2:17-CV-8(S.D. Ga.),
Magistrate Judge R. Stan Baker of the U.S. District Court for the
Southern District of Georgia, Brunswick Division, denied the
Plaintiff's Motions to Proceed in Forma Pauperis.
The Plaintiff, who was confined at the McIntosh County Detention
Center in Darien, Georgia, submitted a Complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
Along with his Complaint, the Plaintiff filed a Motion to Proceed
in Forma Pauperis. He also filed an additional Motion to Proceed
in Forma Pauperis.
In his Complaint, the Plaintiff asserts he is near the completion
date of his federal sentence. He asserts he has a violent history
and an extensive criminal record. He maintains he was sent to the
Dismas Charities, Inc., which is a halfway house, for treatment of
his mental health issues, but these issues were not addressed due
to a systematic neglect. The Plaintiff describes the duties of
Defendant Hoff, the Social Services Coordinator, and provides that
the remaining Defendants are responsible for overseeing her
duties. The Plaintiff requests an emergency protective order
directing the Defendants to obtain adequate mental health services
for him prior to his release from custody in March 2017.
Additionally, he requests compensatory and punitive damages.
Magistrate Judge Baker held that proceeding as a pro se litigant,
the Plaintiff will not be able to represent his fellow inmates in
a class action, given that it is plain error to permit an
imprisoned litigant who is unassisted by counsel to represent his
fellow inmates in a class action. Consequently, he should dismiss
the Plaintiff's class action claims and dismiss Marques Smoak and
Nickaus Hudson as Plaintiffs in this case.
As to the Plaintiff's action pursuant to Bivens, the Magistrate
Judge explained that Bivens only applies to claims against federal
officers in their individual capacities; it does not create a
cause of action for federal officers sued in their official
capacities. There being no plausible allegation that the federal
government waived its immunity from suit, the Plaintiff cannot
sustain any constitutional claims against the Defendants in their
official capacities for monetary relief. Accordingly, he should
dismiss these claims.
Magistrate Judge Baker held he should also dismiss as moot the
Plaintiff's claims for injunctive relief. The Plaintiff has been
release from prison, and he is no longer under the control of the
Defendants. Additionally, his requested injunctive relief
centered on preparing him for his release from prison. With that
release having now occurred, he can longer give meaningful relief
to his claims.
The Magistrate Judge further held that he should dismiss all of
the Plaintiff's claims for failure to provide rehabilitative
services; for deliberate indifference to medical needs; and (iii)
against all the Defendants in their entirety; because the
Plaintiff has failed to state a claim upon which the Court can
grant him relief. The Magistrate Judge said the Plaintiff (i)
does not possess a constitutional right to be placed, or not to be
placed, in a particular prison facility; (ii) fails to allege that
the Defendants were aware of that condition, much less that they
disregarded it, even if the Plaintiff had alleged a serious
medical condition; (ii) fails to allege that the Defendants
personally participated in violating his constitutional rights.
Lastly, Magistrate Judge Baker said he should also deny the
Plaintiff leave to appeal in forma pauperis. Though the Plaintiff
has, of course, not yet filed a notice of appeal, it would be
appropriate to address these issues in the Court's order of
dismissal. There are no non-frivolous issues to raise on appeal,
and any appeal would not be taken in good faith.
Magistrate Judge Baker denied the Plaintiff's Motions to Proceed
in Forma Pauperis. He recommended that the Court dismisses this
action for failure to state a claim, dismisses as moot the
Plaintiff's remaining Motions, and directs the Clerk of Court to
close this case. He further recommended that the Court denies the
Plaintiff leave to appeal in forma pauperis.
The Magistrate Judge ordered that any party seeking to object to
this Report and Recommendation to file specific written objections
within 14-days of the date on which this Report and recommendation
is entered. Any objections asserting that the Magistrate Judge
failed to address any contention raised in the Complaint must also
be included. Failure to do so will bar any later challenge or
review of the factual findings or legal conclusions of the
Magistrate Judge. A copy of the objections must be served upon
all other parties to the action. The filing of objections is not a
proper vehicle through which to make new allegations or present
additional evidence.
Upon receipt of Objections meeting the specificity requirement set
out above, a United States District Judge will make a de novo
determination of those portions of the report, proposed findings,
or recommendation to which objection is made and may accept,
reject, or modify in whole or in part, the findings or
recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out will not be considered
by a District Judge. A party may not appeal a Magistrate Judge's
report and recommendation directly to the U.S. Court of Appeals
for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The
Clerk of Court is directed to serve a copy of this Report and
Recommendation upon the Plaintiff.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/X8uzIT from Leagle.com.
Nathan Smith, Plaintiff, Pro Se.
Marques Smoak, Plaintiff, Pro Se.
Nickaus Hudson, Plaintiff, Pro Se.
MDL 2284: Court Affirms Arborist Panel Ruling in Imprelis Suit
--------------------------------------------------------------
In the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES
TO: ALL ACTIONS, MDL No. 2284, No. 11-md-02284(E.D. Penn.), Judge
Gene E.K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania affirmed the Arborist Panel decision
denying Shanley Properties' appeal.
In the fall of 2010, DuPont introduced Imprelis, a new herbicide
designed to selectively kill unwanted weeds without harming non-
target vegetation. After widespread reports of damage to non-
target vegetation, the Environmental Protection Agency ("EPA")
began investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis. In September 2011, DuPont started its owri Claim
Resolution Process to compensate victims of Imprelis damage.
Despite this voluntary process, various plaintiffs continued to
pursue their lawsuits, alleging consumer fraud/protection act
violations, breach of express and/or implied warranty, negligence,
strict products liability, nuisance, and trespass claims based on
the laws of numerous states.
After months of settlement discussions, including mediation, the
parties came to a settlement agreement. The Imprelis Class Action
Settlement covers three classes of Imprelis Plaintiffs. Among the
three settlement classes is a property owner class. That class
includes all persons or entities who own or owned property in the
United States to which Imprelis was applied from Aug. 31, 2010
through Aug. 21, 2011, as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order, or Feb. 11, 2013. Under
the Settlement, property owner class members who filed claims by
the claims deadline would receive tree removal (or compensation
for tree removal), payments for replacement trees, tree care and
maintenance payments, and a 15% payment for incidental damages.
The Settlement included a warranty that provided for all benefits
but the 15% incidental damages award for Imprelis damage that
manifested after the claims period closed but before May 31, 2015.
On Feb. 12, 2013, the Court preliminarily approved the Settlement,
and on Sept. 27, 2013, the Court held a Final Fairness Hearing to
determine whether the Settlement provided fair, reasonable, and
adequate compensation to class members. On Oct. 17, 2013, the
Court granted the Class Plaintiffs' Motion for Final Approval of
the Settlement.
Shanley first reported Imprelis damage to five of its trees in
June of 2013. By the time a Davey Tree arborist hired by DuPont
inspected the five trees in June 2014, the trees had sustained
additional damage from a tornado. The Davey arborist rated two
trees as a category 2, warranting tree care, and 3 trees as not
showing any Imprelis damage. It disputes the ratings and heights
of three trees for which it seeks compensation from the Imprelis
Class Settlement. Shanley's appeal of the tree ratings and
heights was denied by the Imprelis Appeals Panel, and it now seeks
review by this Court.
Shanley argues that the Davey Tree arborist's estimate of tree
height was flawed and that all three trees involved in this appeal
were so damaged by Imprelis that they should be rated high enough
to warrant replacement. Shanley submits photographs in support of
these contentions. However, as the Arborist Panel determined, the
photographs do not clearly show that Davey's height estimate is
incorrect or that the trees exhibited sufficiently serious
Imprelis damage to disturb the original ratings. Therefore, Judge
Pratter affirmed the Arborist Panel decision in this matter and
denied Shanley's appeal.
A full-text copy of the Court's Aug. 9, 2017 Memorandum is
available at https://is.gd/brQBDT from Leagle.com.
METRO-GOLDWYN-MAYER: Must Face Lawsuit Over Missing Films
---------------------------------------------------------
Eriq Gardner, writing for Hollywood Reporter, reports the
packaging said: "All the Bond films gathered together for the
first time."
"Will the real 'James Bond' please stand up?"
Thus begins the decision by a Washington federal judge who on
August 3 found enough puns in the extensive catalog of James Bond
films to move a lawsuit against MGM and 20th Century Fox Home
Entertainment forward.
Mary Johnson is suing on behalf of herself and other completists
who insist the distributors of James Bond films were deceptive in
marketing a box set purporting to include "all" of the films but
missing Casino Royale (1967) and Never Say Never Again (1983).
Those two films weren't MGM films for reasons recounted in our
earlier story, but are owned by MGM now.
The defendants, staring at a putative class action claiming a
violation of the Washington Consumer Protection Act and breaches
of express and implied warranty, argued that any reasonable
consumer would review the box sets' outer packaging and then open
the box sets to review their inner contents and figure out what
really was included in the Bond box set.
"At this time, the Court will Live and Let Die," writes U.S.
District Court judge Ricardo Martinez, meaning he thinks some
claims should live and others should be shot down by a Walther
PPK.
MGM tried to convince the judge that the words "all" and "every,"
enjoyed by class action lawyers everywhere, aren't actionable and
that fans of David Niven are out of luck.
"The Court finds the questions of how a reasonable person would
interpret 'all' and 'every' and what qualifies as a James Bond
film remain for the trier of fact to decide," concludes the judge
in August 3's order. "These terms are not unequivocally puffery as
a matter of law. Defendants fail to adequately address Plaintiff's
argument as to the omission of Casino Royale and Never Say Never
Again or the need for a disclaimer. Even if a reasonable consumer
examines the box-sets' entire packaging, they would only know
which films are included. That consumer would not know whether the
box-set includes 'all' James Bond films or which films are
excluded. This could constitute a deceptive act under the WCPA.
The Court finds Plaintiff has adequately pled a claim for relief
under the WCPA."
MGM took aim at the express warranty claim by arguing that
consumers had "actual knowledge" of what they were getting, but
without the benefit of, say, a survey of 007 fans, the judge finds
the factual record incomplete. Martinez writes that at this point,
the record only supports consumer knowledge of the films included,
and Casino Royale and Never Say Never Again will have to be tested
later.
Johnson may ultimately fail here, but Martinez writes, "From the
Defendants' perspective, this claim will have to Die Another Day."
MGM gets more luck on the claim of breach of implied warranty of
merchantability.
This one hinges on whether the box set conformed to its contract
description, but MGM and Fox argued there was no contractual
relationship because Johnson purchased her box set from Amazon.
Her lawyer attempted to get around this by talking about the
vertical chain or arguing she was a third-party beneficiary, but
the judge agrees with defendants that there's insufficient
contractual privity and a lack of knowledge on MGM/Fox's part
about the identity of their purchasers.
Getting perhaps a little too corny, Martinez rules, "Plaintiff may
amend her claim once if she discovers sufficient facts to
establish privity; thus, this claim may Only Live Twice."
The rest of the ruling deals with whether parent companies
properly belong in the suit (not at the moment) and whether the
case is ripe for class action (a decision deferred to a later
point).
Fortunately for plaintiff attorney Alexander Kleinberg at
Eisenhower Carlson, this judge is no Dr. No. [GN]
MICHIGAN, USA: Joint Habeas Bid in "Rouse" Summarily Nixed
----------------------------------------------------------
In the case captioned ARTHUR J. ROUSE, et al., Plaintiffs, v.
STATE OF MICHIGAN, et al., Defendants, Case No. 2:17-CV-12276(E.D.
Mich.), Judge Denise Page Hood of the U.S. District Court for the
Eastern District of Michigan, Southern Division, summarily
dismissed without prejudice the joint habeas petition, overruled
the objections to deficiency orders, but granted the Plaintiffs a
30-day extension of time to correct the deficiencies.
The seven Plaintiffs are all inmates who are currently
incarcerated at the Cooper Street Correctional Facility in
Jackson, Michigan. The plaintiffs filed a proposed class action
complaint and a petition for a writ of mandamus and a writ of
habeas corpus.
All seven Plaintiffs filed a joint habeas petition together, but
challenged separate and unrelated criminal convictions.
Judge Hood held that it is improper for different petitioners to
file a joint habeas petition in which they seek relief from
different convictions, sentences, or other forms of detention.
Moreover, numerous cases have held that a prisoner proceeding pro
se is inadequate to represent the interests of his fellow inmates
in a class action. Accordingly, she dismissed the joint petition
for writ of habeas corpus without prejudice to the Plaintiffs each
filing their own habeas petition challenging their own
convictions.
On July 14, 2017, Magistrate Judge R. Steven Whalen signed an
Order of Deficiency because the Plaintiffs failed to submit the
portion of their filing fee, which in this case would be $57.14,
or to each file a completed application to proceed in forma
pauperis. Magistrate Judge Whalen signed a separate order of
deficiency requiring them to provide sufficient copies of the
complaint for service upon the Defendants. Both orders gave the
Plaintiffs until Aug. 14, 2017 to comply with the orders.
On July 25, 2017, four of the Plaintiffs filed an objection to the
deficiency orders. A supplemental objection was filed by
Plaintiff Rouse on July 28, 2017. The Plaintiffs argue that the
deficiency orders are invalid because the filing fee provisions of
the Prisoner Litigation Reform Act ("PLRA") do not apply to a
petition for writ of mandamus.
Judge Hood overruled the Plaintiffs' objections. She held that
contrary to the Plaintiffs' objection, the PLRA's restrictions on
prisoner litigation apply to mandamus petitions which seek relief
analogous to civil complaints filed under 42 U.S.C. Section 1983.
Although the PLRA does not specify how fees are to be assessed
when multiple prisoners file a joint complaint, the Sixth Circuit
has held that fees and costs should be divided equally in such
cases between the plaintiffs. Therefore, unless each Plaintiff
files an application to proceed in forma pauperis, he would be
responsible for one seventh of the $350 filing fee, plus the $50
administrative fee, or $57.14.
Judge Hood also overruled the Plaintiffs' objection to the order
requiring sufficient service copies. Where a plaintiff is
proceeding in forma pauperis, the district court must bear the
responsibility for issuing the plaintiff's process to a United
States Marshal's Office, who must effect service upon the
defendants once the plaintiff has properly identified the
defendants in the complaint. If the plaintiffs choose to proceed
in forma pauperis, they will be required to provide sufficient
copies of their complaint for service upon the defendants.
Because of the number of the Plaintiffs involved in this case and
the possible confusion over the applicability of the PLRA to
mandamus actions, Judge Hood granted the Plaintiffs a 30-day
extension from the date of the order to correct the deficiencies.
A full-text copy of the Court's Aug. 8, 2017 Opinion and Order is
available for free at https://is.gd/tWjVr9 from Leagle.com.
Arthur Rouse, Plaintiff, Pro Se.
Lance Goldman, Plaintiff, Pro Se.
Chris Harner, Plaintiff, Pro Se.
William Merriman, Plaintiff, Pro Se.
Cedric Simpson, Plaintiff, Pro Se.
Frank Doyle, Plaintiff, Pro Se.
Robert Wilburn, Plaintiff, Pro Se.
John Does, Plaintiff, Pro Se.
Jane Does, Plaintiff, Pro Se.
MISHKAN TECHEILES: Faces Class Suit Over Product Misrepresentation
------------------------------------------------------------------
The Yeshiva World reports that it is entirely possible that you
have pasul tzitzis; A class action lawsuit for a huge sum was
filed against the world's largest tzitzis factory on the grounds
of misleading the consumer in the lawsuit: "This is a gross and
grave mistake." A chareidi prisoner found the fraud. The owner's
response to Bechadrei Chareidim: "There is no tallit that leaves
the factory without a hechsher for the tying of tzitzis".
The lawsuit was filed in the amount of 100 million shekels against
'Mishkan Techeiles' on the grounds of misleading the consumer. On
the other hand, the company's CEO tells Bechadrei Chareidim media
there is no deception, and everything is done as per halacha.
The lawsuit claims 'Mishkan Techeiles', the largest tzitzis and
tallis company in the world, claims to be mehadrin as all its
tzitzis and tying are done by "avreichim Yiras Shomayim". In
addition, the lawsuit cites that Shulchan Aruch pasuls tzitzis
tied by a non-Jew. Millions of Jews worldwide use Mishkan
Techeiles tzitzis daily, relying on its claim, never thinking for
a moment that the tying of the tzitzis is actually done by goyim.
"This is a gross, gross, dishonest, and immoral misrepresentation
of all consumers who bought the tallitot and tzitzis produced and
marketed by the respondent," wrote a petition filed in the Tel
Aviv District Court by attorney Yochi Geva on behalf of Yom Tov
Cohen.
The petitioner is a chareidi man who over the years has served a
prison term. He says he was shocked to discover that the "Mishkan
Techeiles" company uses many non-Jewish prisoners to tie the
tzitzis, "in fact hiding it from its customers." The petition also
included an affidavit by Jiyad Abdalla, a prisoner who used to do
the tzitzis and an affidavit by Abd al-Rahman as well.
The plaintiff requested the court to approve the claim as a class
action and to award compensation in the amount of 100 million
shekels or another figure which the court will determine.
On July 31 (the eve of Tisha B'Av), the court sent the statement
of claim to the Mishkan Techeiles company, which must respond
within 90 days. A pre-trial hearing was held before Judge
Yechezkel Keiner in February 2018.
Shlomo Avrahami, the founder of the "Mishkan Techeiles" factory,
responds to the grave claims and says unequivocally that "there is
no tallis that leaves the factory -- without a hechsher." In a
conversation with Bechadrei Haredim, Shlomo says that "this claim
is fundamentally baseless, and all our tzitzis are tied under
different hechsherim including Eida Chareidis, Beis Yosef, Rav
Wosner, Rabbanut Tel Aviv, and Rabbi Aryeh Levine is responsible
for the kashrus and nothing leaves the factory for sale without a
hechsher."
He acknowledges that prisoners are used as is the case with other
tzitzis companies, but they in no way are involved in tying, but
rather packaging. He insists the company will prove this in court.
[GN]
MONOGRAM RESIDENTIAL: Faces "Hertz" Suit Over Sale to Greystar
--------------------------------------------------------------
Bradley Hertz, individually and on behalf of all others similarly
situated v. Monogram Residential Trust, Inc., Mark T. Alfieri,
David D. Fitch, Tammy K. Jones, Jonathan L. Kempner, W. Benjamin
Moreland, E. Alan Patton, and Timothy J. Pire, Case No. 1:17-cv-
02202-GLR (D. Md., August 4, 2017) is brought on behalf of all
public stockholders of Monogram Residential Trust, Inc., to enjoin
the proposed agreement under which Greystar's New Fund, Greystar
Growth and Income Fund, LP, will acquire all of the outstanding
shares of Monogram in an all-cash transaction for approximately
$3.0 billion.
According to the complaint, Monogram filed a Schedule 14A
Definitive Proxy Statement with the U.S. Securities and Exchange
Commission, which recommends that Monogram stockholders vote in
favor of the Proposed Transaction. However, the Proxy omits or
misrepresents material information concerning, among other things:
(i) gains (or losses) from sales of property (including deemed
sales (if any) and settlements of pre-existing relationships);
(ii) depreciation and amortization on real estate assets; (iii)
impairment write-downs of depreciable real estate or of
investments in unconsolidated real estate partnerships, joint
ventures and subsidiaries (if any) that are driven by measurable
decreases in the fair value of depreciable real estate assets, and
after related adjustments for unconsolidated partnerships, joint
ventures and subsidiaries and non-controlling interests.
Monogram Residential Trust, Inc. is focused on the acquisition,
renovation, leasing, and management of boutique multi-family
properties in select markets in the United States. [BN]
The Plaintiff is represented by:
Donald J. Enright, Esq.
Brian D. Stewart, Esq.
LEVI & KORSINSKY LLP
1101 30th Street NW, Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
E-mail: denright@zlk.com
bstewart@zlk.com
NAC MARKETING: Court Dismisses "Amkraut" False Advertising Suit
---------------------------------------------------------------
In the case captioned FLOYD LUMAN and JOEL AMKRAUT, individually
and on behalf of all others similarly situated, Plaintiffs, v. NAC
MARKETING COMPANY, LLC d/b/a NEW VITALITY and JOE THEISMANN,
Defendants, No. 2:13-cv-00656-KJM-AC(E.D. Cal.), Judge Kimberley
J. Mueller of the U.S. District Court for the Eastern District of
California granted NAC's motion to dismiss Amkraut's complaint.
Plaintiffs Amkraut and Luman brought a class action against the
Defendants, alleging that the Defendants falsely advertised NAC's
product would treat symptoms of benign prostate hyperplasia, a
progressive disease caused by an enlarged prostate. This Court
dismissed the Plaintiffs' claims in full on Feb. 4, 2014. On
April 8, 2016, the Ninth Circuit (i) affirmed dismissal of Luman's
claims; (ii) affirmed dismissal of any claims against Theisman;
but (iii) reversed dismissal of Amkraut's claims against NAC and
remanded the case back to this Court. Now on remand, NAC has
moved to dismiss Amkraut's complaint.
NAC argues the operative complaint should be dismissed because the
FDA has primary jurisdiction to resolve the dispositive question
it raises: whether NAC's product is misbranded as a dietary
supplement and should instead be labeled a "new drug." Amkraut
contends because the "new drug" determination is simple and
straightforward, the Court can resolve the issue.
The Court explains that under the Food, Drug, and Cosmetic Act
("FDCA"), "new drug" means any drug not generally recognized,
among experts qualified by scientific training and experience to
evaluate the safety and effectiveness of drugs, as safe and
effective for use under the conditions prescribed. Determining
whether a product is properly characterized as a "new drug"
requires the FDA's expertise.
In Weinberger v. Bentex Pharm., Inc., the Supreme Court held
whether a particular drug is a "new drug" depends in part on
expert knowledge and experience of scientists based on controlled
clinical experimentation and backed by substantial support in
scientific literature. Accordingly, where no administrative
determination has been made and the issue arose in a district
court, it would be commonplace for the court to await an
appropriate administrative declaration before it acted. This
conclusion, the Supreme Court said, was in line with Congress'
desire to have the administrative agency make this determination.
Amkraut contends he should not be precluded from bringing his
private action, which is "consistent" with the FDCA, but his
argument misrepresents his complaint. His claims are not merely
"consistent" with the FDCA; each one requires the court to
interpret the definition of "new drug" under the FDCA. He
essentially asks the court to do two things: (i) determine an
issue better suited for an administrative agency with the proper
expertise, and (ii) allow the plaintiff a backdoor private right
of action to challenge defendant's alleged violation of the FDCA,
which is contrary to Congress' intent. The Plaintiff's cited
cases do not support his argument.
Because his claims require a determination of whether the
Defendant's product is a "new drug," the primary jurisdiction
doctrine applies. The Court defers to the FDA's determination of
this question.
Because NAC has not provided "complete relief" to the Plaintiff,
the Plaintiff's private claims are not moot. The Court dismissed
the Plaintiff's claims, however, in light of the FDA's primary
jurisdiction. The Plaintiff's case is dismissed without prejudice
pending the FDA's resolution of the "new drug" question.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/zPAkLm from Leagle.com.
Floyd Luman, Plaintiff, represented by Lawrence Timothy Fisher --
ltfisher@bursor.com -- Bursor and Fisher, PA.
Floyd Luman, Plaintiff, represented by Annick Marie Persinger,
Bursor & Fisher, P.A.
Joel Amkraut, Plaintiff, represented by Lawrence Timothy Fisher,
Bursor and Fisher, PA & Annick Marie Persinger, Bursor & Fisher,
P.A.
NAC Marketing Company, LLC, Defendant, represented by Brad William
Seiling -- bseiling@manatt.com -- Manatt, Phelps & Phillips, LLP.
NASSAU, NY: Court Narrows Claims in "Gurrieri" Labor Suit
---------------------------------------------------------
Judge Arthur D. Spatt of the U.S. District Court for the Eastern
District of New York granted the Defendants' partial motion to
dismiss; and granted in part and denied in part the Plaintiffs'
motion to amend in the case captioned RONALD GURRIERI, DIANE
McCAULEY, LAWRENCE LOISELLE, MARY TEDESCO, EDWARD DONOGHUE, and
all others similarly situated, Plaintiff, v. COUNTY OF NASSAU,
NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE
COMMISSION, Defendants, No. 2:16-cv-6983 (ADS)(SIL)(E.D.N.Y.).
On Dec. 19, 2016, the Plaintiffs commenced this putative class
action against the Defendants, the County of Nassau, the Nassau
County Police Department ("NCPD"), and the Nassau County Civil
Service Commission ("NCCSC"), alleging that the Defendants
violated the Fair Labor Standards Act ("FLSA"), and the New York
Labor Law ("NYLL") by failing to pay them overtime.
Each of the Named Plaintiffs currently work for the NCPD as
Ambulance Medical Technicians, Ambulance Medical Technician
Supervisors, or Ambulance Medical Technician Coordinators
("AMTs"). The Plaintiffs allege that they were not compensated at
overtime rates for their supplemental days. They claim that when
they worked more than 36 hours, they should have been compensated
at overtime rates. Finally, they assert that when they "change
tours" or trade shifts with other employees, and end up working
more than 36 hours due to the change or trade, they are not
compensated at overtime rates.
On Feb. 23, 2017, the Defendants filed the motion to partially
dismiss the complaint pursuant to Rule 12(b)(6). On March 13,
2017, the Plaintiffs served Notices of Claim on the Defendants
pursuant to New York County Law Section 52.
On April 12, 2017, the Plaintiffs filed a motion to amend their
complaint pursuant to Rule 15. They seek to add or edit the
following facts in their proposed amended complaint ("PAC").
Ambulance Medical Technician Coordinators were among those
individuals who were assigned to Duty Chart 7 who had to work
three extra 12 hour shifts per year. Instead of claiming that
they worked three 48-hour weeks per year, the PAC alleges that the
Plaintiffs worked 48-hour weeks "numerous times per year."
Contrary to the original complaint's allegations, the PAC states
that other departments in the NCPD, including Communications
Bureau Operators, work similar 12-hour shifts per week and their
overtime rates are not calculated correctly. They contend that
the statement in the original complaint that the Communications
Bureau Operators' rates were calculated correctly was a
"scrivener's error."
Judge Spatt granted the Plaintiffs' motion to amend to the extent
that they may add the facts regarding Ambulance Medical Technician
Coordinators on Duty Chart 7; that the Plaintiffs worked 48-hour
weeks numerous times per year; and that other departments'
overtime rates are not calculated correctly. Their motion to
amend is denied without prejudice to the extent that they seek to
add facts concerning their service of notices of claim on the
Defendants. Because the notices were filed late, that amendment
would be futile.
Judge Spatt dismissed the Plaintiffs claims' against the NCPD and
the NCCSC, and the Clerk of the Court is respectfully directed to
terminate them as parties. The Plaintiffs' overtime claims will
be limited to those weeks where they worked more than 40 hours,
not owing to a mutual or shift swap. The Plaintiffs' NYLL claims
are dismissed without prejudice with leave to refile upon
obtaining an order from a New York State court of competent
jurisdiction stating that the late notices of claim were proper.
At this time, only the Plaintiffs' FLSA overtime claims remain
against Nassau County, for those weeks when they worked more than
40 hours not due to mutual or shift swaps.
Judge Spatt directed the Plaintiffs to notify the Court within 14-
days of the entry of the Order whether they intend to obtain
relief as to their NYLL claims in the New York State courts. In
the event that the Plaintiffs express their intent to seek such
relief, the matter will be stayed for a reasonable period of time
pending the decision of the state court.
A full-text copy of the Court's Aug. 9, 2017 Memorandum of
Decision and Order is available at https://is.gd/QMi8nY from
Leagle.com.
Ronald Gurrieri, Plaintiff, represented by Louis D. Stober, Jr.,
Law Offices of Louis D. Stober, Jr., LLC.
Diane McCauley, Plaintiff, represented by Louis D. Stober, Jr.,
Law Offices of Louis D. Stober, Jr., LLC.
Lawrence Loiselle, Plaintiff, represented by Louis D. Stober, Jr.,
Law Offices of Louis D. Stober, Jr., LLC.
Mary Tedesco, Plaintiff, represented by Louis D. Stober, Jr., Law
Offices of Louis D. Stober, Jr., LLC.
Edward Donoghue, Plaintiff, represented by Louis D. Stober, Jr.,
Law Offices of Louis D. Stober, Jr., LLC.
County Of Nassau, Defendant, represented by Deanna Darlene Panico,
Bee Ready Fishbein Hatter & Donovan, LLP & Michael Paul Siravo,
Bee Ready Fishbein Hatter & Donovan, LLP.
NERIUM INTERNATIONAL: Faces "Jia" Suit over Pyramid Scheme
----------------------------------------------------------
HELEN JIA, an individual; SARAH SORMILLON, an individual; and all
those similarly situated, the Plaintiffs, v. NERIUM INTERNATIONAL,
LLC, a Texas Limited Liability Company; NERIUM SKIN CARE, INC., a
Texas Corporation, NATURAL TECHNOLOGY, INC dba
NATURTECH; JEFF OLSON, an individual; RENEE OLSON, an individual;
AMBER OLSON ROURKE, an individual; MICHAEL SHOUHED, an individual;
KELLY HEFERNAN; and DOES 1-10, the Defendants, Case No. 2:17-cv-
05686-R-AGR (C.D. Cal., Aug. 1, 2017), alleges that Nerium and
their conspirators represented to plaintiffs Helen Jia and Sarah
Sormillon that Nerium provides a business opportunity that can
build "a dream lifestyle" and that Plaintiffs could be financially
independent by virtue of selling Nerium's "age-defying" creams.
But in reality, these promises of riches, wealth, and gifts
couldn't be further from the truth. Characterized by some of its
former employees as a scam and a cult, Nerium touts that it has
generated one billion dollars in cumulative sales after just four
years. These sales are based on the recruitment of new brand
partners into the pyramid scheme that Nerium has amassed.
Plaintiffs did not make money as promised. As with the case of
thousands of Nerium distributors before and after them, the
Plaintiffs failed. Plaintiffs and those similarly situated, failed
even though they were committed and put in the time and effort.
They failed because they were doomed from the start by a Nerium
marketing plan that systematically rewards recruiting distributors
over the sale of products.
Nerium International offers exclusive age-defying skincare and
wellness products.[BN]
The Plaintiffs are represented by:
Blake J. Lindemann, Esq.
LINDEMANN LAW FIRM, APC
433 N. Camden Drive, 4th Floor
Beverly Hills, CA 90210
Telephone: (310) 279 5269
Facsimile: (310) 300 0267
E-mail: blake@lawbl.com
NEW SOUTH WALES: Light Rail Work on Track to Face Class Suit
------------------------------------------------------------
Sofia Gronbech Wright, writing for The Australian, reports that
the NSW government is facing mounting pressure to provide
compensation to businesses and residents affected by work on
Sydney's $2.1 billion light rail project amid threats of a class
action.
A small-business forum conducted by independent City of Sydney
councillor Angela Vithoulkas on August 2 was told that not only
were businesses suffering financial stress but the pressure was
having an impact on people's mental health.
Ms. Vithoulkas said construction over the past 14 months had
caused damage to houses and some residents had reported the stench
of diesel entering their homes and drilling past midnight that was
so loud they had bought decibel recording devices to provide
evidence.
Work on the light rail is now under way on every stage of the 12km
route, which runs from Circular Quay in the city to Randwick in
the eastern suburbs.
David Tracy, who owns Steel Bar and Grill and Steel Espresso in
the city, said the work was having a deep impact. "I don't sleep
like I used to," he said. "We're completely blocked off and
falling behind on the rent."
Local businesses say they have suffered a 30 per cent drop in
revenue, forcing some to close and others to refinance their
homes.
A spokeswoman for NSW Transport Minister Andrew Constance said:
"As with any major construction, there is some short-term
disruption caused. However we are building a $2.1bn infrastructure
project which, when complete, will significantly benefit the CBD,
including the businesses along the alignment."
She said Transport for NSW and the light rail developer "regularly
meet with businesses affected. They have held numerous forums,
have a specialist team to assist with freight and delivery-access
concerns and advisers from the NSW Small Business Commissioner
have also reached out to assist local businesses along the light
rail alignment."
Ms. Vithoulkas said some business owners were looking at a class
action after seeking legal opinion. "We are now preparing to raise
funding for it,'' she said.
Affected residents are conducting a survey on the impact of the
work for presentation to the Premier and Transport Minister. [GN]
NORTHSIDE IMPORTS: Fails to Pay Employees OT, Action Claims
-----------------------------------------------------------
Clemente Morejon Escandell and all others similarly situated v.
Northside Imports, Inc., Universal Imports Parts Inc., Eugene
Velasco, and Thomas Sendros, Case No. 1:17-cv-22972-RNS (S.D.
Fla., August 4, 2017), is brought against the Defendants for
failure to pay overtime wages for work performed in excess of 40
hours weekly.
The Defendants operate a company that imports and distributes of
auto parts. [BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
E-mail: ZABOGADO@AOL.COM
NUTIVA INC: Court Resolves Deposition Issue in "Jones" Suit
-----------------------------------------------------------
In the case captioned PRESTON JONES, ET AL., Plaintiffs, v.
NUTIVA, INC., Defendant, Case No. 4:16-cv-00711-HSG (KAW)(N.D.
Cal.), Magistrate Judge Kandis A. Westmore of the District Court
for the Northern District of California said the Plaintiffs'
depositions may proceed in either Newport Beach, California or in
the Northern District of California, or, in the case of Mr. Jones,
in Virginia Beach, Virginia so long as Nutiva's counsel's
reasonable travel expenses are paid by the Plaintiffs.
Plaintiff Jones, who lives in Virginia Beach, Virginia, filed this
action in January 2016, in Contra Costa County Superior Court.
Plaintiff Shirin Delalat, who lives in San Diego, California,
joined the action in December 2016.
On June 27, 2017, Nutiva noticed the Plaintiffs' depositions for
July 6 and 7, in Newport Beach, California, where Nutiva's counsel
is located. The notices followed meet-and-confer efforts by the
parties regarding the appropriate locations, day, and time for the
depositions.
On July 12, 2017, by way of joint letter, the parties filed a
joint letter concerning the locations of the Named Plaintiffs'
noticed depositions. The Plaintiffs seek a protective order
directing Nutiva to either take Mr. Jones' deposition by video, or
in Virginia Beach, and to take Ms. Delalat's deposition in San
Diego either on a weekend day or after business hours. Nutiva
opposes the Plaintiffs' motion but has agreed to suspend the
deposition notices pending its resolution.
The Plaintiffs argue that Nutiva, in choosing Newport Beach, did
not choose an appropriate deposition location, since neither the
Plaintiff resides there nor was the action filed there. Instead,
Newport Beach is where Nutiva's counsel is located. The Defendant
contends that Newport Beach was chosen simply because it is
certainly more accommodative of all involved than a location in
the Northern District of California. This is true, as Plaintiff
Delalat and the Plaintiffs' counsel are both located in San Diego.
Upon review of the joint letter, Magistrate Judge Westmore finds
this matter suitable for resolution without oral argument pursuant
to Civil Local Rule 7-1(b). She ordered the parties to meet and
confer and decide whether the depositions will occur in Newport
Beach, California or at a location in the Northern District of
California during normal business hours. Should Plaintiffs wish
to have Mr. Jones's deposition occur in Virginia Beach, the
Plaintiffs will pay the reasonable travel expenses for Nutiva's
counsel. Given the approaching class certification deadlines, if
the parties cannot agree within 5 days of the Order, the
depositions will be taken in the Northern District of California.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/H0qFMq from Leagle.com.
Preston Jones, Plaintiff, represented by Paul Kenneth Joseph --
pkjoseph@umich.edu -- The Law Office of Paul K. Joseph, PC.
Preston Jones, Plaintiff, represented by Jack Fitzgerald --
jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC, Melanie Rae Persinger -- melanie@jackfitzgeraldlaw.com -- The
Law Office of Jack Fitzgerald & Trevor Matthew Flynn --
trevor@jackfitzgeraldlaw.com -- Law Office of Jack Fitzgerald, PC.
Shirin Delalat, Plaintiff, represented by Paul Kenneth Joseph, The
Law Office of Paul K. Joseph, PC & Jack Fitzgerald, The Law Office
of Jack Fitzgerald, PC.
Nutiva, Inc., Defendant, represented by Rakesh Mahendra Amin --
rakesh@amintalati.com -- Amin Talati and Upadhye LLC, pro hac
vice, Ryan Mathew Kaiser -- Ryan Mathew Kaiser -- Amin Talati and
Upadhye LLC, pro hac vice, Sanjay Satish Karnik --
sanjay@amintalati.com -- Amin Talati and Upadhye LLC, pro hac
vice, William Paul Cole -- wcole@calljensen.com -- Call and Jensen
& Matthew Ryan Orr -- morr@calljensen.com -- Call & Jensen.
PALM BEACH, FL: Faces Class Action Over Utilities Tax Plan
----------------------------------------------------------
William Kelly , writing for Palm Beach Daily News, reports that
Palm Beach is facing a second class-action lawsuit in a week
challenging its plan to assess property owners to pay for burying
all utilities in town.
The suit was filed on August 1 in Palm Beach Circuit Court on
behalf of PBT Real Estate LLC, based at the Palm Beach Towers
condominium building at 44 Cocoanut Row. It names the town, Palm
Beach County Property Appraiser Dorothy Jacks, and Palm Beach
County Tax Collector Anne Gannon as defendants.
The suit challenges the validity of the special assessments
imposed against "approximately 273 Class members" at the Palm
Beach Towers and alleges the special assessments are "an illegal
and unconstitutional tax camouflaged as a 'special assessment,'"
according to John D. O'Neill, the registered agent of PBT Real
Estate and an attorney.
On August 4, South End resident Carol Kosberg and single-family
homeowner Michael Scharf filed a class action complaint
challenging the Town Council's recent decision to impose special
assessments on property owners, beginning in November, to pay for
an estimated $90 million town-wide burial of all overhead power,
cable television and telephone lines. The annual assessments are
for 30 years.
Kosberg and Scharf, a North End resident and former zoning
commissioner, claim the town is using an arbitrary method to
determine the amount each property must pay.
Town Manager Tom Bradford could not be immediately reached to
comment on PBT Real Estate's lawsuit but said that the town is
using a methodology similar to others that have been approved by
courts in Palm Beach County.
The lawsuits were filed on the eve of the town's ribbon-cutting
ceremonies scheduled for August 4 morning to mark the launch of
the first phase of the project, in the South End and far North End
of town. [GN]
PARK AVENUE SOUTH: Dec. 1 Fairness Hearing on "Bahena" Settlement
-----------------------------------------------------------------
In the case captioned VICENTE BAHENA, et al., Plaintiffs, v. PARK
AVENUE SOUTH MANAGEMENT LLC, et al., Defendants, No. 15-CV-1507
(VSB)(S.D. N.Y.), Judge Vernon S. Broderick of the U.S. District
Court for the Southern District of New York granted the
Plaintiffs' unopposed motion for: (i) preliminary approval of a
class settlement agreement; (ii) conditional certification of the
proposed class; (iii) approval of the proposed notice of the
settlement; and (iv) appointment of class counsel and class
representatives.
The Plaintiffs and members of the settlement class are current and
former employees of the Defendants who worked as building
superintendents and porters in buildings owned, operated, or
managed by Defendants between March 2009 and the present. They
allege that the Defendants violated the Fair Labor Standards Act
("FLSA") and wage and hour laws of New York by failing to pay them
overtime wages for all hours worked in excess of 40 in all
workweeks, failing to pay them the required minimum wage, and
failing to provide the required notices.
The Plaintiffs commenced this action by filing the Complaint on
March 2, 2015. On May 19, 2015, they filed their Amended
Complaint. On Sept. 16, 2016, Judge Broderick granted the
Plaintiffs' motion for conditional certification as a collective
action pursuant to Section 216(b) of the FLSA.
On Feb. 27, 2017, Judge Broderick granted the parties' request to
hold discovery in abeyance pending mediation. On May 15, the
parties participated in a mediation session at which they reached
a settlement in principle. On June 30, the Plaintiffs filed their
unopposed motion to approve the settlement agreement, certify the
settlement class, authorize the class notice, and schedule a
fairness hearing along with the memorandum of law in support and
declaration of Bruce Menken, with exhibits.
Having reviewed the Plaintiffs' submissions, including the
Settlement Agreement, and the Declaration of Bruce Menken, Judge
Broderick concluded that the settlement is the result of
substantial investigative efforts, arm's-length negotiations, and
that its terms are within the range of possible settlement
approval.
He provisionally certified for settlement purposes the "Settlement
Class" under Federal Rule of Civil Procedure 23(e) defined as: all
superintendents and porters who worked in a building or buildings
managed, owned, or operated by Defendants between March 3, 2009
and the date of the Order.
Judge Broderick appointed the Plaintiffs' counsel, Bruce E. Menken
of the law firm Beranbaum Menken LLP, as the class counsel. He
also appointed Vicente Bahena, Jonas Bahena, Jose Cruz Ayala, and
Rafael Rodriguez as the class representatives.
The Judge further approved the Plaintiffs' proposed notice. In
addition, he noted that the Plaintiffs will provide English and
Spanish copies of the notice.
Judge Broderick will hold a fairness hearing on Dec. 1, 2017, at
11:00 a.m., in courtroom 518, Thurgood Marwill United States
Courthouse, 40 Foley Square, New York, New York 10007. At this
hearing, he will determine: (i) whether the proposed settlement of
this action on the terms and conditions provided for in the
Settlement Agreement is fair, just, reasonable, adequate, and in
the best interest of the Settlement Class; (ii) whether he should
approve the Settlement Agreement; and (iii) whether he should
enter a Final Judgment of Dismissal. To the extent the Plaintiffs
will seek to recover attorney's fees, the Plaintiffs are directed
to submit contemporaneous billing records for each attorney who
worked on the case at the time they file their motion for final
settlement approval. In addition, the Plaintiffs are directed to
provide courtesy copies on or before Nov. 20, 2017 of their
submissions, which will include a proposed order for final
settlement approval.
A full-text copy of the Court's Aug. 9, 2017 Memorandum and
Opinnion is available at https://is.gd/MwX9Gz from Leagle.com.
Vicente Bahena, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP.
Vicente Bahena, Plaintiff, represented by Grace Cathryn Cretcher -
- gcretcher@nyemployeelaw.com -- Beranbaum Menken Ben-Asher &
Bierman LLP, Abigail Ruth Cook-Mack, Beranbaum Menken, LLP & Scott
Simpson -- ssimpson@nyemployeelaw.com -- Beranbaum Menken LLP.
Jonas Bahena, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP, Abigail Ruth Cook-Mack,
Beranbaum Menken, LLP & Scott Simpson, Beranbaum Menken LLP.
Jose Cruz Ayala, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP, Abigail Ruth Cook-Mack,
Beranbaum Menken, LLP & Scott Simpson, Beranbaum Menken LLP.
Rafael Rodriguez, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP, Abigail Ruth Cook-Mack,
Beranbaum Menken, LLP & Scott Simpson, Beranbaum Menken LLP.
Alberto Rivera, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP & Scott Simpson,
Beranbaum Menken LLP.
Alexis Bahena, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP & Scott Simpson,
Beranbaum Menken LLP.
Bladimir DeLeon, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP & Scott Simpson,
Beranbaum Menken LLP.
Candido Quezeda, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP & Scott Simpson,
Beranbaum Menken LLP.
Fernando Delvalle, Plaintiff, represented by Bruce Eric Menken,
Beranbaum Menken Ben- Asher & Bierman LLP, Grace Cathryn Cretcher,
Beranbaum Menken Ben- Asher & Bierman LLP & Scott Simpson,
Beranbaum Menken LLP.
Park Avenue South Management LLC, Defendant, represented by
Carolyn Diane Richmond -- crichmond@foxrothschild.com -- Fox
Rothschild, LLP, Glenn Sklaire Grindlinger --
ggrindlinger@foxrothschild.com -- Fox Rothschild, LLP & James M.
Lemonedes -- jlemonedes@foxrothschild.com -- Fox Rothschild,
Attorneys at Law.
Gilanco Holdings LLC, Defendant, represented by Eric David Raphan
-- eraphan@sheppardmullin.com -- Sheppard, Mullin, Richter &
Hampton, LLP & Sean Joseph Kirby -- skirby@sheppardmullin.com --
Sheppard, Mullin, Richter & Hampton, LLP.
3850 Broadway Holding LLC, Defendant, represented by Daniel
William Morris -- dwmorris@cbdm.com -- Clifton Budd & DeMaria,
LLP.
Barberry Rose Management Company, Inc., Defendant, represented by
Daniel William Morris, Clifton Budd & DeMaria, LLP.
2500 ACP Partners LLC, Defendant, represented by Jeffrey Kevin
Brown, Leeds Morelli & Brown, Lauren Ruth Reznick, Leeds Brown
Law, P.C. & Michael Alexander Tompkins, Leeds Brown Law PC.
Amsterdam Realty Partners, LLC, Defendant, represented by Jeffrey
Kevin Brown, Leeds Morelli & Brown, Lauren Ruth Reznick, Leeds
Brown Law, P.C. & Michael Alexander Tompkins, Leeds Brown Law PC.
Emo Realty Partners LLC, Defendant, represented by Jeffrey Kevin
Brown, Leeds Morelli & Brown, Lauren Ruth Reznick, Leeds Brown
Law, P.C. & Michael Alexander Tompkins, Leeds Brown Law PC.
Maurice Mckenzie, Defendant, represented by Carolyn Diane
Richmond, Fox Rothschild, LLP, Glenn Sklaire Grindlinger, Fox
Rothschild, LLP & James M. Lemonedes, Fox Rothschild, Attorneys at
Law.
Edward M. Ostad, Defendant, represented by Jeffrey Kevin Brown,
Leeds Morelli & Brown, Lauren Ruth Reznick, Leeds Brown Law, P.C.
& Michael Alexander Tompkins, Leeds Brown Law PC.
PCL CONSTRUCTION: 2nd Class Suit Filed Over OBX Outage Seeks $5MM
-----------------------------------------------------------------
Jeff Hampton, writing for The Virginian-Pilot, reports that
fishing charter enterprises, hourly wage earners and more than 100
others have filed a federal class-action lawsuit against the
company blamed for cutting the only power line to Hatteras and
Ocracoke islands.
The claim filed on August 3 in U.S. District Court for eastern
North Carolina claims PCL Construction Enterprises and affiliates
caused "significant economic and personal hardships" to the
plaintiffs, according to the Zaytoun Law Firm in Raleigh and
attorney Steve Lacy of Bayboro, N.C.
The line was clearly marked and the defendants should have known
where it was, the suit said.
The attorneys also plan to file a class-action suit in Hyde
County, which includes Ocracoke, according to a release from the
Zaytoun firm.
"These are hardworking, salt-of-the-earth people who rely on their
summer revenues to carry them through the rest of the year,"
Robert Zaytoun said in a news release.
The suit includes more than 100 plaintiffs with claims surpassing
$5 million and the numbers are likely to grow, according to the
documents. Some plaintiffs live out-of-state. Named plaintiffs
include Miss Hatteras Inc. a fishing charter company, and Charles
Edward Hofman, an hourly wage employee of a restaurant, according
to the suit. The law firms are accepting additional clients, the
release said.
This is at least the second class-action lawsuit filed after
thousands lost power in the lower Outer Banks during the peak
tourist season. Officials declared a mandatory evacuation of
visitors leaving businesses with fully stocked shelves and few
customers.
PCL has declined comment on the lawsuits. [GN]
PEREGRINE FINANCIAL: 7th Cir. Affirms Dismissal of "Miller" Suit
----------------------------------------------------------------
Judge Ilana Rovner of the U.S. Court of Appeals for the Seventh
Circuit affirmed the decision of the district court dismissing the
case captioned IN RE: PEREGRINE FINANCIAL GROUP, INC., Debtor.
SECURE LEVERAGE GROUP, INC., et al., Appellants, v. IRA
BODENSTEIN, Appellee, and COMMODITY FUTURES TRADING COMMISSION,
Intervenor-Appellee. IN RE: PEREGRINE FINANCIAL GROUP, INC.,
Debtor, ROBERT MILLER, et al., Appellants, v. IRA BODENSTEIN,
Trustee of Estate of Peregrine Financial Group, Inc., Appellee,
Nos. 16-3424, 16-3425(7th Cir.).
The Plaintiffs are investors who executed retail forex and spot
metal contracts with Peregrine.
This consolidated appeal arose out of a series of events which
culminated in Peregrine's bankruptcy filing. In July 2012,
Russell L. Wasendorf, Peregrine's CEO and the Chairman of the
Board was arrested, and in September 2012, pled guilty to four
criminal charges, including admitting that he embezzled and
misappropriated nearly $200 million from Peregrine's segregated
customer futures accounts.
As a result of that loss, Peregrine filed for bankruptcy and
Bodenstein was appointed as trustee. Bodenstein excluded the
Secured Leverage Plaintiffs from that priority distribution based
on his determination that forex and spot metal transactions did
not constitute "commodity contracts" as so defined. The Secured
Leverage Plaintiffs then filed an adversary complaint against
Bodenstein, challenging that decision. After that adversary
proceeding was terminated, the Miller Plaintiffs, filed a class
action adversary proceeding against Bodenstein, alleging fraud,
breach of fiduciary duty, unjust enrichment, and conversion, and
seeking the imposition of a constructive trust. As that claim was
filed two years after the bar date for proofs of claim, and
involved claims based on facts unrelated to the timely filed
contract-based claims, the bankruptcy court dismissed the action
as untimely.
On appeal, the Plaintiffs in this consolidated action challenge
the decisions of the bankruptcy court and the district court. The
Secured Leverage Plaintiffs assert that their funds were held in a
resulting trust and therefore were not included in the bankruptcy
estate; the forex and spot metal contracts constituted commodity
contracts under the similar contracts clause; and the bankruptcy
court erred in precluding the expert testimony of Martin Doyle.
The Miller Plaintiffs allege that the courts erred in holding that
their claim was untimely and did not constitute an amended claim;
and that a constructive trust is a proper remedy.
Judge Rovner held that the district court properly resolved all of
those challenges, and nothing that is argued in the briefs to her
leads her to disagree with the district court's analysis. Because
she agrees with the reasoning and conclusions of the district
court as to all of the issues raised on appeal, Judge Ronvner
adopted the district court's opinion set forth at Secure Leverage
Grp., Inc. v. Bodenstein, as her own in this appeal.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/qOGRzB from Leagle.com.
Robert M. Fishman -- rishman@shawfishman.com -- for Appellee.
Michael John O'Rourke -- morourke@orourkeandmoody.com -- for
Appellant.
Michael C. Moody -- mmoody@orourkeandmoody.com -- for Appellant.
Terence G. Banich -- tbanich@shawfishman.com -- for Appellee.
Anne Stukes, for Intervenor-Appellee.
Carrie Ellen Davenport, for Appellee.
Kavita Kumar Puri, for Intervenor-Appellee.
Vivian R. Drohan, for Appellant.
John Patrick Drohan, III, for Appellant.
PFIZER INC: Court Remands "Little" Lipitor Suit to State Court
--------------------------------------------------------------
Judge Edward M. Chen of the U.S. District Court for the Northern
District of California granted the Plaintiffs' Motion to Remand
the case captioned LORETTA LITTLE, et al., Plaintiffs, v. PFIZER
INC, et al., Defendants, Case Nos. 14-cv-01177-EMC, 14-cv-01195-
EMC, 14-cv-01196-EMC, 14-cv-01204-EMC, 14-cv-01488-EMC(N.D. Cal.).
Plaintiff Little's case and four related cases (Stark, Rouda,
Peters, and Davis, respectively Nos. C-14-1488, C-14-1195, C-14-
1196, and C-14-1204) were previously part of a multidistrict
litigation ("MDL"), in which Pfizer and McKesson Corp. were sued
on the ground that the Plaintiffs had developed type 2 diabetes as
a result of their taking Pfizer's prescription medication Lipitor.
The Plaintiffs filed their cases in state court in 2014. Pfizer
removed the cases to federal court, asserting both traditional
diversity jurisdiction and Class Action Fairness Act ("CAFA") mass
action jurisdiction. The Plaintiffs' cases, along with other
cases not before this Court, were subsequently transferred to a
MDL.
In November 2016, the judge in the MDL granted motions to remand
in the California cases (including but not limited to the cases
before the Court). The MDL court determined that it lacked
traditional diversity jurisdiction over the cases and that the
only possible ground for federal jurisdiction was mass action
jurisdiction pursuant to CAFA. The MDL court recommended to the
Judicial Panel on Multidistrict Litigation ("JPML") that the
actions be remanded to the transferor courts to decide the CAFA
mass action issue. The JPML followed that advice and thus the
five above were transferred back to the Northern District of
California.
Before this Court, the parties agreed to a stay pending a decision
by Judge Carney of the Central District of California on the CAFA
mass action issue. The transfer of cases from the MDL back to the
Central District involved many more Plaintiffs -- more than 4,000.
In May 2017, Judge Carney issued his decision granting the
Plaintiffs' motion to remand. Judge Carney subsequently denied
Pfizer's request for a stay of further proceedings pending an
appeal to the Ninth Circuit. Pfizer has appealed Judge Carney's
rulings. The Ninth Circuit has not acted and appears in effect to
have denied the Section 1453(c) appeal.
In June 2017, this Court declined to stay its own cases pending
Pfizer's appeals. It further ordered Pfizer to show cause as to
why there should not be a remand of the five cases. Pfizer has
now responded (and McKesson Corp. has joined that response), and
the Plaintiffs have filed a reply.
According to the Plaintiffs, Pfizer's removal of their cases from
state to federal court based on the "mass action" provision of the
CAFA was improper. In arguing against remand in the instant
cases, Pfizer rehashes arguments made to Judge Carney and
criticizes Judge Carney's reasoning.
Having considered the parties' briefs and accompanying
submissions, Judge Chen found that none of Pfizer's arguments is
compelling. He noted that Judge Carney granted the Plaintiffs'
motions to remand concluding that, while there had been some
proposals for a joint trial by some Plaintiffs via the JCCP, those
Plaintiffs numbered fewer than 100.
In denying Pfizer's move for a stay pending appeal of the decision
to the Ninth Circuit, Judge Carney reiterated that it is not
sufficient that less than 100 Plaintiffs state that other
Plaintiffs will want a joint trial as well. Every one of the 100
Plaintiffs must take affirmative action to be part of and be bound
by a proposal for a joint trial. To conclude otherwise would be
unfair to those Plaintiffs who want nothing to do with a joint
trial, and unfair to the state of California, which has a
significant interest in addressing injuries allegedly suffered by
its citizens and setting the appropriate level of liability for
companies conducting business within its borders.
Judge Chen found Judge Carney's reasoning persuasive and rejected
Pfizer's arguments. Accordingly, he granted the Plaintiffs'
motions to remand the five cases before it back to the state
courts from which they were removed. He directed the Clerk of the
Court to close the files in these cases.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/1zmyuV from Leagle.com.
Loretta Little, Plaintiff, represented by Jennifer Nolte Williams,
Jackson Allen Williams LLP.
Brenda Anderson, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Stella Batten, Plaintiff, represented by Jennifer Nolte Williams,
Jackson Allen Williams LLP.
Retha Biggs, Plaintiff, represented by Jennifer Nolte Williams,
Jackson Allen Williams LLP.
Pauline Bloodworth, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Carol Broussard, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Elma Burbridge, Plaintiff, represented by Jennifer Nolte Williams,
Jackson Allen Williams LLP.
Patricia Burdiss, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Shirley Chisler, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Dessie Christopherson, Plaintiff, represented by Jennifer Nolte
Williams, Jackson Allen Williams LLP.
Pfizer Inc, Defendant, represented by Karin A. Kramer, Quinn
Emanuel Urquhart & Sullivan, LLP & Mark S. Cheffo --
markcheffo@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP, pro hac vice.
McKesson Corporation, Defendant, represented by Emma Elizabeth
Garrison -- garrison@wtotrial.com -- Wheeler Trigg O'Donnell LLP.
PORTFOLIO RECOVERY: Court Denies Class Certification in "Garcia"
----------------------------------------------------------------
In the case captioned RUFINO D. GARCIA, on behalf of himself and
those similarly situated, Plaintiff, v. PORTFOLIO RECOVERY
ASSOCIATES, LLC, Defendant, Civil No. 15-3685 (NLH/JS)(D. N.J.),
Judge Noel L. Hillman of the U.S. District Court, D. New Jersey
denied the Plaintiff's Motion for Class Certification.
This putative class action suit is brought pursuant to the Fair
Debt Collections Practices Act ("FDCPA"). Plaintiff Garcia
alleges that Defendant PRA, has a policy, pattern or practice of
filing collections lawsuits without intent to prove its claims, in
violation of Sections1692e(5), (10), and 1692f.
Garcia asserts that PRA's actions in the state collections suit
violated Section 1692e(5) which prohibits debt collectors from
threatening to take action that is not intended to be taken.
According to Garcia, PRA never intended to prove its claim against
him, or even acquire the evidence necessary to prove the claim.
Rather, the filing of the collections action was merely an attempt
to obtain a default judgment or an early settlement of the case.
Garcia further contends that these same actions violate the
FDCPA's prohibitions on using false representations or deceptive
means to collect or attempt to collect alleged debts, and using
unfair or unconscionable means in connection with the collection
of alleged debts.
Moreover, Garcia asserts that PRA took the actions in the
underlying suit pursuant to PRA's "Legal Recovery Standard
Operating Procedures," which he asserts, is a general policy
directing PRA's lawyers to explore settlement or abandonment of
the suit whenever a case is contested and requires a witness.
Before the Court is Garcia's Motion for Class Certification. His
proposed class is all natural persons against whom the Defendant
filed a debt-collection lawsuit in a court in the State of New
Jersey seeking to collect a consumer debt allegedly owed to
Citibank, N.A. from June 2, 2014 through and including June 2,
2015. His proposed subclass is all members of the Class as
defined who incurred an out-of-pocket expenditure of money to
defend against, respond to, or otherwise resolve the covered
collection lawsuit filed against him or her by the Defendant.
Judge Hillman held that the Plaintiffs failed to establish
commonality because they had not identified a common mode of
exercising discretion that pervades the entire company. Indeed,
the Judge observed that the only corporate policy that the the
Plaintiffs' evidence convincingly establishes is Wal-Mart's
'policy' of allowing discretion by local supervisors over
employment matters.
According to the Court, the litigation decisions in this case are
analogous to the employment decisions in Wal-Mart Stores, Inc. v.
Dukes. Both are individualized and dependent on different people
making decisions based on various factors. Thus, as in Dukes, the
proposed class in this case fails for lack of commonality.
Further, a holding that a proposed class lacks sufficient
commonality under Rule 23(a)(2) precludes a holding of
predominance under Rule 23(b)(3). Accordingly, Judge Hillman
denied the Plaintiff's Motion for Class Certification.
A full-text copy of the Court's Aug. 9, 2017 Opinion is available
at https://is.gd/YW0jEg from Leagle.com.
RUFINO D. GARCIA, Plaintiff, represented by CHRISTOPHER MARKOS --
cmarkos@wcblegal.com -- WILLIAMS CUKER BEREZOFSKY.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, represented by
AMANDA LYN GENOVESE -- amanda.genovese@troutmansanders.com --
TROUTMAN SANDERS LLP.
PRIMERO MINING: Court Tosses "Loftus" First Amended Suit
--------------------------------------------------------
Judge Beverly R. O'Connell of the U.S. District Court for the
Central District of California entered his final judgment
granting, without prejudice, the Defendants' motion to dismiss the
First Amended Class Action Complaint in the case captioned PATRICK
LOFTUS, Individually and on behalf of all others similarly
situated, Plaintiff, v. PRIMERO MINING CORP., JOSEPH F. CONWAY,
ERNEST MAST, DAVID BLAIKLOK, AND WENDY KAUFMAN, Defendants, Case
No. 2:16-cv-01034 BRO(RAOx)(C.D. Cal.).
On July 14, 2017, the Court issued an order granting, without
prejudice, the Defendants' motion to dismiss the First Amended
Complaint ("FAC") for failure to state a claim.
On Aug. 4, 2017, Lead Plaintiffs Royal Wulff Ventures, LLC and
Robert E. Cook, as Trustee for the Robert E. Cook and Paula J.
Brooks Living Trust Under An Agreement Dated 12/30/1988, filed a
notice informing the Court of their intention to stand on their
FAC and requesting that the Court enter a final judgment of
dismissal so that they may appeal the Court's prior order to the
Court of Appeals for the Ninth Circuit.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/d2PoIJ from Leagle.com.
Patrick Loftus, Plaintiff, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm PA.
Royal Wulff Ventures LLC, Plaintiff, represented by Barbara A.
Rohr -- brohr@faruqilaw.com -- Faruqi and Faruqi LLP, Katherine M.
Lenahan -- klenahan@faruqilaw.com -- Faruqi and Faruqi LLP, pro
hac vice, Megan M. Sullivan, Faruqi and Faruqi LLP, pro hac vice &
Richard W. Gonnello, Faruqi and Faruqi LLP, pro hac vice.
Robert E. Cook, as trustee of The Robert E. Cook and Paula J.
Brooks Living Trust Under An Agreement Dated 12/30/1988,
Plaintiff, represented by Barbara A. Rohr, Faruqi and Faruqi LLP,
Katherine M. Lenahan, Faruqi and Faruqi LLP, pro hac vice, Megan
M. Sullivan -- msullivan@faruqilaw.com -- Faruqi and Faruqi LLP,
pro hac vice & Richard W. Gonnello -- rgonnello@faruqilaw.com --
Faruqi and Faruqi LLP, pro hac vice.
Andre White, Consol Plaintiff, represented by J. Alexander Hood,
Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com
-- Pomerantz LLP, Jeremy A. Lieberman -- jalieberman@pomlaw.com --
Pomerantz LLP, pro hac vice & Patrick V. Dahlstrom --
pdahlstrom@pomlaw.com -- Pomerantz LLP, pro hac vice.
Primero Mining Corp., Defendant, represented by Daniel Mumford
Perry -- dperry@milbank.com -- Milbank Tweed Hadley and McCloy LLP
& James D. Whooley -- jwhooley@milbank.com -- Milbank Tweed Hadley
and McCloy LLP.
Joseph F Conway, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP & James D. Whooley, Milbank
Tweed Hadley and McCloy LLP.
Ernest Mast, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP & James D. Whooley, Milbank
Tweed Hadley and McCloy LLP.
David Blaiklock, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP & James D. Whooley, Milbank
Tweed Hadley and McCloy LLP.
Wendy Kaufman, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP & James D. Whooley, Milbank
Tweed Hadley and McCloy LLP.
Wade Nesmith, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP.
David Demers, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP.
Grant Edey, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP.
Brad Marchant, Defendant, represented by Daniel Mumford Perry,
Milbank Tweed Hadley and McCloy LLP.
Robert Quartermain, Defendant, represented by Daniel Mumford
Perry, Milbank Tweed Hadley and McCloy LLP.
PROVIDENCE COMMUNITY: 11th Cir. Revives "Brinson" Suit
------------------------------------------------------
In the case captioned CHRISTINA BRINSON, and all other persons
similarly situated, Plaintiff-Appellant, v. PROVIDENCE COMMUNITY
CORRECTIONS, Defendant-Appellee, No. 16-11538(11th Cir.), Judge
David Bryan Sentelle of the U.S. Court of Appeals for the Eleventh
Circuit vacated the district court's order of dismissal and
remanded this case to the district court for further proceedings
on the issue of subject-matter jurisdiction.
Plaintiff-Appellant Brinson pled guilty in Georgia's Wayne County
State Court to several misdemeanor offenses. The court imposed
fines on Brinson and sentenced her to four one-year terms of
confinement, but the court allowed her to serve the sentences on
probation. The Wayne County State Court, along with Wayne County
itself, contracted with Defendant-Appellee Providence for the
private provision of probation services. So the court in
Brinson's case referred Brinson to Providence for probation.
The so-called "Services Agreement" among Providence, Wayne County,
and the Wayne County State Court created what it deemed a "user-
based fee program." Under this program, Providence generated
income by requiring probationers to pay Providence costs and fees
associated with the various services the probationers received as
part of their probation. Wayne County and the Wayne County State
Court paid nothing to Providence; the court's obligation was
simply to enforce probationers' duty to pay for services received.
Brinson filed suit in federal court, attacking Georgia's private-
probation system and seeking relief on behalf of a class of
individuals who have paid probation-related fees to Providence in
Georgia. In Count I of her complaint, she seeks an order
declaring the statute authorizing Georgia's private-probation
system, unconstitutional on a number of grounds under the U.S. and
Georgia Constitutions. Count I also seeks a declaration that the
Services Agreement is void for not having been properly approved
or re-approved by Wayne County and the Wayne County State Court.
In Count II, Brinson seeks damages under the Georgia-law theory of
"money had and received" based on the fees she paid pursuant to
the allegedly void Services Agreement.
Providence responded to the complaint with a motion to dismiss for
lack of subject-matter jurisdiction and for failure to state a
claim. The district court granted Providence's motion to dismiss,
finding that, although Brinson adequately alleged her standing,
each of the claims she asserted failed to state a claim. At no
point did Brinson ask the court for leave to amend her complaint.
Brinson asked the Eleventh Court to reverse the district court's
dismissal of her case with prejudice and remands the case for
further proceedings. Her complaint seeks a declaratory judgment
pursuant to 28 U.S.C. Section 2201 and damages based on the
Georgia-law theory of money had and received. And she chose to
seek these remedies in federal instead of state court. The
federal courts are courts of limited jurisdiction, and this
Court's subject-matter jurisdiction over Brinson's claim for
declaratory relief has been called into question by Providence's
assertions on appeal that (i) the Services Agreement has been
terminated effective April 2015 and (ii) Providence no longer
provides private probation services in Wayne County.
Judge Sentelle held that the district court's order of dismissal
addressed some questions of justiciability, but it addressed none
of the foregoing issues, which call into serious doubt this
Court's subject-matter jurisdiction over both the declaratory-
relief and damages claims. Given the lack of briefing on these
jurisdictional issues, combined with the potential need for
amendment of the complaint or development of a factual record on
the issue of jurisdiction, he vacated the district court's order
of dismissal and remanded this case to the district court for
further proceedings on the issue of subject-matter jurisdiction.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/5juD6p from Leagle.com.
John C. Bell, Jr., for Plaintiff-Appellant.
Glenn S. Bass, for Defendant-Appellee.
John B. Long -- jlong@tuckerlong.com -- for Plaintiff-Appellant.
William Welsh Horlock, Jr., for Defendant-Appellee.
John Ryd Bush Long -- jlongattorney@aol.com -- for Plaintiff-
Appellant.
Jason Randall Clark, for Plaintiff-Appellant.
Trisha L. Godsey, for Defendant-Appellee.
PURDUE MANUFACTURING: Jefferson County Asked to Join Opioid Suit
----------------------------------------------------------------
Steve Marion, writing for Standard Banner reports that county
Commission is taking a wait-and-see approach to a potential class
action lawsuit against pharmaceutical companies that market
opioids.
Meeting in quarterly session late last month, the group voted 18-1
to take no immediate action on a proposal presented by attorney
Tom Baugh, Esq. who plans to sue opioid marketers in a case he
described as similar to tobacco complaints settled in years past.
"We are asking Jefferson County to join us as a plaintiff," Baugh
said. "All costs will be paid by the lawyers. There will be no
cost to the county."
In successful motions from Commissioners John McGraw and Sammy
Solomon, the group asks the county attorney to provide regular
reports on the status of the proposed federal suit outlining
potential participation by other counties and the "window of
opportunity for Jefferson County to join" the litigation.
Commissioner David Seal voted against the move.
"I'm not opposed to this," said McGraw, "but neither do I really
want us to be first, second, or third [to sue]. If neighboring
counties get on board, we should consider it further."
Baugh said 20 suits against opioid marketers have been filed
across the country, with "hundreds more expected." He said the
suits attempt to recover damages incurred by communities as a
result of opioids, especially oxycontin.
Oxycontin was introduced in 1995 by Purdue Manufacturing,
accompanied by an aggressive campaign to market it, said Baugh. He
added that the federal government sued Purdue in 2007 and settled
for $604 million, $170 million of which went to the states.
Baugh said his plan is to file suit this month. Suits already
filed allege that marketers played up the effectiveness of the
drug while downplaying its addictive qualities. The result has
been a huge public cost and a massive black market for the drug.
[GN]
QUALCOMM INC: Settlement in "Pan" Granted Final Approval
--------------------------------------------------------
District Judge Janis L. Sammartino of the United States District
Court for the Southern District of California granted in its
entirety both Plaintiffs' Final Approval Motion and Attorney Fee
Motion in the case captioned, DANDAN PAN, CARRIE HALUZA, CAROLINA
DEALY, LAURA PAQUIN, WEI SHI, BLANCHE MATULICH and CONNIE JACOBSON
on behalf of themselves and all others similarly situated,
Plaintiffs, v. QUALCOMM INCORPORATED & QUALCOMM TECHNOLOGIES,
INC., Defendants, Case No. 16-cv-01885-JLS-DHB (S.D. Cal.).
Defendant Qualcomm Inc. employs approximately 15,000 individuals
in the United States, the majority in San Diego. Plaintiffs in the
above-captioned action assert claims for unequal pay and gender
discrimination against women regarding compensation, salary
increases or raises, job assignments, job code placements,
evaluations and ratings, and promotions and demotions, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section; the Equal Pay Act, 29 U.S.C. Section
206; the California Fair Employment and Housing Act, as amended,
Cal. Gov. Code Section 12940; the California Equal Pay Act, as
amended, Cal. Lab. Code Section 1197.5 (amended 2015); the
California Business and Professions Code Section 17200; and the
California Private Attorney General Act of 2004.
Plaintiffs and Defendants ("the Parties") entered into extensive
pre-suit negotiations for the purpose of settling their disputes
and on December 4, 2016, the Court issued an Order (1) granting
preliminary approval of class action/collective action settlement;
(2) provisionally certifying settlement classes and collective
action; (3) appointing class counsel; (4) appointing Plaintiffs as
Class Representatives; (5) appointing Rust Consulting as Class
Administrator; (6) approving notice and directing distribution of
Notice; and (7) setting the schedule for the final approval
process. Qualcomm is required to make a non-reversionary
settlement payment of $19.5 million in settlement of all class and
collective claims in the case.
Pending before the Court are Plaintiffs' Motions for (1) Final
Approval of Class Action Settlement and (2) Attorney Fees,
Expenses, and Service Awards.
In her Order dated July 31, 2017 available at https://is.gd/AJ0UMw
from Leagle.com, Judge Sammartino found that the requested
Attorney Fees, Expenses, and Service Awards are reasonable --
especially in light of the tremendous relief Plaintiffs and
Plaintiffs' Counsel secured and that each Class Representative
provides outstanding service to the class and incurred substantial
risk due to their service as a Class Representative.
Dandan Pan, et al., are represented by David W. Sanford, Esq. --
dsanford@sanfordheisler.com -- and -- Danielle A. Fuschetti, Esq.
-- dfuschetti@sanfordheisler.com -- SANFORD HEISLER SHARP, LLP
-- and --
Felicia M. Medina, Esq.
MEDINA ORTHWEIN LLP
1322 Webster St.
Ste. 200
Oakland, CA 94612
Tel:(510)823-2040
Qualcomm Incorporated is represented by Jan Elizabeth Eakins, Esq.
-- Maria A. Audero, Esq. -- and -- Nancy L. Abell, Esq. -- PAUL
HASTINGS JANOFSKY AND WALKER LLP
QUEEN CITY ROOFING: Appeals Court Reverses Judgment in "Huskey"
---------------------------------------------------------------
In the case captioned DAVID WAYNE HUSKEY, Plaintiff-
Appellant/Respondent, v. QUEEN CITY ROOFING & CONTRACTING CO.,
Defendant-Respondent/Cross-Appellant, Nos. SD34666, SD34682,
(consolidated)(Mo. App.), Plaintiff appeals a summary judgment
granted in favor of Queen City Roofing on Count 3 of his first
amended petition. The petition claims that the Contractor wrongly
failed to pay Huskey the prevailing wage on public projects he
worked on in 2011 and 2012.
Huskey's first two points claim the trial court erred in granting
summary judgment because: (i) material questions of fact existed
in that there is competent evidence in the record supporting the
proposition that the Contractor should not get the full credit
that it claims towards its prevailing wage obligations ("PWO")
based upon contributions it made to a benefit fund established by
Contractor; and (ii) the trial court relied on letters from the
Missouri Division of Labor Standards declining to take action
against the Contractor as those letters are not competent
evidence.
Huskey's final point contends that sustaining the Contractor's
objections to "several paragraphs" in his statement of additional
uncontroverted material facts ("SAUMF") was error because the
additional paragraphs were relevant to the issues in this case and
Rule 74.04(c)(2) does not strictly prohibit including more than
one evidentiary fact within a single numbered paragraph.
Judge Don E. Burrell of the U.S. Court of Appeals of Missouri for
the Southern District, Division One, finds that the Contractor did
not assert in the SUMF that contributions to Queen City Roofing &
Contracting Co. Voluntary Employee Beneficiary Association, Inc.
("VEBA") were irrevocable, nor did it state other uncontroverted
material facts that would demonstrate, as a matter of law, that
the contributions to VEBA were irrevocable. Additionally,
Huskey's contributions to the SUMF did not claim that VEBA
contributions were irrevocable nor state other facts that would
lead to such a conclusion. An absence of proof that the
Contractor currently controls VEBA's decisions about payments
going back to the Contractor or that the Contractor had not yet
revoked VEBA funds would not prove that the Contractor is unable
to revoke contributions to VEBA either directly or in a manner
that could be deemed to have revoked such contributions.
Based upon the uncontroverted material facts, Judge Burrell says
he cannot find as a matter of law that VEBA contributions may be
included in the Contractor's PWO as qualifying plan contributions
or reasonable benefit rates. Point 1 is granted. Therefore, he
reversed the trial court's judgment, and remanded the matter to
the trial court for further proceedings consistent with his
opinion.
A full-text copy of the Court's Aug. 8, 2017 Opinion is available
at https://is.gd/8UqV1H from Leagle.com.
TODD CHRISTOPHER WERTS -- werts@learwerts.com -- Attorney for
Appellant/Respondent, DAVID HUSKEY.
ROBERT DANIEL CURRAN, Jr., Attorney for Appellant/Respondent,
DAVID HUSKEY.
PAULA SUE GREEN, Atty for Resp/Cross Appellant, QUEEN CITY ROOFING
& CONTRACTING COMPANY.
RICHARD BRIAN MALTBY, Atty for Resp/Cross Appellant, QUEEN CITY
ROOFING & CONTRACTING COMPANY.
QUEENSLAND, AU: Court Suspends 2011 Ipswich Flood Class Action
--------------------------------------------------------------
Emma Clarke, writing for The Queensland Times, reports up to 700
Ipswich businesses and individuals expected to be part of a multi-
million civil case into losses from the 2011 floods will have to
wait longer for answers as civil proceedings are suspended.
A second class action to look into compensation for property
owners who suffered losses which were not directly related to
physical damage is on the line as the original plaintiffs are no
longer able to represent the interests of the group.
It was spearheaded by businesses man Phil Hassid's case who's
Ipswich development's value was significantly impacted by the
floods but, according to the court, he has been unable to provide
security of costs for the defendants.
It means the proceedings will be either entirely dismissed or
ordered to no longer continue as a class action unless a new
representative plaintiff is found.
It could mean individuals and businesses may have to organise
their own fight against the defendants.
The New South Wales Supreme Court has given interested parties to
August 11 to step up before a ruling is made The State of
Queensland and Wivenhoe and Somerset dam operators are pushing for
orders to dismiss the entire proceedings.
The Hassids will pursue only their own individual claim.
The lawyers behind the claim originally had Ipswich businesses and
individuals in the firing line for "hundreds of millions" of
dollars in potential damages.
At the time Gillis Delaney Lawyers senior partner Michael Gillis,
Esq. -- mjg@gdlaw.com.au -- said the class action focused on
Ipswich property values which failed to re-surface from the flood
damage. [GN]
REDFORD TOWNSHIP, MI: Court Narrows Claims in "Garner" Suit
-----------------------------------------------------------
Judge Mark A. Goldsmith of the U.S. District Court for the Eastern
District of Michigan, Southern Division, granted in part and
denied in part the Defendant's motion for summary judgment in the
case captioned GARNER PROPERTIES & MANAGEMENT, Plaintiff, v.
CHARTER TOWNSHIP OF REDFORD, Defendant, Case No. 15-14100(E.D.
Mich.).
Garner Properties is a property management company that maintains
and administers rental properties owned by third parties. Chris
Garner is its only member. Twenty-five of its approximately 960
clients have properties in Redford. Redford has adopted the 2000
version of the International Property Maintenance Code ("IPMC"),
id., which is a widely used set of standards for real property
repair and maintenance.
Redford requires non-owner occupied rental properties to undergo a
preliminary inspection to determine whether the property is up to
code. An inspection requires the owner to pay a $200 inspection
fee. After the owner requests an inspection, Redford's building
department notifies the owner of the date and time of the
inspection. A successful inspection results in a "Certificate of
Compliance" permitting the owner to rent the property to a tenant.
A Certificate of Compliance is good for three years, after which
time Redford requires another inspection.
The owner or tenant need not admit the inspector to the property;
but if he does not, the inspection does not occur. If the
inspection does not occur, or if the owner refuses to correct any
violations discovered during an inspection, a notice of "civil
infraction" issues, and the owner must pay a $75 fine. If an
inspection requires the owner to fix ordinance violations, a
"rental inspection report" issues, which has references to code
violations and provides for a 45-day period to remedy them. The
inspector will then re-inspect the property, and he may impose a
"discretionary re-inspection fee of $56." Failing to correct any
violations following the re-inspection results in the $75 fine and
civil infraction noted above. It's the same type of notice of
violation issues if an inspection is refused.
The IPMC provides for the right to appeal the decision of a code
official if a written appeal is filed within 20 days after the
decision was issued. Redford concedes that, prior to 2016, these
reports did not contain information regarding the owner's right to
appeal as required by the IPMC. There is no standing Building
Board of Appeals in Redford, but Redford maintains that one can be
assembled upon request and payment of a $500 fee.
If a Certificate of Compliance is not obtained within seven days
of the assessment of the $75 fine, a second citation for $150
issues. If a Certificate of Compliance is not obtained within
seven days of the $150 fine, a citation for $300 -- which requires
a court appearance -- issues. These fines are collected by the
Township Treasurer, not the building department. According to
Plaintiff, the court hearing held in connection with the $300 fine
is ministerial; the judge imposes liability if (i) the property is
occupied but (ii) a Certificate of Compliance has not issued. The
district court does not permit discussion of why the Certificate
of Compliance is lacking.
Garner Properties brought this lawsuit to challenge Redford's
ordinances and the way those ordinances are applied. Garner
Properties had filed a motion for class certification but the
Court denied it without prejudice in order to winnow the issues.
Garner Properties raises a number of objections to this scheme.
Primarily, it argues that Redford did not, in fact, provide any
opportunity to appeal its code inspectors' decisions, thereby
violating due process. It also argues that the rental inspection
reports violated due process by failing to include specific
citations to the IPMC provisions that the inspector charged it
with violating, and that the IPMC generally is void for vagueness.
Garner Properties also alleges that the inspections, which
occurred without a warrant or other opportunity for pre-compliance
review, violated the Fourth Amendment. Finally, it brings several
related state law claims.
The Court granted in part and denied in part the Defendant
Redford's motion for summary judgment. Specifically, it granted
Redford's motion on Garner Properties' void-for-vagueness,
substantive due process (other than the claim based on the Fourth
Amendment), state-law tort, assumpsit, and federal malicious
prosecution claims. Summary judgment is denied on Garner
Properties' procedural due process, Fourth Amendment, unjust
enrichment, and municipal liability claims, as well as the
substantive due process claim concerning the portion of the IPMC
that allegedly is violative of the Fourth Amendment.
The Court will hold an in-person status conference on Aug. 17,
2017, at 3:30 p.m. at the Theodore Levin United States Courthouse,
231 W. Lafayette Boulevard, Courtroom 860, Detroit, Michigan.
A full-text copy of the Court's Aug. 8, 2017 Opinion and Order is
available for free at https://is.gd/L6ps3k from Leagle.com.
Garner Properties & Management, Plaintiff, represented by Mark K.
Wasvary -- markwasvary@hotmail.com -- Becker and Wasvary.
Garner Properties & Management, Plaintiff, represented by Aaron D.
Cox -- aaron@aaroncoxlaw.com -- Law Offices of Aaron D. Cox PLLC.
Redford, Charter Township of, Defendant, represented by Gregory A.
Roberts -- groberts@cmda-law.com -- Cummings, McClorey, Jeffrey R.
Clark -- jclark@cmda.com -- Cummings, McClorey, & Jennifer A.
Richards -- jrichards@cmda-law.com -- Cummings, McClorey, Davis &
Acho, P.L.C.
REGIONAL MANAGEMENT: Court Dismisses "Mealer" Suit
--------------------------------------------------
Judge Jane J. Boyle of the U.S. District Court for the Northern
District of Texas, Dallas Division, dismissed without prejudice
the case captioned TRAIVIS MEALER, individually and on behalf of
all others similarly situated, Plaintiff, v. REGIONAL MANAGEMENT
CORPORATION and REGIONAL FINANCE CORPORATION OF TEXAS, Defendants,
Civil Action No. 3:16-CV-3343-B(N.D. Tex.).
This case is about the Defendants' allegedly improper efforts to
collect on a debt incurred by the Plaintiff when he took out a
payday loan from them in September 2014. The Plaintiff claims
that the Defendants began calling him to collect on the debt in
December 2014 and haven't stopped since.
The Plaintiff maintains that he received a number of calls from
them at his place of employment despite repeated requests that
they cease such calls. He also claims that their employees have
gone to his house at least three times attempting to collect the
debt. And during one of those house calls, the Plaintiff says,
the Defendants' employees knocked on the door in a loud, menacing
and violent manner, frightening his daughter and grandchildren.
On that basis, the Plaintiff filed his Original Class Action
Complaint, alleging that the Defendants' debt collection efforts
violated the Texas Debt Collection Practices Act. The Defendants,
in turn, filed the Motion to Dismiss for Lack of Subject-Matter
Jurisdiction in the Alternative Motion to Deny Class Certification
and Compel Arbitration. The Plaintiff then moved for an extension
of time to respond to the Defendants' Motion, which the Court
granted. The Plaintiff had until Jan. 26, 2017, to file a
response. That deadline has long passed yet the Plaintiff never
responded to or otherwise contested the Defendants' Motion.
The Court finds that the Plaintiff failed to respond to or
otherwise contest the Defendants' challenge with briefing or
evidence. Nor did he attach any evidence to his Complaint. So as
a threshold matter, it finds that the Plaintiff has failed to meet
his burden and determines that it lacks subject matter
jurisdiction over this case. But even if Court were to overlook
that shortcoming and take the allegations in the Plaintiff's
Complaint as true, it would still conclude that it lacks subject
matter jurisdiction because the Plaintiff has failed to allege
facts sufficient to plausibly meet the amount in controversy
requirement. For these reasons, the Court concludes that it lacks
subject matter jurisdiction over this case. It therefore granted
the Defendants' Motion and dismissed without prejudice the
Plaintiff's suit.
A full-text copy of the Court's Aug. 8, 2017 Memorandum Opinion
and Order is available for free at https://is.gd/xvEDKZ from
Leagle.com.
Traivis Mealer, Plaintiff, represented by Walt D. Roper --
walt@roperfirm.com -- The Roper Firm PC.
Regional Management Corporation, Defendant, represented by Bradley
E. Chambers -- bchambers@bakerdonelson.com -- Baker Donelson
Bearman Caldwell & Berkowitz PC & Nathan Allen, Jr. --
nallen@jonesallen.com -- Jones Allen & Fuquay LLP.
Regional Finance Corporation of Texas, Defendant, represented by
Bradley E. Chambers, Baker Donelson Bearman Caldwell & Berkowitz
PC & Nathan Allen, Jr., Jones Allen & Fuquay LLP.
RELIN GOLDSTEIN: Illegally Collects Debt, Action Claims
-------------------------------------------------------
Joel Schwartz, on behalf of himself and all other similarly
situated consumers v. Relin, Goldstein & Crane, LLP, Case No.
1:17-cv-04637 (E.D.N.Y. August 7, 2017), seeks to stop the
Defendant's unlawful practice of collecting debt.
Relin, Goldstein & Crane, LLP seeks debt solutions for clients
looking to avoid bankruptcy. [BN]
The Plaintiff is represented by:
Maxim Maximov, Esq.
MAXIM MAXIMOV, LLP
1701 Avenue P
Brooklyn, NY 11229
Telephone: (718) 395-3459
Facsimile: (718) 408-9570
E-mail: m@maximovlaw.com
RLS SUPERMARKETS: "Batra" Suit over Credit Card Info Dismissed
--------------------------------------------------------------
Judge Jane J. Boyle of the U.S. District Court for the Northern
District of Texas, Dallas Division, dismissed the case captioned
SUMEET BATRA, on behalf of himself and all others similarly
situated, Plaintiff, v. RLS SUPERMARKETS LLC, Defendant, Civil
Action No. 3:16-CV-2874-B( N.D. Tex.).
This case is based on the Defendant's alleged violations of the
Fair and Accurate Credit Transactions Act ("FACTA"). The
provision of FACTA at issue governs the "truncation" of credit
card and debit card numbers. Specifically, the statute provides
that no person that accepts credit cards or debit cards for the
transaction of business will print more than the last 5 digits of
the card number or the expiration date upon any receipt provided
to the cardholder at the point of the sale or transaction.
The Plaintiff brings the suit as a putative class action. The
Plaintiff's sole allegation is that he, and other putative class
members, received receipts from Defendant that had the following
information printed on them: (i) the expiration date of their
credit or debit cards; (ii) the last four digits of their credit
or debit card numbers; and (iii) the brand of the credit or debit
card. He asserts that printing this information amounted to the
Defendant willfully violating FACTA.
The Complaint is otherwise devoid of specific factual allegations
concerning the Plaintiff's interaction with the Defendant's stores
or any of the consequences that stemmed from the prohibited
information being printed on the Plaintiff's receipt. Instead, his
Complaint focuses on FACTA's purpose of combating "rampant
identify theft."
In October 2016, the Plaintiff filed his Complaint seeking
statutory damages for the Defendant's alleged violations. The
Defendant then filed its Motion to Dismiss under both Federal Rule
of Civil Procedure 12(b)(1), asserting that the Plaintiff lacks
Article III standing to pursue his claim, and Rule 12(b)(6),
asserting that the Plaintiff failed to state a claim. The
Plaintiff filed a Response, and the Defendant filed a Reply.
Judge Boyle held that the Plaintiff failed to plead an injury in
fact because he failed to show a concrete harm or a material risk
of harm apart from the Defendant's alleged bare statutory
violation. Simply alleging that a defendant failed to truncate a
credit card's expiration date is insufficient to confer Article
III standing. She concluded that Plaintiff suffered no concrete
injury and therefore lacks standing. Thus, the Court lacks
subject matter jurisdiction over this case. Because the only
Named Plaintiff lacks standing, she needs not further address
issues related to the class nature of this action. Accordingly,
Judge Boyle granted the Defendant's Motion to Dismiss. And so,
she dismissed without prejudice the Plaintiff's claims against the
Defendant.
A full-text copy of the Court's Aug. 9, 2017 Memorandum Opinion
and Order is available at https://is.gd/RCRKHW from Leagle.com.
Sumeet Batra, Plaintiff, represented by Sameer Singh Birring,
Birring Law Firm.
Sumeet Batra, Plaintiff, represented by Chant Yedalian, Chant &
Company A Professional Law Corporation, pro hac vice & James A.
Foley, James Foley PLLC.
RLS Supermarkets LLC, Defendant, represented by Jason S. Lewis --
lewisjs@gtlaw.com -- Greenberg Traurig LLP, Lori S. Nugent --
nugentl@gtlaw.com -- Greenberg Taurig LLP & Natalie Deyo Thompson
-- thompsonna@gtlaw.com -- Greenberg Traurig, LLP.
ADR Provider, Mediator, represented by Christopher Marc Nolland
-- chris@nolland.com -- Law Office of Christopher Nolland.
RMC & S CORP: Settlement in "Ibarra" Gets Final Approval
--------------------------------------------------------
Judge Richard F. Boulware, II of the U.S. District Court for
the District of Nevada granted the parties' unopposed motion
for final approval of the class action settlement in the case
captioned MARIA ISABEL IBARRA, an individual, on behalf of herself
and all persons similarly situated, Plaintiff, v.
RMC & S CORP. a/k/a and d/b/a DELUXE CLEANERS & ALTERATIONS, a
corporation; JOHNNY CORONEL, an individual; MARY CORONEL, an
individual; RAFAEL CORONEL, an individual; SEBASTIAN CORONEL,
an individual; EMPLOYEE(S)/AGENT(S) DOES 1-10; AND ROE
CORPORATIONS 11-20, INCLUSIVE, Defendants, Case No. 2:15-cv-01479-
RFB-PAL(D. Nev.).
On Nov. 28, 2016, the Court took under submission, the parties'
unopposed motion for final approval of the class action settlement
and forth in the Stipulation and Settlement Agreement of Claims,
and the Plaintiffs' unopposed motion for an award of a Named
Plaintiff Service Award and for a Fee and Expense Award for
Plaintiffs' Counsel as provided for in the Stipulation.
The Court ordered the parties to carry out the settlement as
provided in the Stipulation.
As counsel for the Class, Leon Greenberg and Dana Sniegocki of
Leon Greenberg Professional Corp. and Christian Gabroy of the
Gabroy Law Office, will be paid a combined fees and costs payment
of $35,000 from the Settlement Fund, to be paid in installments as
specified in the Stipulation, for their services on behalf of the
Plaintiff and the Class.
As the Settlement Administrator, Rust Consulting will be paid from
the Settlement Fund for their services rendered in administering
the Settlement, in accordance with the Stipulation and as provided
in this paragraph.
As the Project Manager, Bruce Holt will be paid from the
Settlement Fund for administration of the settlement of the
matter, to be paid in installments as specified in the
Stipulation, is approved, provided that it will receive a lesser
amount, if any, that is equal to the actual charges properly paid
to it for the services it provides in completing the
administration of the Settlement. Its estimated maximum costs is
$13,000.
The Clerk of the Court is directed to enter a Final Judgment of
dismissal and the Complaint is dismissed with prejudice. The
Court will retain jurisdiction for purposes of enforcing this
Settlement, addressing settlement administration matters, and
addressing such post-judgment matters as may be appropriate under
court rules or applicable law.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/GzUUlJ from Leagle.com.
Maria Isabel Ibarra, Plaintiff, represented by Christian James
Gabroy, Gabroy Law Offices.
Maria Isabel Ibarra, Plaintiff, represented by Ivy Hensel, Gabroy
Law Offices, Kaine M. Messer, Gabroy Law Offices & Leon Marc
Greenberg, Leon Greenberg Professional Corporation.
Maria Castro, Plaintiff, represented by Kaine M. Messer -- Gabroy
Law Offices & Christian James Gabroy, Gabroy Law Offices.
RMC &S Corp, Defendant, represented by Jared M. Moser --
jmoser@maclaw.com -- Marquis Aurbach Coffing & Nicholas Crosby --
ncrosby@maclaw.com -- Marquis & Aurbach.
Johnny Coronel, Defendant, represented by Jared M. Moser, Marquis
Aurbach Coffing & Nicholas Crosby, Marquis & Aurbach.
Mary Coronel, Defendant, represented by Jared M. Moser, Marquis
Aurbach Coffing & Nicholas Crosby, Marquis & Aurbach.
Rafael Coronel, Defendant, represented by Jared M. Moser, Marquis
Aurbach Coffing & Nicholas Crosby, Marquis & Aurbach.
Sebastian Coronel, Defendant, represented by Jared M. Moser,
Marquis Aurbach Coffing & Nicholas Crosby, Marquis & Aurbach.
ROCCAWAY CONSTRUCTION: "Sanchez" Suit Seeks to Recover Unpaid OT
----------------------------------------------------------------
Jose German Castaneda Sanchez, Jose Santos Delcid Castellanos, and
Wuilder Josue Delcid Castellanos, individually and on behalf of
others similarly situated v. Roccaway Construction Corp. (d/b/a
Roccaway Construction), Yellowstone Construction Inc. (d/b/a
Yellowstone Construction), Massimiliano Guarascio, Salvatore
Bonifati, Antonio (a.k.a. Tony) Dattolo, Musah Charudry, and
Humaira Chaudhary. Case No. 1:17-cv-05910 (S.D.N.Y., August 4,
2017), seeks to recover overtime wages, liquidated damages,
interest, costs, and attorneys' fees for violations of the Fair
Labor Standards Act.
The Defendants own and operate two construction companies in New
York. [BN]
The Plaintiff is represented by:
Michael A. Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Michael@Faillacelaw.com
ROSEVILLE, MI: Settlement of 2 Class Suits Has Initial Okay
-----------------------------------------------------------
In the case captioned LAWRENCE M. GARNER, CHRISTOPHER GARNER, AND
WILLIAM KAUPUS, Plaintiffs, v. CITY OF ROSEVILLE, GLENN SEXTON,
RODNEY BROWNING, Defendants. and CORDIA MICHIGAN, LLC, RUDALEV I,
LLC, and GARNER PROPERTIES & MANAGEMENT, LLC, Plaintiffs, v. CITY
OF ROSEVILLE, GLENN SEXTON, RODNEY BROWNING, Defendants, Case Nos.
16-10760, 16-10986(E.D. Mich.), Judge Victoria A. Roberts of the
U.S. District Court for the Eastern District of Michigan, Southern
Division, granted the parties' Joint Motion for Preliminary
Approval of Class Action Settlement and Notice to the Class.
After review and consideration of the Settlement Agreement, and
after hearing statements of the parties' attorneys in open court
on Aug. 7, 2017, Judge Roberts consolidated the case nos. 16-cv-
10760 and 16-cv-10986 for purpose of settlement. All future Court
filings will be filed into case no. 16-cv-10760. Pursuant to Rule
23(e) of the Federal Rules of Civil Procedure, she preliminarily
approved the settlement of the action, as embodied in the terms of
the Settlement Agreement attached to the Joint Motion.
By stipulation of the parties, and for the purpose of settlement,
Judge Roberts certified the following Settlement Class and
Sub-Class:
a. Class: All persons and entities who currently own or at
one time owned any non-owner occupied residential
structures located within the City of Roseville who or
which has been issued a misdemeanor ticket for failure
to obtain a Certificate of Compliance under the City's
Non-Owner-Occupied Housing Ordinance, and subsequently
paid a fine at any time since Jan. 1, 2010 through
Dec. 15, 2016.
b. Sub-Class: All persons and entities who were not owners
of non-owner occupied residential structures located
within the City of Roseville, yet were issued a
misdemeanor ticket for failure to obtain a Certificate
of Compliance under the City's Non-Owner-Occupied Housing
Ordinance from Jan. 1, 2010 through Dec. 15, 2016.
The Judge appointed Plaintiffs Lawrence M. Garner, Christopher
Garner, William Kaupus, Cordia Michigan, LLC, Rudalev I, LLC and
Garner Properties & Management, LLC as the representatives of the
Settlement Class, and appointed their attorneys Aaron D. Cox and
Mark K. Wasvary as Class Counsel.
She also approved and adopted the Class Notice and Claim Form, and
ordered that the parties provide the notice to the Class as
proposed, with the one addition. By the Order, Judge Roberts
ordered that the Class Notice will be sent by either postcard or
first class mailing for Class Members where the Defendants have
that information. The Claims Administrator will cause an
abbreviated version of the Notice to be placed in a weekend
edition of the Macomb Daily. The Settlement Agreement, Class
Notice and Claim Form will also be made available on the Class
Counsel's website. No other notice is necessary.
The Class Counsel is authorized to request and receive docket
records from the 39th District Court for the State of Michigan to
verify claims of the Settlement Class.
Judge Roberts set these deadlines and dates for the acts and
events set forth in the Settlement Agreement and directed the
Parties to incorporate them in the Class Notice:
a. The Plaintiffs must file an Amended Complaint with
more specific allegations as to Christopher Garner on
or before Aug. 17, 2017;
b. The Class Notice must be mailed by Aug. 22, 2017;
c. The Class Members must submit a Proof of Claim to
the Claims Administrator within 90 days after the
Class Notice is sent;
d. Objections and motions to intervene, along with related
memoranda of law, will be filed in the Court and
postmarked and served onthe Class Counsel and the
Defendants' counsel on or before Nov. 6, 2017, or be
forever barred;
e. The requests by any Class Member to opt out of the
settlement must be mailed to Class Counsel on or before
Nov. 6, 2017, or be forever barred;
f. The Class Counsel must file a motion for final approval
of class action settlement on or before Nov. 20, 2017.
That motion must address any objections that were filed,
and it must set forth: (i) the total number of Members
who responded in the Class and Sub-Class; (ii) the total
number of claims made under the Class and Sub-Class;
and (iii) the percentage of the fine recovered by
Class/Sub-Class Members based on the pro-rated formula
(e.g., if a Class Member paid a $100 fine, and his or
her pro-rated share of the settlement fund is $75, he or
she recovered 75% of the fine they paid). The Sub-Class
Members are entitled to make a claim for $350 for each
misdemeanor ticket in addition to a pro-rata share of
fines paid;
g. The Class Counsel must file a motion for attorney fees
and expenses on or before Nov. 20, 2017;
h. The Defendants will file proof of compliance with the
notice requirements of the Class Action Fairness Act of
2005 no later than Aug. 21, 2017; and
i. The Fairness Hearing, set forth in the Class Notice,
is scheduled for Jan. 16, 2018, at 9:00 a.m. in Room 226.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/f5on9s from Leagle.com.
Lawrence M. Garner, Plaintiff, represented by Mark K. Wasvary --
markwasvary@hotmail.com -- Becker and Wasvary.
Lawrence M. Garner, Plaintiff, represented by Aaron D. Cox --
aaron@aaroncoxlaw.com -- Law Offices of Aaron D. Cox PLLC.
Christopher Garner, Plaintiff, represented by Mark K. Wasvary,
Becker and Wasvary & Aaron D. Cox, Law Offices of Aaron D. Cox
PLLC.
William Kaupus, Plaintiff, represented by Mark K. Wasvary, Becker
and Wasvary & Aaron D. Cox, Law Offices of Aaron D. Cox PLLC.
Cordia Michigan, LLC, Plaintiff, represented by Aaron D. Cox, Law
Offices of Aaron D. Cox PLLC & Mark K. Wasvary, Becker and
Wasvary.
Garner Properties & Management, Plaintiff, represented by Aaron D.
Cox, Law Offices of Aaron D. Cox PLLC & Mark K. Wasvary, Becker
and Wasvary.
Rudalev, LLC, Plaintiff, represented by Aaron D. Cox, Law Offices
of Aaron D. Cox PLLC.
Rudalev, LLC, consolidated from 16-10986, Plaintiff, represented
by Mark K. Wasvary, Becker and Wasvary.
City of Roseville, Defendant, represented by Carlito H. Young --
cyoung@jrsjlaw.com -- Johnson, Rosati & Stephanie S. Morita --
smorita@jrsjlaw.com -- Johnson Rosati.
Glenn Sexton, Defendant, represented by Carlito H. Young, Johnson,
Rosati & Stephanie S. Morita, Johnson Rosati.
Rodney Browning, Defendant, represented by Carlito H. Young,
Johnson, Rosati & Stephanie S. Morita, Johnson Rosati.
ROYAL ADMINISTRATION: 9th Cir. Affirms Judgment in "Jones" Case
---------------------------------------------------------------
In the case captioned CHARLES A. JONES; JOSH WATSON, on behalf of
themselves and all similarly situated persons, Plaintiffs-
Appellants, v. ROYAL ADMINISTRATION SERVICES, INC., Defendant-
Appellee, and ALL AMERICAN AUTO PROTECTION, INC.; HAROUT
PAMBUCKCHYAN; RAFFI SADEJYAN; JASON GARCIA, Defendants, No. 15-
17328(9th Cir.), Judge N.R. Smith of the U.S. Court of Appeals for
the Ninth Circuit affirmed the district court's order granting
summary judgment in Royal's favor.
Royal sells vehicle service contracts ("VSCs") through automobile
dealers and through "marketing vendors." These marketing vendors
sell Royal's VSCs "through direct mail or telemarketing." Royal
sells VSCs through about 20 different marketing vendors. AAAP
sold VSCs for many companies like Royal through telemarketing.
In October 2011, Royal entered into a marketing agreement with
AAAP which contained authorized sales and marketing methodologies
with which AAAP was required to comply. Royal assigned Clayton
Churchill to be the "agent of record" for the AAAP account.
Churchill provided training to AAAP's employees at AAAP's call
center in Azusa, California. During this training, he provided
information about Royal's VSCs, claim structure, coverage,
pricing, and customer service. Royal's president, Richard McCabe,
visited the call center with Churchill about a dozen times from
2011 to 2014. During these visits, AAAP's officials (Harout
Pambuchchyan, Raffi Sadejyan, and Jason Garcia) provided
assurances that the telemarketers were dialing customers one at a
time and that they were complying with the Do Not Call list.
Jones asserts that he received four calls on his cellular
telephone from AAAP in March 2014. Watson asserts that he
received four calls to his cellular telephone from AAAP in April
and May of 2014. Both believe AAAP placed the calls using an
automatic telephone dialing system.
In April 2014, Jones filed a class-action lawsuit against AAAP,
Pambuckchyan, Sadejyan, and Garcia, asserting one claim for
violation of the Telephone Consumer Protection Act ("TCPA"). AAAP
was originally represented by counsel and filed an answer and a
motion to dismiss. However, AAAP's attorneys all moved to withdraw
after AAAP terminated its attorneys due to an anticipated
bankruptcy action by AAAP. The district court granted the motions
to withdraw.
On Jan. 8, 2015, after the district court and AAAP's former
attorneys had repeatedly advised the company that it was obligated
to defend this action through licensed counsel, the district court
entered default against AAAP, because it had failed to otherwise
defend this action.
Thereafter, the district court granted Jones leave to file an
amended complaint. In the First Amended Complaint ("FAC"), Jones
added Watson as a Plaintiff and Royal as a Defendant. The FAC
asserted that Royal was vicariously liable for AAAP's calls that
were made in violation of the TCPA and the federal regulations
implementing the TCPA. On June 17, 2015, Royal filed a motion for
summary judgment. On Nov. 24, 2015, the district court granted
the motion and entered judgment in favor of Royal. The appeal
followed.
Judge Smith concluded that it is clear that AAAP's telemarketers
were independent contractors rather than agents. AAAP was its own
independent business that sold VSCs for multiple companies without
the direct supervision of a Royal employee. AAAP provided its own
equipment, set its own hours, and only received payment if one of
its telemarketers actually made a sale. Finally, although Royal
had some control over AAAP's telemarketers, it did not
specifically control the calls at issue in this case, because the
telemarketers never attempted to sell a Royal VSC during those
calls. Because AAAP's telemarketers were independent contractors,
rather than Royal's agents, Royal cannot be held vicariously
liable for any calls the telemarketers made in violation of the
TCPA.
Judge Smith held the district court correctly applied the relevant
substantive law to the undisputed facts when it concluded that the
AAAP telemarketers were not acting as Royal's agents when they
placed the calls and, accordingly, that Royal could not be held
vicariously liable for the calls. Because Royal cannot be held
vicariously liable for the calls, it was proper for the district
court to grant Royal's motion for summary judgment. He affirmed.
A full-text copy of the Court's Aug. 9, 2017 Opinion is available
at https://is.gd/E2VVQo from Leagle.com.
Matthew Righetti (argued), John Glugoski, and Michael Righetti,
Righetti Glugoski P.C., San Francisco, California, for Plaintiffs-
Appellants.
Richard I. Dreitzer -- richard.dreitzer@wilsonelser.com --(argued)
and Donald P. Paradiso -- donald.paradiso@wilsonelser.com --
Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, Nevada,
for Defendant-Appellee.
RS CLARK: Faces "Gardner" Suit in S.D. of Ala.
----------------------------------------------
A class action lawsuit has been filed against RS Clark and
Associates, Inc. The case is styled as Necole Gardner,
individually and on behalf of all others similarly situated,
Plaintiff v. RS Clark and Associates, Inc., Defendant, Case No.
1:17-cv-00362 (S.D. Ala., August 10, 2017).
RS Clark and Associates, Inc. was created as a provider of
financial recovery solutions.[BN]
The Plaintiff is represented by:
David Schoen, Esq.
2800 Zelda Road, Suite 100-6
Montgomery, AL 36106
Tel: (334) 395-6611
Fax: (917) 591-7586
Emmail: DSchoen593@aol.com
SCOTTS MIRACLE-GRO: Court Narrows Claims in EZ Seed Suit
--------------------------------------------------------
In the case captioned IN RE SCOTTS EZ SEED LITIGATION, No. 12 CV
4727 (VB)(S.D. N.Y.), Judge Vincent L. Briccetti of the U.S.
District Court for the Southern District of New York granted in
part and denied in part the Defendants' motion to exclude the
Plaintiffs' expert, Colin B. Weir; granted in part and denied in
part the Defendants' motion for summary judgment; and denied the
remaining motions.
The class action lawsuit is brought by the seven Lead Plaintiff
Arcuri, David Browne, Gwen Eskinazi, Stacy Lonardo, Lance Moore,
Vance Smith, and Nancy Thomas, who purchased EZ Seed in New York
or California between 2010 and 2012. The Lead Plaintiffs bring
this consumer class action against the Scotts, alleging causes of
action for false advertising, breach of warranty, and unjust
enrichment under New York and California law.
By Memorandum Decision dated Jan. 26, 2015, the Court certified
two classes:
(i) all persons who purchased EZ Seed in the state of
California containing the label statement 50% Thicker
With Half the Water, excluding persons who purchased
for purpose of resale (California Class); and
(ii) all persons who purchased EZ Seed in the state of New
York containing the label statement 50% Thicker With
Half the Water, excluding persons who purchased for
purpose of resale (New York Class).
As the Court stated in its decision certifying the class, the crux
of Plaintiffs' complaints is that EZ Seed does not grow grass at
all or, in the alternative, does not grow grass as advertised by
the 50% thicker claim. The Plaintiffs Browne and Smith purchased
EZ Seed in California and represent the California Class. The
California Class brings claims under California's Unfair
Competition Law ("UCL"), False Advertising Law ("FAL"), and
Consumer Legal Remedies Act ("CLRA"), in addition to claims for
breach of express warranty and unjust enrichment. Plaintiffs
Arcuri, Eskinazi, Lonardo, Moore, and Thomas purchased EZ Seed in
New York and represent the New York Class. The New York Class
brings claims under New York's General Business Law ("GBL"), in
addition to claims for breach of warranty and breach of contract.
Now pending are 15 motions, consisting of nine Daubert motions,
cross-motions for summary judgment, the Defendants' motion to
decertify the class, the Defendants' motion to strike the
Plaintiffs' Rule 56.1 statement, and the Plaintiffs' motions to
strike three declarations in whole or in part.
In response to the Defendants' move for summary judgment on the
first, "worthlessness claim," the Plaintiffs contend there is no
such claim in the case. Accordingly, the Court denied as moot the
Defendants' motion for summary judgment on this point, and
dismissed the Plaintiffs' "worthlessness claim." The only
remaining theory of liability is that the 50% thicker claim was
false or misleading.
The Court held that the Defendants are entitled to summary
judgment with respect to the California UCL, FAL, and CLRA claims.
However, neither party addressed in their briefing what affect
this has on the California express warranty claim or the
California unjust enrichment claim, both of which the Court
previously determined to be appropriate for class treatment.
Accordingly, at least for now, those claims may proceed.
The Court concluded that statutory damages under GBL Sections 349
and 350 are available to the New York Class. Therefore, it denied
the Defendants' motion for summary judgment with respect to
statutory damages under GBL Sections 349 and 350.
As to the parties' competing motions for the exclusion of expert
testimony under Daubert v. Merrell Dow Pharm., Inc., the
Defendants seek to exclude the expert opinions of J. Michael
Dennis, Colin B. Weir, and Douglas E. Karcher. The Plaintiffs,
for their part, move to exclude the Defendants' experts Bryan
Hopkins, Douglas Soldat, Eric Nelson, and Michael Faust, and they
seek to prohibit the Defendants from presenting any expert
testimony regarding consumer understanding of the 50% thicker
claim, or any testimony regarding the existence or amount of the
price premium attributable to the 50% thicker claim.
With the exception of the Defendants' motion as to Weir, which the
Court granted in part and denied in part, all these motions are
denied. Weir's damages calculations are admissible with respect
to the calculation of statutory damages under New York GBL
Sections 349 and 350. Although hardly a complicated analysis, his
testimony and explanation of his calculations will assist the
trier of fact in understanding how he calculated the number of
"violations" and how that translates into a total damages amount.
As to the Defendants' Summary Judgment on the 50% thicker claim,
the Court finds issues of material fact which preclude summary
judgment for them on the 50% thicker claim. The Defendants do not
include a citation for this "fact" nor do they explain what a
recommendation that is "often" made means in concrete terms.
Moreover, the Plaintiffs have presented evidence on which a
reasonable jury could rely to conclude the 50% thicker claim is
false or misleading.
The Court disagreed with the Plaintiffs that they are entitled to
summary judgment on their New York GBL claims. The Court
concludes that because there are issues of material fact regarding
whether the 50% thicker claim is misleading in a material way,
summary judgment is inappropriate here.
As to the Defendants' Decertification Motion, the Court concludes
that the requirements of Rule 23 are still met -- most
significantly there are common questions of law and fact, those
questions predominate over individualized issues, and the
Plaintiffs' damages calculations are consistent with their theory
of liability. Accordingly, the Court denied the Defendants'
motion to decertify the class.
All counsel are directed to appear for an in-person status
conference on Sept. 22, 2017, at 2:15 p.m., at which time the
Court expects to set a trial date and a schedule for pretrial
submissions. By Sept. 15, 2017, the parties will submit a Joint
Pretrial Order in accordance with the Court's Individual
Practices. The Clerk is instructed to terminate the motions.
A full-text copy of the Court's Aug. 8, 2017 Opinion and Order is
available for free at https://is.gd/oprhTN from Leagle.com.
Michael Arcuri, Plaintiff, represented by Antonio Vozzolo, Faruqi
& Faruqi, LLP.
Michael Arcuri, Plaintiff, represented by Scott A. Bursor --
scott@bursor.com -- Bursor & Fisher, P.A., Joseph Ignatius
Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A. &
Yitzchak Kopel -- ykopel@bursor.com -- Bursor & Fisher, P.A..
David A. Browne, Plaintiff, represented by Antonio Vozzolo, Faruqi
& Faruqi, LLP, Scott A. Bursor, Bursor & Fisher, P.A., Joseph
Ignatius Marchese, Bursor & Fisher, P.A. & Yitzchak Kopel, Bursor
& Fisher, P.A..
Lance Moore, Plaintiff, represented by Antonio Vozzolo, Faruqi &
Faruqi, LLP, Scott A. Bursor, Bursor & Fisher, P.A., Joseph
Ignatius Marchese, Bursor & Fisher, P.A. & Yitzchak Kopel, Bursor
& Fisher, P.A..
Vance Smith, Plaintiff, represented by Antonio Vozzolo, Faruqi &
Faruqi, LLP, Scott A. Bursor, Bursor & Fisher, P.A., Joseph
Ignatius Marchese, Bursor & Fisher, P.A. & Yitzchak Kopel, Bursor
& Fisher, P.A..
Nancy Thomas, Plaintiff, represented by Antonio Vozzolo, Faruqi &
Faruqi, LLP, Scott A. Bursor, Bursor & Fisher, P.A., Joseph
Ignatius Marchese, Bursor & Fisher, P.A. & Yitzchak Kopel, Bursor
& Fisher, P.A..
Gwen Eskinazi, Plaintiff, represented by Adam Richard Gonnelli,
The Sultzer Law Group, Antonio Vozzolo, Faruqi & Faruqi, LLP,
Nadeem Faruqi -- nfaruqi@faruqilaw.com -- Faruqi & Faruqi, LLP,
Scott A. Bursor, Bursor & Fisher, P.A., Joseph Ignatius Marchese,
Bursor & Fisher, P.A., Timothy J. Peter -- tpeter@faruqilaw.com
-- Faruqi & Faruqi, LLP & Yitzchak Kopel, Bursor & Fisher, P.A..
Stacy D. Lonardo, Plaintiff, represented by Adam Richard Gonnelli,
The Sultzer Law Group, Antonio Vozzolo, Faruqi & Faruqi, LLP,
Nadeem Faruqi, Faruqi & Faruqi, LLP, Scott A. Bursor, Bursor &
Fisher, P.A., Joseph Ignatius Marchese, Bursor & Fisher, P.A.,
Timothy J. Peter, Faruqi & Faruqi, LLP & Yitzchak Kopel, Bursor &
Fisher, P.A..
The Scotts Miracle-Gro Company, Inc., Defendant, represented by
Jason Bennett Sherry, Hunton & Williams, Joshua Mark Kalb --
jkalb@hunton.com -- Hunton & Williams LLP, pro hac vice, Joshua
Seth Paster -- jpaster@hunton.com -- Hunton & Williams, LLP, Shawn
Patrick Regan -- sregan@hunton.comc -- Hunton & Williams, LLP,
Neil Keith Gilman -- ngilman@hunton.com -- Hunton & Williams LLP &
Samuel Alberto Danon -- sdanon@hunton.com -- Hunton & Williams,
pro hac vice.
The Scotts Company LLC, Defendant, represented by Jason Bennett
Sherry, Hunton & Williams, Joshua Mark Kalb, Hunton & Williams
LLP, pro hac vice, Joshua Seth Paster, Hunton & Williams, LLP,
Shawn Patrick Regan, Hunton & Williams, LLP, Neil Keith Gilman,
Hunton & Williams LLP & Samuel Alberto Danon, Hunton & Williams,
pro hac vice.
SPEEDWAY OFFICE: Innovative Accounting's Class Cert. Bid Denied
---------------------------------------------------------------
Judge Linda V. Parker of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denied without prejudice
the Plaintiff's Motion for Class Certification in the case
captioned INNOVATIVE ACCOUNTING SOLUTIONS, INC., Plaintiff, v.
SPEEDWAY OFFICE PRODUCTS, METRO RECORD SERVICE, INC., and SECURITY
X-RAY, INC. Defendants, Civil Case No. 17-12563(E.D. Mich.).
This putative class action asserts claims under the Telephone
Consumer Protection Act ("TCPA"). Innovative Accounting is the
only named Plaintiff. On the same date it initiated this lawsuit,
the Plaintiff filed a "Motion for Class Certification" pursuant to
Federal Rule of Civil Procedure 23. It asks the Court to reserve
ruling on the motion until it has conducted discovery on whether
class certification is appropriate.
The practice of filing premature motions for class certification
in TCPA cases has proliferated in this District as a means to
avoid the Named Plaintiff's claim possibly being rendered moot by
the Defendant's offer of judgment. However, with the Supreme
Court's Jan. 20, 2016 decision in Campbell-Ewald Co. v. Gomez,
there no longer is a need for plaintiffs to file premature motions
for class certification.
In Gomez, the Court addressed the issue of whether an unaccepted
offer to satisfy the named plaintiff's individual claim renders a
case moot when the complaint seeks relief on behalf of the
plaintiff and a class of similarly situated persons. The Supreme
Court held in Gomez that an unaccepted settlement offer has no
force. With the offer off the table, and the Defendant's
continuing denial of liability, adversity between the parties
persists. Thus, the case is not rendered moot.
In short, there no longer is a reason for Plaintiff to file a
motion for certification which it is not able to support at this
time, Judge Paerker held. The motion is premature. Accordingly,
she denied without prejudice the Plaintiff's Motion for Class
Certification.
A full-text copy of the Court's Aug. 8, 2017 Opinion and Order is
available for free at https://is.gd/b4G4Mi from Leagle.com.
Innovative Accounting Solutions, Inc., Plaintiff, represented by
Phillip A. Bock, Bock Law Firm, LLC dba Bock, Hatch, Lewis &
Oppenheim, LLC.
STAPLES INC: Faces "Haag" Suit Over Proposed Sycamore Merger
------------------------------------------------------------
Raymond Haag, individually and on behalf of all others similarly
situated v. Staples, Inc., Drew G. Faust, Curtis Feeny, Paul-Henri
Ferrand, Shira Goodman, Deborah A. Henretta, Kunal S. Kamlani,
John F. Lundgren, Robert Sulentic, Vijay Vishwanath, Paul F.
Walsh, Sycamore Partners, Arch Merger Sub Inc., and Arch Parent
Inc., Case No. 1:17-cv-11447 (D. Mass., August 4, 2017), stems
from a proposed transaction announced on June 28, 2017, pursuant
to which Staples, Inc. will be acquired by affiliates of Sycamore
Partners for $10.25 in cash for each share of Staples.
According to the complaint, Staples filed a Recommendation
Statement with the U.S. Securities and Exchange Commission, which
recommends that Staples stockholders vote in favor of the Proposed
Transaction. However, the Statement omits or misrepresents
material information concerning, among other things: (i)
"Background of the Merger"; (ii) "Reasons for the Merger;
Recommendation of the Board"; (iii) "Opinions of
the Company's Financial Advisors"; and (iv) "Company Financial
Forecasts; Other Company Information." The Complaint says the
Proposed Transaction will unlawfully divest Staples's public
stockholders of the Company's valuable assets without fully
disclosing all material information concerning the Proposed
Transaction to Company stockholders. To remedy defendants'
Exchange Act violations, Plaintiff seeks to enjoin the stockholder
vote on the Proposed Transaction unless and until such problems
are remedied.
Staples, Inc. provides business customers with a broad assortment
of products, expanded business services, and convenient ways to
shop in stores, online, and through social apps. [BN]
The Plaintiff is represented by:
Mitchell J. Matorin, Esq.
MATORIN LAW OFFICE, LLC
18 Grove Street, Suite 5
Wellesley, MA 02482
Telephone: (781) 453-0100
E-mail: info@matorinlaw.com
- and -
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Telephone: (302) 295-5310
E-mail: bdl@rl-legal.com
gms@rl-legal.com
STELLAR RECOVERY: Court Grants Chavez's Bid to Enforce Settlement
-----------------------------------------------------------------
Judge William P. Johnson of the U.S. District Court for the
District of New Mexico granted the Plaintiff's Motion to Enforce
Settlement in the case captioned Patricia Chavez, Plaintiff, v.
Stellar Recovery, Inc., Defendant, Case No. 1:16-cv-00558-WJ-KK(D.
N.M.).
This case was a putative class action against the Defendant suing
for violations of the Fair Debt Collection Practices Act
("FDCPA"), in connection with the Plaintiff's receipt of a
collection letter from the Defendant in December 2015. The
Plaintiff contended that the Defendant misled her as to the
identity of the creditor to whom the debt was owed. The Defendant
admitted to sending the letter, but denies that any of the
language in the letter was misleading or confusing, or that it
violated any provision of the FDCPA.
Parties settled this case in September 2016, and sought additional
time in which to file the dismissal papers, which were due on Dec.
26, 2016. Under the written settlement agreement, the Defendant
is required to pay the Plaintiff a total of $15,000 over
installments from Nov. 5, 2016 to Dec. 5, 2016.
On Jan. 12, 2017, the Plaintiff filed the motion to enforce the
agreement. According to her, the Defendant paid the first
installment of $7,500 in November 2016 but has failed to pay the
other $7,500 installment which was due on Dec. 15, 2016. Multiple
efforts by the Plaintiff's counsel to contact the Defendant's
counsel in December 2016 and January 2017 were unsuccessful and
went unreturned. The Defendant has not responded to her motion,
and she filed a Notice that briefing was complete on July 26,
2017.
Judge Johnson held that the Plaintiff's request for an Order
enforcing the settlement agreement seems reasonable enough, and
the Defendant -- not having responded at all to the motion -- has
not provided the Court with any reason to set it aside. For these
reasons, he therefore granted the Plaintiff's motion. A Judgment
will be entered separately which includes a provision for post-
judgment interest.
A full-text copy of the Court's Aug. 8, 2017 Memorandum Opinion
and Order is available for free at https://is.gd/oIz45M from
Leagle.com.
Patricia Chavez, Plaintiff, represented by Anita Marie Kelley, Law
Office of Anita M. Kelly.
Stellar Recovery, Inc., Defendant, represented by Alison N. Emery,
Assurance Law Group, PA.
SURFSIDE COFFEE: "Jerez" Suit Seeks to Recover Unpaid OT Wages
--------------------------------------------------------------
Elizabet Jerez, Wanda Adorno, and Ronald Hund, on behalf of
themselves and all others similarly situated v. Surfside Coffee
Company LLC and Christopher Mellgren, Case No. 1:17-cv-22969-KMM
(S.D. Fla., August 4, 2017), seeks to recover unpaid overtime
compensation, liquidated damages, costs and reasonable attorneys'
fees, as well as for declaratory and injunctive relief pursuant to
the Fair Labor Standards Act.
The Defendants own and operate approximately 69 Dunkin' Donuts
retail store units in and around Fort Myers, Fort Lauderdale,
Miami and the Florida Keys. [BN]
The Plaintiff is represented by:
Daniel R. Levine, Esq.
PADULA BENNARDO LEVINE LLP
3837 NW Boca Raton Blvd., Suite 200
Boca Raton, FL 33431
Telephone: (561) 544-8900
Facsimile: (561) 544-8999
E-mail: DRL@PBL-Law.com
TAISHAN GYPSUM: Lochhead et al. Sue over Defective Drywall
----------------------------------------------------------
Kenneth D. Lochhead and Maria L. Webste, et al., individually, and
on behalf of all others similarly situated, the Plaintiffs, v.
Taishan Gypsum Co., Ltd. f/k/a Shandong Taihe Dongxim Co., Ltd.;
Tai'an Taishan Plasterboard C., Ltd,; Beijing New Building
Materials Public Limited Co.; Beijing New Building Materials
(Group) Co., Ltd,; and China National Building Materials Co.,
Ltd., the Defendants, Case No. 7:17-cv-00294 (S.D. Tex., Aug. 1,
2017), seeks to recover damages incurred by Plaintiffs from
Defendants due to their role in the design, manufacture,
importing, distributing, delivery supply, marketing, inspecting,
installing, or sale of defective drywall.
Taishan produces and sells gypsum boards and frames. It sells its
products in China, the United Arab Emirates, Indonesia, India, and
Russia.[BN]
Attorneys for Plaintiffs:
William Given Colvin, Esq.
William G. Colvin, PLLC
801 Broad Street Suite 428
Chattanooga, TN 37402
Telephone: (423) 265 8804
Facsimile: (423) 267 5915
E-mail: bcolvin@williamgcolvinlaw.com
- and -
Russ M. Herman, Esq.
HERMAN, HERMAN & KATZ, LLC
820 O'Keefe Avenue
New Orleans, LA 70113
Telephone: (504) 581 4892
Facsimile: (504) 561 6024
E-mail: rherman@hhklawfirm.com
- and -
Arnold Levin, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592 1500
Facsimile: (215) 592 4663
E-mail: alevin@lfsblaw.com
- and -
Dawn M. Barrios, Esq.
BARRIOS, KINGSDORF & CASTEIX, LLP
701 Poydras Street, Suite 3650
New Orleans, LA 70139
Telephone: (504) 524 3300
Facsimile: (504) 524 3313
E-mail: Barrios@bkc-law.com
- and -
Peter Prieto, Esq.
PODHURST ORSECK, P.A.
25 Flagler Street, 8th Floor
Miami, FL 33130
Telephone: (305) 358 2800
Facsimile: (305) 358 2382
E-mail: pprieto@podhurst.com
- and -
Patrick Montoya, Esq.
COLSON, HICKS, EIDSON
255 Alhambra Circle, Penthouse
Cora Gables, FL 33134
Telephone: (305) 476 7400
Facsimile: (305) 476 7444
E-mail: Patrick@colson.com
- and -
Hugh P. Lambert, Esq.
THE LAMBERT FIRM
701 Magazine Street
New Orleans, LA 70130
Telephone: (504) 581 1750
Facsimile: (504) 529 2931
E-mail: hlambert@thelambertfirm.com
- and -
James Robert Reeves, Esq.
REEVES & MESTAYER, PLLC
160 Main Street
Biloxi, MS 39530
Telephone: (228) 374 5151
Facsimile: (228) 374 6630
E-mail: jrr@attorneys4people.com
- and -
Daniel K. Bryson, Esq.
WHITFIELD, BRYSON & MASON, LLP
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600 5000
Facsimile: (919) 600 5002
E-mail: dan@wbmllp.com
- and -
Bruce William Steckler, Esq.
STECKLER GRESHAM COCHRAN
12720 Hillcrest Road, Ste 1045
Dallas, TX 75230
Telephone: (972) 387 4040
Facsimile: (972) 387 4041
E-mail: bruce@stecklerlaw.com
- and -
Ben W. Gordon, Jr., Esq.
LEVIN, PAPANTONIO, THOMAS, MITCHELL
Echsner & Proctor, P.A.
316 S. Baylen Street, Suite 600
Pensacola, FL 32502
Telephone: (850) 435 7000
Facsimile: (850) 435 7020
E-mail: bgordon@levinlaw.com
- and -
Gerald E. Meunier
GAINSBURGH, BENJAMIN, DAVID, MEUNIER
& WARSHAUER, LLC
2800 Energy Centre, 1100 Poydras Street
New Orleans, LA 70163-2800
Telephone: (504) 522 2304
Facsimile: (504) 528 9973
E-mail: gmeunier@gainsben.com
- and -
Christopher Seeger, Esq.
SEEGER WEISS, LLP
77 Water Street
New York, NY 10005
Telephone: (212) 584 0700
Facsimile: (212) 584 0799
E-mail: cseeger@seegerweiss.com
- and -
Richard J. Serpe, Esq.
Law Offices of Richard J. Serpe
Crown Center, Ste. 310
580 East Main Street
Norfolk, VA 23510 2322
Telephone: (757) 233 0009
Facsimile: (757) 233 0455
E-mail: rserpe@serpefirm.com
- and -
Victor M. Diaz, Jr., Esq.
V.M. Diaz and Partners, LLC
119 Washington Ave, Suite 402
Miami Beach, FL 33139
Telephone: (305) 704 3200
Facsimile: (305) 538 4928
E-mail: victor@diazpartners.com
- and -
S. Lewis, Esq.
HAUSFELD LLP
1700 K Street, N.W, Suite 650
Washington, DC 20006
Telephone: (202) 540 7200
Facsimile: (202) 540 7201
E-mail: rlewis@hausfeldllp.com
- and -
Anthony D. Irpino, Esq.
IRPINO AVIN HAWKINS LAW FIRM
2216 Magazine Street
New Orleans, LA 70130
Telephone: (504) 525 1500
Facsimile: (504) 525 1501
E-mail: airpino@irpinolaw.com
- and -
Andrew A. Lemmon, Esq.
Lemmon Law Firm, LLC
P.O. Box 904
15058 River Road
Hahnville, LA 70057
Telephone: (985) 783 6789
Facsimile: (985) 7831333
E-mail: Andrew@lemmonlawfirm.com
- and -
Pete Albanis, Esq.
MORGAN & MORGAN
12800 University Drive
Fort Myers, FL 33907
Telephone: (239) 433 6880
- and -
Daniel Bryson, Esq.
WHITFIELD BRYSON MASON
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600 5000
TECHNIPFMC PLC: Pomerantz Files Suit Over Securities Violations
---------------------------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against TechnipFMC plc and certain of its officers. The class
action, filed in United States District Court, Southern District
of Texas, Houston Division, and docketed under 17-cv-02368, is on
behalf of a class consisting of investors who purchased or
otherwise acquired TechnipFMC securities, seeking to recover
compensable damages caused by defendants' violations of the
Securities Exchange Act of 1934.
If you are a shareholder who purchased TechnipFMC securities
between April 27, 2017, and July 24, 2017, both dates inclusive,
you have until October 2, 2017 to ask the Court to appoint you as
Lead Plaintiff for the class. A copy of the Complaint can be
obtained at www.pomerantzlaw.com. To discuss this action, contact
Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529
(or 888.4-POMLAW), toll free, Ext. 9980. Those who inquire by e-
mail are encouraged to include their mailing address, telephone
number, and number of shares purchased.
TechnipFMC plc provides oilfield services. The Company offers
subsea, surface, onshore, and offshore solutions for oil and gas
projects. TechnipFMC serves customers worldwide. TechnipFMC was
formed through the merger of FMC Technologies Inc. and French oil-
services Technip SA.
The Complaint alleges that throughout the Class Period, 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) TechnipFMC had a material
weakness in its internal control over rates used in the
calculations of the foreign currency effects on certain of its
engineering and construction projects; (ii) accordingly, the
Company lacked effective internal controls over financial
reporting; and (iii) as a result of the foregoing, TechnipFMC's
public statements were materially false and misleading at all
relevant times.
On July 24, 2017, post-market, TechnipFMC issued a press release
and filed a Current Report on Form 8-K with the SEC, announcing
that the Company would restate its financial statements as of
March 31, 2017, as these statements could no longer be relied
upon.
On this news, TechnipFMC's share price fell $0.48, or 1.71%, to
close at $27.56 on July 25, 2017.
The Pomerantz Firm, with offices in New York, Chicago, Florida,
and Los Angeles, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct.
[GN]
TERMINIX INT'L: Faces "Denhatter" Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Terminix
International Inc. The case is styled as Dale Denhatter, on behalf
of himself and all others similarly situated, Plaintiff v.
Terminix International Inc. and Does 1-100, Defendants, Case No.
34-2017-00217169-CU-OE-GDS (Cal. Super., August 10, 2017).
Terminix International provides pest control services for homes
and businesses in the United States and internationally.[BN]
The Plaintiff is represented by:
William Turley, Esq.
The Turley & Mara Law Firm, APLC
7428 Trade St. San Diego, CA 92121
Tel: (619) 234-2833
TIME WARNER: Bid to Compel Arbitration in "Landry" Partly Granted
-----------------------------------------------------------------
Judge Steven J. McAuliffe of the U.S. District Court for the
District of New Hampshire granted in part and denied in part,
albeit without prejudice, Time Warner's motion to compel
arbitration and to dismiss (or stay) the case captioned Rex
Landry, Plaintiff, v. Time Warner Cable, Inc., and Thompson
Reuters Corporation, Defendants, Case No. 16-cv-507-SM (D. N.H.).
Plaintiff filed this putative class action against his former
employer, Time Warner, alleging that the Defendant violated
various provisions of the federal Fair Credit Reporting Act
("FCRA"), as well as New Hampshire's statutory analogue. He also
claims Time Warner wrongfully terminated his employment and, in so
doing, violated New Hampshire's Whistleblower Protection Act.
Landry advances two claims against Thompson Reuters Corp.,
asserting that it is a "consumer reporting agency" and that it,
too, violated various provisions of the FCRA.
Pending before the court is Time Warner's motion to compel
arbitration and to dismiss (or stay) this action. Landry objects.
First, although he does not deny that he accessed the onboarding
website, reviewed Time Warner's various employment policies and
procedures, and electronically signed a Mutual Arbitration
Agreement, Landry says he cannot recall having done so. Judge
McAuliffe finds that the records submitted by Time Warner plainly
demonstrate that Landry did provide Time Warner with his Yahoo
email address and he did complete the company's onboarding process
with the login credentials that were sent to that email address.
Additionally, those documents establish that Landry acknowledged
reading the Mutual Agreement to Arbitrate and electronically
signed that document. Those material facts are established and
not "genuinely disputed."
Landry asserts that even if he did execute the Mutual Agreement to
Arbitrate, it is unconscionable and, therefore, unenforceable.
The Judge concludes that Landry has failed to demonstrate that the
Mutual Agreement to Arbitrate is unenforceable on grounds that it
is either procedurally or substantively unconscionable. In brief,
the arbitration agreement is not -- at least under the
circumstances presented -- an unenforceable adhesion contract.
Moreover, the class action waiver contained within the Mutual
Agreement to Arbitrate is not itself unconscionable, nor does it
render the remainder of the agreement unenforceable.
Landry also asserts the Mutual Agreement to arbitrate is
unenforceable because its class action waiver represents an
unlawful restraint on his rights under the National Labor
Relations Act ("NLRA"). Judge McAuliffe noted the U.S. Supreme
Court's Jan. 13, 2017 order granting certiorari to the Court of
Appeals for the Fifth Circuit that whether arbitration agreements
with individual employees that bar them from pursuing work-related
claims on a collective or class basis in any forum are prohibited
as an unfair labor practice under 29 U.S.C. 158(a)(1), because
they limit the employees' right under the NLRA to engage in
concerted activities in pursuit of their mutual aid or protection,
29 U.S.C. 157, and are therefore unenforceable under the saving
clause of the Federal Arbitration Act, 9 U.S.C. 2. Because the
Supreme Court will likely resolve that dispositive question of law
in the near future, it would seem unnecessary and unwise to
proceed here. An authoritative and controlling description of the
interplay between the NLRA and the FAA will be forthcoming
shortly, the Judge finds. Accordingly, pending the Supreme
Court's decision in Murphy Oil, he will defer ruling on that final
question of law presented in Landry's objection to Time Warner's
motion to compel arbitration.
Accordingly, Judge McAuliffe granted in part and denied in part
Time Warner's motion to compel arbitration. With the exception of
his claim that the class action waiver violates provisions of the
NLRA, none of Landry's arguments in favor of invalidating the
Mutual Agreement to Arbitrate is persuasive. When the Supreme
Court issues its decision in Murphy Oil, the parties will notify
the Court, and propose a supplemental briefing schedule, if
necessary.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/uUWyR3 from Leagle.com.
Ryan Landry, Plaintiff, represented by Benjamin J. Wyatt --
BWyatt@wyattlegalservices.com -- Wyatt Law Offices.
Ryan Landry, Plaintiff, represented by Michael Varraso --
mvarraso@wyattlegalservices.com -- Wyatt Law Offices.
Time Warner Cable Inc., Defendant, represented by Abigail Stecker
Romero -- aromero@kcozlaw.com -- Kabat Chapman & Ozmer LLP, pro
hac vice, Joseph W. Ozmer, II -- jozmer@kcozlaw.com -- Kabat
Chapman & Ozmer LLP, pro hac vice, Michael D. Kabat --
mkabat@kcozlaw.com -- Kabat Chapman & Ozmer LLP, pro hac vice &
Michele E. Kenney -- mkenney@pierceatwood.com -- Pierce Atwood
LLP.
Thomson Reuters Corporation, Defendant, represented by Eric Bosset
-- ebosset@cov.com -- Covington & Burling LLP, pro hac vice,
Geoffrey J. Vitt -- gvitt@vittandassociates.com -- Vitt &
Associates PLC & Neil K. Roman -- nroman@cov.com -- Covington &
Burling LLP, pro hac vice.
TIME WARNER: Reuter's Bid to Dismiss "Landry" Denied
----------------------------------------------------
Judge Steven J. McAuliffe of the U.S. District Court for the
District of New Hampshire denied Reuters' motion to dismiss the
case captioned Rex Landry, Plaintiff, v. Time Warner Cable, Inc.,
and Thompson Reuters Corporation, Defendants, Case No. 16-cv-507-
SM (D. N.H.).
In 2015, Landry applied for, and was given, a job with Time
Warner. Approximately four months after he started working for
Time Warner, Landry was called into a meeting, during which a
member of Time Warner's Corporate Security Division accused him of
having been convicted of a felony (and serving a prison sentence)
in Harris County, Texas -- facts not disclosed on Landry's job
application. Landry says he never lived in Harris County and,
more importantly, he was never convicted of a felony in Texas. He
claims Time Warner obtained that erroneous information from the
background check it secured through Reuters' CLEAR (Consolidated
Lead Evaluation and Reporting) service. And, says Landry,
although he authorized Time Warner to perform a background check
as part of the hiring process, he claims the report it obtained
from Reuters was unauthorized.
Landry says that, as a direct result of the erroneous information
contained in Reuters' report, he was suspended without pay.
Subsequently, Landry contacted the Harris County prison and
learned that an individual who shares his name (but not his date
of birth or his social security number) had, indeed, served time
at the prison. He shared that information with Time Warner, which
acknowledged its mistake and agreed that Landry had not lied on
his job application. Nevertheless, Time Warner informed Landry
that his employment was being terminated for an entirely unrelated
reason: because he had allegedly used profane language in front of
a co-worker, which made that coworker feel uncomfortable. Landry
asserts that Time Warner's stated reason(s) for terminating his
employment are a pretext.
As for Reuters and its CLEAR report, Landry says: (i) Reuters knew
or should have known that Time Warner would use the information
contained in that report for the purpose of establishing Landry's
eligibility for employment; (ii) Reuters did not adopt and
implement reasonable procedures for ensuring that credit
information about Landry was collected, maintained, and dispensed
in an appropriate manner; (iii) the CLEAR report provided to Time
Warner contained several inaccuracies, including that Landry had
served prison time in Harris County, Texas; and (iv) in providing
the CLEAR report to Time Warner, Reuters willfully violated
several provisions of the Fair Credit Reporting Act ("FCRA").
Landry filed this putative class action against his former
employer, Time Warner, alleging that the Defendant violated
various provisions of the FCRA, as well as New Hampshire's
statutory analogue. He also claims Time Warner wrongfully
terminated his employment and, in so doing, violated New
Hampshire's Whistleblower Protection Act. Finally, Landry
advances two claims against Reuters, asserting that it is a
"consumer reporting agency" and that it, too, violated various
provisions of the FCRA.
Pending before the court is Time Warner's motion to compel
arbitration and to dismiss (or stay) this action. Landry objects.
Judge McAuliffe held that liberally construing the allegations of
the complaint, he is constrained to conclude that Landry has
alleged minimally sufficient facts to state a viable claim in
count five of his complaint. That count adequately alleges that
Reuters' CLEAR report contained adverse information which
antedates the report by more than seven years and which is not
covered by the limited exemption for records of convictions of
crimes set forth in section 1681c(a)(5). In other words, Landry
alleges that the report also contained other adverse and
impermissibly outdated information about him -- that is, arrests
and/or dismissals of criminal counts from 2000. Reuters' motion
to dismiss count five must, therefore, be denied.
As to Reuters' claim that Landry's complaint does not adequately
allege that it acted "willfully" in its failure to comply with the
requirements of the FCRA, Judge McAuliffe noted that the Supreme
Court has held that, under section 1681n of the FCRA, "willful"
violations of the statute encompass both knowing violations of the
FCRA's requirements and those that are committed with a reckless
disregard for those requirements. From that, a plausible
inference arises that Reuters acted either knowing that it was
violating the FCRA, or with a reckless disregard for its
obligations under that statute. The complaint's allegations of
"willfulness" are sufficient -- if barely -- to survive Reuters'
motion to dismiss. Once discovery is completed, this issue may be
better addressed on summary judgment.
For these reasons, Judge McAuliffe denied Reuters' motion to
dismiss, without prejudice to its ability to address those issues
on summary judgment, with the benefit of a more fully developed
record.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/puzKCO from Leagle.com.
Ryan Landry, Plaintiff, represented by Benjamin J. Wyatt --
BWyatt@wyattlegalservices.com -- Wyatt Law Offices.
Ryan Landry, Plaintiff, represented by Michael Varraso --
mvarraso@wyattlegalservices.com -- Wyatt Law Offices.
Time Warner Cable Inc., Defendant, represented by Abigail Stecker
Romero -- aromero@kcozlaw.com -- Kabat Chapman & Ozmer LLP, pro
hac vice, Joseph W. Ozmer, II -- jozmer@kcozlaw.com -- Kabat
Chapman & Ozmer LLP, pro hac vice, Michael D. Kabat --
mkabat@kcozlaw.com -- Kabat Chapman & Ozmer LLP, pro hac vice &
Michele E. Kenney -- mkenney@pierceatwood.com -- Pierce Atwood
LLP.
Thomson Reuters Corporation, Defendant, represented by Eric Bosset
-- ebosset@cov.com -- Covington & Burling LLP, pro hac vice,
Geoffrey J. Vitt -- gvitt@vittandassociates.com -- Vitt &
Associates PLC & Neil K. Roman -- nroman@cov.com -- Covington &
Burling LLP, pro hac vice.
TOWER LOAN: Settlement in "Kemp" Suit Gets Preliminary Approval
---------------------------------------------------------------
Judge Carlton W. Reeves of the U.S. District Court for the
Southern District of Mississippi, Northern Division, preliminarily
approved the Class Settlement and Certified the Settlement Class
in the case captioned BARBARA J. KEMP, Plaintiffs, and TIJUANNA
HALL v. TOWER LOAN OF MISSISSIPPI, LLC D/B/A TOWER LOAN OF BILOXI,
and FIRST TOWER LOAN, LLC D/B/A TOWER LOAN OF EAST GULFPORT,
Defendants, No. 3:15CV499-CWR-LRA(S.D. Miss.).
The Plaintiffs filed this action in July 2015, alleging that
Defendant, Tower Loan violated the Truth in Lending Act ("TILA"),
as amended by the Home Ownership and Equity Protection Act of 1994
("HOEPA"), and the Dodd-Frank Wall Street Reform and Consumer
Protection Act, and implementing Regulation Z, 12 C.F.R part 1026
in connection with mortgage loans it made in Southern Mississippi.
They Plaintiffs filed an Amended Complaint in January 2016,
clarifying their legal theories. They filed a Second Amended
Complaint in September 2016, adding First Tower Loan ("FTL") as a
Defendant because one of the Plaintiffs' loans had been issued by
FTL. At the heart of their claims was the assertion that the
Defendants violated these laws and regulations when they made
certain mortgage loans without making certain required
disclosures. The parties reached the Settlement through arm's-
length negotiations following settlement conferences with
Magistrate Judge Linda R. Anderson. They have now presented the
Settlement to the Court for preliminary approval.
Under the Settlement, subject to the terms and conditions therein
and subject to Court approval, the Plaintiff and the proposed
Settlement Class would fully, finally, and forever resolve,
discharge, and release their claims in exchange for Tower's
interest rate reduction of 1.254% on mortgage loans made to
Settlement Class Members during the Class Period, without
admission of liability by Tower, plus attorneys' fees and costs to
Class Counsel, not to exceed $150,000, and Service Awards to the
Class Representatives, not to exceed $5,000 per named Class
Representative, to create a fund to benefit the Settlement Class.
In addition, Tower has agreed to pay all fees and costs associated
with providing notice to the Settlement Class and for Settlement
Administrator implementation of the Settlement.
Judge Reeves provisionally certified the Settlement Class of all
Borrowers of any Mortgage Loan with Tower that has a Date of Loan
from June 1, 2013 through and including Nov. 3, 2015. Consistent
with the terms of the Second Amended Complaint, he appointed
Barbara J. Kemp and Tijuanna Hall as the Class Representatives.
He also appointed:
Daniel A. Edelman, Esq.
Tara L. Goodwin, Esq.
Edelman Combs Latturner and Goodwin
20 South Clark Street, Suite 1500
Chicago, IL 60603-1824
Tel. (312) 917-4502
- and -
Jason Graeber, Esq.
Jason Graeber Attorney at Law
2462 Pass Road
Biloxi, MS 39531
Tel: (228) 207-7117
as the Class Counsel who will be responsible for handling all
Settlement-related matters on behalf of the Plaintiffs and the
Settlement Class.
Judge Reeves preliminarily approved the Settlement, and the
exhibits appended to the Motion, as fair, reasonable and adequate.
He also approved the form and content of the Class Notice to be
provided to the Settlement Class.
All proceedings in the Action are stayed until further Court
order, except as may be necessary to implement the terms of the
Settlement.
Judge Reeves set the following schedule for the Final Approval
Hearing and the actions which must precede it:
i. The Settlement Administrator will establish the toll-free
telephone line as soon as practicable following
Preliminary Approval, but no later than the date of the
Initial Notice;
ii. The Settlement Administrator will complete the Notice
program no later than 35 days after sending the first
Initial Notice;
iii. The Plaintiffs and Class Counsel will file their Motion
for Final Approval of the Settlement, Request for Service
Awards for Plaintiffs and Fee Application no later than
21 days before the Final Approval Hearing, by Nov. 27,
2017;
iv. The Settlement Class Members must file with the
Settlement Administrator any objections to the
Settlement, the Service Awards and/or Class Counsel's
application for fees, costs, and expenses no later than
the last day of the Opt-Out Period;
v. The Settlement Class Members must file requests for
exclusion from the Settlement by no later than the last
day of the Opt-Out Period;
vi. The Plaintiffs and the Class Counsel will file their
responses to timely filed objections to the Motion for
Final Approval of the Settlement and Fee Application no
later than 14 days before the Final Approval Hearing, by
Dec. 4, 2017;
vii. If Tower chooses to file a response to timely filed
objections to the Motion for Final Approval of the
Settlement, it will do so no later than 14 days before
the Final Approval Hearing, by Dec. 4, 2017; and
viii. The Final Approval Hearing will be held on Dec. 18, 2017,
at 10:00 a.m. in Courtroom 5B, United States Courthouse,
501 East Court Street, Jackson, Mississippi.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/lMSgyi from Leagle.com.
Barbara J. Kemp, Plaintiff, represented by Daniel A. Edelman,
EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice.
Barbara J. Kemp, Plaintiff, represented by James L. Latturner,
EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice, Jason E.
Graeber, JASON GRAEBER ATTORNEY AT LAW & Tara L. Goodwin, EDELMAN
COMBS LATTURNER AND GOODWIN, pro hac vice.
Tijuanna Hall, Plaintiff, represented by Daniel A. Edelman,
EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice, James L.
Latturner, EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice,
Jason E. Graeber, JASON GRAEBER ATTORNEY AT LAW & Tara L. Goodwin,
EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice.
Tower Loan of Mississippi, LLC, Defendant, represented by Jane B.
Morgan -- jmorgan@watkinseager.com -- WATKINS & EAGER, PLLC, John
B. Howell, III -- jhowell@watkinseager.com -- WATKINS & EAGER,
PLLC, Michael O'Mara Gwin -- mgwin@watkinseager.com -- WATKINS &
EAGER, PLLC & Paul H. Stephenson, III --
pstephenson@watkinseager.com -- WATKINS & EAGER, PLLC.
First Tower Loan, LLC, Defendant, represented by Michael O'Mara
Gwin, WATKINS & EAGER, PLLC.
TWIN HILL: Faces Class Action Over AA Flight Attendants' Uniforms
-----------------------------------------------------------------
Hugo Martin, writing for Los Angeles Times, reports that two
American Airlines flight attendants have filed a class-action
lawsuit against the manufacturer of controversial new uniforms,
contending that the clothing is causing health problems for many
employees.
The suit, which names American Airlines flight attendants Thor
Zurbriggen and Dena Catan as plaintiffs, asks the court to order
the manufacturer, Twin Hill, to recall the uniforms given to more
than 60,000 employees worldwide and to set up medical monitoring
for employees.
The complaint was filed on August 2 in U.S. District Court in
Chicago. It will be up to a judge to decide if the suit can
proceed as a class-action case.
Twin Hill issued a statement that it stands by its product.
American Airlines will now alert you if your bags get lost
"Nothing in the complaint filed by two American Airlines flight
attendants changes the fact that there is absolutely no evidence
linking any of the symptoms alleged to our uniforms," the company
said. Twin Hill is a subsidiary of Tailored Brands, based in
Fremont, Calif.
American Airlines said all employees were offered the option of
wearing alternative uniforms. "We would never ask our team members
to wear an unsafe uniform," said Lakesha Brown, a spokeswoman for
the airline.
The suit repeats complaints from American Airlines employees who
say the uniforms, which were given to employees starting in
September, are the cause of health problems such as rashes,
headaches, fatigue, vertigo and respiratory problems.
A union representing American Airlines flight attendants says more
than 3,500 flight attendants have filed complaints over the
uniforms.
Twin Hill has said tests show that the materials used in the
uniforms contained nothing that could cause health problems.
Still, American Airlines and Twin Hill announced in June that they
would end their partnership after the current contract expires in
2020.
In the lawsuit, Zurbriggen said he began to experience fatigue,
rashes, eye irritation and throat irritation, among other health
problems, after getting his new uniform in November. Catan said
she suffered blinding headaches after trying on her new uniform.
Even after replacing the uniforms with other clothing, Zubriggen
and Catan said in the suit, the health problems continued when
they came in contact with co-workers who continued to wear the
Twin Hill uniforms.
"One conclusion that is clear, however, is the new uniforms are
causing these health problems. That is the only possible
conclusion given that the thousands of American Airlines flight
attendants and pilots began reporting serious adverse reactions
only after the new uniforms were introduced," the lawsuit states.
[GN]
TYSON FOODS: Fla. Court Declines to Rule on Bid to Transfer Venue
-----------------------------------------------------------------
Judge Edwin G. Torres of the U.S. District Court for the Southern
District of Florida, denied the Defendants' motion to transfer the
case captioned CHICKEN KITCHEN USA, LLC, Plaintiff, v. TYSON
FOODS, INC., TYSON CHICKEN INC., TYSON BREEDERS, INC. and TYSON
POULTRY, INC., Defendants, Case No. 17-21503 (S.D. Fla.) to the
Northern District of Illinois.
The Plaintiff is a franchisor of the Chicken Kitchen franchise
system. On April 21, 2017, it filed a three-count complaint
against the Defendants because of an alleged conspiracy to fix,
maintain, and stabilize the price of broilers (which are young
chickens) by limiting production with the intent of increasing
broiler prices in the United States. In furtherance of the
conspiracy, the Defendants purportedly disclosed non-public and
confidential information about prices, capacity, sales, volume,
and demand with other major broiler producers throughout the
United States with the intended effect of increasing prices. The
Plaintiff alleges that the Defendants fraudulently concealed their
anticompetitive conduct from others and caused significant
financial injury.
The Plaintiff's causes of action include (i) a violation of
section 1 of the Sherman Act, (ii) a violation of the Florida
Deceptive and Unfair Trade Practices Act, and (iii) unfair
enrichment. It seeks treble damages and injunctive relief. The
Defendants, based out of Arkansas, have moved to transfer this
action to the United States District Court for the Northern
District of Illinois so that it may be consolidated with three
similar lawsuits that have been filed in that venue. The
Plaintiff is not a party to any of the lawsuits in Illinois.
Judge Torres explains that as an initial matter, he needs not
explore the full merits of the Defendants' motion because it fails
for an entirely separate reason than the arguments presented in
the Plaintiff's response. The Broiler Litigation consists of
three consolidated class action cases that were all filed in
Illinois. As such, the relief the Defendants seek is barred by 28
U.S.C. Section 1407(a), which states that the judicial panel on
multidistrict litigation ("JPML") -- not the Southern District of
Florida court -- is responsible for coordinating civil actions
with common questions of fact that are filed in different
districts.
By the statute's plain language, the Defendants must file a motion
with the JPML if they wish to coordinate this action with the
cases pending in Illinois and cannot use Section 1404(a) as an
end-run around Section 1407(a). Because Section 1407 directly
forecloses the Defendants' arguments, he needs not explore whether
the factors under Section 1404(a) warrant transfer of this action.
As such, Judge Torres denied the Defendants' motion.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/AkoEs5 from Leagle.com.
Chicken Kitchen USA, LLC, Plaintiff, represented by Roberto Zarco
-- rzarco@zarcolaw.com -- Zarco Einhorn Salkowski & Brito, P.A..
Chicken Kitchen USA, LLC, Plaintiff, represented by Alejandro
Brito -- abrito@zarcolaw.com -- Zarco Einhorn & Salkowski.
Tyson Foods, Inc., Defendant, represented by Jason Nelson Zakia
-- jzakia@whitecase.com -- White & Case.
Tyson Chicken, Inc., Defendant, represented by Jason Nelson Zakia,
White & Case.
Tyson Breeders, Inc., Defendant, represented by Jason Nelson
Zakia, White & Case.
Tyson Poultry, Inc., Defendant, represented by Jason Nelson Zakia,
White & Case.
U.S. RENAL CARE: "Whitaker" Labor Suit Remanded to Superior Court
-----------------------------------------------------------------
Judge Manuel L. Real of the U.S. District Court for the Central
District of California granted the Plaintiff's Motion to Remand
the case captioned DAVID WHITAKER, individually and on behalf
of all others similarly situated, Plaintiff, v. U.S. RENAL
CARE, INC.; and DOES 1-20, inclusive, Defendants, Case No. CV
17-2661-R( C.D. Cal.).
The Plaintiff filed a class action complaint against the Defendant
in Superior Court. The Complaint alleges class action claims for
(i) failure to pay minimum wages; (ii) failure to pay overtime
wages; (iii) failure to provide meal periods; (iv) failure to
permit rest breaks; (v) failure to provide accurate wage
statements; (vi) failure to pay wages due upon separation of
employment; and (vii) unfair business practices. The Plaintiff
filed the Complaint on his own behalf as well as all non-exempt
employees employed by Defendant in California within the four
years prior to the filing of the action. The Defendant removed
the case to this Court arguing that the Court has jurisdiction
under the Class Action Fairness Act ("CAFA").
The Plaintiff filed his Motion to Remand on May 1, 2017. Judge
Real finds the matter is suitable for decision without the need
for oral argument. Accordingly, he took the matter under
submission on June 14, 2017.
The parties do not dispute the minimum diversity or numerosity
elements of CAFA. Accordingly, the only issue is whether the
amount in controversy exceeds the $5 million jurisdictional
threshold. The Defendant alleged in the Notice of Removal that
the amount in controversy did exceed the threshold, and the
Plaintiff challenged that allegation in the Motion. The Defendant
has presented various calculations based on the declaration of its
payroll manager and assumptions regarding the Plaintiff's claims.
Judge Real recognizes that the Defendant's burden of proof to show
an amount in controversy $5 million puts it in a difficult
position. However, the burden of proof in support of removal lies
with the party asserting the removal jurisdiction. Though CAFA
encourages federal jurisdiction over class action complaints, it
does not change this burden. Accordingly, because the Defendant
did not meet its burden for the purposes of removal, Judge Real
granted the Plaintiff's Motion to Remand is granted.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/FRZTwr from Leagle.com.
David Whitaker, Plaintiff, represented by Ali Sarah Carlsen, Aegis
Law Firm PC.
David Whitaker, Plaintiff, represented by Jessica L. Campbell,
Aegis Law Firm PC, Kashif Haque, Aegis Law Firm PC & Samuel A.
Wong, Aegis Law Firm PC.
U.S. Renal Care, Inc., Defendant, represented by James Allen
Goodman -- jgoodman@ebglaw.com -- Epstein Becker and Green PC,
Michael S. Kun -- mkun@ebglaw.com -- Epstein Becker and Green PC &
Kevin Dennis Sullivan -- ksullivan@ebglaw.com -- Epstein Becker &
Green, P.C.
UNITED STATES: Court Partially Grants Dismissal of "Kandel"
-----------------------------------------------------------
Judge Patricia Campbell-Smith of the United States Court of
Federal Claims partially granted Defendant's motion for partial
dismissal in the case captioned, GERALD K. KANDEL, et al.,
Plaintiffs, v. THE UNITED STATES, Defendant, Case No. 06-872 (Ct.
Fed. Cl.).
Plaintiffs filed the complaint in this class action more than ten
years ago, on December 22, 2006. In the complaint, plaintiffs
allege that the government failed to make proper payments to
employees of numerous federal agencies for annual leave that the
employees had accrued at the time of retirement, death, or other
separation from federal service.
Before the court is defendant's motion for partial dismissal of
the claims made by plaintiffs previously employed by the Panama
Canal Commission (PCC) on the ground that the court does not
possess subject matter jurisdiction, or alternatively, that the
complaint fails to state a claim upon which relief may be granted
to former PCC employees for supplemental lump-sum payments
pursuant to 5 U.S.C. Section 5551, the lump-sum payment statute.
In her Opinion and Order dated July 31, 2017, available at
https://is.gd/gIzDWz from Leagle.com, Judge Smith granted partial
dismissal of complaint as to former PCC employees who separated
from employment prior to September 23, 1996 because plaintiffs
have failed to make a facially plausible case that the lump-sum
statute applied and denied as to as to former PCC employees who
separated from employment on or after September 23, 1996.
The parties are directed to file a joint status report, on or
before August 31, 2017, proposing a schedule to govern this case
going forward as to the claims of former employees who separated
from PCC employment on or after September 23, 1996.
Gerald K. Kandel, et al. are represented by:
Ira M. Lechner, Esq.
KATZ & RANZMAN PC
4520 Wisconsin Ave #250,
Washington, DC 20016
Tel: (202)659-4656
Panama Canal Commission is represented by:
Mikki Cottet, Esq.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Tel:(202)353-1555
UNITED STATES: Scrutiny of Tea Party Orgs. Not Illegal, IRS Says
----------------------------------------------------------------
Bryan Koenig, writing for Law360, reports use of "inappropriate
criteria" when mulling tax-exempt status applications from
conservative groups doesn't mean IRS employees weren't within the
legal bounds of their jobs, the government told an Ohio federal
court on August 2 in an attempt to duck class action allegations
of inappropriate targeting by the agency.
August 2 was the court-mandated deadline for the IRS to seek
summary judgment in the case certified as a class action in
January 2016 and currently set for a bench trial next February. It
was unclear whether August 3's motion spells trouble for the
ongoing mediation the spat was referred to in June, although there
are currently no further mediations scheduled. An attorney for the
Tea Party and conservative groups cited confidentiality on August
3 in declining to comment on the status of the settlement
negotiations, and he commented only generally on the summary
judgment bid.
"We strongly disagree with the government's position," Edward
Greim of Graves Garrett LLC told Law360.
The IRS does not comment on pending litigation.
The government's bid to duck the suit, whose lead plaintiffs
include NorCal Tea Party Patriots, the Texas Patriots Tea Party,
and Americans Against Oppressive Laws Inc., is grounded in the
groups' sole class claim that the IRS violated Section 6103 of
Title 26 of the U.S. Code by "repeatedly inspecting and
scrutinizing their return information without a valid tax
administration purpose." A parallel constitutional claim from the
Texas Patriots Tea Party alleging viewpoint discrimination in the
IRS' tax-exempt application process was left untouched in August
2's brief, and the government is currently working under court
orders to process to group's application.
The problem with the class claim, the government said on August 2,
is that to prove that the IRS broke the law, the groups would have
to show that employees had been acting outside the bounds of their
normal duties and without a "good faith belief" that they had the
authority to look at the plaintiffs' tax returns. In refusing to
dismiss the case at an earlier stage, according to the brief, the
court already recognized the "difficult burden" the groups faced
in pinning the IRS to illegal conduct, and discovery has shown
that burden hasn't been met.
"Rather, the extensively developed, undisputed material facts
demonstrate that all IRS employees who actually reviewed
plaintiffs' application files were authorized to do so, because
they were acting within their job duties in the administration of
the Internal Revenue Code," the government said. "Nor is there any
evidence that the reviewing employees inspected materials knowing
that the inspections were not for the purposes of tax
administration."
The brief was quick to note that doesn't mean the IRS was doing a
good job, acknowledging a Treasury Inspector General for Tax
Administration report that excoriated the agency for gross
mismanagement that led to the use of "inappropriate criteria to
coordinate these applications for tax exempt status." But although
TIGTA found that this in turn led to delays and a backlog in
reviewing applications from conservative groups, it didn't trace
the inappropriate delays or criteria to "bias or discriminatory
intent."
And the groups aren't suing over delay, the IRS said, they're
suing over "unlawful inspection" of their tax returns.
"Plaintiffs' claim -- that IRS employees whose job duties included
processing applications for tax exempt status broke the law by
looking at those very application materials -- defies logic and is
contrary to the statute," the IRS said.
"Here, for example, plaintiffs' claim would render unlawful the
steps the IRS eventually took to remedy the backlog of
applications, including the very steps that led to the favorable
resolution of four of the five plaintiffs' applications," the
brief continues. "Accepting such [a] claim would significantly
interfere with the IRS' ability to conduct day-to-day tax
administration."
Even if the reviews weren't within a "tax administration purpose,"
the government argued that employees' good-faith belief is enough
to nix the suit.
All that needs to be shown, the government said, is for the
employees to have believed they were within their job duties. And
the workers "reasonably believed" they could look at application
materials necessary to doing their jobs.
"Despite voluminous discovery in this case and multiple
investigations by TIGTA, [the U.S. Department of Justice] and
Congress, there is no evidence that any IRS employee inspected
plaintiffs' materials knowing that the inspections were
unauthorized," the government said.
The groups are represented by Edward D. Greim, Esq. --
egreim@gravesgarrett.com -- Todd P. Graves, Esq. --
tgraves@gravesgarrett.com -- and Dane C. Martin, Esq. --
dmartin@gravesgarrett.com -- of Graves Garrett LLC, Christopher P.
Finney, Esq. -- info@finneylawfirm.com -- of Finney Law Firm LLC,
David R. Langdon, Esq. -- dlangdon@langdonlaw.com -- and Joshua B.
Bolinger, Esq. -- jbolinger@langdonlaw.com -- of Langdon Law LLC,
and Bill Randles, Esq. -- bill@randleslaw.com -- and Bev Randles,
Esq. -- bev@randleslaw.com -- of Bill & Bev Randles Law Group LLP.
The IRS is represented By David A. Hubbert, Esq. --
david.hubbert@usdoj.gov -- Joseph A. Sergi, Esq. --
joseph.sergi@usdoj.gov -- Laura C. Beckerman, Esq. --
laura.beckerman@usdoj.gov -- Laura M. Conner, Esq. --
laura.conner@usdoj.gov -- Steven M. Dean, Esq. --
steven.dean@usdoj.gov -- Joseph R. Ganahl, Esq. --
joseph.ganahl@usdoj.gov -- Jeremy N. Hendon, Esq. --
Jeremy.hendon@usdoj.gov -- Benjamin C. Glassman, Esq. --
Benjamin.glassman@usdoj.gov -- and Matthew J. Horwitz, Esq.--
matthew.horwitz@usdoj.gov -- of the U.S. Department of Justice.
The IRS management is represented by Mark Hayden, Esq. --
mhayden@taftlaw.com -- of Taft Stettinius & Hollister LLP and
Brigida Benitez, Esq. -- bbenitez@steptoe.com -- of Steptoe &
Johnson LLP. The IRS staffers are represented by Pierre H.
Bergeron, Esq. -- pierre.bergeron@squire.pb.com -- Thomas E. Zeno,
Esq. -- Thomas.zeno@squirepb.com -- and Lauren S. Kuley, Esq. --
lauren.kuley@squirepb.com -- of Squire Patton Boggs LLP and
Jeffrey A. Lamken, Esq. Justin V. Shur, Esq. and Eric R. Nitz,
Esq. -- enitz@mololamken.com -- of MoloLamken LLP.
The case is NorCal Tea Party Patriots et al. v. Internal Revenue
Service et al., case number 1:13-cv-00341, in the U.S. District
Court for the Southern District of Ohio. [GN]
VAN DE POL: "Guzman-Padilla" Class Certification Bid Underway
-------------------------------------------------------------
In the case captioned GUZMAN-PADILLA, et al., Plaintiffs, v. VAN
DE POL, et al., Defendants, No. 2:17-cv-00196-KJN(E.D. Cal.),
Judge Kendall J. Newman of the U.S. District Court for the Eastern
District of California took the Plaintiffs' unopposed motion for
conditional certification of classes and preliminary approval of
stipulated class action settlement and consent decree under
submission on the briefs without oral argument pursuant to Local
Rule 230(g); and vacated a scheduled Aug. 10, 2017 hearing on the
motion.
The Court initially set an Aug. 10 hearing to perform a
preliminary fairness evaluation under Federal Rule of Civil
Procedure 23(e).
On June 7, 2017, Judge Newman conducted a day-long settlement
conference with the parties, who reached the tentative agreement
memorialized in the Plaintiff's motion. After the parties
consented, the case was reassigned to Judge Newman on July 5,
2017. Due to his involvement in the settlement conference and
knowledge of the case, a hearing is not necessary to facilitate
his preliminary fairness evaluation.
Judge Newman will reschedule the hearing on the motion if it is
deemed necessary.
A full-text copy of the Court's Aug. 9, 2017 Order is available at
https://is.gd/ZLA6wQ from Leagle.com.
Hernan Guzman-Padilla, Plaintiff, represented by James M. Finberg
-- jfinberg@altshulerberzon.com -- Altshuler Berzon LLP.
Hernan Guzman-Padilla, Plaintiff, represented by Rosa Erandi
Zamora, California Rural Legal Assistance Foundation, Alexandra
Thompson Revelas, California Rural Legal Assistance Foundation,
Dawson McKinnon Morton, California Rural Legal Aid Foundation, Eve
H. Cervantez -- ecervantez@altshulerberzon.com -- Altshuler Berzon
LLP & Robert Joshua Wasserman, Mayall Hurley P.C..
Cipriano Benites, Plaintiff, represented by James M. Finberg,
Altshuler Berzon LLP, Rosa Erandi Zamora, California Rural Legal
Assistance Foundation, Alexandra Thompson Revelas, California
Rural Legal Assistance Foundation, Dawson McKinnon Morton,
California Rural Legal Aid Foundation, Eve H. Cervantez, Altshuler
Berzon LLP & Robert Joshua Wasserman -- rwasserman@mayallaw.coms -
- Mayall Hurley P.C..
Guillermo Benitez Santiago, Plaintiff, represented by Dawson
McKinnon Morton, California Rural Legal Aid Foundation & James M.
Finberg, Altshuler Berzon LLP.
Fabian Torres Perez, Plaintiff, represented by Robert Joshua
Wasserman, Mayall Hurley P.C., Dawson McKinnon Morton, California
Rural Legal Aid Foundation & James M. Finberg, Altshuler Berzon
LLP.
Gerard Van de Pol, Defendant, represented by Stacy L. Henderson
-- shenderson@thtlaw.com -- Terpstra Henderson, APC.
Henry Van de Pol, Defendant, represented by Stacy L. Henderson,
Terpstra Henderson, APC.
VANGUARD GROUP: Court Grants Interlocutory Appeal in "Taksir"
-------------------------------------------------------------
In the case captioned ALEX TAKSIR and ORIT TAKSIR, on behalf of
themselves and all others similarly situated, Plaintiffs, v. THE
VANGUARD GROUP, INC., Defendant, Civil Action No. 16-5713(E.D.
Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the
Eastern District of Pennsylvania denied Vanguard's motion for
reconsideration of the Court's May 26, 2017 Opinion denying its
motion to dismiss the complaint to the extent it seeks
reconsideration of the Court's May 26, 2017 decision, but granted
insofar as it requests that the Court's opinion be certified for
interlocutory appeal.
The Plaintiffs, on behalf of a proposed class of investors, assert
a breach-of-contract claim against Vanguard, their securities
broker. They allege that by investing more than $500,000 with
Vanguard, they qualify for its Voyager Select Program, under which
they should be charged a $2 commission on securities trades. On
two occasions, however, the Plaintiffs were charged a $7
commission instead. When pressed for details about the
overcharge, Vanguard informed them that it resulted from IRS
nondiscrimination rules, which they dispute apply to the trades at
issue.
The Plaintiffs initially alleged a claim for breach of contract
and a claim under Pennsylvania's Unfair Trade Practices and
Consumer Protection Law ("UTPCPL"). Vanguard moved to dismiss,
arguing that the Plaintiffs failed to state a claim under the
UTPCPL and that both claims were barred by the Securities
Litigation Uniform Standards Act ("SLUSA"). The Court held that
the Plaintiffs failed to state a claim under the UTPCPL, but that
SLUSA did not preclude their breach-of-contract claim.
The primary issue in determining SLUSA's applicability was whether
the Plaintiffs alleged that Vanguard made a misrepresentation or
omission of material fact, or employed any manipulative or
deceptive device or contrivance, "in connection with" the purchase
or sale of securities. Judge Rife held that they did not, because
under the Supreme Court's opinion in Chadbourne & Park LLP v.
Troice, fraudulent or deceptive conduct is only "in connection
with" a purchase or sale of securities if it is "material to" a
purchase or sale of securities. Under this standard, she
concluded that the two alleged $5 overcharges were not material to
any securities transactions, and so SLUSA did not preclude
Plaintiffs' claim.
Vanguard argues the "material to" standard was inapplicable, and
that SLUSA precluded the Plaintiffs' claim so long as the alleged
fraud or deception "coincided with" a purchase or sale of
securities. Its argument was based primarily on two pre-Troice
cases: the Supreme Court's 2006 decision in Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, and the Third Circuit's 2005
decision in Rowinski v. Salomon Smith Barney Inc.
Judge Rufe explained that while Dabit and Rowinski remain good
law, they do not compel the conclusion that SLUSA precludes the
Plaintiffs' claims because in both Dabit and Rowinski, the alleged
misrepresentations were "material to" investment decisions, which
is not true of the two $5 overcharges alleged here.
Vanguard now moves for reconsideration. Its primary argument, as
before, is that Troice does not apply, and that fraud or deception
is in connection with a purchase or sale of securities so long as
it coincides with that transaction. It also argues, for the first
time, that the two $5 overcharges were material to the purchase or
sale of securities, meaning SLUSA applies even if Troice supplies
the governing standard.
Judge Rufe considered and rejected Vanguard's argument that Troice
is inapplicable, and Vanguard's new argument that the overcharges
were material to securities transactions is not compelling.
Reconsideration is not warranted. However, she granted Vanguard's
motion to the extent it seeks certification of her opinion for
interlocutory appeal. There is little post-Troice authority
regarding whether SLUSA applies to the sort of breach-of-contract
claim alleged here. Because this issue is likely dispositive,
Judge Rufe certified her opinion for interlocutory appeal.
A full-text copy of the Court's Aug. 8, 2017 Memorandum Opinion is
available for free at https://is.gd/4ReKYk from Leagle.com.
ALEX TAKSIR, Plaintiff, represented by CHRISTOPHER L. NELSON --
cln@weiserlawfirm.com -- THE WEISER LAW FIRM, P.C..
ALEX TAKSIR, Plaintiff, represented by JONATHAN M. ZIMMERMAN --
jonathan.zimmerman@morganlewis.com -- SAMUEL L. ROSENBERG, LAW
OFFICES OF SAMUEL L. ROSENBERG & JAMES M. FICARO --
mf@weiserlawfirm.com -- THE WEISER LAW FIRM PC.
ORIT TAKSIR, Plaintiff, represented by CHRISTOPHER L. NELSON, THE
WEISER LAW FIRM, P.C., JONATHAN M. ZIMMERMAN, SAMUEL L. ROSENBERG,
LAW OFFICES OF SAMUEL L. ROSENBERG & JAMES M. FICARO, THE WEISER
LAW FIRM PC.
THE VANGUARD GROUP, Defendant, represented by STUART T. STEINBERG
-- stuart.steinberg@dechert.com -- DECHERT LLP & SELBY BROWN --
selby.brown@dechert.com -- DECHERT LLP.
VELOCITY EXPRESS: Bid to Dismiss "Flores" Opt-Ins Partly Okayed
---------------------------------------------------------------
Judge John S. Tigar of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Defendants' Motion to Dismiss Opt-In Plaintiffs Without Prejudice
for Failure to Respond to Discovery in the case captioned PHILLIP
FLORES, ET AL., Plaintiffs, v. VELOCITY EXPRESS, LLC, et al.,
Defendants, Case No. 12-cv-05790-JST(N.D. Cal.).
This case is a collective action under the Fair Labor Standards
Act ("FLSA") and a putative class action pursuant to California's
Labor Code and Unfair Competition Law. The Plaintiffs allege that
the Defendants misclassified their delivery drivers as independent
contractors when they were, in fact, employees. Because of this
misclassification, they allege that Velocity Express failed to pay
their minimum wages and overtime.
On June 3, 2013, the Court conditionally certified a collective
action under the FLSA. On April 16, 2015, the Court granted
partial summary judgment for the Plaintiffs on the issue of
successor liability as to Defendants TransForce and Dynamex, but
denied the Plaintiffs' motion for partial summary judgment as to
the Defendants' joint-employer status. On Sept. 24, 2015, the
Court entered the parties' proposed case management order,
adopting a "Plaintiff Questionnaire Process" ("PQ") which will
allow the parties to quickly ascertain those Opt-in Plaintiffs who
truly wish to litigate their respective claims and, equally
importantly, whether those claims are capable of class treatment.
The parties agreed that this process would assist them in
identifying bellwether Plaintiffs. The Court approved the
proposed PQ that the parties jointly submitted.
The Court set out the process for dealing with incomplete or non-
returned PQs that in the event an individual Opt-in fails to
return a PQ to the Plaintiffs' Counsel within the 90-day period,
their case will be dismissed without prejudice. Following the
completion of the PQ process, and the receipt of all PQs from the
Plaintiffs' counsel, the Parties will meet and confer regarding
PQs which the Defendant believes to be materially insufficient.
The Plaintiffs will have thirty 30 days to cure any deficiency
following the meet and confer. In the event that agreement cannot
be reached on whether a Plaintiff should be dismissed over an
insufficient PQ response, the Defendants will file a motion for
dismissal with the Court by no later than 30 days following the
receipt from the Plaintiffs' counsel of the cured PQ.
On June 6, 2016, the Defendants sent a letter to the Plaintiffs
identifying roughly 30 deficient PQs. After the meet and confer
process, the PQs for 11 Opt-in Plaintiffs remained in dispute:
Worley Harris Jr., Kristen Raymond, Kabedeh Tucker, Keith Hall,
Hellen Pen, Abdul Samad, Alexander Agyemang, Douglas Jaime, Anton
Montague, Alpha Toure, and Donnie Joe Pruitt. The Defendants now
seek dismissal of these Plaintiffs without prejudice pursuant to
the Court's case management order and Federal Rule of Civil
Procedure 37.
The parties stipulated to the form of the PQ and the case
management order that the Court ultimately adopted. In doing so,
the parties agreed that the PQ process and the questions in the
agreed PQ were both necessary and sufficient to develop the
information required to resolve the case. Plaintiffs Montague and
Pruitt failed to provide important information relevant to their
claim, let alone provide a PQ that is "complete in all respects."
And both Montague and Pruitt failed to respond to inquiries from
their counsel, suggesting that they have no interest in pursuing
their claims. Accordingly, based on the process the parties
agreed on and the Court ordered, their claims must be dismissed
without prejudice.
The Court finds that the PQ of Plaintiff Agyemang, on the other
hand, is sufficient to survive dismissal at this stage given the
fact that it was completed by Mr. Agyemang's widow. As the
Plaintiffs note -- and the Defendants do not dispute -- a FLSA
claim is not extinguished by death of the plaintiff. Dismissing
Mr. Agyemang's claim because his widow is unable to provide a
complete PQ would effectively extinguish his claim due to his
death, which the Court declines to do. The Court therefore denied
the motion as to Mr. Agyemang.
The Court granted the motion to dismiss as to Opt-in Plaintiffs
Harris, Raymond, Tucker, Hall, Pen, Samad, Jaime, Toure, Montague,
and Pruitt without prejudice. It denied the motion to dismiss as
to Opt-in Plaintiff Agyemang.
A full-text copy of the Court's Aug. 8, 2017 Order is available
for free at https://is.gd/cDef9d from Leagle.com.
Phillip Flores, Plaintiff, represented by Timothy J. Becker --
TBECKER@JOHNSONBECKER.COM -- Johnson Becker, PLLC.
Phillip Flores, Plaintiff, represented by Caleb Marker --
caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice,
Charles R. Ash -- cash@sommerspc.com -- Sommers Schwartz, P.C.,
pro hac vice, Christopher Paul Ridout --
christopher.ridout@zimmreed.com -- Zimmerman Reed LLP, David H.
Grounds -- DGROUNDS@JOHNSONBECKER.COM -- Johnson Becker, PLLC,
Jacob R. Rusch -- JRUSCH@JOHNSONBECKER.COM -- Johnson Becker,
PLLC, Jason J. Thompson -- jthompson@sommerspc.com -- Sommers
Schwartz, P.C., pro hac vice, Jesse L. Young --
jyoung@sommerspc.com -- Sommers Schwartz, P.C., Molly Elizabeth
Nephew -- MNEPHEW@JOHNSONBECKER.COM -- Johnson Becker, PLLC, pro
hac vice & Neil B. Pioch, Sommers Schwartz, P.C., pro hac vice.
Darah Doung, Plaintiff, represented by Timothy J. Becker, Johnson
Becker, PLLC, Caleb Marker, Zimmerman Reed LLP, pro hac vice,
Charles R. Ash, Sommers Schwartz, P.C., pro hac vice, Christopher
Paul Ridout, Zimmerman Reed LLP, David H. Grounds, Johnson Becker,
PLLC, Jacob R. Rusch, Johnson Becker, PLLC, Jason J. Thompson,
Sommers Schwartz, P.C., pro hac vice, Jesse L. Young, Sommers
Schwartz, P.C., Molly Elizabeth Nephew, Johnson Becker, PLLC, pro
hac vice & Neil B. Pioch, Sommers Schwartz, P.C., pro hac vice.
Velocity Express, LLC, Defendant, represented by Robert G. Hulteng
-- rhulteng@littler.com -- Littler Mendelson, P.C., Alexander Hurd
Scherbatskoy, Littler Mendelson, P.C., Andrew Michael Spurchise --
aspurchise@littler.com -- Littler Mendelson, P.C., Aurelio Jose
Perez -- aperez@littler.com -- Littler Mendelson, P.C., Blair
Amelia Copple -- bcopple@littler.com -- Littler Mendelson, Byung-
Kwan Park -- bpark@littler.com -- Littler Mendelson, P.C. & Emily
Erin O'Connor -- eoconnor@littler.com -- Littler Mendelson, P.C..
TransForce, Inc., Defendant, represented by Robert G. Hulteng,
Littler Mendelson, P.C., Alexander Hurd Scherbatskoy, Littler
Mendelson, P.C., Andrew Michael Spurchise, Littler Mendelson,
P.C., Aurelio Jose Perez, Littler Mendelson, P.C., Blair Amelia
Copple, Littler Mendelson, Byung-Kwan Park, Littler Mendelson,
P.C. & Emily Erin O'Connor, Littler Mendelson, P.C..
Dynamex Operations East, LLC, Defendant, represented by Robert G.
Hulteng, Littler Mendelson, P.C., Alexander Hurd Scherbatskoy,
Littler Mendelson, P.C., Andrew Michael Spurchise, Littler
Mendelson, P.C., Aurelio Jose Perez, Littler Mendelson, P.C.,
Blair Amelia Copple, Littler Mendelson & Byung-Kwan Park, Littler
Mendelson, P.C..
Ms. Elsa Lazarte, Miscellaneous, represented by Daniel Martinez de
la Vega, Law Offices of Daniel Vega.
WAL-MART STORES: 11th Circuit Tosses Gender Bias Class Action
-------------------------------------------------------------
Roberta Iafolla, writing for Reuters, reports that a federal
appeals court on August 3 dismissed a proposed sex discrimination
class action against Wal-Mart Stores Inc, which was one of the
regional lawsuits filed in the wake of the U.S. Supreme Court
decision Wal-Mart v. Dukes that derailed a nationwide gender bias
case against the retail giant.
A unanimous three-judge panel of the 11th U.S. Circuit Court of
Appeals ruled that the workers, represented by Cohen Milstein
Sellers & Toll, took too long to challenge an order by a federal
judge in Miami that threw out the class' claims. Wal-Mart is
represented by Gibson Dunn & Crutcher. [GN]
WALT DISNEY: Lieff Cabraser Sues Over COPPA Violations
------------------------------------------------------
On behalf of parents in California, the law firms of Lieff
Cabraser and Carney Bates & Pulliam have filed a federal class
action child privacy protection lawsuit alleging that the Walt
Disney Company violates privacy protection laws by exporting
children's personal information from mobile games aimed at
children to advertising networks without the parental consent
required by federal and state law.
Allegations in the Lawsuit Against Disney
The suit is brought against the Walt Disney Company ("Disney") and
Upsight, Unity, and Kochava, the ad tech companies that embedded
software in Disney's apps aimed at children to track, collect, and
export children's personal information. The complaint alleges the
software captures children's personal information along with
information about their online behavior, which is then sold to
third party companies which track the children's behavior across
multiple apps and devices for subsequent ad targeting.
"Congress enacted the Children's Online Privacy Protection Act
("COPPA") for very good reasons," said Michael W. Sobol, a Lieff
Cabraser partner and one of the attorneys who filed the lawsuit.
"As a company long-engaged in the practice of engaging -- and
profiting from -- children, Disney needs to make sure its games
and apps comply with the law. They and the companies they work
with always have to obtain verifiable parental consent before
extracting kids' data from their mobile devices when kids play
Disney's mobile apps."
The Federal Child Data Protection Laws
In 1999, Congress enacted COPPA to protect the safety and privacy
of children online, and the autonomy of their parents, by
providing parents the means to halt developers and third-party
advertisers from snooping on and profiting from their children.
Many parents are unaware that countless web and smartphone apps,
including those created for children, are engineered to unlawfully
exploit and commercialize underage users' activity through hidden
tracking technologies. As alleged in the Disney complaint, these
technologies unlawfully and surreptitiously collect and send data,
including the users' personal information, from the mobile devices
to third-parties. App developers and other third-parties then reap
millions of dollars in profit from this personal information
through lucrative targeted advertising.
The parent of a minor child brought the lawsuit seeking an
injunction to force the defendants to cease tracking the personal
information of children without obtaining parental consent and to
bring defendants in compliance with COPPA. The parents also seek
damages as may be permitted under state law.
Notice to Parents on Child Privacy Violations in Games and Apps
If your child uses an internet-connected game device to play games
from Disney or any other company and you suspect your child's
personal information may have been improperly acquired or used,
you may contact us about your potential case. Our no-obligation
review is free, and the information you provide will help us hold
companies accountable for COPPA privacy violations and the
exploitation of children and/or any other data improprieties that
have occurred.
About Lieff Cabraser
Lieff Cabraser is committed to helping parents protect their
children, their privacy, and their children's information in a
world where electronic toys and games and digital devices with
inherent security vulnerabilities are growing more and more
pervasive. Our lawyers possess extensive experience and the
requisite technological background to successfully assess and
litigate all manner of privacy claims. We represent individuals in
precedent-setting cases impacting hundreds of millions of
Americans against prominent technology, social media, and
entertainment corporations for alleged violations of digital
privacy rights, data overreaching, and the failure to protect
critically-sensitive information.
About Carney Bates & Pulliam, PLLC
Carney Bates & Pulliam is a law firm based in Little Rock,
Arkansas that specializes in class action litigation. From
consumer protection to environmental hazards to civil rights to
data privacy, Carney Bates & Pulliam achieves the maximum impact
for the greatest number of people. The firm's attorneys have a
wide array of litigation experience and specialized legal
knowledge. The diverse interests and backgrounds within the firm
enable us to help clients across a vast spectrum. Carney Bates &
Pulliam's ability to analyze legal and societal trends means that
our practice areas keep growing and evolving, changing to fit the
needs of our clients.
Contacts
Lieff Cabraser Heimann & Bernstein, LLP
Douglas I. Cuthbertson, 212-355-9500
Nicholas Diamand, 212-355-9500 [GN]
WEBER & OLCESE: Faces "DeCraene" Suit in W. D. of Michigan
----------------------------------------------------------
A class action lawsuit has been filed against Weber & Olcese,
P.L.C. The case is styled as Christopher DeCraene, individually
and on behalf of similarly situated persons, Plaintiff v. Weber &
Olcese, P.L.C. and Portfolio Recovery Associates, L.L.C.,
Defendants, Case No. 1:17-cv-00718 (W.D. Mich., August 10, 2017).
Weber Olcese is a law firm founded in 1996 by two entrepreneurial
attorneys, Jeffrey Weber and Michael Olcese, offering legal
representation in the area of retail and commercial debt
collection.[BN]
The Plaintiff is represented by:
Curtis Charles Warner, Esq.
Warner Law Firm, LLC
350 S Northwest Hwy., Ste. 300
Park Ridge, IL 60068
Tel: (847) 701-5290
Email: cwarner@warner.legal
WELTMAN WEINBERG: Sued Over Unlawful Debt Collection Practices
--------------------------------------------------------------
Tameika L. McHarris, on behalf of herself and all others similarly
situated v. Weltman, Weinberg & Reis Co., LPA, Navient Solutions,
Inc., and SLM Private Credit Student Loan Trust 2006-A, Case No.
1:17-cv-04618 (E.D.N.Y., August 7, 2017), seeks to stop the
Defendant's unlawful practice of collecting debt.
The Defendants operate a company that provides collection services
and legal representation to creditors. [BN]
Tameika L. McHarris is a pro se plaintiff.
WERKSTATT DEVELOPMENT: "Park" Suit Seeks Unpaid OT under FLSA
-------------------------------------------------------------
Kyoung Youn Park, individually and on behalf of all others
similarly situated, the Plaintiff, v. Werkstatt Development, Inc.
and Tina Schenk, the Defendants, Case No. 1:17-cv-05830-JPO
(S.D.N.Y., Aug. 1, 2017), seeks to recover unpaid overtime wages,
liquidated damages, prejudgment and post-judgment interest, and
attorneys' fees and costs under the Fair Labor Standards Act and
the New York Labor Law.
Th Defendants have willfully and intentionally committed
widespread violations of the FLSA and NYLL by engaging in a
pattern and practice of failing to pay their employees, including
Plaintiff, overtime compensation for all hours worked over 40 each
workweek, the Complaint says.[BN]
The Plaintiff is represented by:
Phillip H. Kim, Esq.
HANG & ASSOCIATES, PLLC
136-18 39th Avenue, Suite 1003
Flushing, NY, 11354
Telephone: (718) 353 8588
Facsimile: (718) 353 6288
E-mail: pkim@hanglaw.com
WEYERHAEUSER COMPANY: Sued in Del. Over Defective Joists
--------------------------------------------------------
Jamal Coleman and Sheena Coleman, on behalf of themselves and all
others similarly situated v. Weyerhaeuser Company, Case No. 1:17-
cv-01093-UNA (D. Del., August 4, 2017), arises out of damages
sustained by the Plaintiffs and the Class that were proximately
caused by Weyerhaeuser's defective Joists used in the construction
of Plaintiffs' and Class members' homes and other structures.
Weyerhaeuser Company owns and operates a forest products company
at 220 Occidental Ave. S., Seattle, WA 98104. [BN]
The Plaintiff is represented by:
Daniel R. Miller, Esq.
Shanon J. Carson, Esq.
Lawrence Deutsch, Esq.
E. Michelle Drake, Esq.
Jacob M. Polakoff, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-4656
Facsimile: (215) 875-4604
E-mail: dmiller@bm.net
scarson@bm.net
ldeutsch@bm.net
emdrake@bm.net
jpolakoff@bm.net
- and -
William J. Rhodunda Jr.. Esq.
RHODUNDA & WILLIAMS, LLC
1220 N. Market St., Suite 700
Wilmington, DE 19801
Telephone: (302) 576-2000
Facsimile: (302) 576-2004
E-mail: bill@rawlaw.com
* Class-Action Lawsuits Critical to Shedding Light on Bank Fraud
----------------------------------------------------------------
Heidi Shierholz, writing for The Hill, reports that just two weeks
after consumers got crucial legal rights restored by a new rule
from the Consumer Financial Protection Bureau (CFPB), the U.S.
House of Representatives voted July 25 to strip consumers of the
ability to join together and hold large financial institutions
accountable in court. Now it is up to the Senate to decide whether
to move forward with repeal.
Though the CFPB rule is based on a congressional directive and
five years of careful study, its opponents have rallied around a
claim that the agency's own findings show consumers on average
receive greater relief in arbitration than class-action lawsuits.
This claim is enormously misleading -- and a shaky basis for
congressional action on the rule.
While the average consumer who wins a claim in arbitration
recovers $5,389, consumers obtain relief regarding their claims in
only 9 percent of disputes. On the other hand, when companies make
claims or counterclaims against consumers, arbitrators grant them
relief 93 percent of the time -- meaning they order the consumer
to pay. If you consider both sides of this equation, the average
consumer ends up paying $7,725 to the bank or lender in
arbitration.
But let's consider the consumers who do win in arbitration. How do
those numbers stack up against class-action lawsuits?
In an average year, at least 6.8 million consumers get cash relief
in class actions -- compared with just 16 consumers who receive
cash relief from arbitration. Consumers in class actions recover
at least $440 million, compared with a grand total of $86,216 from
forced arbitration. Simply put, banning consumer class actions
lets big banks and financial institutions keep hundreds of
millions of dollars every year that would otherwise go back to the
consumers they've hurt.
Wells Fargo is a prime example. After the bank was fined $185
million for opening as many as 3.5 million fraudulent accounts and
credit cards, it was revealed that Wells Fargo had been blocking
consumer class actions alleging this exact fraud for years. Forced
arbitration not only allowed Wells Fargo to keep its fraud out of
the headlines, but helped pad its bottom line.
In line with typical outcomes in arbitration discussed above, a
recent report found that consumers paid out more to the bank in
arbitration than the other way around between 2009 and 2016 -- the
prime years of its fraudulent account scandal.
The financial industry also claims that arbitration is cheaper and
faster for consumers, but again, these claims do not hold up.
Consumers pay an average cost of $161 to file a claim in forced
arbitration, while they generally don't pay anything to join a
class action. Consumers typically wait 150 days for a decision in
forced arbitration, while they have to wait approximately 215 days
for a conclusion in most class actions.
In other words, arbitration is certainly not cheaper -- especially
since the average consumer ends up paying a bank or lender $7,725
in the end -- and only a couple months faster. It is also
important to note that the CFPB rule does not prohibit consumers
from choosing arbitration; the rule merely ensures consumers are
free to join a class-action lawsuit if they so choose.
Lastly, opponents of the rule argue that letting consumers join
together in court will increase costs and decrease available
credit, but this claim is contradicted by real-life experience.
Consumers saw no price increases after Bank of America, JPMorgan
Chase, Capital One and HSBC dropped their arbitration clauses as a
result of court-approved settlements, and mortgage rates did not
increase after Congress banned forced arbitration in the mortgage
market.
The evidence clearly shows that class actions return hundreds of
millions to consumers, while forced arbitration only pays off for
banks and lenders. It's no wonder they are fighting so hard to
keep it. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Significant Judgment for Victims Support Group
---------------------------------------------------------------
Leigh Day, Esq., at Harminder Bains, in an article for
Lexology.com, reported that asbestos lawyer Harminder Bains, who
represents Mr. Graham Dring on behalf of the Asbestos Victims
Support Groups Forum (UK), has welcomed the judgment handed down
today by Master McCloud in the Royal Courts of Justice.
The ruling was made in relation to a case brought by Mr. Dring, on
behalf of the Forum, against Cape Distribution Limited, Cape
Intermediate Holdings Limited, Concept70 Limited (and others) and
Aviva Plc, in relation to preserving and obtaining documents.
This judgment, together with an earlier injunction in April this
year, is of great public importance as its effect is to preserve
historical documents for the public which are of particular
significance for asbestos disease sufferers.
The historical documents, which were in danger of being destroyed,
have been described by Concept70's former Counsel as 'the single
most important weapon against TDN13' (a safety standard).
It is also alleged that the 'topics' of disclosure included what
Cape really knew about mesothelioma. The Forum has applied to be
provided with copies of these documents.
The judgment further stated that the legal costs involved in the
application, should it be lost, would not have to be paid by the
Forum because of the public importance of the case. Leigh Day is
acting on a pro bono basis in this case.
A three-day hearing will take place in October 2017 and will be
heard by Master McCloud, a specialist asbestos judge, who will
decide which documents, currently lodged at the court, can be
handed over to the Forum.
ASBESTOS UPDATE: Son Develops Cancer Due to 2nd-Hand Exposure
-------------------------------------------------------------
Noddy A. Fernandez, writing for St. Louis Record, reported that a
son alleges he was exposed to asbestos through his parents, who
worked at companies that used asbestos.
George Snell Jr. and Marlene Snell filed a complaint July 21 in
the St. Louis Circuit Court against 4520 Corp Inc.; ABB Inc.; AK
Streel Corp.; American Boiler Tank & Welding Co. Inc., et al.,
alleging the defendants failed to warn of the dangerous effects of
inhaling, ingesting or otherwise absorbing asbestos.
According to the complaint, the plaintiffs allege that between
1953 and 1990, George Snell's mother and father worked as laborers
at various companies. The plaintiff claims he was secondarily
exposed to asbestos containing products through his parents, who
inhaled, ingested or otherwise absorbed asbestos fibers emanating
from certain products from the defendants. The plaintiff claims he
was diagnosed with mesothelioma on May 16 as a result of the
exposure.
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 to avoid inhaling asbestos and failed to conduct tests on the
asbestos-containing products.
The plaintiffs request a trial by jury and seek judgment for
actual and compensatory damages and punitive damages for
misconduct and to deter similarly situated parties from committing
like acts of misconduct in the future and for other relief the
court deems appropriate. They are represented by Randy L. Gori of
Gori, Julian & Associates PC in Edwardsville, Illinois.
St. Louis Circuit Court case number 1722-CC10865
ASBESTOS UPDATE: EPA Clears Towaoc Rec Center of Asbestos
---------------------------------------------------------
Jim Mimiaga, writing for The Journal, reported that the
Environmental Protection Agency has completed an extensive
asbestos cleanup at the Towaoc Recreation Center, but the center
is still closed to the public pending final repairs by the Ute
Mountain Ute tribe.
EPA officials said all toxic material was removed and placed in a
certified landfill in Utah. EPA emergency cleanup crews finished
the job on June 15, after final testing showed no asbestos risk to
the public.
"The air samples came back clean, and the air in the facility is
clean to breathe," said Katherine Jenkins, community involvement
coordinator for EPA Region 8.
The estimated cost of the cleanup was $600,000, she said, which
was covered by the EPA as part of a federal partnership to aid
Native American tribes with large pollution cleanups.
Before the center can reopen, ceiling tiles need to be replaced by
the tribe and other repairs made, including to the heating,
ventilating, and air conditioning system, said Recreation Center
Director Kia Whiteskunk. The plan is to have a grand reopening in
September.
"We've put on a fresh coat of paint and are moving office
furniture back in," she said. "It's coming back together. The
community is very eager to get their rec center back."
The center closed in December for maintenance on a failed heating,
ventilating, and air-conditioning system caused by a power outage
from lightning strike on a nearby transformer.
During the repairs, it was discovered that dangerous amounts of
asbestos from old attic insulation has been released into the
building, causing a significant health hazard to the public.
Asbestos is a health hazard when disturbed, because airborne
fibers can be inhaled and cause respiratory problems.
Because of the magnitude of the contamination and expertise
needed, Ute Mountain tribal officials requested that the EPA
conduct the cleanup operations. In April, a decontamination crew
arrived and removed 370 cubic yards of vermiculite insulation and
contaminated ceiling tiles throughout the 30,000-square-foot
building, which was built in 1964. Some areas within the building
were sealed with foam to ensure that asbestos-containing material
could not be inadvertently disturbed and released into the
building.
Asbestos-contaminated dust and water that had fallen into in the
gymnasium, swimming pool, weight room and offices were vacuumed
up, and all surfaces were cleaned.
The presence of vermiculite insulation in the attic especially
alarmed Ute Mountain Ute officials.
The vermiculite is from a mine in Libby, Montana, which became
part of one of America's worst man-made environmental disasters
after the Seattle Post-Intelligencer brought the problem to light
in 1999. Asbestos dust from the vermiculite mines has killed
hundreds of residents and sickened thousands of others. The
contaminated insulation had been sold nationwide from 1919 to 1990
under the Zonolite Co. brand, bags of which were found in the
attic of the Towaoc Recreation Center. Libby became a Superfund
site in 2002, and was declared a public health emergency.
The EPA has cleaned up about 2,275 other Zonolite sites and
estimates that a few hundred others need mitigation.
"Vermiculite mitigation and cleanup is pretty common because it is
so widespread," said Craig Myers, the EPA's on-site coordinator
for the cleanup. "The Libby mine was the source of over 70 percent
of all vermiculite sold in the U.S."
Ute Mountain Ute environmental officials discovered the problem
after investigating reports that water was dripping from the
ceiling in the gym and pool area. A broken heat exchanger caused
humidity in the building to rise dramatically, causing
condensation and significant dripping throughout the building.
Quinton Jacket, of the tribe's environmental department, said it
was a "big relief" for the tribe that the EPA agreed to clean up
the problem and cover the costs.
"The magnitude of the cleanup was too much for our limited
resources," he said.
About a dozen employees in the recreation department were
relocated to other offices, and summer youth programs were
disrupted as well.
ASBESTOS UPDATE: Settlement Reached in Dick Bruhn Asbestos Case
---------------------------------------------------------------
Chelcey Adami, writing for The Californian, reported that the
Monterey County District Attorney's Office and the owner of the
Dick Bruhn building, which was gutted in a fire last year, have
reached a $75,000 settlement in a case regarding alleged asbestos-
related violations at the building before the fire.
On Feb. 13, 2016, the 1920s-era Dick Bruhn went up in flames in a
5-alarm fire ultimately determined to have likely been caused by
electrical issues. The building is owned by Gerry Kehoe and his
company Berkley, Inc.
About a month before the fire, the Monterey Bay Air Resources
District had submitted a report regarding potential asbestos-
related violations to the Monterey County District Attorney's
Office for review, and the DA's office was in the midst of
reviewing the lengthy reports when the fire occurred.
The case concerned demolition and renovation work performed at
various times over two years before the fire.
The building was red-tagged for the unpermitted work, though the
stop-work order only pertained to construction work in the
building. It didn't limit access to the building, which Kehoe has
said he was using for storage
It's alleged that Berkley, Inc. and Kehoe failed to have any
asbestos survey conducted before the demolition and renovation of
the top floor of the two-story building, as required by law.
It's also alleged that asbestos was found in a section of a
wallboard and that Kehoe did not comply with rules regarding how
it must be removed, handled and disposed of. It is further alleged
that some floor tiles containing asbestos were removed without
following proper procedures.
While Berkley, Inc. and Kehoe cooperated with the investigation,
they denied liability, and a settlement was reached to avoid
further litigation, according to the DA's office.
Berkley Inc. and Kehoe agreed to pay $75,000 in civil penalties
and costs, and terms of the settlement provide for an "extensive
permanent injunction" ordered to take effect immediately,
according to the DA's office.
"The terms of the injunction will serve as a deterrent to help
prevent future violations at any property which is owned or
operated by the Defendants," the DA's office wrote in a press
statement.
While deciding the penalty amount, the DA's office took into
consideration the financial hardship resulting from the fire as
the building was not insured.
ASBESTOS UPDATE: Stock Warehouse Shut for Asbestos Remedial Work
----------------------------------------------------------------
Gisborne Herald reported that asbestos detected in Harvey Norman's
Lowe Street warehouse has closed the stock room.
The site remains closed until the landlord's licensed asbestos
removalist completes remedial work.
Harvey Norman says the asbestos has prevented removal of existing
stock as well as delivery of new stock.
Air tests in the warehouse returned clear results but Harvey
Norman's independent consultant in asbestos management identified
a small amount of asbestos. The consultant has provided advice on
a site remediation plan.
Harvey Norman is a tenant of the building.
The department store's own licensed asbestos removalist has
already been brought in. WorkSafe NZ will be notified before any
work begins.
Harvey Norman's Customhouse Street retail store is not affected.
Customers who have concerns or queries can contact 0800 844 755 or
customer.services@nz.harveynorman.com
ASBESTOS UPDATE: Development Firm Challenges $1.47MM Fine
---------------------------------------------------------
Don Hopey, writing for Pittsburgh Post-Gazette, reported that a
development firm is seeking to reduce fines of almost $2 million
levied for illegal removal and disposal of tons of asbestos at the
135-acre former Westinghouse research property in Churchill.
According to administrative orders filed by the Allegheny County
Health Department, workers on the project were not provided with
protective clothing or breathing masks when grinding and handling
the cancer-causing asbestos floor tile and pipe insulation.
And no precautions were taken to prevent asbestos dust from
becoming airborne outside two large buildings on the former George
Westinghouse Research and Technology Park corporate campus and
causing a potential public health problem.
In addition, the more than 130,000 square feet of asbestos
containing tile and pipe insulation material was not disposed of
in an approved landfill, and so may have been dumped illegally,
according to the health department.
According to an enforcement order, issued June 2, Ramesh Jain and
his son, Vikas Jain, owners of Churchill Community Development LP,
and Paradigm Consultants LLC, were fined $1.47 million for
multiple violations of the county's asbestos removal regulations.
A separate enforcement order, also dated June 2, levies fines
totaling $451,400 against Pintura Construction LLC, and Ramon
Perez, who were working for the Vains, for violations of the
asbestos regulations.
Investigators from the U.S. Environmental Protection Agency have
also been to Pittsburgh "a couple of times, building a case" on
the asbestos issue, said Jim Kelly, ACHD deputy director.
A hearing was held at the ACHD offices Downtown on Monday to hear
an appeal by the Jains for a reduction of the penalties, which
together are the biggest ever sought by the health department in
an asbestos case.
The Jains asked that the hearing be closed to the public and
press, and the health department granted that request, said Mr.
Kelly.
"There has been no resolution. We need additional information,"
said Jason Willis, assistant solicitor for the health department's
air quality division." A second hearing will be held, but has not
yet been scheduled."
Work on much of the multi-million dollar redevelopment project,
first known as "Shoppes at Pittsburgh Studios," and then
"Churchill Crossings," was shut down in May. And three main
buildings, listed as "801, 501 and 401," remain "locked down," Mr.
Willis said.
The project owners must apply for and receive the required
asbestos removal permits and perform abatement and cleanup work in
buildings 401 and 501 before work on the project can restart, he
said. The redevelopment plan would convert the former Westinghouse
research facility into film studios, retail shops, and office
space.
The asbestos removal work was first discovered Feb. 28 by Shawn
Jacobs, a certified building inspector for Churchill Borough, who
saw three men in Building 501, removing suspected asbestos-
containing floor tiles with grinder machines and disposing of the
material in plastic garbage bags. The order states that "witnesses
observed dust plumes from bags removed from buildings and thrown
into a pickup truck."
County air quality inspectors were called to the site and took
samples of the material which was found to contain up to 65
percent amosite asbestos, which has been found to cause cancer. On
Mar. 1, Mr. Willis issued a verbal order prohibiting additional
asbestos removal and a day later issued a written order mandating
cleanup of the site.
A week later, county inspectors also found similar asbestos-
containing floor tiles had been removed from Building 401.
"The Jains, Churchill and Paradigm, in allowing the removal of
asbestos containing material from Buildings #401 and #501 without
the necessary permits, safety equipment, signage, or proper
notification to the department that any abatement was taking
place, allowed workers to be exposed to significant quantities of
friable asbestos," the order states. "Such activity placed
Pintura's workers, and those exposed to asbestos fibers escaping
the buildings, at risk of asbestos related illnesses."
The June enforcement order notes that the health department was
contacted by an unnamed attorney representing Churchill Community
Development and the Jains on March 13, who said Churchill had
contracted with Pintura to "clean" Building 50, but "it was their
position that the asbestos was removed by the previous owner."
Attorney Maurice Nernberg, who represented the Jains at the Monday
hearing, did not return calls requesting comment Tuesday.
An April 7 response to the March 2 emergency order, filed on
behalf of the Jains and their businesses, admitted grinding
machines were present at the property but had not been used, and
stated, "Appellants are not aware of any removal of asbestos
containing material and did not authorize any removal."
The Jains received grants totaling $3.5 million from the state,
but have not used any of that money, according to state Sen. Jay
Costa, D-Forest Hills, who has supported the redevelopment project
and still thinks it can be a valuable asset to Churchill and
surrounding communities.
"There are no plans to remove the funding, nor would I recommend
it," Mr. Costa said. "It's a good project. The state felt that
way. And, depending on the outcome of the asbestos issue, the
grants can always be switched to new developers of the site.
"I am concerned about the project being on hold. I hope we can get
through this sooner rather than later and we can get the ball
rolling again."
ASBESTOS UPDATE: Audit Cites DEQ for Failed Oversight on Asbestos
-----------------------------------------------------------------
Paul Egan, writing for Detroit Free Press, reported that the
Michigan Department of Environmental Quality did not properly
monitor building demolitions in which hazardous asbestos could be
released to the air or inspect landfills to make sure removed
asbestos was disposed of safely, the state auditor general said in
a report released today.
In response, the DEQ promised improvements but cited low staffing
levels. The auditor general observed that unlike other similar
agencies, the DEQ doesn't charge property owners fees for its
inspections and should set up a fee structure to help pay for the
work it does.
The audit comes as a Free Press investigation uncovered
significant risk from asbestos from home demolitions in Detroit.
The paper reported Aug. 6 that some contractors in Detroit were
under so much pressure to knock down thousands of abandoned
properties that they cut corners, mishandling deadly asbestos at
dozens of sites. And, in two cases, inspectors appeared to falsify
asbestos inspection reports.
Airborne asbestos can cause a range of health problems, including
cancer.
Michigan Auditor General Doug Ringler said in the report released
today that the DEQ's air quality division could not show that it
inspected 41, or 87%, of the 47 landfills that can receive
asbestos waste, the auditor found.
The DEQ "could not demonstrate that they conducted any inspections
at the 41 landfills," despite the fact the landfills "received
asbestos-containing materials for 10,655 notifications of intent
to demolish," or renovate, the report said.
The agency "informed us that current inspector staffing levels and
site inspection priorities and complaint responses contributed to
the lack of completion of landfill inspections or documentation of
completed landfill inspections," the report said.
The auditor also found that the DEQ failed to follow up properly
when inspectors found workplace violations that might result in
the release of asbestos to the air.
The auditor reviewed 35 violation notices issued to 74 liable
parties and found that in 15%, or 20%, of those cases, the DEQ did
not ensure that it received a response by the due date. In 87% of
the cases where no response was received by the due date, the DEQ
did not follow up after the due date to obtain the required
response, the report said.
The DEQ did not document the date it received a response for 14 of
the 59 responses received. Eight of those responses were received
between eight and 36 days past the due date, the report said.
The agency "informed us that the high volume of notifications
impacted the ability of its inspectors to follow up on late
responses," the report said.
"Instead, staff prioritized their work and focused on preventing
asbestos violations by conducting field inspections and responding
to complaints."
The DEQ agreed with the auditor's recommendations and said it will
develop a new policy and procedure for proper documentation by
Jan. 1.
"Due to the increasing efforts to address blighted communities the
Air Quality Division has seen a tenfold increase in notifications
and demo work, which in turn has resulted in inconsistent
documentation of our work," DEQ spokeswoman Melanie Brown said
Wednesday.
Asked whether the DEQ planned to start charging fees for permits,
Brown said "no decisions have yet been made," but "the department
is considering all potential funding sources in a recommendation
for the next budget cycle."
The unit has four full-time employees and one part-time employee,
and the DEQ spent about $418,000 on asbestos program activities in
2017, the report said.
In 2016, the air quality division received 17,188 notifications
and completed 1,404 inspections, the report said. The DEQ would
need to complete close to 2,600 inspections to meet its goal of
inspecting 15% of the notifications received.
The auditor also found the DEQ did not properly document
inspection reports for 10% of the 70 randomly selected inspections
and for 8% of 124 ordered demolition inspections. The agency also
didn't properly complete reports for 6% of the ordered demolition
inspections, the auditor found. For example, three reports stated
only: "I arrived."
The auditor general examined the DEQ's air quality division
technical programs unit, which administers national standards for
hazardous air pollutants and is tasked with minimizing risks from
airborne asbestos when homes and other buildings are demolished.
Building owners or operators are required to notify the DEQ of all
demolitions or renovations where the amount of regulated asbestos-
containing material meets or exceeds national thresholds. The DEQ
then is tasked to make sure the asbestos removal and disposal
meets requirements to assure safety.
The auditor noted that the division responded to 98% of complaints
within seven days of receiving them, but pointed out several other
deficiencies.
The auditor noted that while Michigan charges nothing, Ohio and
Illinois charge $75 and $150 respectively, for each notification
received. Other states have fees based on the size of the area to
be inspected.
"Without assessing fees," the agency "is limited in the number of
asbestos inspections that it can conduct. its ability to conduct
inspections in all areas of the state, and its ability to conduct
landfill inspections," the report said.
In Michigan, two inspectors are responsible for metro Detroit, one
for the remainder of the Lower Peninsula, and one-quarter of one
inspector is responsible for the Upper Peninsula.
ASBESTOS UPDATE: Alphamstone Man Dies from Asbestos Exposure
------------------------------------------------------------
Suffolk Free Press reported that a man from Alphamstone died as a
result of being exposed to asbestos dust while working as a clerk
in a factory, an inquest has heard.
David Rutledge, 82, of Goulds Road, told in a statement written
before his death that he had to regularly shake asbestos from his
coat and while visiting the stores sat on a sack of the material
as he dealt with orders.
The inquest at Suffolk Coroners Court in Ipswich earlier today
heard that much of the dust was created when machinery was
replaced or moved, resulting in asbestos insulation having to be
taken off.
In his statement, Mr Rutledge said he could recall no training or
warnings about the dangers of asbestos being given at the factory
in east London where he worked from 1959 until 1991.
The problem was made worse by dry sweeping of floors resulting in
"dense clouds of dust", said Mr Rutledge, who had to visit the
factory regularly in his role as a clerk dealing with orders for
rubber products.
Mr Rutledge said in his statement that in December 2015 he was
taken ill while out walking his dog, gasping for breath and having
to be helped by a neighbour who saw him.
He also stated that previously, he had walked his dog seven days a
week, twice a day, for up to four miles.
The inquest heard that in May this year, Mr Rutledge was admitted
to the West Suffolk Hospital in Bury St Edmunds after suffering a
loss of vision and did not respond to treatment.
Mr Rutledge, who four months earlier had been diagnosed with the
asbestos related disease mesothelioma, died on May 4.
Suffolk area coroner Nigel Parsley recorded a conclusion that Mr
Rutledge died as a result of an industrial disease.
ASBESTOS UPDATE: Rise in Asbestos Disease Claims by Teachers
------------------------------------------------------------
Ipswich Star reported that a solicitor specialising in asbestos-
related disease cases says the number of school teachers, health
care professionals and DIY enthusiasts making claims has risen in
recent years.
Phoebe Osborne, of Ashtons Legal, said many homes, schools and
public buildings still contain the material which degrades over
time, releasing its deadly fibres every time is it disturbed.
"Thankfully most people who have been exposed to asbestos never
suffer any illness, but those who do go on to develop symptoms 15-
40 years later and are often diagnosed during retirement or whilst
working to care for their families," she said.
"It is no longer only older people either -- construction workers,
plumbers and carpenters are being diagnosed along with teachers,
pupils and hospital workers."
Ashtons Legal has set up a support group for those suffering the
effects of exposure to asbestos, giving them a chance to meet
other people in their situation and to learn more about the
condition.
The Anglia Asbestos Disease Support Group meets on the third
Monday of each month in Norwich and the fourth Tuesday of each
month in Bury St Edmunds.
The group's next meeting in Suffolk is on September 26 at The
Stroke Association, Kempson Way, Bury.
ASBESTOS UPDATE: Suspected Asbestos Closes Trails
-------------------------------------------------
Alicia Perera, writing for The West, reported that several beach
access trails in Exmouth have been closed indefinitely because of
suspected asbestos in the area and authorities are warning the
public to keep clear.
In a public notice issued on the Shire of Exmouth website and
Facebook page last month, Shire deputy chief executive Keith
Woodward said a recreational trail behind sand dunes between the
Exmouth Golf Club and Town Beach and two ancillary tracks would be
closed until further notice after a small fire on unallocated
crown land revealed an old dump site "with buried and exposed
waste".
"Due to the age of the site and following initial site
investigations, (the dump site) is expected to contain asbestos
product," he said in the notice. "For the safety of the community
we have closed the area and alerted the appropriate authorities to
carry out further investigations."
The departments for Health, Water and Environment, and Planning,
Lands and Heritage have been notified.
Mr Woodward said the trail closures were a precautionary measure
to prevent people from entering and disturbing the area while it
was being investigated and any asbestos removed.
"The area will remain closed until the relevant State Government
agencies have been able to assess the site and determine the
appropriate course of action," Mr Woodward said.
Anyone with questions or concerns about the asbestos or closures
should contact the Shire's environmental health officer on 9949
3000.
ASBESTOS UPDATE: Contractors Asbestos Exposure Low, WorkSafe Says
-----------------------------------------------------------------
Otago Daily News reported that Worksafe is not investigating after
contractors were exposed to asbestos-contaminated soil while
working to open a new Cobb & Co restaurant at the Dunedin Railway
Station.
Dunedin City Council organisational development and performance
director Marian Rillstone said last month WorkSafe was notified
about the issue despite the risk to workers being considered
"incredibly low".
Plumbing, electrical and IT communications staff were among those
installing services in underfloor areas of the building before the
asbestos was detected.
A WorkSafe spokesman said it was not investigating because the
issue was not notifiable.
The contamination involved trace levels of asbestos in soil and
the work was handled appropriately.
ASBESTOS UPDATE: High Levels of Asbestos Found in Arp Water
-----------------------------------------------------------
Brionna Rivers, writing for KLTV.com, reported that the traces of
asbestos in the City of Arp's drinking water is above the
Environmental Protection Agency's maximum contaminant level,
according to a letter sent out to residents.
"Any kind of contaminant in your drinking water is a concern and
it seems to be such a small amount that I wish it wasn't there,"
says George Carlile, an Arp resident.
"We had started noticing something in the water, but we weren't
sure what it was," says Arp Mayor Terry Lowry. "We had it tested
and when it came back, it was asbestos."
According to The Texas Commission of Environmental Quality, the
maximum contaminant level for asbestos is 7 MFL based on running
annual average. In parts of Arp the levels are as high as 13 MFL.
"According to what the TCEQ had us put in the letter, it's not an
emergency situation," says Mayor Lowry. "The asbestos would have
to be consumed for a number of years to possibly have any
complications with your health."
KLTV reached out to the TCEQ for more information about asbestos
in drinking water. They say it would have to be consumed for a
lifetime before becoming a health risk. People who drink water
containing asbestos in excess of the maximum contaminant level
over many years have an increased risk of developing benign
intestinal polyps.
Mayor Lowry says the city just recently started noticing traces of
asbestos in the water, and he doesn't believe it's been an issue
for that long. The city is in the early stages of creating a plan
to replace the water lines containing asbestos, and eventually the
city's entire water system. Some water lines were already in the
process of being replaced due to how old the current system is.
Mayor Lowry says that the city is working with the TCEQ to achieve
the mandated levels.
In the meantime, the TCEQ says that this is not an emergency and
residents do not need to use an alternative water supply. The
chances of inhaling aerosols associated with showering,
irrigation, or other uses is unlikely to present a risk to one's
health.
ASBESTOS UPDATE: Portland Jury Awards $5.4MM for Man with Cancer
----------------------------------------------------------------
Aimee Green, writing for The Oregonian, reported that a Portland
jury has awarded a $5.4 million verdict to a married Oregon couple
after the husband was stricken with a terminal cancer caused by
exposure to asbestos decades ago.
But the verdict could amount to no more than $1.4 million for
Robert and Bonnie Sprague of Eugene, before attorneys' fees and
costs, because Oregon law allows the state to take a 70 percent
chunk of the punitive damages awarded. What's more, the U.S. Navy
-- which was found partially responsible for Robert Sprague's
cancer -- is immune from having to pay.
Robert Sprague, 75, was exposed to asbestos-laden insulation on
ships while serving in the Navy from 1960 to 1964 and to asbestos-
containing gaskets and packing material made by John Crane Inc.
while working as a pipefitter from 1965 to 1987 in Oregon and
Massachusetts, his attorneys say.
Robert Sprague was diagnosed with mesothelioma, a cancer of the
lining of the lungs, in 2015. Doctors say he now has about six
months to 1 ´ years left to live.
Bonnie Sprague, 69, was awarded part of the verdict for her loss
of consortium and economic damages.
In a three-week trial in Multnomah County Circuit Court that ended
Friday, jurors determined that John Crane Inc. must pay $3 million
in punitive damages. Under Oregon law, the Spragues will get 30
percent of that.
Jurors also determined that the Spragues were due $813,000 in
economic damages and $1.63 million in noneconomic damages for pain
and suffering. For those damages, the jury said the Navy was 65
percent at fault; John Crane Inc. was 20 percent at fault; another
company that settled before trial was 10 percent at fault; and
Robert Sprague was 5 percent at fault for not wearing a respirator
on the job at times when one was available.
That would leave the Spragues with a total of about $1.4 million,
paid out by John Crane Inc. But Judge Stephen Bushong could
further reduce that amount to a total of $1.16 million if he
determines a $500,000 state cap on noneconomic damages applies.
During trial, attorneys for the Spragues -- Jennifer Alesio and
Meredith Boyden Good -- contended that John Crane Inc. was aware
that asbestos was deadly in the 1930s, but didn't run tests or
warn the public for more than 50 years.
Today, such lawsuits against various companies are relatively
common for people who were exposed to asbestos dust in the 1960s,
'70s and '80s. It can take decades for mesothelioma to manifest.
But an investigation by The Oregonian/OregonLive last September
found that people are still being exposed to the dangerous dust as
hundreds of aging Portland-area homes are demolished with asbestos
inside.
Experts say some people can acquire mesothelioma after a single
exposure. But 90 to 98 percent of people -- including those who
were exposed to asbestos for years -- won't get the disease
despite past exposure, according to The Mesothelioma Center.
Roughly 2,000 to 3,000 people are diagnosed with mesothelioma per
year in the U.S. -- and by far, most people who sue -- are at
least in their 60s.
In 2016, a Multnomah County jury awarded $8.75 million to a
Beaverton man dying from mesothelioma, and his wife.
ASBESTOS UPDATE: Final Cleanup Plan OK'd for BoRit Superfund Site
-----------------------------------------------------------------
Thomas Celona, writing for Montgomery News, reported that the EPA
has issued its final decision on the BoRit Asbestos Superfund
site, going with a capping option that will bring to an end this
month remedial efforts at the site dating back nearly a decade.
The EPA issued its record of decision for the site July 28. The
decision to go with a capping method, however, came as no
surprise, as that had been the EPA's proposed final cleanup plan,
which was selected and presented to the public at the end of 2016.
The 38-acre site in question is bounded by the Wissahickon Creek
and Butler and Maple avenues, with portions of the area falling in
Ambler Borough and Upper Dublin and Whitpain townships. The site
was used by the Keasbey & Mattison Co. as a disposal site for
asbestos containing material for decades.
In April 2009, the EPA placed the BoRit site on its Superfund
National Priorities List. That move launched federal remediation
of the site, with the EPA starting efforts to remove any immediate
risks to the surrounding community and keeping asbestos from
traveling off site. Much of the removal action -- so named because
it removes the immediate threat of asbestos, not because it
involved removal of asbestos from the site -- consisted of capping
the asbestos in place, similar to the final cleanup action. The
immediate action at the site was followed by a multi-year remedial
investigation/feasibility study process to explore potential
methods for addressing the on-site asbestos.
Those efforts lead up to December 2016, when the EPA issued its
proposed final cleanup plan and opened a public comment period.
That plan called for a capping method in which geotextile material
would be placed over the asbestos, topped in most places by 2 feet
of clean soil, topsoil and then a vegetative cover, EPA officials
described during a Jan. 10 public meeting on the plan. In other
spots, the asbestos would be covered with 10 to 15 inches of clean
soil topped by concrete cable mats or with 2 to 10 feet of clean
soil topped by a clay liner.
"The Selected Remedy will physically contain the asbestos and
other COCs [Contaminants of Concern] to prevent migration from the
Site and to prevent exposure to human and ecological receptors,"
the EPA wrote in the record of decision.
The final option of capping was selected over four others that
were examined, according to EPA officials. Those options were
taking no action, excavating the asbestos containing material and
disposing of it off-site, heating and solidifying the waste and
creating a chemical treatment plant at the site.
"The Selected Remedy is protective of human health and the
environment, complies with federal and state requirements that are
applicable or relevant and appropriate to the Remedial Action, is
cost-effective, and utilizes permanent solutions and alternative
treatment technologies to the maximum extent practicable," the EPA
wrote in the record of decision.
The capping option comes with an estimated $27 million price tag -
- more than the $165,000 for no action but far less than the $257
million to $269 million for the other options, according to EPA
officials. Of that $27 million, however, approximately $25 million
had already been spent on the removal action.
"Because the Selected Remedy is a continuation/completion of EPA's
Removal Action, the majority of the construction activities and
funding allocations for the Selected Remedy are complete," the EPA
wrote in the record of decision.
Because of that, the remedial action is anticipated to wrap up in
August, the EPA wrote.
Completed actions at the site include streambank stabilization,
installation of cover, treatment of water at the on-site
reservoir, regrading and relining of the reservoir and work at
residences near the site, according to the record of decision.
Work that still needs to be completed includes implementing
institutional controls, sampling, long-term monitoring and five-
year reviews.
"The Selected Remedy will result in hazardous substances,
pollutants, or contaminants remaining on-site above levels that
allow for unlimited use and unrestricted exposure. Therefore, an
assessment of the Site will be conducted no less often than every
five years after initiation of Remedial Action ... to ensure that
the Selected Remedy continues to provide adequate protection of
human health and the environment," the EPA wrote in the record of
decision.
Along with five-year reviews, long-term oversight of BoRit calls
for quarterly site inspections, annual sampling, routine
maintenance and extreme weather procedures, according to EPA
officials.
At the January meeting, EPA officials said future use of the site
would be limited to recreational/open space uses, with any
potential redevelopment requiring permission of the EPA and
Pennsylvania DEP.
Whitpain Township, which owns the Whitpain Park section of BoRit -
- one of three individual parcels -- intends to eventually reopen
the park. The other two parcels are owned by the Wissahickon
Waterfowl Preserve and the former Kane Core company.
ASBESTOS UPDATE: Some Tenants Get Asbestos Deal, Feel Slighted
--------------------------------------------------------------
Jeff Todd, writing for CBS4, reported that the owners of a Denver
apartment complex will pay more than $200,000 to tenants that were
exposed to asbestos, but some people effected say the measures
aren't enough.
The owner of the Overlook Apartments, WillMax Capitol Management,
was sentenced on Monday for contaminating two buildings in its
complex with airborne asbestos in January 2014.
"It just started as they were going to do some construction," said
former resident Jack Girard. "They were going to tear out the
floors, sand them down, and make them smooth cement."
The glue underneath the removed carpet contained asbestos, and
Girard says for a month workers sanded the glue off of the floors.
A picture was sent to the Colorado Department of Public Health and
Environment showing a cloud in a hallway. Soon after, the
apartments were closed for abatement.
"We lost our belongings, we lost our possessions, we lost
everything we owned. We had to find new housing. So we needed to
replace what we had," Girard said.
Resident's banded together to form a class-action civil suit. The
outcome of that settlement is confidential.
Girard says many residents would have waited on the settlement if
they knew the U.S Attorney's office was going to file federal
charges agains WillMax and one of its top officials.
WillMax was sentenced to set up a health monitoring fund and pay
$217,805.62 in restitution that would be split up between 29
residents.
Girard says the sentence is less than a slap on the hand because
the health monitoring is only for five years, and many residents
involved in the civil suit are shut out from the restitution
payments.
"What I understood is that one person, out of all of us, out of
all 200 (evacuated residents), got additional money today," Girard
said. "With asbestos exposure you can get mesothelioma and you
don't see the signs for 10 to 15 years. For the rest of our lives
we're going to have to worry about this."
ASBESTOS UPDATE: Rivera-Soto Named Special Master in "Williams"
---------------------------------------------------------------
Judge Jose L. Linares of the U.S. District Court for the District
of New Jersey has appointed Roberto A. Rivera-Soto (former N.J.
Supreme Court Justice) as the Special Master in place of Judge
Garrett Brown the case KIMBERLEE WILLIAMS, et al., Plaintiff, v.
BASF CATALYSTS, LLC, et al., Defendants, Civil Action No. 11-1754,
(D.N.J.).
In Williams v. BASF Catalysts LLC, 2016 U.S. Dist. LEXIS 46273
(D.N.J. Apr. 5, 2016), the Plaintiffs allege, inter alia, that
BASF Catalysts LLC and its attorneys at the firm Cahill Gordon &
Reindel conspired to prevent thousands of litigants that claimed
injuries due to asbestos exposure from attaining fair tort
recoveries. The Plaintiffs alleged that BASF's predecessor,
Engelhard Corp., with the help of its attorneys from Cahill,
destroyed or hid tests and reports that documented the presence of
asbestos in Engelhard's talc. Accordingly, the Plaintiffs
commenced this action concerning the concealed and destroyed
documents.
On March 28, 2011, Plaintiffs Kimberlee Williams, Nancy Pease,
Marilyn L. Holley, Donna Ware, Donnette Wengerd and Rosanne
Chernick filed this putative class action. The Plaintiffs filed a
First Amended Class Action Complaint on August 4, 2011, alleging
violation of the New Jersey Racketeer Influenced and Corrupt
Organizations Act ("NJ RICO"), fraud, fraudulent concealment,
civil conspiracy, fraud upon the court, unjust enrichment, and
violation of New York Judiciary Law Section 487. Consequently, the
Defendants moved to dismiss, and on December 12, 2012, the U.S.
District Judge Stanley R. Chesler granted the motions and
dismissed the First Amended Class Action Complaint in its
entirety.
The Plaintiffs appealed the dismissal of three claims: (1) fraud;
(2) fraudulent concealment; and (3) violation of NJ RICO. On
September 3, 2014, the Court of Appeals for the Third Circuit
affirmed the District Court's dismissal of the NJ RICO count, but
reversed with respect to the fraud and fraudulent concealment
claims, concluding that the First Amended Complaint "properly
alleged" the requisite elements -- "namely, that BASF and Cahill
lied about and destroyed the asbestos evidence to Plaintiffs'
detriment." However, the Third Circuit declined to rule on whether
the FAC sufficiently stated a claim against the individual
Defendants.
On June 25, 2015, the Magistrate Judge Joseph A. Dickson held a
status conference and permitted the Plaintiffs to amend their
complaint in accordance with the Third Circuit's Opinion and
mandate. On July 16, 2015, the Plaintiff filed their Second
Amended Complaint, asserting a cause of action against all the
Defendants under the law of New Jersey, Fraudulent Concealment
(Count I) Fraud and Deceit (Count II) and a derivative liability
claim for Civil Conspiracy (Count III). Subsequently, on January
22, 2016, the Defendants moved to dismiss the Second Amended
Complaint, which was denied by the Court.
On June 8, 2017, the Court entered an Order appointing Garrett
Brown, U.S.D.J. (ret.) as a Special Master. There, the Court also
ordered that the "special master will oversee the schedule for
completion of discovery and all discovery disputes and motions
related thereto pursuant to procedures for practice that the
special master may establish and modify as necessary" and address
the issues currently in contention. However, Judge Brown has
declined to serve as a Special Master.
On June 13, 2017, the Plaintiffs requested the Court to "modify
and clarify the Special Master Order," arguing that a Special
Master should not be appointed at this time as an Article III
judge should determine the scope of discovery because it is a
"fundamental issue of law" not appropriate for the review of a
Special Master. The Plaintiffs assert that "the cornerstone of
discovery here is whether discovery of Plaintiffs' causes of
action are limited as directed by the Third Circuit Court of
Appeals or should be substantially enlarged as BASF insists to
permit detailed discovery into the merits of thousands of cases
that ended decades ago." The Plaintiffs also raised their issues
concerning the Special Master's compensation rate and the
allocation of costs to each party.
The discovery currently at issue are the Defendants'
interrogatories and document demands and the Defendants' subpoenas
served on non-parties. On October 23, 2015, Defendant BASF served
document requests and interrogatories to each named Plaintiff. The
Defendants argue that the discovery was "designed to elicit basic
documents and information" concerning Plaintiffs' claims. The
Defendants state that they sought the discovery to test
"plaintiffs' allegations that [were] the purported withholding of
evidence and misrepresentations by Engelhard and Cahill that
caused the Plaintiffs to dismiss or settle their underlying
asbestos cases for amounts too low, rather than some failure of
proof unrelated to the alleged fraudulent conduct."
The Defendants contend that they are entitled to inquire whether
"plaintiffs' counsel actually knew of the purported misstatements,
whether those purported misstatements were material to plaintiffs'
litigation decisions, or whether plaintiffs settled their cases
for reasons unrelated to the asbestos content of Emtal talc,
including because plaintiffs were unable to prove exposure to
Emtal talc or did not actually suffer from an asbestos related
disease, among other potential failures of proof." Furthermore,
the Defendants argue that they are "entitled to disprove
plaintiffs' allegations that their counsel relied or made (or
failed to make) particular litigation decisions in the underlying
asbestos cases based on certain alleged misstatements."
The Plaintiffs, however, indicate that discovery into these issues
will resolve the "core issues" and will "materially advance the
resolution of both the claims of the Plaintiffs' representative
and the claims of the putative class members' alike as they are
common and essential issues to both groups' claims." The
Plaintiffs argue that the scope of discovery should focus, inter
alia, on the following issues raised in the Second Amended
Complaint:
(a) Whether BASF and Cahill destroyed and/or concealed
evidence that Emtal talc contained asbestos.
(b) Whether BASF and Cahill routinely and systematically made
false and misleading statements that Emtal talc did not contain
asbestos.
(c) Whether BASF and Cahill routinely and systematically made
false and misleading statements that there was no evidence that
Emtal talc contained any asbestos.
(d) Whether BASF and Cahill's spoliation of evidence had the
capacity to and did adversely affect and hamper the prosecution of
asbestos claims against BASF.
(e) BASF and Cahill's reasons or motives for their fraud and
spoliating evidence.
(f) What BASF and Cahill each sought, achieved and gained
from the spoliation of evidence and misrepresentation scheme.
(g) Did the Representative Plaintiffs have an asbestos injury
claim that BASF and Cahill targeted and affected in the course and
conduct of their fraudulent asbestos defense scheme?
In addition, the Plaintiffs argue that the discovery propounded by
the Defendants is neither relevant nor proportionate to claims in
the issue. The Plaintiffs assert that the purpose of the Second
Amended Complaint was not to revive the old claims but rather to
address BASF and Cahill's conduct before, during, and after the
underlying action. The Plaintiffs further argue that "this case is
now all about what BASF and Cahill wrongfully did to eliminate or
reduce as much as possible BASF's asbestos liability exposure in
response to foreseeable or occurring litigation, the likes of
which by the early to mid-1980s had already impacted the bottom
line of many peers of BASF."
The Defendants, on the other hand, argue that a fraudulent
concealment claim will "involve consideration of the substantive
counts" in order to determine "the 'true impact of the spoliated
items' in light of the `particular facts and circumstances of the
litigation.' The Defendants contend that in order to determine
whether "plaintiff was damaged in the underlying action by not
having the evidence that was allegedly destroyed or withheld,"
once again has to have an understanding of the underlying case and
whether it was meritorious. The Defendants further argue that they
are entitled to discovery in order to prove their theory that
"even if the allegedly concealed evidence had been available for
plaintiffs and their counsel to review, the Plaintiffs' underlying
personal injury claims still would have failed.
The Court opines that discovery of some of the underlying
proceedings is necessary to resolve the issues: (a) to prove that
the Defendants intentionally destroyed or withheld material
evidence that the Defendants had a duty to disclose, (b) that the
Plaintiffs were not able to access such evidence on their own, (c)
that the Plaintiffs were damaged by the destruction or concealment
of such evidence, and (d) that the Defendants misrepresented that
the talc products did not contain asbestos and/or that the
Defendants did not have in their possession any record or test
results that concluded that the talc product contained asbestos.
The Court notes that the Third Circuit reasoned: "Courts must
accept as true the plaintiffs' allegation and draw inferences in
the plaintiffs' favor. Inferring from plaintiffs' choice of
counsel unfavorable facts about plaintiffs' beliefs, runs contrary
to this rule. Third, as noted, the tort of spoliation requires a
plaintiff to prove he or she was harmed in the underlying action
by having to rely on an evidential record that did not contain the
evidence defendant concealed. The tort does not require reliance
on an adversary's representations. Indeed, a lawyer or litigant
who destroys or conceals evidence may be liable even if he or she
makes no representations to his or her adversaries at all. "
The Court points out that the analysis by the Third Circuit
clearly acknowledges the need for discovery into how the
Defendants' alleged misconduct affected the Plaintiffs' underlying
cases. The Court maintains that without such discovery, there will
be no answers to the questions raised by the Third Circuit.
Accordingly, the Court concludes that the Defendants are well
within their rights, pursuant to Federal Rule of Civil Procedure
26, to explore these issues in discovery.
The Court explains that the scope of discovery will focus on the
alleged wrongful conduct and any alleged harm following from that
conduct. The Court says that the scope of discovery may include
inquiry as to why Plaintiffs settled or dismissed their underlying
claims in order to resolve the issues Plaintiffs identified --
"whether BASF and Cahill's spoliation of evidence had the capacity
to and did adversely affect and hamper the prosecution of asbestos
claims against BASF." On the other hand, to fully explore this
issue, the Court allows the Defendants to discover what Plaintiffs
and their counsel knew, and were told, and whether any knowledge,
or lack thereof, contributed to Plaintiffs' decisions on resolving
the underlying case.
Although such discovery may include some of the facts arising from
the underlying cases, the Court warns, however, that the purpose
of the discovery does not require a complete "redo" of the
underlying claims and defenses. Accordingly, the Court cautions
the Special Master to examine with care the Plaintiffs' objections
to discovery requests, and to address each discovery request and
objection in due course if the meet and confer process has not
resolved a dispute. Furthermore, the Court directs the Special
Master to ascertain, and apply all relevant law to the documents
and objections concerning the attorney client privilege and
determine what discovery (by way of written and testimonial), if
any, Plaintiffs will produce pursuant to the Federal Rule of Civil
Procedure 26.
A full-text copy of the Opinion and Order dated August 3, 2017, is
available at https://is.gd/UHWY8y from Leagle.com.
ROBERTO A. RIVERA-SOTO, Special Master, represented by ROBERTO A.
RIVERA-SOTO, BALLARD SPAHR.
KIMBERLEE WILLIAMS, Plaintiff, represented by JEFFREY MORROW
POLLOCK, FOX ROTHSCHILD LLP, MICHAEL COREN, Cohen, Placitella &
Roth, P.C., CHRISTOPHER MICHAEL PLACITELLA, COHEN, PLACITELLA &
ROTH, PC & JARED MICHAEL PLACITELLA, COHEN PLACITELLA & ROTH.
NANCY PEASE, Plaintiff, represented by JEFFREY MORROW POLLOCK, FOX
ROTHSCHILD LLP, MICHAEL COREN, Cohen, Placitella & Roth, P.C. &
CHRISTOPHER MICHAEL PLACITELLA, COHEN, PLACITELLA & ROTH, PC.
MARILYN L. HOLLEY, Plaintiff, represented by JEFFREY MORROW
POLLOCK, FOX ROTHSCHILD LLP, MICHAEL COREN, Cohen, Placitella &
Roth, P.C. & CHRISTOPHER MICHAEL PLACITELLA, COHEN, PLACITELLA &
ROTH, PC.
DONNA WARE, Plaintiff, represented by JEFFREY MORROW POLLOCK, FOX
ROTHSCHILD LLP, MICHAEL COREN, Cohen, Placitella & Roth, P.C. &
CHRISTOPHER MICHAEL PLACITELLA, COHEN, PLACITELLA & ROTH, PC.
DONNETTE WENGERD, Plaintiff, represented by JEFFREY MORROW
POLLOCK, FOX ROTHSCHILD LLP, MICHAEL COREN, Cohen, Placitella &
Roth, P.C. & CHRISTOPHER MICHAEL PLACITELLA, COHEN, PLACITELLA &
ROTH, PC.
ROSANNE CHERNICK, Plaintiff, represented by JEFFREY MORROW
POLLOCK, FOX ROTHSCHILD LLP.
BASF CATALYSTS LLC, Defendant, represented by JUSTIN TAYLOR QUINN,
ROBINSON MILLER LLC & MICHAEL F. WILLIAMS, KIRKLAND & ELLIS LLP.
CAHILL GORDON & REINDEL LLP, Defendant, represented by ROBERT E.
RYAN, CONNELL FOLEY, LLP & CRAIG S. DEMARESKI, CONNELL FOLEY LLP.
CAHILL GORDON & REINDEL, Defendant, represented by ROBERT E. RYAN,
CONNELL FOLEY, LLP & JENNIFER C. CRITCHLEY, CONNELL FOLEY, LLP.
THOMAS D. HALKET, Defendant, represented by ERIC TUNIS, HEROLD
LAW.
ARTHUR A. DORNBUSCH, II, Defendant, represented by JOHN A. BOYLE,
MARINO TORTORELLA & BOYLE PC & KEVIN HARRY MARINO, MARINO
TORTORELLA & BOYLE, PC.
HOWARD G. SLOANE, Defendant, represented by ROBERT E. RYAN,
CONNELL FOLEY, LLP, CRAIG S. DEMARESKI, CONNELL FOLEY LLP &
JENNIFER C. CRITCHLEY, CONNELL FOLEY, LLP.
IRA J. DEMBROW, Defendant, represented by ROBERT E. RYAN, CONNELL
FOLEY, LLP, CRAIG S. DEMARESKI, CONNELL FOLEY LLP & JENNIFER C.
CRITCHLEY, CONNELL FOLEY, LLP.
JOHNSON & JOHNSON CONSUMER PRODUCTS, INC., Respondent, represented
by DAVID R. KOTT, MCCARTER & ENGLISH, LLP, JUDAH SAMUEL WILLIAM
SKOFF, MCCARTER & ENGLISH & ZANE CHRISTIAN RIESTER, MCCARTER &
ENGLISH LLP.
THOMAS W. BEVAN, Respondent, represented by BRENDAN E. LITTLE,
LEVY KONIGSBERG LLP & MOSHE MAIMON, LEVY, PHILIPS & KONIGSBERG,
LLP.
BEVAN & ASSOCIATES LPA, INC., Respondent, represented by BRENDAN
E. LITTLE, LEVY KONIGSBERG LLP & MOSHE MAIMON, LEVY, PHILIPS &
KONIGSBERG, LLP.
Amicus Curiae Public Justice, P.C., Amicus, represented by ESTHER
EVA BEREZOFSKY, WILLIAMS, CUKER & BEREZOFSKY, ESQS..
Rothberg Law Firm, Interested Party, represented by LYNNE M.
KIZIS, WILENTZ, GOLDMAN & SPITZER, PA.
Jeffrey C Schwartz, Interested Party, represented by LYNNE M.
KIZIS, WILENTZ, GOLDMAN & SPITZER, PA.
James F. Early, Interested Party, represented by BRENDAN E.
LITTLE, LEVY KONIGSBERG LLP & MOSHE MAIMON, LEVY, PHILIPS &
KONIGSBERG, LLP.
Early, Lucarelli, Sweeney & Meisenkothen, Interested Party,
represented by BRENDAN E. LITTLE, LEVY KONIGSBERG LLP & MOSHE
MAIMON, LEVY, PHILIPS & KONIGSBERG, LLP.
ASBESTOS UPDATE: Show Cause Order Issued in "Lineberger"
--------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina issued an order directing Tommy William
Lineberger and Marcella Wilson Lineberger to show good cause for
their failure to effect service of the Summons and Complaint on
the Defendant R.T. Vanderbilt Holding Company, Inc., otherwise the
Plaintiffs' action against R.T. Vanderbilt will be dismissed
without prejudice without further order of the Court.
On December 7, 2016, Tommy William Lineberger and Marcella Wilson
Lineberger have filed the case TOMMY WILLIAM LINEBERGER and spouse
MARCELLA WILSON LINEBERGER, Plaintiffs, v. CBS CORPORATION, et
al., Defendants, Civil Case No. 1:16-cv-00390-MR-DLH, (W.D.N.C.)
against multiple Defendants, including the Defendant R.T.
Vanderbilt Holding Company, Inc., sued individually and as
successor-in-interest to R.T. Vanderbilt Company, Inc. More than
90 days have now passed from the filing of the Complaint, and
there is nothing in the record to indicate that the Plaintiff has
served R.T. Vanderbilt Holding Company.
A full-text copy of the Order dated August 8, 2017, is available
at https://is.gd/pjjSK8 from Leagle.com.
Tommy William Lineberger, Plaintiff, represented by Sabrina G.
Stone, Dean Omar Branham, LLP, pro hac vice.
Tommy William Lineberger, Plaintiff, represented by William M.
Graham, Wallace & Graham.
Marcella Wilson Lineberger, Plaintiff, represented by Sabrina G.
Stone, Dean Omar Branham, LLP, pro hac vice & William M. Graham,
Wallace & Graham.
CBS Corporation, Defendant, represented by Jennifer M. Techman,
Evert Weathersby Houff.
CNA Holdings, Inc., Defendant, represented by Stephen B.
Williamson, Van Winkle, Buck, Wall, Starnes & Davis, P.A..
Cooper Industries, LLC, Defendant, represented by William P.
Early, Pierce Herns Sloan & Wilson, LLC.
Durez Corporation, Defendant, represented by John S. Slosson,
Nelson Mullins Riley & Scarborough, LLP, Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP & William M. Starr,
Nelson, Mullins, Riley & Scarborough, LLP.
Eaton Corporation, Defendant, represented by Laura Erb Dean,
Cranfill, Sumner & Hartzog, LLP & Richard T. Boyette, Cranfill,
Sumner & Hartzog, L.L.P..
General Cable Industries, Inc., Defendant, represented by
Stephanie G. Flynn, Smith Moore Leatherwood LLP, pro hac vice &
Timothy Peck, Smith Moore Leatherwood LLP.
Georgia Pacific LLC, Defendant, represented by Kenneth Kyre, Jr.,
Pinto Coates Kyre & Bowers, PLLC.
Gould Electronics, Inc., Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Graybar Electric Co, Defendant, represented by Stephen B.
Williamson, Van Winkle, Buck, Wall, Starnes & Davis, P.A..
International Paper Company, Defendant, represented by Mark Andrew
Leach, Orbock Ruark & Dillard & Mary Clift Abdalla, Forman Watkins
& Krutz LLP, pro hac vice.
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
Occidental Chemical Corporation, Defendant, represented by John S.
Slosson, Nelson Mullins Riley & Scarborough, LLP, Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP & William M. Starr,
Nelson, Mullins, Riley & Scarborough, LLP.
Plastics Engineering Company, Defendant, represented by Amy C.
Drayton, Dean and Gibson.
Rockwell Automation, Inc., Defendant, represented by Sarena
Monique Holder, Tucker Ellis LLP, pro hac vice & Timothy Peck,
Smith Moore Leatherwood LLP.
RSCC Wire & Cable, LLC, Defendant, represented by Elizabeth D.
Scott, Williams Mullen, Elizabeth C. Stone, Williams Mullen, Lynn
Kanaga Brugh, IV, Williams Mullen, pro hac vice & Sarena Monique
Holder, Tucker Ellis LLP, pro hac vice.
Schnieder Electric USA, Inc., Defendant, represented by Janice
Holmes, Gallivan White & Boyd, P.A..
Sears, Roebuck and Co., Defendant, represented by Kelly B. Jones,
Womble Carlyle Sandridge & Rice, PLLC.
Siemens Corp, Defendant, represented by Curtis J. Shipley, Ellis &
Winters LLP, Jon A. Berkelhammer, Ellis & Winters LLP & Joseph D.
Hammond, Ellis & Winters LLP.
Tarkett, Inc., Defendant, represented by John T. Holden, Dickie,
McCamey & Chilcoat P.C..
Union Carbide Corporation, Defendant, represented by Moffatt G.
McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E.
Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice, W. David
Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice & Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A..
Vanderbilt Minerals, LLC, Defendant, represented by Hatcher B.
Kincheloe, Jr., Hedrick, Eatman, Gardner & Kincheloe & Gerald
Anderson Stein, II, Hedrick, Gardner, Kincheloe & Garofalo.
ASBESTOS UPDATE: Show Cause Order Issued in "Mullinax"
------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina issued an order directing Robert A.
Mullinax to file an appropriate motion or otherwise take further
action to prosecute this action against Defendant LG Electronics
U.S.A., Inc., otherwise, it will result in the dismissal of this
Defendant.
More than 60 days have already passed since the expiration of the
Plaintiff's deadline for serving LG Electronics. To date, however,
LG Electronics has not answered or otherwise defended this action,
and the Plaintiff appears to have made no effort to prosecute its
action against this Defendant.
On April 21, 2017, the Court entered an Order directing the
Plaintiff to show cause why this case should not be dismissed for
the failure to prosecute this action against Defendant LG
Electronics, U.S.A., Inc. In response to the Court's Show Cause
Order, the Plaintiff moved for an extension of time and the Court
allowed the Plaintiff until June 5, 2017, to effect proper service
on LG Electronics.
A full-text copy of the Order dated August 8, 2017, is available
at https://is.gd/cUZmQV from Leagle.com.
Robert A. Mullinax, Plaintiff, represented by Sabrina G. Stone,
Dean Omar Branham, LLP, pro hac vice.
Robert A. Mullinax, Plaintiff, represented by William M. Graham,
Wallace & Graham.
Advance Auto Parts, Inc., Defendant, represented by Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Air & Liquid Systems Corporation, Defendant, represented by Tracy
Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis
Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP &
William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Autozone, Inc., Defendant, represented by Timothy Peck, Smith
Moore Leatherwood LLP.
Bechtel Corporation, Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Blackmer Pump Company, Defendant, represented by Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Borg-Warner Morse TEC, Inc., Defendant, represented by David L.
Levy, Hedrick Gardner Kincheloe & Garofalo LLP.
BW/IP, Inc., Defendant, represented by James M. Dedman, IV,
Gallivan, White, & Boyd, P.A..
CertainTeed Corporation, Defendant, represented by Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Covil Corporation, Defendant, represented by James M. Dedman, IV,
Gallivan, White, & Boyd, P.A..
Crane Co., Defendant, represented by Marla Tun Reschly, K&L Gates
LLP & Rebecca L. Gauthier, K&L Gates.
Dana Companies LLC, Defendant, represented by Christopher Barton
Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Daniel International Corporation, Defendant, represented by
Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., 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.
Deere & Company, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Flowserve US Inc., Defendant, represented by James M. Dedman, IV,
Gallivan, White, & Boyd, P.A..
Fluor Constructors International, Defendant, represented by
Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt
G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott
E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David
Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Fluor Constructors International, Inc., Defendant, represented by
Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt
G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott
E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David
Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Fluor Daniel Services Corporation, Defendant, represented by
Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt
G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott
E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David
Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Fluor Enterprises, Inc., Defendant, represented by Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Ford Motor Company, Defendant, represented by Christopher Ray
Kiger, Smith Anderson, Kirk Gibson Warner, Smith Anderson & Addie
K.S. Ries, Smith Anderson.
General Electric Company, Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Genuine Parts Company, Defendant, represented by Shannon
Strickland Frankel, Young Moore and Henderson P.A., Heather B.
Adams, Alston & Bird LLP & Molly Fraser Martinson, Young, Moore &
Henderson.
Georgia-Pacific LLC, Defendant, represented by Kenneth Kyre, Jr.,
Pinto Coates Kyre & Bowers, PLLC.
Goulds Pumps, Inc., Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Grinnell, LLC, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Honeywell International, Inc., Defendant, represented by H. Lee
Davis, Jr., Davis & Hamrick, L.L.P..
Metropolitan Life Insurance Company, Defendant, represented by
Keith E. Coltrain, Wall, Templeton & Haldrup, PA.
O'Reilly Automotive Stores, Inc., Defendant, represented by Eric
T. Hawkins, Hawkins, Parnell, Thackston & Young.
Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Pneumo Abex, LLC, Defendant, represented by Timothy W. Bouch,
Leath Bouch Crawford & von Keller.
Sequoia Ventures, Inc., Defendant, represented by Jennifer M.
Techman, Evert Weathersby Houff.
Union Carbide Corporation, Defendant, represented by Christopher
Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick,
Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner,
Haynsworth, Sinkler, Boyd P.A., pro hac vice.
Uniroyal, Inc., Defendant, represented by Moffatt G. McDonald,
Haynsworth, Sinkler, Boyd P.A..
Vanderbilt Minerals, LLC, Defendant, represented by David L. Levy,
Hedrick Gardner Kincheloe & Garofalo LLP & Gerald Anderson Stein,
II, Hedrick, Gardner, Kincheloe & Garofalo.
Viad Corporation, Defendant, represented by Tracy Edward Tomlin,
Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett,
Bennett & Guthrie, P.L.L.C..
Whirlpool Corporation, Defendant, represented by Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
William Powell Company, Defendant, represented by David B. Oakley,
Poole Brooke Plumlee PC.
Yuba Heat Transfer, LLC, Defendant, represented by Tracy Edward
Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew
Bustamante, Nelson Mullins Riley & Scarborough LLP & William M.
Starr, Nelson, Mullins, Riley & Scarborough, LLP.
ASBESTOS UPDATE: Consortium Claim vs. Kelly-Moore Dismissed
-----------------------------------------------------------
The U.S. Magistrate Judge Patrick Auld for the U.S. District Court
for the Middle District of North Carolina has recommended that
Defendant Kelly-Moore Paint Company, Inc.'s Motion to Dismiss be
granted as to Plaintiff Mary Louise Stewart's loss of consortium
claim because it fails as a matter of North Carolina law.
Mary Lou Stewart initiated a lawsuit under the Court's diversity
jurisdiction against multiple defendants, including Kelly-Moore
Paint Company, Inc., on behalf of herself and as executrix of the
estate of her deceased husband Alexander Leroy Stewart, Jr. The
Complaint alleges that the defendants caused the Decedent to
develop mesothelioma through exposure to asbestos, leading to his
death. As its "Fifth Cause of Action," the Complaint asserts a
claim for loss of consortium.
The Defendant Kelly-Moore Paint has moved to dismiss the
Plaintiff's claim for loss of consortium as "subsumed by and
contained within a wrongful death claim." More specifically, the
Defendant contends that, under North Carolina law, "all claims
made as a result [of] or arising from the death of a person . . .
must be brought by the deceased person's estate under the Wrongful
Death Act. The Defendant maintains that "there is no allegation in
the Complaint that any defendant . . . ever harmed [Plaintiff]
individually, or she ever suffered any individual or personal
damages which are separate and apart from those allegedly suffered
by the Decedent." Thus, the Defendant argues that the relief that
the Plaintiff seeks in bringing her loss of consortium claim falls
under N.C. Gen. Stat. Section 28A-18-2.
The Court finds that the Defendant's argument possesses merit
because in North Carolina, "an action for wrongful death did not
exist at common law and rests entirely upon the [wrongful death]
statute. . . . Any common law claim which is now encompassed by
the wrongful death statute must be asserted under that statute."
Furthermore, the Court explains that loss of consortium qualifies
as a common law claim. Although the North Carolina Supreme Court
has not spoken directly on this issue, the Court cites that North
Carolina appellate courts have held that the wrongful death
statute encompasses loss of consortium in cases of a loved one's
death, and therefore that a plaintiff in those circumstances must
bring any individual loss of consortium claim under the wrongful
death statute.
The case is MARY LOU STEWART, Plaintiff, v. AURORA PUMP COMPANY,
et al., Defendants, No. 1:17CV79, (M.D.N.C.).
A full-text copy of the Memorandum Opinion and Recommendation
dated August 9, 2017, is available at https://is.gd/APteVV from
Leagle.com.
MARY LOU STEWART, Plaintiff, represented by WILLIAM C. SWETT,
MOTLEY RICE LLC.
MARY LOU STEWART, Plaintiff, represented by DAVID D. DAGGETT,
DAGGETT SHULER KOONTZ NAUMAN & BELL, PLLC.
AURORA PUMP COMPANY, Defendant, represented by TRACY E. TOMLIN,
NELSON MULLINS RILEY & SCARBOROUGH LLP & WILLIAM MICHAEL STARR,
NELSON MULLINS RILEY & SCARBOROUGH LLP.
A.W. CHESTERTON COMPANY, Defendant, represented by ELIZABETH D.
SCOTT, WILLIAMS MULLEN & JENNIFER L. NUSBAUM, WILLIAMS MULLEN.
BAYER CROPSCIENCE, INC., Defendant, represented by MOFFATT G.
MCDONALD, HAYNSWORTH SINKLER BOYD, P.A..
CBS CORPORATION, Defendant, represented by JENNIFER M. TECHMAN,
EVERT WEATHERSBY HOUFF.
CLEAVER-BROOKS, INC., Defendant, represented by STEPHEN B.
WILLIAMSON, Van Winkle, Buck, Wall, Starnes & Davis, P.A..
DANIEL INTERNATIONAL CORPORATION, Defendant, represented by
MOFFATT G. MCDONALD, HAYNSWORTH SINKLER BOYD, P.A., SCOTT E.
FRICK, HAYNSWORTH SINKLER BOYD, P.A., W. DAVID CONNER, HAYNSWORTH
SINKLER BOYD, P.A. & CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER
BOYD, P.A..
FISHER CONTROLS INTERNATIONAL, Defendant, represented by TIMOTHY
W. BOUCH, Leath Bouch & Seekings, LLP.
FLUOR DANIEL, INC., Defendant, represented by MOFFATT G. MCDONALD,
HAYNSWORTH SINKLER BOYD, P.A., SCOTT E. FRICK, HAYNSWORTH SINKLER
BOYD, P.A., W. DAVID CONNER, HAYNSWORTH SINKLER BOYD, P.A. &
CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER BOYD, P.A..
FLUOR DANIEL SERVICES CORPORATION, Defendant, represented by
MOFFATT G. MCDONALD, HAYNSWORTH SINKLER BOYD, P.A., SCOTT E.
FRICK, HAYNSWORTH SINKLER BOYD, P.A., W. DAVID CONNER, HAYNSWORTH
SINKLER BOYD, P.A. & CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER
BOYD, P.A..
FOSTER WHEELER ENERGY CORPORATION, Defendant, represented by
JENNIFER M. TECHMAN, EVERT WEATHERSBY HOUFF.
GENERAL ELECTRIC COMPANY, Defendant, represented by JENNIFER M.
TECHMAN, EVERT WEATHERSBY HOUFF.
GOULDS PUMPS, INCORPORATED, Defendant, represented by TRACY E.
TOMLIN, NELSON MULLINS RILEY & SCARBOROUGH LLP & WILLIAM MICHAEL
STARR, NELSON MULLINS RILEY & SCARBOROUGH LLP.
THE GORMAN-RUPP COMPANY, Defendant, represented by MOFFATT G.
MCDONALD, HAYNSWORTH SINKLER BOYD, P.A., SCOTT E. FRICK,
HAYNSWORTH SINKLER BOYD, P.A., W. DAVID CONNER, HAYNSWORTH SINKLER
BOYD, P.A. & CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER BOYD,
P.A..
GRINNELL LLC, Defendant, represented by TRACY E. TOMLIN, NELSON
MULLINS RILEY & SCARBOROUGH LLP & WILLIAM MICHAEL STARR, NELSON
MULLINS RILEY & SCARBOROUGH LLP.
INDUSTRIAL HOLDINGS CORPORATION, Defendant, represented by TIMOTHY
PECK, SMITH MOORE LEATHERWOOD LLP & STEPHANIE G. FLYNN, SMITH
MOORE LEATHERWOOD LLP.
INGERSOLL-RAND COMPANY, Defendant, represented by TIMOTHY PECK,
SMITH MOORE LEATHERWOOD LLP & STEPHANIE G. FLYNN, SMITH MOORE
LEATHERWOOD LLP.
JOHN CRANE, INC., Defendant, represented by STEPHEN B. WILLIAMSON,
Van Winkle, Buck, Wall, Starnes & Davis, P.A..
KELLY-MOORE PAINT COMPANY, INC., Defendant, represented by JOSHUA
HAMILTON BENNETT, BENNETT & GUTHRIE, P.L.L.C..
METROPOLITAN LIFE INSURANCE COMPANY, Defendant, represented by
KEITH E. COLTRAIN, WALL TEMPLETON & HALDRUP, P.A..
SUPERIOR BOILER WORKS, INC., Defendant, represented by JENNIFER M.
TECHMAN, EVERT WEATHERSBY HOUFF.
SPIRAX SARCO, INC., Defendant, represented by JOHN T. HOLDEN,
DICKIE MCCAMEY & CHILCOTE, P.C..
UNION CARBIDE CORPORATION, Defendant, represented by MOFFATT G.
MCDONALD, HAYNSWORTH SINKLER BOYD, P.A., SCOTT E. FRICK,
HAYNSWORTH SINKLER BOYD, P.A., W. DAVID CONNER, HAYNSWORTH SINKLER
BOYD, P.A. & CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER BOYD,
P.A..
UNIROYAL, INC., Defendant, represented by MOFFATT G. MCDONALD,
HAYNSWORTH SINKLER BOYD, P.A., SCOTT E. FRICK, HAYNSWORTH SINKLER
BOYD, P.A., W. DAVID CONNER, HAYNSWORTH SINKLER BOYD, P.A. &
CHRISTOPHER BARTON MAJOR, HAYNSWORTH SINKLER BOYD, P.A..
UNITED CONVEYOR CORPORATION, Defendant, represented by TIMOTHY
PECK, SMITH MOORE LEATHERWOOD LLP & STEPHANIE G. FLYNN, SMITH
MOORE LEATHERWOOD LLP.
ZURN INDUSTRIES, INC., Defendant, represented by TRACY E. TOMLIN,
NELSON MULLINS RILEY & SCARBOROUGH LLP & WILLIAM MICHAEL STARR,
NELSON MULLINS RILEY & SCARBOROUGH LLP.
ASBESTOS UPDATE: 3rd Cir. Affirms Summary Judgment in "Gonzalez"
----------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit agrees with the
District Court that Warden Donna Zickefoose and "Health
Information Tech" Steven Ruff are entitled to summary judgment in
the case FRANCISCO GONZALEZ, Appellant, v. ABIGAIL LOPEZ DE
LASALLE, M.D.; DONNA ZICKEFOOSE; PRADIP PATEL, M.D.; STEVEN RUFF,
No. 17-1963, (3rd Cir.), on Mr. Gonzalez' denial of medical care
claim.
In June 2012, Francisco Gonzalez filed an action against several
FCI Fort Dix employees, including Warden Donna Zickefoose,
Clinical Director Abigail Lopez De LaSalle, M.D., Pradip Patel,
M.D., and "Health Information Tech" Steven Ruff, alleging: (a)
Eighth Amendment violations based on his exposure to prison
environmental conditions that worsened his emphysema, chronic
bronchitis, asthma, and chronic obstructive pulmonary disease; (b)
failure to grant a medical transfer; and (c) inadequate medical
care. He claimed that he had undergone five emergency
hospitalizations since April 2011, brought about by exposure to
environmental tobacco smoke, asbestos, and lead-based paint;
extreme temperature fluctuations; lack of air conditioning; and
exposure to jet fuel emissions from the adjoining Air Force Base.
In December 2012, the District Court screened Mr. Gonzalez's
complaint and ordered dismissal of Defendant Lopez De LaSalle
without prejudice. At the close of discovery, the remaining
Defendants filed a motion for summary judgment. By order entered
on February 27, 2015, the District Court granted Defendants'
motion for summary judgment, with the exception of Mr. Gonzalez'
Eighth Amendment claim that Dr. Patel retaliated against him by
revoking his first floor pass in September 2011, because Mr.
Gonzalez refused to identify inmates who were smoking. Gonzalez
filed a motion for reconsideration, which the District Court
denied by order entered on December 18, 2015.
While Gonzalez's motion for reconsideration was under review by
the District Court, Dr. Patel, the only remaining defendant, filed
a motion for summary judgment. By order entered on July 22, 2016,
the District Court denied without prejudice Dr. Patel's motion for
summary judgment as there were "unaddressed discrepancies in the
medical records that precluded judgment in Patel's favor." In
September 2016, Dr. Patel renewed his motion for summary judgment,
which was ultimately granted by the District Court on April 7,
2017.
Mr. Gonzalez appeals, alleging that beginning in August 2011, he
informed prison officials that "various environmental factors" at
FCI Fort Dix were worsening his serious health conditions, and
repeatedly requested a transfer to another facility. His requests
were denied by Warden Zickefoose and Ruff, who relied on Dr.
Patel's judgment that Mr. Gonzalez did not qualify for a medical
transfer.
The Third Circuit points out that record shows that there is no
genuine dispute that Mr. Gonzalez received frequent medical
evaluations and treatment at Fort Dix beginning in January 2009,
the month he arrived. Dr. Patel has evaluated Mr. Gonzalez as a
Care Level 2 inmate -- a stable outpatient with chronic illness
able to perform activities of daily living, and thus not qualified
for medical transfer.
The Third Circuit explains that although Gonzalez required several
hospitalizations for COPD-related illnesses, the medical staff
approved his hospitalizations and the record supports Dr. Patel's
opinion that Gonzalez's illnesses, which were chronic and not
curable, could be adequately managed at Fort Dix, with outside
treatment when needed. As such, Warden Zickefoose and Ruff, as
non-medical professionals, were entitled to rely on and defer to
the medical judgment of Dr. Patel, that Gonzalez was not qualified
for medical transfer. Accordingly, the Third Circuit affirms that
the District Court properly granted summary judgment on this
claim.
Mr. Gonzalez also alleges that prison staff were deliberately
indifferent to his serious medical needs because (a) he was denied
a first floor pass and a lower bunk pass when he first entered FCI
Fort Dix; (b) he was denied adequate medical care because it was
seven months before he was evaluated by a pulmonologist after
transferring to Fort Dix; and (c) his prescriptions were not
timely filled and were substituted with other medications.
The Third Circuit finds that the District Court correctly noted
that Mr. Gonzalez was denied a first floor pass and lower bunk
pass by Warden Zickefoose when he first entered FCI Fort Dix
because there was no clinical evidence of respiratory distress in
Mr. Gonzalez's February 9, 2009 medical record. While Gonzalez may
have suffered some shortness of breath when climbing stairs or
into an upper bunk, he was being treated by the medical staff for
these symptoms, and Warden Zickefoose was entitled to rely on and
defer to the medical staff. Moreover, the record indicates that
the passes were subsequently approved in August 2009 and renewed
yearly through 2012.
The Third Circuit states that Mr. Gonzalez's retaliation claim
against Dr. Patel for allegedly revoking his first floor pass must
also fail. To establish a claim of retaliation, a prisoner must
show: (1) that he was engaged in a constitutionally protected
activity; (2) that he "suffered some `adverse action' at the hands
of the prison officials"; and (3) that the protected activity was
"a substantial or motivating factor" in the prison officials'
decision to take the adverse action.
As the District Court aptly noted, the Third Circuit also notes
that Mr. Gonzalez has not provided any factual support for this
allegation and, in fact, the record reveals that Gonzalez was
temporarily assigned to the second floor on September 11, 2011, by
staff member Leander Batiste, due to bed-space constraints. Mr.
Gonzalez was not seen by Dr. Patel until October 6, 2011, at which
time he complained about the smoking in his unit, and was
immediately transferred to the hospital. Upon his return, Patel
extended his first-floor pass through the end of 2012. As a
result, the Third Circuit concludes that Mr. Gonzalez's
retaliation claim is baseless, and to the extent that it is an
Eighth Amendment claim, it is meritless.
Mr. Gonzalez also alleges that the defendants violated the Eighth
Amendment by exposing him to environmental factors, including
second-hand tobacco smoke from Ruff and other inmates, jet fumes
from a nearby Air Force base, asbestos and lead paint, inadequate
air conditioning, and extreme temperature fluctuations.
In order to show an Eighth Amendment "conditions of confinement"
violation, the Third Circuit maintains that Mr. Gonzalez must show
that the defendants knew of and disregarded an excessive risk to
his health. And to succeed on an Eighth Amendment claim for the
denial or delay of medical care, the Third Circuit points out that
Mr. Gonzalez is required to demonstrate that the Defendants were
deliberately indifferent to his serious medical needs -- Mr.
Gonzalez must show that the defendants knew of and disregarded an
excessive risk to his health. The Third Circuit explains that
deliberate indifference can be shown by a prison official's
"intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed" or
where prison officials delay necessary medical treatment based on
a non-medical reason.
However, the record does not support a finding of deliberate
indifference by the defendants while the defendants provided
evidence that FCI Fort Dix prohibits smoking in its facilities,
and enforces the regulation against inmates by providing strong
sanctions. In his summary judgment affidavit, Hearing Office
Anthony Boyce stated that Fort Dix has sanctioned sixty inmates
for tobacco-related violations since January 2010. Moreover, when
Mr. Gonzalez submitted an "Inmate Request to Staff" to Warden
Zickefoose on September 11, 2011, detailing the second-hand smoke
issue, Zickefoose acknowledged his complaints and told him to
identify who was smoking, but he feared reprisal by other inmates.
As a result, the Third Circuit says that Mr. Gonzalez has failed
to show that the defendants were deliberately indifferent to his
complaints, and summary judgment was appropriate for this claim.
A full-text copy of the Opinion dated August 9, 2017, is available
at https://is.gd/gnqXwe from Leagle.com.
ASBESTOS UPDATE: Discovery in "Dismuke" Extended Until November 8
-----------------------------------------------------------------
Judge Michael P. Shea of the U.S. District Court for the District
of Connecticut has extended the period during which Defendants
Counselor Supervisor Long, Captain Colon, Warden Maldinado may
respond to the Complaint filed by LaShawn Dismuke and directed the
Parties to complete discovery within 90 days or November 8, 2017.
The plaintiff, LaShawn Dismuke, incarcerated and pro se, initiated
has filed a complaint against Commissioner Scott Semple, Counselor
Supervisor Long, Captain Colon, Warden Maldinado and Kevin Roy. On
December 20, 2016, the Court dismissed (a) the claims for monetary
damages against all Defendants in their official capacities, (b)
the First Amendment and Fifth Amendment claims against all
defendants in both capacities, and (c) the Fourteenth Amendment
and Eighth Amendment claims against defendants Roy and Semple in
both capacities.
The case proceeded as to the Fourteenth and Eighth Amendment
claims against defendants Long, Colon, and Maldinado in their
individual capacities with respect to damages and their official
capacities with respect to declaratory and injunctive relief. In
their second motion for extension of time to respond to the
complaint, the Defendants seek an extension of time until April 5,
2017, to file a response to the complaint. The Defendants also
filed, as a motion, a "Supplemental Statement" in support of the
second motion for extension of time, which indicates that on March
21, 2017, the defense counsel conferred with the Plaintiff
regarding the Defendants' second motion for extension of time, and
the Plaintiff consented to the motion.
The Plaintiff seeks an appointment of counsel claiming that he is
not an attorney and cannot afford the services of an attorney, and
that as a non-lawyer, he cannot meet deadlines or effectively
litigate this case. He also claims that he has made no attempts to
secure the assistance of counsel prior to filing this motion. The
Court points out that Plaintiff as a civil litigant does not have
a constitutional right to the appointment of counsel. Furthermore,
the Court finds that the Plaintiff does not indicate that he made
any attempts to contact the Inmate Legal Aid Program with regard
to any questions he might have about litigating this case,
including how to conduct discovery. Consequently, the Court denies
the motion for appointment of counsel at this time because there
is a possibility that the Plaintiff may be able to secure legal
assistance or representation independently.
The Plaintiff also seeks an extension of time to begin conducting
discovery until the Court rules on his motion for appointment of
counsel, claiming that he is unable to "facilitate proper
discovery or to cite to legal precedents(s), due in part, to
Osborn Correctional Institution not providing access to law
library materials." Since the Court has now ruled on the
Plaintiff's motion for appointment of counsel and has noted that
the Plaintiff may seek assistance from the Inmate Legal Aid
Program to the extent that he has questions regarding how to
conduct discovery. Accordingly, the Court extended the discovery
deadline for an additional ninety days, until November 8, 2017.
In his "Motion for Extension Nunc Pro Tunc," the Plaintiff states
that on January 16, 2017, he submitted a Freedom of Information
Act request to the Department of Correction and a FOIA request to
the Department of Public Health. On January 19, 2017, the
Department of Correction's FOIA liaison responded to the
Plaintiff's requests and indicated that he would be hearing from
the FOIA office in the near future. As such, the Plaintiff seeks
an extension of time in order to receive the materials he
requested pursuant to his FOIA requests considering that the
process of obtaining documents through FOIA requests is
independent of the discovery process and this litigation.
The Court finds that the Plaintiff's motion for discovery is
actually a request for production of documents. Since the Court is
extending the discovery period to November 8, 2017, therefore, the
Court denies this motion.
The Court will not construe the Plaintiff's motion for discovery,
disclosure, and inspection, as a motion to compel because it is
not clear that the Plaintiff served the request for production of
documents on counsel for the defendants or made any effort to
resolve any discovery dispute prior to filing the motion. In
addition, the Court notes that the request for production of
documents fails to comply with Federal Rule of Civil Procedure 34
in that it is not addressed to a party in this action.
Accordingly, the Court denies the Plaintiff's discovery request
because it was improperly filed as a motion.
Because the Plaintiff may amend the complaint as a matter of
right, the Court denies the Plaintiff's Motion to Amend Complaint
as moot, as well as the Plaintiff's the Motion to Dismiss.
A full-text copy of the Ruling dated August 10, 2017, is available
at https://is.gd/Zyrmhn from Leagle.com.
LaShawn W. Dismuke, Plaintiff, Pro Se.
Long, C/S, Defendant, represented by Thomas J. Davis, Jr.,
Attorney General's Office.
Colon, Defendant, represented by Thomas J. Davis, Jr., Attorney
General's Office.
Maldinado, Defendant, represented by Thomas J. Davis, Jr.,
Attorney General's Office.
ASBESTOS UPDATE: Oronite Can Seek Indemnity for Dufrene Deal
------------------------------------------------------------
Judge Susie Morgan of the U.S. District Court of the Eastern
District Louisiana has entered a summary judgment entitling
Chevron Oronite Company, LLC, to indemnity from Cajun Company for
the amount of its settlement with Randy Dufrene for injuries
sustained from exposure to asbestos while working at the Oronite
facility.
Chevron Oronite Company, LLC, and Cajun Company entered into
Contract Nos. C-1540 and C-1554, on October 2, 1978 and December
14, 1978, respectively. Pursuant to these contracts, Cajun will
perform work at the Oronite facility in Belle Chasse, Louisiana.
Both contracts also contain indemnification provisions and require
Cajun to name Oronite as an additional insured on Cajun's
insurance policies.
Randy Dufrene, a Cajun employee from 1977 until 1983, performed
work at Oronite under Contract Nos. C-1540 and C-1554. On October
10, 2014, Mr. Dufrene sued Oronite for damages he allegedly
sustained as a result to his exposure to asbestos while working at
the Oronite facility. Consequently, Oronite demanded that Cajun
defend and indemnify Oronite against Mr. Dufrene's claims pursuant
to Contract Nos. C-1540 and C-1554. Oronite also requested
coverage as an additional insured under Cajun's comprehensive
general bodily injury liability insurance policies. However, Cajun
denied Oronite's demand for defense and indemnity, which prompted
Oronite to file the instant lawsuit.
Both Oronite and Cajun have filed motions for summary judgment.
Oronite contends there exist no genuine disputes of material fact,
and it is entitled to judgment as a matter of law that:
(1) Cajun's failure to name Oronite as an additional insured
is a breach of Cajun's contracts with Oronite;
(2) Oronite is entitled to indemnity from Cajun for the
amount of its settlement with Mr. Dufrene; and
(3) Oronite is entitled to attorney's fees and costs
incurred in connection with the defense of Mr. Dufrene's claim, as
well as Oronite's attorney's fees and costs in this action.
Cajun contends there exist no genuine disputes of material fact,
and it is entitled to judgment as a matter of law that
(1) Oronite's breach of contract claim has prescribed;
(2) Oronite is not entitled to indemnity under Contract No.
C-1540 because Mr. Dufrene's exposure to asbestos did not occur
while he was working under Contract No. C-1540; and
(3) Oronite is not entitled to indemnity under Contract No.
C-1554 because Mr. Dufrene's claims arose out of Oronite's
negligence, and the indemnity provision of Contract No. C-1554
does not entitle Oronite to indemnity for its own negligence.
The Parties do not dispute the terms of the contracts between
Oronite and Cajun or when Mr. Dufrene filed his lawsuit. Nor do
the parties dispute that the ten-year prescriptive period applies
to Oronite's breach of contract claim. The parties disagree only
about when the prescriptive period on Oronite's breach of contract
claim began to accrue.
On the one hand, Cajun argues the prescriptive period began to run
when the contracts were executed. Oronite, on the other hand,
argues the prescriptive period began at the time Oronite was sued
by Mr. Dufrene, because "damages are an essential element to a
breach of contract claim" and "Oronite did not incur damages until
[it] was unable to obtain additional insured insurance coverage
after Oronite was sued by Mr. Dufrene in October 2014."
The Court finds that the language of Contract Nos. C-1540 and C-
1554 requires Cajun to name Oronite as an additional insured and
to provide to Oronite evidence of such insurance before commencing
work. It is undisputed that work commenced on October 16, 1978 for
Contract No. C-154044 and on February 1, 1979 for Contract No. C-
1554. "The prescription period begins to run from the time of
breach or the time the cause of action arises" -- either at the
time of the execution of the contracts or the dates when work
commenced. Accordingly, the Court points out that the prescriptive
period for Oronite's breach of contract claim on Contract No. C-
1540 began to run on or before October 16, 1978 and the
prescriptive period for Oronite's breach of contract claim on
Contract No. C-1554 began to run on or before February 1, 1979.
Because of the Court's ruling that Oronite's breach of contract
claim has prescribed, the factual dispute as to whether or not
Cajun breached the contracts between it and Oronite by failing to
name Oronite as an additional insured is not material.
Oronite seeks summary judgment that it is owed indemnity by Cajun
for its payments to Mr. Dufrene for injuries he sustained while
performing work under Contract No. C-1540. Cajun seeks summary
judgment that it owes no indemnity under Contract No. C-1540,
arguing Mr. Dufrene was not exposed to asbestos during his work
under Contract No. C-1540 because Contract No. C-1540 applied only
to work installing new insulation, which did not contain asbestos.
Oronite has produced uncontroverted evidence that Mr. Dufrene,
while working under Contract No. C-1540, also removed old
insulation, which contained asbestos. Mr. Dufrene testified that
when he was working at the Oronite facility on a "specific
contract job . . . that required the installation of new
insulation," which the Parties do not dispute was work performed
pursuant to Contract No. C-1540, he would often have to remove old
insulation when he reached a "tie-in" point. Mr. Dufrene further
testified that, when working on contracts to install new
insulation, he would often have to "uninsulate to insulate."
In addition, Blaine Fury, Oronite's corporate representative, also
testified that, even though work under Contract No. C-1540 was to
install new insulation, workers had potential exposure to asbestos
when tying into existing equipment. The engineering specifications
for Contract No. C-1540 instructed Cajun to submit daily time
sheets for "insulating piping at T-295, P-949 and tie-in piping in
pipe racks."
Unfortunately, Cajun offers no summary judgment evidence to
demonstrate that a disputed issue of fact exists with respect to
whether Mr. Dufrene removed old insulation containing asbestos
under Contract No. C-1540 when he needed to perform a tie-in to
existing equipment. As a result, the Court concludes that Mr.
Dufrene was exposed to asbestos while working under Contract No.
C-1540 and his claim for damages "resulted directly or indirectly
from Cajun's performance" under that contract.
The Court finds Oronite has demonstrated it was potentially liable
to Mr. Dufrene for strict premises liability. The Court points out
that had Mr. Dufrene's case against Oronite gone to trial, there
undoubtedly would have been testimony and evidence with respect
to: (1) whether Oronite was in control of the asbestos because it
was found in old insulation installed on its premises, (2) whether
the old insulation containing asbestos was unreasonably dangerous,
(3) whether Oronite failed to take reasonable steps to prevent Mr.
Dufrene's injuries, and (4) whether such failure was the cause --
at least in part -- of Mr. Dufrene's injuries.
The Court also determines that Contract No. C-1554 provides
indemnity for Mr. Dufrene's claims based on strict liability, and
pursuant to Section 5.7 of Contract No. C-1540, Oronite is
entitled to attorneys' fees and costs for its defense of the claim
filed by Mr. Dufrene and for its prosecution of this action.
The case is CHEVRON ORONITE COMPANY, LLC, Plaintiff, v. THE CAJUN
COMPANY, SECTION: "E" (5), Defendant, Civil Action No. 16-10594,
(E.D. La.).
A full-text copy of the Order dated August 10, 2017, is available
at https://is.gd/VXwy0f from Leagle.com.
Chevron Oronite Company LLC, Plaintiff, represented by Erin Wedge
Latuso, Forman, Watkins & Krutz LLP.
Chevron Oronite Company LLC, Plaintiff, represented by Daniel J.
Mulholland, Forman, Watkins, & Krutz, LLP, pro hac vice & Edwin S.
Gault, Jr., Forman, Watkins, & Krutz, LLP, pro hac vice.
Cajun Company, Defendant, represented by Dean Anderson Cole,
NeunerPate, Brandon Wade Letulier, NeunerPate, James L. Pate,
NeunerPate & Nicholas Gene Jones, NeunerPate.
ASBESTOS UPDATE: Union Pacific Had $8-Mil. Liability at June 30
---------------------------------------------------------------
Union Pacific Corporation reports current portion of asbestos-
related liability at US$8 million as of June 30, 2017 (US$6
million in 2016), according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2017.
Its ending balance for open claims at June 30, 2017 is US$102
million (US$104 million in 2016).
The Company states, "We are a defendant in a number of lawsuits in
which current and former employees and other parties allege
exposure to asbestos. We assess our potential liability using a
statistical analysis of resolution costs for asbestos-related
claims. This liability is updated annually and excludes future
defense and processing costs. The liability for resolving both
asserted and unasserted claims was based on the following
assumptions:
-- The ratio of future claims by alleged disease would be
consistent with historical averages adjusted for inflation.
-- The number of claims filed against us will decline each
year.
-- The average settlement values for asserted and unasserted
claims will be equivalent to historical averages.
-- The percentage of claims dismissed in the future will be
equivalent to historical averages.
"Our liability for asbestos-related claims is not discounted to
present value due to the uncertainty surrounding the timing of
future payments. Approximately 19% of the recorded liability
related to asserted claims and approximately 81% related to
unasserted claims at June 30, 2017.
"We have insurance coverage for a portion of the costs incurred to
resolve asbestos-related claims, and we have recognized an asset
for estimated insurance recoveries at June 30, 2017, and December
31, 2016.
"We believe that our estimates of liability for asbestos-related
claims and insurance recoveries are reasonable and probable. The
amounts recorded for asbestos-related liabilities and related
insurance recoveries were based on currently known facts.
However, future events, such as the number of new claims filed
each year, average settlement costs, and insurance coverage
issues, could cause the actual costs and insurance recoveries to
be higher or lower than the projected amounts. Estimates also may
vary in the future if strategies, activities, and outcomes of
asbestos litigation materially change; federal and state laws
governing asbestos litigation increase or decrease the probability
or amount of compensation of claimants; and there are material
changes with respect to payments made to claimants by other
defendants."
A full-text copy of the Form 10-Q is available at
https://is.gd/PKW1yR
ASBESTOS UPDATE: Travelers Had $1.19BB Net Reserves at June 30
--------------------------------------------------------------
The Travelers Companies, Inc., had net asbestos reserves of
US$1.19 billion at June 30, 2017, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2017.
The Travelers Companies states, "The Company believes that the
property and casualty insurance industry has suffered from court
decisions and other trends that have expanded insurance coverage
for asbestos claims far beyond the original intent of insurers and
policyholders.
"The Company has received and continues to receive a significant
number of asbestos claims from the Company's policyholders (which
includes others seeking coverage under a policy). Factors
underlying these claim filings include continued intensive
advertising by lawyers seeking asbestos claimants and the
continued focus by plaintiffs on defendants who were not
traditionally primary targets of asbestos litigation. The focus
on these defendants is primarily the result of the number of
traditional asbestos defendants who have sought bankruptcy
protection in previous years.
"In addition to contributing to the overall number of claims,
bankruptcy proceedings may increase the volatility of asbestos-
related losses by initially delaying the reporting of claims and
later by significantly accelerating and increasing loss payments
by insurers, including the Company. The bankruptcy of many
traditional defendants has also caused increased settlement
demands against those policyholders who are not in bankruptcy but
remain in the tort system. Currently, in many jurisdictions,
those who allege very serious injury and who can present credible
medical evidence of their injuries are receiving priority trial
settings in the courts, while those who have not shown any
credible disease manifestation are having their hearing dates
delayed or placed on an inactive docket. Prioritizing claims
involving credible evidence of injuries, along with the focus on
defendants who were not traditionally primary targets of asbestos
litigation, contributes to the claims and claim adjustment expense
payment patterns experienced by the Company. The Company's
asbestos-related claims and claim adjustment expense experience
also has been impacted by the unavailability of other insurance
sources potentially available to policyholders, whether through
exhaustion of policy limits or through the insolvency of other
participating insurers.
"The Company continues to be involved in coverage litigation
concerning a number of policyholders, some of whom have filed for
bankruptcy, who in some instances have asserted that all or a
portion of their asbestos-related claims are not subject to
aggregate limits on coverage. In these instances, policyholders
also may assert that each individual bodily injury claim should be
treated as a separate occurrence under the policy. It is
difficult to predict whether these policyholders will be
successful on both issues. To the extent both issues are resolved
in a policyholder's favor and other Company defenses are not
successful, the Company's coverage obligations under the policies
at issue would be materially increased and bounded only by the
applicable per-occurrence limits and the number of asbestos bodily
injury claims against the policyholders. Although the Company has
seen a reduction in the overall risk associated with these
lawsuits, it remains difficult to predict the ultimate cost of
these claims.
"Many coverage disputes with policyholders are only resolved
through settlement agreements. Because many policyholders make
exaggerated demands, it is difficult to predict the outcome of
settlement negotiations. Settlements involving bankrupt
policyholders may include extensive releases which are favorable
to the Company but which could result in settlements for larger
amounts than originally anticipated. There also may be instances
where a court may not approve a proposed settlement, which may
result in additional litigation and potentially less beneficial
outcomes for the Company. As in the past, the Company will
continue to pursue settlement opportunities.
"In addition to claims against policyholders, proceedings have
been launched directly against insurers, including the Company, by
individuals challenging insurers' conduct with respect to the
handling of past asbestos claims and by individuals seeking
damages arising from alleged asbestos-related bodily injuries. It
is possible that the filing of other direct actions against
insurers, including the Company, could be made in the future. It
is difficult to predict the outcome of these proceedings,
including whether the plaintiffs will be able to sustain these
actions against insurers based on novel legal theories of
liability. The Company believes it has meritorious defenses to
these claims and has received favorable rulings in certain
jurisdictions.
"The Company's quarterly asbestos reserve reviews include an
analysis of exposure and claim payment patterns by policyholder
category, as well as recent settlements, policyholder
bankruptcies, judicial rulings and legislative actions. The
Company also analyzes developing payment patterns among
policyholders in the Home Office and Field Office, and Assumed
Reinsurance and Other categories as well as projected reinsurance
billings and recoveries. In addition, the Company reviews its
historical gross and net loss and expense paid experience, year-
by-year, to assess any emerging trends, fluctuations, or
characteristics suggested by the aggregate paid activity.
Conventional actuarial methods are not utilized to establish
asbestos reserves nor have the Company's evaluations resulted in
any way of determining a meaningful average asbestos defense or
indemnity payment. Over the past decade, the property and
casualty insurance industry, including the Company, has
experienced net unfavorable prior year reserve development with
regard to asbestos reserves, but the Company believes that over
that period there has been a reduction in the volatility
associated with the Company's overall asbestos exposure as the
overall asbestos environment has evolved from one dominated by
exposure to significant litigation risks, particularly coverage
disputes relating to policyholders in bankruptcy who were
asserting that their claims were not subject to the aggregate
limits contained in their policies, to an environment primarily
driven by a frequency of litigation related to individuals with
mesothelioma. The Company's overall view of the current
underlying asbestos environment is essentially unchanged from
recent periods and there remains a high degree of uncertainty with
respect to future exposure to asbestos claims.
"Because each policyholder presents different liability and
coverage issues, the Company generally reviews the exposure
presented by each policyholder at least annually. Among the
factors which the Company may consider in the course of this
review are: available insurance coverage, including the role of
any umbrella or excess insurance the Company has issued to the
policyholder; limits and deductibles; an analysis of the
policyholder's potential liability; the jurisdictions involved;
past and anticipated future claim activity and loss development on
pending claims; past settlement values of similar claims;
allocated claim adjustment expense; potential role of other
insurance; the role, if any, of non-asbestos claims or potential
non-asbestos claims in any resolution process; and applicable
coverage defenses or determinations, if any, including the
determination as to whether or not an asbestos claim is a
products/completed operation claim subject to an aggregate limit
and the available coverage, if any, for that claim.
"Net asbestos paid loss and loss expenses in the first six months
of 2017 were US$139 million, compared with US$575 million in the
same period of 2016. Net payments in the first six months of 2016
included the payment of the US$518 million settlement amounts.
Net asbestos reserves were US$1.19 billion at June 30, 2017,
compared with US$1.23 billion at June 30, 2016."
A full-text copy of the Form 10-Q is available at
https://is.gd/B84T5A
ASBESTOS UPDATE: 174 Talcum Suits vs. Colgate-Palmolive Pending
---------------------------------------------------------------
Colgate-Palmolive Company disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2017, that 174 individual cases related to
asbestos-contaminated talcum powder products were pending against
the Company in state and federal courts throughout the United
States as of June 30, 2017. This is an increase from the 146
cases as of March 31, 2017 and 115 cases as of December 31, 2016.
Colgate-Palmolive states, "The Company has been named as a
defendant in civil actions alleging that certain talcum powder
products that were sold prior to 1996 were contaminated with
asbestos. Most of these actions involve a number of co-defendants
from a variety of different industries, including suppliers of
asbestos and manufacturers of products that, unlike the Company's
products, were designed to contain asbestos.
"During the three months ended June 30, 2017, 36 new cases were
filed and eight cases were resolved by voluntary dismissal or
settlement. During the six months ended June 30, 2017, 77 new
cases were filed and 18 cases were resolved by voluntary dismissal
or settlement. The value of settlements in the quarter and the
year-to-date period presented was not material, either
individually or in the aggregate, to each such period's results of
operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/7F21IP
ASBESTOS UPDATE: Honeywell Had $1.55-Bil. Liabilities at June 30
----------------------------------------------------------------
Honeywell International Inc. recorded total liabilities of US$1.55
billion related to asbestos matters at June 30, 2017, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2017.
The Company also recorded US$424 million insurance recoveries for
asbestos-related liabilities.
The Company states, "Honeywell is a defendant in asbestos related
personal injury actions related to two predecessor companies:
-- North American Refractories Company (NARCO), which was sold
in 1986, produced refractory products (bricks and cement used in
high temperature applications). Claimants consist largely of
individuals who allege exposure to NARCO asbestos-containing
refractory products in an occupational setting.
-- Bendix Friction Materials (Bendix) business, which was sold
in 2014, manufactured automotive brake parts that contained
chrysotile asbestos in an encapsulated form. Claimants consist
largely of individuals who allege exposure to asbestos from brakes
from either performing or being in the vicinity of individuals who
performed brake replacements."
A full-text copy of the Form 10-Q is available at
https://is.gd/69loWh
ASBESTOS UPDATE: Honeywell Had $913MM NARCO Liabilities at June30
-----------------------------------------------------------------
Honeywell International Inc. recorded US$913 million in asbestos-
related liabilities in a personal injury action involving
predecessor company North American Refractories Company (NARCO),
according to Honeywell's Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2017.
Narco, which was sold in 1986, produced refractory products
(bricks and cement used in high temperature applications).
The Company states, "In connection with NARCO's emergence from
bankruptcy on April 30, 2013, a federally authorized 524(g) trust
(NARCO Trust) was established for the evaluation and resolution of
all existing and future NARCO asbestos claims. Both Honeywell and
NARCO are protected by a permanent channeling injunction barring
all present and future individual actions in state or federal
courts and requiring all asbestos related claims based on exposure
to NARCO asbestos-containing products to be made against the NARCO
Trust. The NARCO Trust reviews submitted claims and determines
award amounts in accordance with established Trust Distribution
Procedures approved by the Bankruptcy Court which set forth the
criteria claimants must meet to qualify for compensation
including, among other things, exposure and medical criteria that
determine the award amount. In addition, Honeywell provided, and
continues to provide, input to the design of control procedures
for processing NARCO claims, and has on-going audit rights to
review and monitor the claims processors' adherence to the
established requirements of the Trust Distribution Procedures.
"Honeywell is obligated to fund NARCO asbestos claims submitted to
the NARCO Trust which qualify for payment under the Trust
Distribution Procedures (Annual Contribution Claims), subject to
annual caps of US$140 million in the years 2017 and 2018 and
US$145 million for each year thereafter. However, the initial
US$100 million of claims processed through the NARCO Trust (the
Initial Claims Amount) will not count against the annual cap and
any unused portion of the Initial Claims Amount will roll over to
subsequent years until fully utilized. In 2015, Honeywell filed
suit against the NARCO Trust in Bankruptcy Court alleging breach
of certain provisions of the Trust Agreement and Trust
Distribution Procedures. The parties agreed to dismiss the
proceeding without prejudice pursuant to an 18 month Standstill
Agreement that expires in October 2017. Claims processing will
continue during this period subject to a defined dispute
resolution process. As of June 30, 2017, Honeywell has not made
any payments to the NARCO Trust for Annual Contribution Claims.
"Honeywell is also responsible for payments due to claimants
pursuant to settlement agreements reached during the pendency of
the NARCO bankruptcy proceedings that provide for the right to
submit claims to the NARCO Trust subject to qualification under
the terms of the settlement agreements and Trust Distribution
Procedures criteria (Pre-established Unliquidated Claims), which
amounts are estimated at US$150 million and are expected to be
paid during the initial years of trust operations (US$5 million of
which has been paid since the effective date of the NARCO Trust).
Such payments are not subject to the annual cap described above.
"Our consolidated financial statements reflect an estimated
liability for pre-established unliquidated claims (US$145
million), unsettled claims pending as of the time NARCO filed for
bankruptcy protection (US$25 million) and for the estimated value
of future NARCO asbestos claims expected to be asserted against
the NARCO Trust (US$743 million). The estimate of future NARCO
claims is based on a commonly accepted methodology used by
numerous bankruptcy courts addressing 524(g) trusts and also
reflects disputes concerning implementation of the Trust
Distribution Procedures by the NARCO Trust, a lack of sufficient
trust claims processing experience, as well as the stay of all
NARCO asbestos claims which remained in place throughout NARCO's
Chapter 11 case. Some critical assumptions underlying this
commonly accepted methodology include claims filing rates, disease
criteria and payment values contained in the Trust Distribution
Procedures, estimated approval rates of claims submitted to the
NARCO Trust and epidemiological studies estimating disease
instances. The estimated value of future NARCO claims was
originally established at the time of the NARCO Chapter 11 filing
reflecting claims expected to be asserted against NARCO over a
fifteen year period. This projection resulted in a range of
estimated liability of US$743 million to US$961 million. We
believe that no amount within this range is a better estimate than
any other amount, and accordingly, we have recorded the minimum
amount in the range.
"Our insurance receivable corresponding to the estimated liability
for pending and future NARCO asbestos claims reflects coverage
which reimburses Honeywell for portions of NARCO-related indemnity
and defense costs and is provided by a large number of insurance
policies written by dozens of insurance companies in both the
domestic insurance market and the London excess market. We
conduct analyses to estimate the probable amount of insurance that
is recoverable for asbestos claims. While the substantial
majority of our insurance carriers are solvent, some of our
individual carriers are insolvent, which has been considered in
our analysis of probable recoveries. We made judgments concerning
insurance coverage that we believe are reasonable and consistent
with our historical dealings and our knowledge of any pertinent
solvency issues surrounding insurers.
"Projecting future events is subject to many uncertainties that
could cause the NARCO-related asbestos liabilities or assets to be
higher or lower than those projected and recorded. Given the
uncertainties, we review our estimates periodically, and update
them based on our experience and other relevant factors.
Similarly, we will reevaluate our projections concerning our
probable insurance recoveries in light of any changes to the
projected liability or other developments that may impact
insurance recoveries."
A full-text copy of the Form 10-Q is available at
https://is.gd/69loWh
ASBESTOS UPDATE: Honeywell Had $632MM Bendix Claims at June 30
--------------------------------------------------------------
Honeywell International Inc. recorded US$632 million in asbestos-
related liabilities in a personal injury action involving
predecessor company Bendix Friction Materials (Bendix) business,
according to Honeywell's Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2017.
Bendix, which was sold in 2014, manufactured automotive brake
parts that contained chrysotile asbestos in an encapsulated form.
The Company states, "Claimants consist largely of individuals who
allege exposure to asbestos from brakes from either performing or
being in the vicinity of individuals who performed brake
replacements.
"It is not possible to predict whether resolution values for
Bendix-related asbestos claims will increase, decrease or
stabilize in the future.
"Our consolidated financial statements reflect an estimated
liability for resolution of pending (claims actually filed as of
the financial statement date) and future Bendix-related asbestos
claims. We have valued Bendix pending and future claims using
average resolution values for the previous five years. We update
the resolution values used to estimate the cost of Bendix pending
and future claims during the fourth quarter each year.
"The liability for future claims represents the estimated value of
future asbestos related bodily injury claims expected to be
asserted against Bendix over the next five years. Such estimated
cost of future Bendix-related asbestos claims is based on historic
claims filing experience and dismissal rates, disease
classifications, and resolution values in the tort system for the
previous five years. In light of the uncertainties inherent in
making long-term projections, as well as certain factors unique to
friction product asbestos claims, we do not believe that we have a
reasonable basis for estimating asbestos claims beyond the next
five years. The methodology used to estimate the liability for
future claims is similar to that used to estimate the liability
for future NARCO-related asbestos claims.
"Our insurance receivable corresponding to the liability for
settlement of pending and future Bendix asbestos claims reflects
coverage which is provided by a large number of insurance policies
written by dozens of insurance companies in both the domestic
insurance market and the London excess market. Based on our
ongoing analysis of the probable insurance recovery, insurance
receivables are recorded in the financial statements simultaneous
with the recording of the estimated liability for the underlying
asbestos claims. This determination is based on our analysis of
the underlying insurance policies, our historical experience with
our insurers, our ongoing review of the solvency of our insurers,
judicial determinations relevant to our insurance programs, and
our consideration of the impacts of any settlements reached with
our insurers.
"Honeywell believes it has sufficient insurance coverage and
reserves to cover all pending Bendix-related asbestos claims and
Bendix-related asbestos claims estimated to be filed within the
next five years. Although it is impossible to predict the outcome
of either pending or future Bendix-related asbestos claims, we do
not believe that such claims would have a material adverse effect
on our consolidated financial position in light of our insurance
coverage and our prior experience in resolving such claims. If
the rate and types of claims filed, the average resolution value
of such claims and the period of time over which claim settlements
are paid (collectively, the Variable Claims Factors) do not
substantially change, Honeywell would not expect future Bendix-
related asbestos claims to have a material adverse effect on our
results of operations or operating cash flows in any fiscal year.
No assurances can be given, however, that the Variable Claims
Factors will not change."
A full-text copy of the Form 10-Q is available at
https://is.gd/69loWh
ASBESTOS UPDATE: PPG Industries Has 114K Inactive, Closed Claims
----------------------------------------------------------------
PPG Industries, Inc., still considers 114,000 reportable asbestos-
related claims, which are not related to Pittsburgh Corning
Corporation ("PC"), as closed or inactive litigation as they
relate to the Company, according for PPG's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2017.
Prior to 2000, the Company had been named as a defendant in
numerous claims alleging bodily injury from (i) exposure to
asbestos-containing products allegedly manufactured, sold or
distributed by the Company, its subsidiaries, or for which they
are otherwise alleged to be liable; (ii) exposure to asbestos
allegedly present at a facility owned or leased by the Company; or
(iii) exposure to asbestos-containing products of Pittsburgh
Corning Corporation ("PC") for which the Company was alleged to be
liable under a variety of legal theories (the Company and Corning
Incorporated were each 50% shareholders in PC).
In 2000, PC filed for Chapter 11 in the U.S. Bankruptcy Court for
the Western District of Pennsylvania in an effort to permanently
and comprehensively resolve all of its pending and future
asbestos-related liability claims.
The Company states, "At the time PC filed for bankruptcy, PPG had
been named as one of many defendants in one or more of the
categories of asbestos-related claims identified above. Over the
course of the 16 years during which the PC bankruptcy proceedings,
and corresponding preliminary injunction staying the prosecution
of asbestos-related claims against PPG, were pending, certain
plaintiffs alleging premises claims filed motions seeking to lift
the stay with respect to more than 1,000 individually-identified
premises claims. The Bankruptcy Court granted motions to lift the
stay in respect to certain of these premises claims and directed
PPG to engage in a process to address any additional premises
claims that were the subject of pending or anticipated lift-stay
motions. As a result of the overall process as directed by the
Bankruptcy Court involving more than 1,000 premises claims between
2006 and May 27, 2016, hundreds of these claims were withdrawn or
dismissed without payment and approximately 650 premises claims
were dismissed upon agreements by PPG and its insurers to resolve
such claims in exchange for monetary payments.
"With respect to the remaining claims still reportable within the
inventory of 114,000 asbestos-related claims at the time PC filed
for bankruptcy, the Company considers such claims to fall within
one or more of the following categories: (1) claims that have been
closed or dismissed as a result of processes undertaken during the
bankruptcy; (2) claims that may have been previously filed on the
dockets of state and federal courts in various jurisdictions, but
are inactive as to the Company; and (3) claims that are subject,
in whole or in part, to the channeling injunction and thus will be
resolved, in whole or in part, in accordance with the Trust
procedures established under the PC bankruptcy reorganization
plan. As a result of the foregoing, the Company does not consider
these three categories of claims to be open or active litigation
against it, although the Company cannot now determine whether, or
the extent to which, any of these claims may in the future be
reinstituted, reinstated, or revived such that they may become
open and active asbestos-related claims against it."
A full-text copy of the Form 10-Q is available at
https://is.gd/qKtbQW
ASBESTOS UPDATE: PPG Industries Had 650 Open Claims at June 30
--------------------------------------------------------------
PPG Industries, Inc. disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2017 that it is aware of approximately 650 open and active
asbestos-related claims pending against the Company and certain of
its subsidiaries as of June 30, 2017.
The Company states, "These claims consist primarily of non-PC
Relationship Claims and claims against a subsidiary of PPG. The
Company is defending the remaining open and active claims
vigorously.
"Since April 1, 2013, a subsidiary of PPG has been implicated in
claims alleging death or injury caused by asbestos-containing
products manufactured, distributed or sold by a North American
architectural coatings business or its predecessors which was
acquired by PPG. All such claims have been either served upon or
tendered to the seller for defense and indemnity pursuant to
obligations undertaken by the seller in connection with the
Company's purchase of the North American architectural coatings
business. The seller has accepted the defense of these claims
subject to the terms of various agreements between the Company and
the seller. The seller's defense and indemnity obligations in
connection with newly filed claims will cease with respect to
claims filed after April 1, 2018.
"PPG has established reserves totaling approximately US$180
million for asbestos-related claims that would not be channeled to
the Trust which, based on presently available information, we
believe will be sufficient to encompass all of PPG's current and
potential future asbestos liabilities. These reserves include a
US$162 million reserve established in 2009 in connection with an
amendment to the PC plan of reorganization. These reserves, which
are included within "Other liabilities" on the accompanying
consolidated balance sheets, represent PPG's best estimate of its
liability for these claims. PPG does not have sufficient current
claim information or settlement history on which to base a better
estimate of this liability in light of the fact that the
Bankruptcy Court's injunction staying most asbestos claims against
the Company was in effect from April 2000 through May 2016. PPG
will monitor the activity associated with its remaining asbestos
claims and evaluate, on a periodic basis, its estimated liability
for such claims, its insurance assets then available, and all
underlying assumptions to determine whether any adjustment to the
reserves for these claims is required.
"The amount reserved for asbestos-related claims by its nature is
subject to many uncertainties that may change over time, including
(i) the ultimate number of claims filed; (ii) the amounts required
to resolve both currently known and future unknown claims; (iii)
the amount of insurance, if any, available to cover such claims;
(iv) the unpredictable aspects of the litigation process,
including a changing trial docket and the jurisdictions in which
trials are scheduled; (v) the outcome of any trials, including
potential judgments or jury verdicts; (vi) the lack of specific
information in many cases concerning exposure for which PPG is
allegedly responsible, and the claimants' alleged diseases
resulting from such exposure; and (vii) potential changes in
applicable federal and/or state tort liability law. All of these
factors may have a material effect upon future asbestos-related
liability estimates. As a potential offset to any future asbestos
financial exposure, under the PC plan of reorganization PPG
retained, for its own account, the right to pursue insurance
coverage from certain of its historical insurers that did not
participate in the PC plan of reorganization. While the ultimate
outcome of PPG's asbestos litigation cannot be predicted with
certainty, PPG believes that any financial exposure resulting from
its asbestos-related claims will not have a material adverse
effect on PPG's consolidated financial position, liquidity or
results of operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/qKtbQW
ASBESTOS UPDATE: Lennox Int'l Paid $2.4MM for Asbestos Expenses
---------------------------------------------------------------
Lennox International Inc. recorded US$2.4 million expense for
asbestos-related litigation for the six months ended June 30,
2017, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2017.
The Company states, "We are involved in a number of claims and
lawsuits incident to the operation of our businesses. Insurance
coverages are maintained and estimated costs are recorded for such
claims and lawsuits, including costs to settle claims and
lawsuits, based on experience involving similar matters and
specific facts known.
"Some of these claims and lawsuits allege personal injury or
health problems resulting from exposure to asbestos that was
integrated into certain of our products. We have never
manufactured asbestos and have not incorporated asbestos-
containing components into our products for several decades. A
substantial majority of these asbestos-related claims have been
covered by insurance or other forms of indemnity or have been
dismissed without payment. The remainder of our closed cases have
been resolved for amounts that are not material, individually or
in the aggregate. Our defense costs for asbestos-related claims
are generally covered by insurance; however, our insurance
coverage for settlements and judgments for asbestos-related claims
varies depending on several factors and are subject to policy
limits, so we may have greater financial exposure for future
settlements and judgments. For the six months ended June 30, 2017
and 2016, expense for asbestos-related litigation was US$2.4
million and US$1.9 million, respectively, net of probable
insurance recoveries, for known and future asbestos-related
litigation and is recorded in Losses and other expenses, net in
the Consolidated Statements of Operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/gD2XMr
ASBESTOS UPDATE: Crane Co. Had 31,980 Pending Claims at June 30
---------------------------------------------------------------
Crane Co. continues to face 31,980 pending claims as of June 30,
2017, according to the Company's Form 8-K filed on July 25, 2017
with the U.S. Securities and Exchange Commission.
Crane Co. states, "As of June 30, 2017, the Company was a
defendant in cases filed in numerous state and federal courts
alleging injury or death as a result of exposure to asbestos.
"Of the 31,980 pending claims as of June 30, 2017, approximately
18,300 claims were pending in New York, approximately 800 claims
were pending in Texas, approximately 1,500 claims were pending in
Mississippi, and approximately 200 claims were pending in Ohio,
all jurisdictions in which legislation or judicial orders restrict
the types of claims that can proceed to trial on the merits.
"The Company has tried several cases resulting in defense verdicts
by the jury or directed verdicts for the defense by the court.
The Company further has pursued appeals of certain adverse jury
verdicts that have resulted in reversals in favor of the defense."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: New "Nelson" Trial v. Crane Co. Possible in 2018
----------------------------------------------------------------
Crane Co. disclosed in its Form 8-K filed on July 25, 2017, with
the U.S. Securities and Exchange Commission that the lawsuit over
James Nelson's asbestos claim "may be set" for a new trial in
2018.
The Company states, "On March 23, 2010, a Philadelphia,
Pennsylvania, state court jury found the Company responsible for a
1/11th share of a US$14.5 million verdict in the James Nelson
claim. On February 23, 2011, the court entered judgment on the
verdict in the amount of US$4.0 million, jointly, against the
Company and two other defendants, with additional interest in the
amount of US$0.01 million being assessed against the Company,
only. All defendants, including the Company, and the plaintiffs
took timely appeals of certain aspects of those judgments. On
September 5, 2013, a panel of the Pennsylvania Superior Court, in
a 2-1 decision, vacated the Nelson verdict against all defendants,
reversing and remanding for a new trial. Plaintiffs requested a
rehearing in the Superior Court and by order dated November 18,
2013, the Superior Court vacated the panel opinion, and granted en
banc reargument. On December 23, 2014, the Superior Court issued
a second opinion reversing the jury verdict. Plaintiffs sought
leave to appeal to the Pennsylvania Supreme Court, which
defendants have opposed. By order dated June 21, 2017, the
Supreme Court of Pennsylvania denied plaintiffs' petition for
leave to appeal. The case may be set for a new trial in 2018."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: Bid for Rehearing in "DeLisle" Granted
-------------------------------------------------------
The Supreme Court of Florida has granted a motion by plaintiffs
for a rehearing and/or appeal of a ruling in an asbestos suit
filed by Richard DeLisle, according to Crane Co.'s Form 8-K filed
on July 25, 2017 with the U.S. Securities and Exchange Commission.
The Company states, "On September 17, 2013, a Fort Lauderdale,
Florida state court jury in the Richard DeLisle claim found the
Company responsible for 16 percent of an US$8 million verdict.
The trial court denied all parties' post-trial motions, and
entered judgment against the Company in the amount of US$1.3
million. The Company has appealed. Oral argument on the appeal
took place on February 16, 2016. On September 14, 2016 a panel of
the Florida Court of Appeals reversed and entered judgment in
favor of the Company. Plaintiff filed with the Court of Appeals a
motion for rehearing and/or certification of an appeal to the
Florida Supreme Court, which the Court denied on November 9, 2016.
Plaintiffs have subsequently requested review by the Supreme Court
of Florida. Plaintiffs' motion was granted on July 11, 2017."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: Crane Co. Awaiting Ruling in "Poage" Suit
----------------------------------------------------------
Crane Co. is awaiting court ruling on its request for leave to
appeal before the Supreme Court in an asbestos suit filed by James
Poage, according to the Company's Form 8-K filed on July 25, 2017
with the U.S. Securities and Exchange Commission.
The Company states, "On July 2, 2015, a St. Louis, Missouri state
court jury in the James Poage claim entered a US$1.5 million
verdict for compensatory damages against the Company. The jury
also awarded exemplary damages against the Company in the amount
of US$10 million. The Company filed a motion seeking to reduce
the verdict to account for the verdict set-offs. That motion was
denied, and judgment was entered against the Company in the amount
of US$10.8 million. The Company initiated an appeal. Oral
argument was held on December 13, 2016. In an opinion dated May
2, 2017, a Missouri Court of Appeals panel affirmed the judgment
in all respects. The Court of Appeals denied the Company's motion
to transfer the case to the Supreme Court of Missouri. The
Company has sought leave to appeal before the Supreme Court."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: "Rabovsky" Lawsuit vs. Crane Co. Still Ongoing
---------------------------------------------------------------
Crane Co. is still facing legal action related to the asbestos
claim of Valent Rabovsky, according to the Company's Form 8-K
filed on July 25, 2017 with the U.S. Securities and Exchange
Commission.
The Company states, "On February 9, 2016, a Philadelphia,
Pennsylvania, federal court jury found the Company responsible for
a 30 percent share of a US$1.085 million verdict in the Valent
Rabovsky claim. The court ordered briefing on the amount of the
judgment. The Company argued, among other things, that settlement
offsets reduce the award to plaintiff under Pennsylvania law. A
further hearing was held April 26, 2016, after which the court
denied the Company's request and entered judgment in the amount of
US$0.4 million. The Company filed post-trial motions, which were
denied in two decisions issued on August 26, 2016 and September
28, 2016. The Company is pursuing an appeal to the Third Circuit
Court of Appeals, which was argued on June 12, 2017."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: Briefing on "Coulbourn" Claim to Proceed This Yr
-----------------------------------------------------------------
Crane Co. disclosed in its Form 8-K filed on July 25, 2017 with
the U.S. Securities and Exchange Commission that briefing on
matters involving the asbestos-related claim of George Coulbourn
will proceed before the Court later this year.
"On April 22, 2016, a Phoenix, Arizona federal court jury found
the Company responsible for a 20 percent share of a US$9 million
verdict in the George Coulbourn claim, and further awarded
exemplary damages against the Company in the amount of US$5
million. The jury also awarded compensatory and exemplary damages
against the other defendant present at trial. The court entered
judgment against the Company in the amount of US$6.8 million. The
Company filed post-trial motions, which were denied on September
20, 2016. The Company is pursuing an appeal to the Ninth Circuit
Court of Appeals. Briefing will proceed before the Court later
this year."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: Crane Co. to Appeal $20MM "Anisansel" Verdict
--------------------------------------------------------------
Crane Co. is set to proceed with post-trial actions related to the
US$20 million verdict on the asbestos-related claim of Geoffrey
Anisansel, according to the Company's Form 8-K filed on July 25,
2017 with the U.S. Securities and Exchange Commission.
The Company states, "On June 30, 2017, a New York City state court
jury entered a US$20 million verdict against the Company in the
Geoffrey Anisansel claim. The Company plans to file post-trial
motions and an appeal as necessary seeking to overturn the
verdict, to grant a new trial, or to reduce the damages, which the
Company argues were excessive under New York appellate case law
governing awards for non-economic losses and loss of consortium,
and further were subject to settlement offsets."
A full-text copy of the Form 8-K is available at
https://is.gd/8CvaMM
ASBESTOS UPDATE: Pentair Plc Units Had 600 Claims at June 30
------------------------------------------------------------
Pentair plc's subsidiaries are still facing approximately 600
asbestos-related claims as of June 30, 2017, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2017.
The Company states, "Our subsidiaries and numerous other companies
are named as defendants in personal injury lawsuits based on
alleged exposure to asbestos-containing materials. These cases
typically involve product liability claims based primarily on
allegations of manufacture, sale or distribution of industrial
products that either contained asbestos or were attached to or
used with asbestos-containing components manufactured by third-
parties. Each case typically names between dozens to hundreds of
corporate defendants. While we have observed an increase in the
number of these lawsuits over the past several years, including
lawsuits by plaintiffs with mesothelioma-related claims, a large
percentage of these suits have not presented viable legal claims
and, as a result, have been dismissed by the courts. Our
historical strategy has been to mount a vigorous defense aimed at
having unsubstantiated suits dismissed, and, where appropriate,
settling suits before trial. Although a large percentage of
litigated suits have been dismissed, we cannot predict the extent
to which we will be successful in resolving lawsuits in the
future.
"As of June 30, 2017, there were approximately 600 claims
outstanding against our subsidiaries. This amount is not adjusted
for claims that are not actively being prosecuted, identified
incorrect defendants, or duplicated other actions, which would
ultimately reflect our current estimate of the number of viable
claims made against us, our affiliates, or entities for which we
assumed responsibility in connection with acquisitions or
divestitures. In addition, the amount does not include certain
claims pending against third parties for which we have been
provided an indemnification."
A full-text copy of the Form 10-Q is available at
https://is.gd/uS5n9R
ASBESTOS UPDATE: 850 Suits vs. US Steel Still Active at June 30
---------------------------------------------------------------
United States Steel Corporation continues to defend in around 850
active asbestos litigation involving approximately 3,345
plaintiffs as of June 30, 2017, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2017.
The Company states, "As of June 30, 2017, U.S. Steel was a
defendant in approximately 850 active cases involving
approximately 3,345 plaintiffs. The vast majority of these cases
involve multiple defendants. At December 31, 2016, U.S. Steel was
a defendant in approximately 845 active cases involving
approximately 3,340 plaintiffs.
"As of June 30, 2017, about 2,500, or approximately 75 percent, of
these plaintiff claims are pending in jurisdictions which permit
filings with massive numbers of plaintiffs. Based upon U.S.
Steel's experience in such cases, we believe that the actual
number of plaintiffs who ultimately assert claims against U.S.
Steel will likely be a small fraction of the total number of
plaintiffs.
"Historically, asbestos-related claims against U.S. Steel fall
into three groups: (1) claims made by persons who allegedly were
exposed to asbestos on the premises of U.S. Steel facilities; (2)
claims made by persons allegedly exposed to products manufactured
by U.S. Steel; and (3) claims made under certain federal and
maritime laws by employees of former operations of U.S. Steel.
"The amount U.S. Steel accrues for pending asbestos claims is not
material to U.S. Steel's financial condition. However, U.S. Steel
is unable to estimate the ultimate outcome of asbestos-related
claims due to a number of uncertainties, including (1) the rates
at which new claims are filed, (2) the number of and effect of
bankruptcies of other companies traditionally defending asbestos
claims, (3) uncertainties associated with the variations in the
litigation process from jurisdiction to jurisdiction, (4)
uncertainties regarding the facts, circumstances and disease
process with each claim, and (5) any new legislation enacted to
address asbestos-related claims. Despite these uncertainties,
management believes that the ultimate resolution of these matters
will not have a material adverse effect on U.S. Steel's financial
condition, although the resolution of such matters could
significantly impact results of operations for a particular
quarter."
A full-text copy of the Form 10-Q is available at
https://is.gd/L29XB2
ASBESTOS UPDATE: Ingersoll-Rand Still Faces Claims at June 30
-------------------------------------------------------------
Ingersoll-Rand Public Limited Company disclosed in its Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2017 that at least 80 percent of
the open claims against the Company are non-malignancy or
unspecified disease claims.
Ingersoll-Rand states, "Certain wholly-owned subsidiaries of the
Company are named as defendants in asbestos-related lawsuits in
state and federal courts. In virtually all of the suits, a large
number of other companies have also been named as defendants. The
vast majority of those claims have been filed against either
Ingersoll-Rand Company or Trane U.S. Inc. (Trane) and generally
allege injury caused by exposure to asbestos contained in certain
historical products sold by Ingersoll-Rand Company or Trane,
primarily pumps, boilers and railroad brake shoes. Neither
Ingersoll-Rand Company nor Trane was a producer or manufacturer of
asbestos.
"The Company engages an outside expert to assist in calculating an
estimate of the Company's total liability for pending and
unasserted future asbestos-related claims and annually performs a
detailed analysis with the assistance of an outside expert to
update its estimated asbestos-related liability. The methodology
used to project the Company's total liability for pending and
unasserted potential future asbestos-related claims relied upon
and included the following factors, among others:
-- the outside expert's interpretation of a widely accepted
forecast of the population likely to have been occupationally
exposed to asbestos;
-- epidemiological studies estimating the number of people
likely to develop asbestos-related diseases such as mesothelioma
and lung cancer;
-- the Company's historical experience with the filing of non-
malignancy claims and claims alleging other types of malignant
diseases filed against the Company relative to the number of lung
cancer claims filed against the Company;
-- the outside expert's analysis of the number of people likely
to file an asbestos-related personal injury claim against the
Company based on such epidemiological and historical data and the
Company's most recent three-year claims history;
-- an analysis of the Company's pending cases, by type of
disease claimed and by year filed;
-- an analysis of the Company's most recent three-year history
to determine the average settlement and resolution value of
claims, by type of disease claimed;
-- an adjustment for inflation in the future average settlement
value of claims, at a 2.5% annual inflation rate, adjusted
downward to 1.5% to take account of the declining value of claims
resulting from the aging of the claimant population; and
-- an analysis of the period over which the Company has and is
likely to resolve asbestos-related claims against it in the
future.
"At June 30, 2017 and December 31, 2016, over 80 percent of the
open claims against the Company are non-malignancy or unspecified
disease claims, many of which have been placed on inactive or
deferral dockets and the vast majority of which have little or no
settlement value against the Company, particularly in light of
recent changes in the legal and judicial treatment of such
claims."
A full-text copy of the Form 10-Q is available at
https://is.gd/k2ldfo
ASBESTOS UPDATE: Ingersoll-Rand Has $596MM Liabilities at Jun.30
----------------------------------------------------------------
Ingersoll-Rand Public Limited Company has total asbestos-related
liabilities of US$595.9 million as of June 30, 2017, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2017.
Ingersoll-Rand states, "The Company's asbestos insurance
receivable related to Ingersoll-Rand Company and Trane was
US$129.2 million and US$132.1 million at June 30, 2017,
respectively, and US$129.6 million and US$142.9 million at
December 31, 2016, respectively.
"Income and expenses associated with Ingersoll-Rand Company's
asbestos liabilities and corresponding insurance recoveries are
recorded within discontinued operations, primarily Ingersoll-
Dresser Pump, previously divested businesses which was sold by the
Company in 2000. During the second quarter of 2017, the Company
reached a settlement with insurance carriers related to Ingersoll-
Rand Company asbestos matters. In addition, the Company reached a
settlement with an insurance carrier related to Ingersoll-Rand
Company asbestos matters during the first quarter of 2016. Income
and expenses associated with Trane's asbestos liabilities and
corresponding insurance recoveries are primarily recorded within
Other income/(expense), net as part of continuing operations.
"The receivable attributable to Trane for probable insurance
recoveries as of June 30, 2017 is entirely supported by settlement
agreements between Trane and the respective insurance carriers.
Most of these settlement agreements constitute "coverage-in-place"
arrangements, in which the insurer signatories agree to reimburse
Trane for specified portions of its costs for asbestos bodily
injury claims and Trane agrees to certain claims-handling
protocols and grants to the insurer signatories certain releases
and indemnifications.
"In 2012 and 2013, Ingersoll-Rand Company filed actions in the
Superior Court of New Jersey, Middlesex County, seeking a
declaratory judgment and other relief regarding the Company's
rights to defense and indemnity for asbestos claims. The
defendants were several dozen solvent insurance companies,
including companies that had been paying a portion of Ingersoll-
Rand Company's asbestos claim defense and indemnity costs. The
responding defendants generally challenged the Company's right to
recovery, and raised various coverage defenses. Since filing the
actions, Ingersoll-Rand Company has settled with approximately
two-thirds of the insurer defendants, and has dismissed one of the
actions in its entirety.
The Company continually monitors the status of pending litigation
that could impact the allocation of asbestos claims against the
Company's various insurance policies. The Company has concluded
that its Ingersoll-Rand Company insurance receivable is probable
of recovery because of the following factors:
-- Ingersoll-Rand Company has reached favorable settlements
regarding asbestos coverage claims for the majority of its
recorded asbestos-related insurance receivable;
-- a review of other companies in circumstances comparable to
Ingersoll-Rand Company, including Trane, and the success of other
companies in recovering under their insurance policies, including
Trane's favorable settlements referenced above;
-- the Company's confidence in its right to recovery under the
terms of its policies and pursuant to applicable law; and
-- the Company's history of receiving payments under the
Ingersoll-Rand Company insurance program, including under policies
that had been the subject of prior litigation.
"The amounts recorded by the Company for asbestos-related
liabilities and insurance-related assets are based on currently
available information. The Company's actual liabilities or
insurance recoveries could be significantly higher or lower than
those recorded if assumptions used in the calculations vary
significantly from actual results. Key variables in these
assumptions include the number and type of new claims to be filed
each year, the average cost of resolution of each such new claim,
the resolution of coverage issues with insurance carriers, and the
solvency risk with respect to the Company's insurance carriers.
Furthermore, predictions with respect to these variables are
subject to greater uncertainty as the projection period lengthens.
Other factors that may affect the Company's liability include
uncertainties surrounding the litigation process from jurisdiction
to jurisdiction and from case to case, reforms that may be made by
state and federal courts, and the passage of state or federal tort
reform legislation.
"The aggregate amount of the stated limits in insurance policies
available to the Company for asbestos-related claims acquired over
many years and from many different carriers, is substantial.
However, limitations in that coverage, primarily due to the
considerations described above, are expected to result in the
projected total liability to claimants substantially exceeding the
probable insurance recovery."
A full-text copy of the Form 10-Q is available at
https://is.gd/k2ldfo
ASBESTOS UPDATE: Corning Inc. Has US$35MM Liability in PCC Plan
---------------------------------------------------------------
Corning Incorporated has US$35 million current liability related
to asbestos matters under the reorganization plan of Pittsburgh
Corning Corporation (PCC), according to Corning Inc.'s Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2017.
The Company states, "Corning and PPG Industries, Inc. each owned
50% of the capital stock of Pittsburgh Corning Corporation
("PCC"). PCC filed for Chapter 11 reorganization in 2000 and the
Modified Third Amended Plan of Reorganization for PCC (the "Plan")
became effective in April 2016.
"At December 31, 2016, this estimated liability was US$290
million, due to the Company's contribution, in the second quarter
of 2016, of its equity interests in PCC and Pittsburgh Corning
Europe N.V. ("PCE") in the total amount of US$238 million, as
required by the Plan. A payment for US$70 million was made in
June 2017.
"At June 30, 2017, the total amount of payments due in years 2018
through 2022 is US$220 million. A US$35 million payment is due in
the second quarter of 2018 and is classified as a current
liability. The remaining US$185 million is classified as a non-
current liability."
A full-text copy of the Form 10-Q is available at
https://is.gd/2xCu6R
ASBESTOS UPDATE: Corning Had $149MM Non-PCC Reserves at June 30
---------------------------------------------------------------
Corning Incorporated recorded a reserve of US$149 million as of
June 30, 2017 for asbestos claims that are unrelated to Pittsburgh
Corning Corporation ("PCC"), according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2017.
Corning owned 50% of the capital stock of PCC, which filed for
Chapter 11 reorganization in 2000 and the Modified Third Amended
Plan of Reorganization for PCC (the "Plan") became effective in
April 2016.
The Company states, "Corning is a defendant in certain cases
alleging injuries from asbestos unrelated to PCC (the "non-PCC
asbestos claims") which had been stayed pending the confirmation
of the Plan. The stay was lifted on August 25, 2016. Corning
previously established a US$150 million reserve for these non-PCC
asbestos claims. The estimated reserve represents the
undiscounted projection of claims and related legal fees over the
next 20 years. The amount may need to be adjusted in future
periods as more data becomes available; however, we cannot
estimate any lesser or greater liabilities at this time. At
December 31, 2016 and June 30, 2017, the amount of the reserve for
these non-PCC asbestos claims was US$149 million.
"Several of Corning's insurers have commenced litigation in state
courts for a declaration of the rights and obligations of the
parties under insurance policies related to Corning's asbestos
claims. Corning has resolved these issues with a majority of its
relevant insurers, and is vigorously contesting these cases with
the remaining relevant insurers. Management is unable to predict
the outcome of the litigation with these remaining insurers."
A full-text copy of the Form 10-Q is available at
https://is.gd/2xCu6R
ASBESTOS UPDATE: Lincoln Electric Had 3,784 Claims at June 30
-------------------------------------------------------------
Lincoln Electric Holdings, Inc., remains a co-defendant in cases
alleging asbestos-induced illness involving claims by
approximately 3,784 plaintiffs as of June 30, 2017, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2017.
The Company states, "In each instance, the Company is one of a
large number of defendants. The asbestos claimants seek
compensatory and punitive damages, in most cases for unspecified
sums. Since January 1, 1995, the Company has been a co-defendant
in other similar cases that have been resolved as follows: 54,518
of those claims were dismissed, 23 were tried to defense verdicts
(one of which is on appeal), seven were tried to plaintiff
verdicts (one of which was appealed by defendants and has been
sent back to the trial court for a new trial), one was resolved by
agreement for an immaterial amount and 771 were decided in favor
of the Company following summary judgment motions."
A full-text copy of the Form 10-Q is available at
https://is.gd/0X0pqf
ASBESTOS UPDATE: Norfolk Southern Still Faces Asbestosis Claims
---------------------------------------------------------------
Norfolk Southern Corporation continues to face occupational
claims, including asbestosis, by former or retired employees,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2017.
The Company states, "Occupational claims (including asbestosis and
other respiratory diseases, as well as conditions allegedly
related to repetitive motion) are often not caused by a specific
accident or event but rather allegedly result from a claimed
exposure over time. Many such claims are being asserted by former
or retired employees, some of whom have not been employed in the
rail industry for decades. The independent actuarial firm
provides an estimate of the occupational claims liability based
upon our history of claim filings, severity, payments, and other
pertinent facts. The liability is dependent upon judgments we
make as to the specific case reserves as well as judgments of the
actuarial firm in the quarterly studies. The actuarial firm's
estimate of ultimate loss includes a provision for those claims
that have been incurred but not reported. This provision is
derived by analyzing industry data and projecting our experience.
We adjust the liability quarterly based upon our assessment and
the results of the study. However, it is possible that the
recorded liability may not be adequate to cover the future payment
of claims. Adjustments to the recorded liability are reflected in
operating expenses in the periods in which such adjustments become
known."
A full-text copy of the Form 10-Q is available at
https://is.gd/LpcJQ0
ASBESTOS UPDATE: Carlisle Cos. Still Defends Claims at June 30
--------------------------------------------------------------
Carlisle Companies Incorporated disclosed in its Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2017, that the amount of "reasonably
possible" additional asbestos claims, if any, "is not material to"
its financial position and operations.
The Company states, "Over the years, the Company has been named as
a defendant, along with numerous other defendants, in lawsuits in
various state courts in which plaintiffs have alleged injury due
to exposure to asbestos-containing brakes, which Carlisle
manufactured in limited amounts between the late-1940s and the
mid-1980s. In addition to compensatory awards, these lawsuits may
also seek punitive damages. Generally, the Company has obtained
dismissals or settlements of its asbestos-related lawsuits with no
material effect on its financial condition, results of operations,
or cash flows. The Company maintains insurance coverage that
applies to the Company's defense costs and payments of settlements
or judgments in connection with asbestos-related lawsuits. At
this time, the amount of reasonably possible additional asbestos
claims, if any, is not material to the Company's financial
position, results of operations, or operating cash flows, although
these matters could result in the Company being subject to
monetary damages, costs or expenses, and charges against earnings
in particular periods."
A full-text copy of the Form 10-Q is available at
https://is.gd/j6F526
ASBESTOS UPDATE: IDEX Corp., Units Still Face Suits at June 30
--------------------------------------------------------------
IDEX Corporation and six of its subsidiaries are still defending
themselves against a number of lawsuits claiming various asbestos-
related personal injuries, allegedly as a result of exposure to
products manufactured with components that contained asbestos,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2017.
The Company states, "These components were acquired from third
party suppliers, and were not manufactured by the Company or any
of the defendant subsidiaries. To date, the majority of the
Company's settlements and legal costs, except for costs of
coordination, administration, insurance investigation and a
portion of defense costs, have been covered in full by insurance,
subject to applicable deductibles. However, the Company cannot
predict whether and to what extent insurance will be available to
continue to cover these settlements and legal costs, or how
insurers may respond to claims that are tendered to them.
"Claims have been filed in jurisdictions throughout the United
States. Most of the claims resolved to date have been dismissed
without payment. The balance have been settled for various
insignificant amounts. Only one case has been tried, resulting in
a verdict for the Company's business unit. No provision has been
made in the financial statements of the Company, other than for
insurance deductibles in the ordinary course, and the Company does
not currently believe the asbestos-related claims will have a
material adverse effect on the Company's business, financial
position, results of operations or cash flows."
A full-text copy of the Form 10-Q is available at
https://is.gd/VKWWHC
ASBESTOS UPDATE: Equity LifeStyle, DAs Still in Settlement Talks
----------------------------------------------------------------
Equity LifeStyle Properties, Inc. is involved in settlement
discussions with District Attorneys' offices regarding alleged
asbestos-related violation on its properties in California,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2017.
The Company states, "In November 2014, we received a civil
investigative subpoena from the office of the District Attorney
for Monterey County, California ("MCDA"), seeking information
relating to, among other items, statewide compliance with asbestos
and hazardous waste regulations dating back to 2005 primarily in
connection with demolition and renovation projects performed by
third-party contractors at our California Properties. We
responded by providing the information required by the subpoena.
"On October 20, 2015, we attended a meeting with representatives
of the MCDA and certain other District Attorneys' offices at which
the MCDA reviewed the preliminary results of their investigation
including, among other things, (i) alleged violations of asbestos
and related regulations associated with approximately 200
historical demolition and renovation projects in California; (ii)
potential exposure to civil penalties and unpaid fees; and (iii)
next steps with respect to a negotiated resolution of the alleged
violations.
"No legal proceedings have been instituted to date and we are
involved in settlement discussions with the District Attorneys'
offices. We continue to assess the allegations and the underlying
facts, and at this time we are unable to predict the outcome of
the investigation or reasonably estimate any possible loss."
A full-text copy of the Form 10-Q is available at
https://is.gd/23ofsq
ASBESTOS UPDATE: Badger Meter Still Faces PI Suits at June 30
-------------------------------------------------------------
Badger Meter, Inc. still defends itself against numerous asbestos-
related personal injury lawsuits, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2017.
The Company states, "Like other companies in recent years, the
Company is named as a defendant in numerous pending multi-
claimant/multi-defendant lawsuits alleging personal injury as a
result of exposure to asbestos, manufactured by third parties, and
in the past may have been integrated into or sold with a very
limited number of the Company's products. The Company is
vigorously defending itself against these claims. Although it is
not possible to predict the ultimate outcome of these matters, the
Company does not believe the ultimate resolution of these issues
will have a material adverse effect on the Company's financial
position or results of operations, either from a cash flow
perspective or on the financial statements as a whole. This
belief is based in part on the fact that no claimant has proven or
substantially demonstrated asbestos exposure caused by products
manufactured or sold by the Company and that a number of cases
have been voluntarily dismissed."
A full-text copy of the Form 10-Q is available at
https://is.gd/9TrfZ7
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Copyright 2017. All rights reserved. ISSN 1525-2272.
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