/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171013.mbx C L A S S A C T I O N R E P O R T E R Friday, October 13, 2017, Vol. 19, No. 203 Headlines AMAZON.COM: "Knipe" Suit Moved to Southern District of California AMERICAN GOLF: Violates Wage & Hour Laws, "Garcia" Suit Says AT&T SERVICES: Training Managers Ink $2.75M Class Action Wage Deal BLOOMBERG LP: Court Grants Class Certification in NYLL Suit BMW BANK: 3rd Circuit Reverses Class Certification Ruling BROTHER'S BAKERY: Ramirez Rojas Sues Over Inappropriate Wages C.A.A.I.R.: Faces "Copeland" Suit in N. Dist. Okla. CEDARS-SINAI HEALTH: "Castro" Suit Seeks Unpaid Wages CENTRAL AMUSEMENT: Faces "Del-Orden" Suit in S.D. of New York CHARIOTS OF HIRE: Court Adopts Conditional Class Certification CHARTER COMMUNICATIONS: "Sansone" Suit Moved to S.D. California COMMERCIAL PROTECTIVE: Miller Seeks Unpaid Wages under Labor Code CONSUMER FINANCIAL: Banks, Business Groups File Lawsuits CYPRESS SECURITY: Reese Seeks Unpaid Wages under Labor Code DISTRICT OF COLUMBIA: Faces Class Action Over Jail Overdetentions DJI TECHNOLOGY: Court Narrows Claims in "Howard" DOMETIC CORPORATION: Faces "Zimmer" Suit in C.D. California ECLIPSE FINANCIAL: Faces "Best" Suit in E. Dist. Penn. ELMCROFT SENIOR: "Gallegos" Suit Moved to S.D. California ENCORE RECEIVABLE: Spilski Sues over Debt Collection Practices EQUIFAX INC: Faces "Thomson" Suit over Consumer Data Breach EQUIFAX INFORMATION: Faces "Meyers" Suit over Data Breach EQUIFAX INC: Faces "Martin" Sues over Consumer Data Breach EQUIFAX INC: Faces "Ramsay" Suit over Consumer Data Breach EQUIFAX INC: Faces "Flores" Suit in Southern Dist. of New York EQUIFAX INC: Fails to Protect Class Members' PII, Melrath Alleges EQUIFAX INC: Murphy Sues for Failure to Protect Personal Info EQUIFAX INC: Maryland Only Class Action Suit Filed After Breach FC BACKGROUND: Faces RTR Suit over Workforce Screening Services GALE/TRIANGLE INC: Court OK's $650K Class Action Settlement GAMESTOP CORP: Hit With Class Action Over Data Breach GEICO INDEMNITY: Faces "Lorenti" Suit in M. Dist. Fla. GEO GROUP: Faces "Olmos" Suit in Arizona GOOGLE INC: Faces "Ellis" Suit over Gender Pay Gap GREAT WOLF RESORTS: Faces "Anderson" Suit in E.D. New York GULF WORLD: Faces "Vallee" over Credit Card Receipts HERBALIFE LTD: Accused by Rodgers of Negligent Misrepresentation HOSPITALITY STAFFING: "Arguelles" Suit Moved to S.D. California J. R. CARLSON: Faces "Kramarz" Suit over L-Glutamine Product JLN CONSTRUCTION: Lee Seeks to Recover Unpaid Wages Under FLSA KITE PHARMA: "Morrissey" Suit Seeks to Enjoin Merger with Gilead MAJOR LEAGUE: Faces Class Action Over Fan Injuries at Games MARRIOT OWNERSHIP: Faces Labor Class Action in California MASSACHUSETTS MUTUAL: Ehrlich Sues over Benefit Payments MASTERCARD INC: Consumer's GBP14-Bil. Class Action Appeal Denied MDL 2284: Ct. Affirms Arborist Panel's Denial of "Mojsiej" Appeal MDL 2284: Ct. Affirms Arborist Panel's Denial of "Rehn" Appeal MEDICAL REHABILITATION: Faces "Bungy" Suit in Del. Super. Ct. MICHIGAN: Class Action Over Flint Schools Gets Green Light MIDLAND CREDIT: Must Show Cause Why "Tripp" Must Not Be Remanded MONSANTO COMPANY: Faces "Ritchie" Suit over Herbicide Roundup MONSANTO COMPANY: Faces "Ayres" Suit over Herbicide Roundup NAT'L FOOTBALL: Expert Issues Opinion, Concussion Suits Pending NEW YORK, NY: Faces "Stallworth" Suit in S.D. New York NEW YORK HEALTH CARE: Home Care Workers Sue Over Unpaid Overtime NEW ZEALAND: Class Action Mulled v. Councils Over Leaky Buildings NORTHWEST CASCADE: Judge Certifies Class Action Over Odors O'REILLY AUTOMOTIVE: Faces Lawsuits Over Windshield Wiper Fluid OASIS LEGAL: "Smith" Suit Moved to Middle District of Florida ONLINE INFORMATION: Faces "Shomer" Suit in E.D. New York ORACLE: Former Employees Sue Over Pay Discrimination OREGON: Court Dismisses Class Suit Over DHS In-Home Services PARKING SOLUTIONS: Ct. Adopts Final Approval of Class Settlement PENSKE LOGISTICS: "Stuck" Suit Moved to N.D. California PFIZER INC: Faces "Al Haj" Suit in Northern Dist. of Illinois PHILLIPS STEEL: Son Seeks Minimum & OT Wages under Labor Code PIER 1 IMPORTS: Terminated as Defendant in "Mathein" PIERATT'S INC: "Henderson" Suit Moved to E.D. Kentucky R&R EXPRESS: "Rood" Suit Wants Damages for Non-Payment of Wages R.T.G. FURNITURE: "Bulgajewski" Suit Moved to M.D. Florida RENTOKIL NORTH AMERICA: "Tovar" Suit Seeks Unpaid Wages ROYAL CARIBBEAN: Hit with CA Over Hurricane Harvey Cancellation SAFEGUARD PROPERTIES: Judge OKs Illinois CA Over Home Inspections SATELLITE COUNTRY: "Prejean" Suit Seeks OT Wages under FLSA SATOSHI NAKAMOTO: Faces Class Action Over Alleged Bitcoin Fraud SECURUS TECHNOLOGIES: Wright Petitioners Oppose Sale to Platinum SHINE CORPORATE: Quinn Emanuel Files Class Action SINGING RIVER: Steven Simpson Removed as Pension Plan Overseer SNOWPLOW LH: Faces "Yu" Suit over Downpayment for Condo Purchase SOR TECHNOLOGY: Faces "Dickson" Suit in C.D. California SPECIALIZED LOAN: Court Denies Move to Dismiss FAC in "Smith" STATE COLLECTION: Faces "Simpson" Suit in E.D. Pennsylvania SULLIVAN UNIVERSITY: Ruling Could Up Suits Over Wage Disputes TENNESSEE: Sued Over License Suspensions Due to Unpaid Fines TERANET: Ontario Court Dismisses Appeal in Class Action TRANS UNION: Faces "Jakob" Suit over Fair Credit Reporting Act UNITED STAFFING: "Byers" Suit Seeks OT Wages under Labor Code UNITED STATES: 10th Cir. Affirms Settlement in Prisoner's Suit UNITED STATES: Ct. Adopts Prelim Approval of "Moss" Settlement URBAN SETTLEMENT: Court Denies Move to Strike Class Allegations VERASTIQUE ENTERPRISES: Lopez Sues Over Unpaid Overtime Wages VOLKSWAGEN AG: Merkel's Party Rejects Call for Class Action VOLKSWAGEN GROUP: "Alters" Suit Moved to District of New Jersey WELLS FARGO: Faces Lawsuit Over Window and Door Financing WENDY'S COMPANY: Banczak and Jastrzebska Sue over Beverage Tax WESTPORT RECOVERY: Accused by "McElveen" Suit of Violating FDCPA WS ENERGY: "Mansilla" Suit Seeks Unpaid Compensation under FLSA ZILLOW GROUP: "Shotwell" Securities Suit Cites CFPB Probe * California Helps Workers Sue Their Bosses * NCEO Analyzes Recent Trends in Employer Stock Plan Litigation Asbestos Litigation ASBESTOS UPDATE: Univar Faces Less Than 278 Claims at June 30 ASBESTOS UPDATE: MRC Global Faces 508 Exposure Suits at June 30 ASBESTOS UPDATE: Metlife Unit Had 1,896 New Claims at June 30 ASBESTOS UPDATE: WABTec Still Faces PI Claims at June 30 ASBESTOS UPDATE: General Cable Had 309 Asbestos Cases at June 30 ASBESTOS UPDATE: Former College Technician Exposed to Asbestos ASBESTOS UPDATE: EPA to Continue Asbestos Libby Cleanup ASBESTOS UPDATE: Asbestos Concerns Close Jersey Shore District ASBESTOS UPDATE: BART to Remove Asbestos from Powell St. Station ASBESTOS UPDATE: Mesothelioma Case vs J&J Being Heard in Pasadena ASBESTOS UPDATE: J&J Asbestos Talc Caused Illness, Jury Told ASBESTOS UPDATE: Uphill Battle to Ban Use of Asbestos in Vietnam ASBESTOS UPDATE: Mesothelioma Fears Halts Sydney Opera House Work ASBESTOS UPDATE: Fly-tipper Caught Dumping Asbestos ASBESTOS UPDATE: Widow of Asbestos Cancer Victim Seeks Answers ASBESTOS UPDATE: Council Probes Into Aberdeen Asbestos Claims ASBESTOS UPDATE: Asbestos Remediation Costs Jump to $3.5MM ASBESTOS UPDATE: TOSHA Probes Complaint of Asbestos at Hotel ASBESTOS UPDATE: Mistrial in Johnson & Johnson Asbestos Talc Case ASBESTOS UPDATE: Quarries Closed Over Fertilizer Asbestos Scare ASBESTOS UPDATE: Filings Allege Secondhand Exposure to Son ASBESTOS UPDATE: NY App. Div. Affirms $9MM Award in "Miller" ASBESTOS UPDATE: Parties "Richey" Directed to Re-File Filings ASBESTOS UPDATE: "Holzer" Remanded to Missouri State Court ASBESTOS UPDATE: Ruling Sustaining Bare-Metal Defense Affirmed ********* AMAZON.COM: "Knipe" Suit Moved to Southern District of California ----------------------------------------------------------------- The class action lawsuit titled Persis Knipe, an individual, on behalf of herself, on behalf of all persons similarly situated, the Plaintiff, v. Amazon.com, Inc., a Corporation; Amazon Logistics, Inc., a Corporation; and DOES 1 through 50 inclusive, Case No. 37-02017-00029426-CU-OE-CTL, was removed on Sep. 14, 2017 from the Superior Court of California, San Diego County, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-01889- WQH-JMA to the proceeding. The case is assigned to the Hon. Judge William Q. Hayes. Amazon.com, doing business as Amazon, is an American electronic commerce and cloud computing company based in Seattle, Washington that was founded by Jeff Bezos on July 5, 1994.[BN] The Plaintiff is represented by: Norman B Blumenthal, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551 1223 Facsimile: (858) 551 1232 E-mail: norm@bamlawlj.com The Defendants are represented by: Theresa Mak, Esq. MORGAN LEWIS AND BOCKIUS 1 Market, Spear Tower San Francisco, CA 94105 Telephone: (415) 442 1354 Facsimile: (415) 442 1001 E-mail: theresa.mak@morganlewis.com AMERICAN GOLF: Violates Wage & Hour Laws, "Garcia" Suit Says ------------------------------------------------------------ FRANCISCO GARCIA, on behalf of himself and all others similarly situated, the Plaintiffs, v. AMERICAN GOLF CORPORATION, a California corporation; AGC FIELD OPERATIONS LLC, a Delaware limited liability company; and DOES 1 through 100, Inclusive, the Defendants, Case No. BC675985 (Cal. Super. Ct., Sep. 14, 2017), seeks to recover unpaid overtime wages, minimum wages, and all wages pursuant to the California Labor Code. According to the complaint, Defendants have had a consistent policy of failing to pay wages, including overtime wages, to Plaintiff and other non-exempt employees in the State of California in violation of California state wage and hour laws as a result of, including but not limited to, unevenly rounding time worked. The Defendants operate and manage golf courses in California.[BN] The Plaintiffs are represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone (310) 553-3600 Facsimile (310) 553-3603 AT&T SERVICES: Training Managers Ink $2.75M Class Action Wage Deal ------------------------------------------------------------------ Cara Bayles, writing for Law360, reports that a class of corporate training managers asked a California federal judge on September 29 to approve a $2.75 million settlement with AT&T, which would end its suit alleging the telecom giant misclassified them as independent contractors and failed to pay them overtime in violation of the Fair Labor Standards Act. In a motion for preliminary approval, the class asked U.S. District Judge Vince Chhabria to approve a deal with what it admitted was "a somewhat unusual structure." The proposal includes a hybrid fund that is both a common fund for California class members and FLSA opt-ins and a claims-made fund for out-of-staters who could but have not yet asserted a claim under the FLSA. Attorneys said that while the settlement's implementation would be complex, it was a good result for the class and collective of employees. "Settlement now saves class members significant risk of no recovery, the cost of individual litigation, and the delay inherent in further litigation and possible appeals. The litigation is highly complex, both procedurally and substantively," the complaint said. "Further litigation could easily last several more years and investment of hundreds of thousands of dollars more in costs, and a million dollars or more of attorney time." Named plaintiffs Wendell Walton and Michael Mantonya filed the wage and hour suit in 2015, saying training managers who teach AT&T employees about the company's vendors and policies were misclassified as being independent contractors who were overtime exempt. In September 2016, Judge Chhabria conditionally certified a nationwide FLSA collective, and 91 members have opted in. On September 29th's complaint seeks conditional class certification for settlement purposes as well. The complaint says that soon after the judge denied AT&T's motions for summary judgment against the named plaintiffs, settlement discussions began. The settlement would be available to a class of 47 managers who did not sign an arbitration clause in their employment agreement and who worked in California since May 18, 2011. It also applies to 68 workers who worked outside California after May 2012 and opted into the suit as well as 189 who worked outside California since 2014 but have not yet opted in. The 189 California employees who worked at the company after May 2014 can still be represented by the Private Attorneys General Act claim even if they signed the arbitration agreement. The $2.75 million settlement would set aside $80,000 for PAGA payments, $20,000 for each class representation as well as seven $5,000 witness service awards. Attorneys' fees and costs would be capped at $1.2 million, and the settlement administration costs are estimated to total $40,000. The remaining amount would be split up, with 85 percent going to existing members and 15 percent set aside for future opt-ins. Claims will be calculated based on number of workweeks, location and job title. All class members must sign an agreement promising to arbitrate any future claims in order to get their settlement, according to court filings. AT&T spokesman Marty Richter said in an email on September 30 that the company admitted to no wrongdoing by agreeing to the settlement. "We're committed to full compliance with all federal and state laws, including the wage and hour laws, and have received numerous awards for being an employer of choice," he said. "Rather than engage in drawn-out litigation we have entered this settlement, which we believe reflects a fair resolution." Attorneys and representatives for the class were not immediately available for comment on September 29. The class is represented by Jahan Sagafi, Esq. Relic Sun, Esq. -- jsagafi@outtengolden.com -- and Michael Litrownik, Esq. -- mlitrownik@outtengolden.com -- of Outten & Golden LLP. AT&T is represented by Thomas Kaufman, Esq. -- tkaufman@sheppardmullin.com -- Paul Berkowitz, Esq. -- pberkowitz@sheppardmullin.com -- and Michael Campbell, Esq. -- mcampbell@sheppardmullin.com -- of Sheppard Mullin Richter & Hampton LLP. The case is Wendell Walton et al. v. AT&T Services Inc., case number 3:15-cv-03653, in the U.S. District Court for the Northern District of California. [GN] BLOOMBERG LP: Court Grants Class Certification in NYLL Suit ----------------------------------------------------------- The United States District Court for the Southern District of New York issued an opinion and order granting Plaintiff's Motion for Class Certification in the case captioned ERIC MICHAEL ROSEMAN, ALEXANDER LEE, and WILLIAM VAN VLEET, individually and on behalf of others similarly situated, Plaintiffs, v. BLOOMBERG L.P., Defendant, No. 14cv2657 (DLC). (S.D.N.Y.) Plaintiffs bring this collective and putative class action against Bloomberg L.P., asserting that it failed to compensate Analytics Representatives for overtime work as required by federal and state laws, including the New York Labor Law (NYLL). Plaintiffs seek certification of the following NYLL class: all representatives in the Analytics department in New York who were not paid time and one-half for hours over 40 worked in one or more weeks at any time within the six years preceding the filing of this Complaint and the date of final judgment in this matter. Numerosity Courts presume numerosity such that joinder is impracticable where the class exceeds 40 members. The parties agree that this element is easily met. It is uncontested that more than 1,000 current and former Bloomberg employees are putative class members. Commonality Plaintiffs' claims must depend upon a common contention. That common contention, moreover, must be of such a nature that it is capable of class-wide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Bloomberg acknowledges that there are many common questions of fact and law that apply to the class, but argues that the plaintiffs must show that the central issue in the case is susceptible to class-wide resolution. Bloomberg contends that the central issue which it identifies as the availability of an exemption to NYLL's overtime rules for administrative employees is not susceptible to class-wide resolution because of the significant variation in the class members' experiences and duties. Even if it were not sufficient for the plaintiffs to demonstrate, as they have here, that there are a host of common questions that must be answered as to each class member, they have shown as well that the issue of whether the administrative exemption applies to Analytics Representatives is both an issue that must be answered for each class member and that it is an issue capable of class- wide resolution. The resolution of this critical issue will affect all or a significant number of the class members. Typicality Other Analytics Representatives testified to having more complex duties and exercising their discretion while working. This one employee's reaction to his work does not render his claims atypical. His boredom is not inconsistent with the allegation that he worked overtime and was denied overtime pay, nor does it speak to his actual duties on the job. Adequacy Bloomberg challenges the ability of the named plaintiff to adequately represent the class because, as just described, he found his job boring. But that employee's critique of his job -- as one that a monkey can do does not undermine his interest in vigorously pursuing the claims of the class. While other class members testified that the job is more complicated than Lee described, that difference does not alter Lee's underlying claim that the class is entitled to overtime pay and does not impede his ability to represent the class. The named plaintiff's interests are directly aligned with those of the absent class members: they have all experienced the same identified injury as a result of the uniform application of the same pay policy of the defendant. Predominance Bloomberg contends that individual issues will outweigh generalized proof in this case because class-wide damages are not susceptible to generalized proof. Bloomberg asserts that the trier of fact will have to inquire into the daily routine of each employee to sort out how much time they spent working. The Court finds this argument unconvincing for two reasons: (1) First, the plaintiffs argue that Bloomberg's electronic data will reveal most, if not all, of the overtime liability. This data through electronic time stamps will show when Analytics Representatives were logged on to their computers, either on site or remotely. It will also indicate if Representatives worked outside of regular shift hours. (2) Second, even if the plaintiffs must supplement this data with some individual testimony that will not defeat the plaintiffs' showing of predominance. Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues. Here, the plaintiffs have shown that they can prove through common evidence that all members of the proposed class were injured by the same action. Plaintiffs do not need to prove that common evidence will offer the precise amount of damages incurred by each class member. Superiority Here, a class action is a superior method to individually litigating the NYLL claims. Given that common issues predominate over individual ones, a class action preserves judicial resources and is far less burdensome for the parties. The plaintiff's motion for certification of a NYLL class for Analytics Representatives is granted. A full-text copy of the District Court's September 21, 2017 Opinion and Order is available at http://tinyurl.com/ybmsgzqmfrom Leagle.com. Eric Michael Roseman, Plaintiff, represented by Artemio Guerra, Catholic Migration Office, 260 Fair St., Kingston, NY 12401 Eric Michael Roseman, Plaintiff, represented by Dan Charles Getman, Law Office of Dan Getman, 9 Paradies Lane, New Paltz, NY 12561-4017 Alexander Lee, Plaintiff, represented by Artemio Guerra, Catholic Migration Office & Dan Charles Getman, Law Office of Dan Getman. William Van Vleet, Plaintiff, represented by Artemio Guerra, Catholic Migration Office & Dan Charles Getman, Law Office of Dan Getman. Bloomberg, L.P., Defendant, represented by Deirdre Norton Hyka -- dhykal@willkie.com -- Willkie Farr & Gallagher LLP, Matthew Willis Lampe -- mwlampe@jonesday.com -- Jones Day, pro hac vice, Kristina Ann Yost -- kyost@jonesday.com -- Jones Day, Michael Anthony Casertano -- mcasertano@jonesday.com -- Jones Day & Terri L. Chas -- tlchase@jonesday.com -- Jones Day. BMW BANK: 3rd Circuit Reverses Class Certification Ruling --------------------------------------------------------- Athie Livas, writing for Yale Law Journal, reports that City Select Auto Sales, Inc. v. BMW Bank of North America, 867 F.3d 434 (3d Cir. 2017), involved a putative class action brought by a car dealership against the consumer financing division of an automobile manufacturer and its contractor. The dealership alleged that the financing division sent junk faxes in violation of the Telephone Consumer Protection Act. The United States District Court for the District of New Jersey denied class certification. It determined that there was no reliable and administratively feasible way to determine whether putative class members fell within the class definition. The Third Circuit held that the district court erred in its application of the ascertainability standard to the motion for class certification. The Third Circuit held that the district court erred in applying the ascertainability standard for two reasons. First, the circuit's ascertainability precedents do not bar affidavits from potential class members, in combination with a database, from meeting the standard. Id. at 440. Second, because the database was not produced in discovery, plaintiff was unable to show whether the database contained a reliable, administratively feasible method of ascertaining the class. Id. at 440-41. Finally, the court identified two principal policy rationales for the ascertainability standard -- facilitating opt-outs and identifying persons bound by the final judgment -- neither of which was implicated in this case. Id. at 441. Judge Fuentes concurred in the judgment, citing Geoffrey C. Shaw's note, Class Ascertainability, 124 Yale L.J. 2354 (2015). Judge Fuentes agreed that based on precedent, plaintiffs must be given a chance to show whether the database and affidavits could produce a reliable and administratively feasible means to determine whether putative class members fall within the class definition. 867 F.3d. at 443 (Fuentes, J., concurring). But he wrote separately to "highlight[] the unnecessary burden on low-value consumer class actions created by [the] circuit's adoption of a second ascertainability requirement." Id. He noted a split among the circuits, with the Second, Sixth, Seventh, and Ninth Circuits all having rejected an additional requirement, and argued that the Third Circuit should follow suit. Id. The concurrence cited Geoffrey Shaw's note for the proposition that only a fraction of class members will ever file claims. Id. at 444 n.9. The concurrence also cited Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), which likewise cited Shaw's note earlier this year. [GN] BROTHER'S BAKERY: Ramirez Rojas Sues Over Inappropriate Wages ------------------------------------------------------------- MARCOS RAMIREZ ROJAS, individually and on behalf of others similarly situated v. BROTHER'S BAKERY CAFE CORP. (d/b/a BROTHER'S BAKERY & CAFE), ANTONIO SALINAS and OSCAR SALINAS, Case No. 1:17- cv-07091 (S.D.N.Y., September 18, 2017), alleges that the Plaintiff regularly worked for the Defendants in excess of 40 hours per week without appropriate minimum wage or overtime compensation for any of the hours that he worked. Brother's Bakery Cafe Corp. is a corporation organized and existing under the laws of the state of New York. The Individual Defendants are owners, managers, principals or agents of the Defendant Corporation. The Defendants own, operate or control a cafe/bakery located at 2155 2nd Avenue in New York City.[BN] The Plaintiff is represented by: Michael 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 C.A.A.I.R.: Faces "Copeland" Suit in N. Dist. Okla. --------------------------------------------------- A class action lawsuit has been filed against C.A.A.I.R., a domestic not for profit corporation. The case is styled as Arthur Copeland, Brandon Spurgin and Brad McGahey, individually and on behalf of all others similarly situated, Plaintiffs v. C.A.A.I.R. a domestic not for profit corporation and Simmons Foods, Inc., a foreign for profit business corporation, Defendants, Case No. 4:17-cv-00564-TCK-JFJ (N.D. Okla., October 10, 2017). Simmons Foods is a supplier of poultry, pet, and ingredient products based in Siloam Springs, AR. The company's official name is Simmons Foods, Inc. & Affiliates. The Plaintiffs are represented by: Daniel E Smolen, Esq. Smolen Smolen & Roytman PLLC 701 S CINCINNATI AVE TULSA, OK 74119 Tel: (918) 585-2667 Fax: (918) 585-2669 Email: danielsmolen@ssrok.com - and - David Arthur Warta, Esq. Smolen Smolen & Roytman PLLC 701 S CINCINNATI AVE TULSA, OK 74119 Tel: (918) 585-2667 Fax: (918) 585-2669 Email: davidwarta@ssrok.com CEDARS-SINAI HEALTH: "Castro" Suit Seeks Unpaid Wages ----------------------------------------------------- MARIA CASTRO, on behalf of herself, all others similarly situated, the Plaintiff, v. CEDARS-SINAI HEALTH SYSTEM, a California non- profit corporation; CEDARS-SINAI MEDICAL CENTER, a California non- profit corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. BC675795 (Cal. Super. Ct., Sep. 14, 2017), seeks to unpaid wages, restitution, and related relief on behalf of himself, all others similarly situated under the California Labor Code. The Plaintiff alleges that Defendants failed to provide her and all other similarly situated individuals with meal periods; failed to provide them with rest periods; failed to pay premium wages for missed meal and/or rest periods; failed to pay them for all hours worked; failed to pay overtime wages at the correct rate; failed to pay double time wages at the correct rate; failed to provide them with accurate written wage statements; and failed to timely pay them all of their final wages following separation of employment.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone (310) 888 7771 Facsimile (310) 888 0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com CENTRAL AMUSEMENT: Faces "Del-Orden" Suit in S.D. of New York ------------------------------------------------------------- A class action lawsuit has been filed against Central Amusement International LLC doing business as: Luna Park. The case is styled as Jose Del-Orden on behalf of himself and all others similarly situated, Plaintiff v. Central Amusement International LLC doing business as: Luna Park, Defendant, Case No. 1:17-cv-07756 (S.D. N.Y., October 10, 2017). Central Amusement International, LLC is an international amusement park planner, developer, and operator whose management team has more than 150 years of combined amusement industry experience.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com CHARIOTS OF HIRE: Court Adopts Conditional Class Certification -------------------------------------------------------------- The United States District Court for the Eastern District of Tennessee issued an Order adopting Magistrate Judge's Report and Recommendation Approving Conditional Class Certification in the case captioned GREGORY PHIPPS and BRIAN MENSING, individually and on behalf of all others similarly situated, Plaintiffs, v. CHARIOTS OF HIRE, INC., and JOHN MARK PARSONS, Defendants, No. 3:17-cv-97-TAV-HBG. (E.D. Tenn.). In the R&R, Magistrate Judge H. Bruce Guyton recommends that the Court grant in part and deny in part plaintiffs' Expedited Motion for Conditional Class Certification and Court-Authorized Notice. Magistrate Judge Guyton recommends that the parties' agreement on conditional certification and the notice form, as reflected in defendants' response to plaintiffs' motion, be adopted. The R&R also recommends that this agreement be amended to require that defendants provide the e-mail addresses of potential opt-in class members, that the agreed-upon notice and consent forms be sent to potential opt-in class members by first-class mail and email, and that the notice emails blind-copy defense counsel and use PDF forms. Defendants have filed a notice of no objections to the R&R. Plaintiffs have not filed any objections to the R&R, and enough time has now passed to treat any objections as having been waived. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/yaqf78gtfrom Leagle.com. Gregory Phipps, Plaintiff, represented by Jonathan A. Street, The Higgins Firm, 504 East E Street, Elizabethton, TN 37643 Gregory Phipps, Plaintiff, represented by G. Brandon Hall, The Employment & Consumer Law Group,525 4th Ave South, Nashville, TN 37210, pro hac vice. Brian Mensing, Plaintiff, represented by Jonathan A. Street, The Higgins Firm & G. Brandon Hall, The Employment & Consumer Law Group, pro hac vice. Chariots of Hire, Inc., Defendant, represented by Russ Swafford-- swafford@londonamburn.com -- London & Amburn, P.C., Andrew R. Tillman -- atillman@londonamburn.com -- London & Amburn, P.C. & Jennifer P. Taylor -- jpearson.taylor@londonamburn.com -- London & Amburn, P.C.. John Mark Parsons, Defendant, represented by Russ Swafford, London & Amburn, P.C., Andrew R. Tillman, London & Amburn, P.C. & Jennifer P. Taylor, London & Amburn, P.C.. CHARTER COMMUNICATIONS: "Sansone" Suit Moved to S.D. California --------------------------------------------------------------- The class action lawsuit titled Jennifer M. Sansone and Baldemar Orduno., Jr., Individually and on Behalf of Other Members of the Public Similarly Situated, the Plaintiffs, v. Charter Communications, Inc. and Does 1-25, inclusive, the Defendants, Case No. 37-02017-00029558-CU-OE-CTL, was removed on Sep. 14, 2017 from the Superior Court, County of San Diego, State of CA, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-01880- WQH-JLB to the proceeding. The case is assigned to the Hon. Judge William Q. Hayes. Charter Communications is an American telecommunications company, which offers its services to consumers and businesses under the branding of Spectrum.[BN] The Plaintiffs are represented by: London D. Meservy, Esq. MESERVY LAW, P.C. 401 West A Street, Suite 1712 San Diego, CA 92101 Telephone: (858) 779 1276 Facsimile: (866) 231 8132 E-mail: london@meservylawpc.com The Defendants are represented by: Joseph Scott Carr, Esq. KABAT CHAPMAN & OZMER LLP 515 South Flower Street, 36th Floor Los Angeles, CA 90071 Telephone: (213) 493 3980 Facsimile: (404) 400 7333 E-mail: scarr@kcozlaw.com COMMERCIAL PROTECTIVE: Miller Seeks Unpaid Wages under Labor Code ----------------------------------------------------------------- MICHAEL MILLER, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. COMMERCIAL PROTECTIVE SERVICES, INC., a California corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. BC676 078 (Cal. Super. Ct., Sep. 14, 2017), seeks to recover all owed wages under California Labor Code. According to the complaint, the Plaintiff alleges that Defendant failed to pay overtime and failed to provide accurate itemized wage statements.[BN] Commercial Protective Services, Inc., doing business as Eagle Security, provides security services. The Company offers armed and unarmed guards, investigation, uniform security guards, and patrol vehicle services. The Plaintiff is represented by: Thomas A. Kearney, Esq. Prescott W. Littlefield, Esq. Brandon Littlefield, Esq. KEARNEY LITTLEFIELD, LLP 3436 N. Verdugo Rd., Ste. 230 Glendale, CA 91208 Telephone (213) 473 1900 Facsimile (213) 473 1919 CONSUMER FINANCIAL: Banks, Business Groups File Lawsuits -------------------------------------------------------- Renae Merle, writing for Los Angeles Times, reports that more than a dozen U.S. banks and business groups sued the Consumer Financial Protection Bureau on September 29 in a last-ditch effort to block a new rule allowing consumers to band together and sue their credit card companies and other financial institutions. The lawsuit, filed in the Northern District of Dallas, calls the structure of the CFPB -- a watchdog agency established in response to the 2008 financial crisis -- "unconstitutional" and argues that the rule it wants to impose on U.S. businesses will not help consumers. The industry's complaints center on a new CFPB rule addressing the fine print in many of the agreements that consumers sign when they apply for credit cards or bank accounts. These agreements typically requires them to settle any disputes they have with the company through arbitration, in which a third party rules on the matter, rather than going to court or joining a class-action lawsuit. The rule would weaken a company's ability to make arbitration mandatory, allowing more people to file or join a lawsuit to press their complaints. But September 29th's lawsuit -- filed on behalf of the U.S. Chamber of Commerce and the American Bankers Assn., among other groups -- says the change would actually hurt consumers. "Arbitration gives consumers the ability to bring claims that they could not realistically assert in court, including the small and individualized claims that they care the most about," the lawsuit says. "In contrast, class-action litigation is significantly less effective than arbitration in addressing consumer claims." The CFPB, which declined to comment on the lawsuit, has repeatedly defended the rule as a necessary protection for consumers. By blocking group lawsuits, arbitration clauses eliminate a "powerful means to get justice when a little harm happens to a lot of people," CFPB Director Richard Cordray wrote in a recent opinion piece in the New York Times. The rule may cost banks $1 billion a year, but the industry made a record $171 billion in profit last year, he said. "It is the height of hypocrisy for companies to say they're helping consumers by closing off the very same legal option they use when they've been wronged," Cordray wrote. Wall Street had hoped Congress would squash the rule before it went into effect later this year. Republicans in the House passed legislation to block the rule this summer, but the Senate has struggled to take up a similar bill. With tax-overhaul proposals now taking up much of lawmakers' attention, opportunities to push through the measure in time are dwindling, industry officials have said. "This baseless legal challenge is a desperate move after their Senate repeal effort ran into massive resistance this week," Amanda Werner, arbitration campaign manager for Americans for Financial Reform and Public Citizen, said in a statement. If businesses are forced to comply with the rule, they "will incur substantial, long-lasting, and largely unrecoverable costs," the lawsuit says. There are currently "hundreds of millions of consumers of financial products and services who are parties to agreements containing arbitration clauses," and changing them would be costly. Just notifying people with credit cards that the terms of their contracts have changed would cost "millions of dollars," according to the lawsuit. The CFPB is also taking fire from another regulator, the Office of Comptroller of the Currency. The CFPB arbitration rule could cause the interest rates on credit cards to rise significantly -- as much as 25%, according to the OCC, which oversees the banking sector. "That's a 25% increase in credit costs for people who may live week to week. There's a real, tangible economic effect that it may have on consumers," Keith Noreika, acting head of the agency, said at a Philadelphia conference this week. [GN] CYPRESS SECURITY: Reese Seeks Unpaid Wages under Labor Code ----------------------------------------------------------- TAMIERA REESE, individually, and on behalf of all others similarly situated, the Plaintiff, v. CYPRESS SECURITY, LLC, a California limited liability company d/b/a CYPRESS PRIVATE SECURITY, and DOES 1 through 100, inclusive, the Defendant, Case No. RG17875725 (Cal. Super. Ct., Sep. 18, 2017), seeks to recover unpaid compensation, liquidated damages and other penalties under the California Labor Code. According to the complaint, Defendant has had a consistent policy of unlawfully denying Plaintiff and Class Members statutorily- mandated meal and rest periods, (2) willfully failing to provide Plaintiff and Class Members with accurate semimonthly itemized wage statements reflecting the total number of hours each worked, the applicable deductions, and applicable hourly rates in effect during the pay period, and (3) willfully failing to pay compensation in a prompt and timely manner to Plaintiff and those Class Members. Cypress Security provides a full range of private security in San Francisco, California.[BN] The Plaintiff is represented by: Scott Edward Cole, Esq. Teresa D. Allen, Esq. SCOTT COLE & ASSOCIATES, APC www.scalaw.com 1970 Broadway, Ninth Floor Oakland, California 94612 Telephone: (510) 891 9800 Facsimile: (510) 891 7030 E-mail: scole@scalaw.com tallen@scalaw.com DISTRICT OF COLUMBIA: Faces Class Action Over Jail Overdetentions ----------------------------------------------------------------- Spencer S. Hsu, writing for Washington Post, reports that a 28-year-old journeyman roofer was mistakenly held at the D.C. jail for more than two months after a misdemeanor charge against him was dismissed and was freed only after another inmate flagged his own lawyer to the problem. After being arrested following a dispute at his home, Carlton O. Harris was trapped in a jail bureaucracy that since 2005 has cost D.C. taxpayers more than $18 million paid to settle lawsuits on behalf of thousands of inmates held past their release dates or wrongly strip-searched. Mr. Harris, a father of two in Southeast Washington, was arrested March 28. Prosecutors dropped the case the next day but Mr. Harris was jailed for 77 days without a chance to see a judge or be granted a defense attorney. He finally went before a court June 15 only after the other inmate's lawyer alerted federal defenders, who then brought Harris to the attention of court officials, according to lawyers familiar with the case and a review by U.S. marshals. The D.C. Department of Corrections and its legal counsel declined several interview requests about the events. "Due to safety and security reasons, the Department of Corrections declines to comment," spokeswoman Keena Blackmon said in a one-sentence statement, declining to elaborate. The U.S. Marshals Service, which transports prisoners to and from the D.C. Superior and U.S. District courts in the District, investigated the handling of Mr. Harris after The Washington Post asked court officials about his extended jail stay. Findings and documents from the review read to The Post show that marshals were told Harris was being held on a pending D.C. case even though the matter had been dropped. "It was a clerical error by the D.C. Department of Corrections," said a law enforcement official familiar with the review who summarized its findings on the condition of anonymity because he was not authorized to speak for the department. Just a few weeks before Mr. Harris's arrest, the District's lawyers admitted in a long-running federal lawsuit that the jail had detained Gregory Smith for 23 days longer that it should have on his sentence from 2014. The corrections department had claimed for nearly three years that it had never received Mr. Smith's release order from a judge. But in February, city officials in court filings acknowledged that the jail received a time-stamped release order for Mr. Smith the day it was issued on March 18, 2014, and that it had been in Mr. Smith's institutional file all along. The city this fall is set to start paying $6 million awarded in the latest, 2013 overdetention settlement, reached after then-U. S. District Chief Judge Royce C. Lamberth of Washington blasted the city's failure to deliver on promised reforms as "conscience- shocking." A new class-action lawsuit on behalf of prisoners alleges the government is hiding the extent of errors, citing recent overdetentions such as Harris's. In responses to some of those pending claims, lawyers representing the District say the system has heeded past calls for improvements and dramatically cut down on mistakes. 'It's out of your control' The government review and records from an attorney representing Harris show that after he was released March 29 from D.C. Superior Court on the dropped misdemeanor, he was returned to the jail because he had an outstanding federal warrant in Maryland. That warrant was in place because of a traffic citation from 2013. Mr. Harris had been cited for allegedly driving with a revoked license on the grounds of the National Institutes of Health in Bethesda, where, Mr. Harris recalled recently, he was working with a roofing crew, and had not followed up in court to resolve the traffic case. A day after his dropped D.C. misdemeanor case, March 30, federal marshals called the jail to bring Mr. Harris to the District's federal court to start his transfer to Maryland federal court over the warrant because of the ticket. D.C. corrections officials told marshals that Harris still had a pending D.C. criminal charge and could not be released to them, according to the review of the incident read to The Post. The marshals on March 31 filed a formal request known as a detainer for the jail to turn over Harris when his local case allowed for the handoff, the review read to The Post found. That left Mr. Harris sitting in D.C. jail for another 10 weeks until a fellow inmate spoke up. "They spent $20,000 to house this person for 77 days because nobody called to fetch him. Really?" said William C.C. "Chas" Claiborne III, who represents Harris and helped represent the two previous jail class-action cases dealing with overdetentions. Claiborne said: "If you put stuff in a locker at an airport, they're not going to hold it indefinitely until you come get it. But they'll hold a person in jail?" Other inmates told Harris he was not supposed to be locked up for more than a couple of days without seeing a judge, Mr. Harris said in a recent interview, but he thought guards would ignore or punish him if he complained. "You're just going to make it worse, that's what I figured," said Harris, a Washington native and father of two who attended parochial schools including Archbishop Carroll High until the ninth grade. A jail database entry for March 29 -- after Harris's D.C. case had been dropped but he was returned to the jail -- does not mention the dropped case that could have released him or any criminal charge that would have kept him, and shows he was being held "in transit" on a federal detention warrant, according to the record that Claiborne obtained and shared. Mr. Claiborne said jails should regularly double-check an inmate's status or keep a court order in each one's file showing whether the inmate should be held or released. "This is not rocket science," he said. Rather than either of those procedures, Mr. Claiborne said, the D.C. jail's process is to hold a prisoner until another agency asks for him, "with predictable results." In a statement, Lamont J. Ruffin, acting chief deputy U.S. marshal of the U.S. District Court, said, "This was an unfortunate set of circumstances for Mr. Harris, but after a thorough review of our processes specific to this situation, the U.S. Marshals Service was not negligent and did not cause this apparent overdetention." Under its national policy, marshals are required to check the status of warrants only every six months, said a spokesman for the service. "I know I had a right to a lawyer," Mr. Harris said recently, "but when you're in their custody, it's out of your control. You kind of got to sit back and let them do their job. You speak up, they can go real bad. They can put you in a room, cuff you and beat you down. You can speak up, but it turns out you're going to have to shut up." Mr. Harris said he had never been held in D.C. Jail. Court records in other cases show he pleaded guilty in D.C. Superior Court to driving under the influence in 2012 and with a revoked license in 2014, and was fined and given a 30-day suspended sentence in each case. Unsure who to blame By May, many weeks after his D.C. case had been dropped and he was still behind bars, Mr. Harris said, "I started to lose hope, and then I was very worried." He said that when he had explained his plight to his Department of Corrections caseworker, she told him she had no further information. He was visited about twice a week by the mother of his boys, a 5-year-old and 6-month-old, and his own mother, a D.C. Public Schools teacher aide -- who found a record of the Maryland warrant online, but was told when she inquired that U.S. officials there would not bring him from an out-of state jail for such a relatively minor offense. Mr. Harris called from jail to the D.C. Public Defender Service for Superior Court -- which provides attorneys for defendants who cannot afford to hire one -- and that office told him it had not been assigned to his case, and eventually advised him to call its federal counterpart for U.S District Court in Washington. Mr. Harris said he was about to do that when, unknown to him, the federal defender's office contacted the marshals on June 14, who checked on Mr. Harris's status and arranged to bring him to federal court, two officials familiar with his case confirmed. He was called out of his D.C. jail cell early June 15 and told he was finally going to court. U.S. Magistrate Robin M. Meriweather ordered his release in Washington that day, and Harris reported to the federal court in Maryland the next day about the years-old ticket. Asked why he never paid or showed up in Maryland federal court on the first ticket, Mr. Harris said in an interview: "I have no excuses why I didn't pay it. I just wasn't focused on that ticket. I mean it had been years, I was 24, I was still trying to get my direction and keep my job." However, after reporting in with the Maryland federal court right after his D.C. jail release, Harris failed to show for a July court hearing and faced a new bench warrant. Messrs. Harris and Claiborne declined to comment on that proceeding. Mr. Harris said he isn't sure who or what is to blame for his 10-week detention in D.C. Jail. He knows the impact, however. "I had a good job, and that's gone right now." Mr. Harris said he kept his union card and works on call with a temporary construction and industrial labor staffing agency, but is struggling to provide for his children and pay for food, car insurance and a phone. "You've got to be patient, otherwise you're going to work yourself into a worse position than you're in," Mr. Harris said. "The work will come." [GN] DJI TECHNOLOGY: Court Narrows Claims in "Howard" ------------------------------------------------ The United States District Court for the Eastern District of California issued an Order granting in part and denying in part Defendant's Motion to Dismiss the First Amended Complaint in the case captioned TYSON HOWARD, individually, and on behalf of all others similarly situated, Plaintiff, v. DJI TECHNOLOGY, INC., aka SZ DJI TECHNOLOGY CO., LTD., Defendant, No. 2:16-CV-02292 LEK (E.D. Cal.). Plaintiff purchased a DJI Phantom III Standard drone from Defendant's website for approximately $800. Later that month, he purchased a DJI Phantom III Pro drone from Defendant's website for approximately $1,300. According to Plaintiff, Defendant advertised through written representations that Plaintiff would receive [the Drones] with high definition recording capabilities. After he purchased the Drones, Plaintiff learned that they were not capable of recording at the definition level advertised, and they "recorded video at inferior qualities significantly below 2.7K and 4K." According to Plaintiff, the prices of the Drones were higher than they would have been without the advertised recording capabilities, as evidenced by the fact that the DJI III Pro which advertised a significantly improved 4K camera was more expensive than the DJI III Standard. The Amended Complaint alleges violation of the California False Advertising Law (FAL) and violation of the Unfair Competition Law (UCL). Count I alleges that Defendant made misrepresentations about the Drones' recording capabilities. The claim is also based on Defendant's omissions, but Plaintiff does not clearly identify what information was omitted. The Amended Complaint alleges that Defendant omitted what the Drones' actual recording capabilities were. Had Defendant properly marketed, advertised, and represented the Drones as lacking high definition recording, Plaintiff would not have purchased the product. Under California law, there are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. The Amended Complaint's factual allegations about the when are insufficient. Plaintiff does allege that he bought the Drone. Amended Complaint at and that he was drawn to the Drones because of Defendant's representations, which he relied upon when he decided to purchase the Drones. These allegations, taken to be true for purposes of the Motion, are sufficient to support a reasonable inference that Plaintiff viewed Defendant's representations about the Drones' recording capabilities. The allegations, however, do not satisfy the heightened pleading standard because they do not sufficiently allege when Plaintiff was exposed to Defendant's alleged misrepresentations. The portion of Count I based on the alleged misrepresentations about the Drones' recording capabilities must be dismissed. Defendant argues that the First Motion to Dismiss raised the same issues raised in the instant Motion, and Plaintiff failed to cure the defects when he filed the Amended Complaint. Defendant contends that this shows that it would not be possible for Plaintiff to cure any defects in a second amended complaint. This Court disagrees. The only identified defect in this portion of Count I is the failure to allege when Plaintiff viewed Defendant's alleged misrepresentations, and it is possible for Plaintiff to cure this defect by amendment. The dismissal of the portion of Count I based on Defendant's alleged misrepresentations about the Drones' recording capabilities is without prejudice. The portion of Count I based on Defendant's alleged omission, however, fails to state a plausible claim for the same reason as the portion based on Defendant's alleged misrepresentation. Plaintiff has not alleged when he viewed Defendant's materials which he alleges omitted information about the Drones' actual recording capabilities. For the same reasons set forth as to the portion of Count I based on Defendant's alleged misrepresentation, the portion of Count I based on Defendant's alleged omission is also dismissed without prejudice. Under Section 17200, unfair competition includes any unlawful, unfair, or fraudulent business act or practice. An unfair practice under section 17200 is one whose harm to the victim outweighs its benefits. Finally, a fraudulent act or practice under Section 17200 is one which is likely to deceive the public, and may be based on misrepresentations which are untrue, and also those which may be accurate on some level, but will nonetheless tend to mislead or deceive. Significantly, as with a False Advertising Law claim, a plaintiff may demonstrate a violation of the fraudulent prong of the UCL by showing that reasonable members of the public are likely to be deceived. Count II alleges unfair business practices based the first two definitions. As to the second definition, Plaintiff merely alleges, in conclusory fashion, that Defendant's acts, omissions, misrepresentations, and practices are substantially injurious offend public policy, and are immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any alleged benefits attributable to such conduct. However, Plaintiff has sufficiently alleged unfair business practices based on the first definition. The Amended Complaint alleges that Plaintiff has suffered a substantial injury because he paid valuable consideration for the Drones, which had higher prices because of the advertised HD recording features, but which did not have advertised features. Plaintiff also alleges that Defendant's practice of falsely advertising and representing that the Drones were capable of HD recording in order to induce consumers to purchase them did not provide any benefit to Plaintiff or any other consumer. Thus, the injury that Plaintiff suffered is not outweighed by any countervailing benefits to consumers. Finally, Plaintiff alleges that the injury he suffered is not one that consumers could have avoided because, based on the information Defendant made available about the Drones, consumers would not have realized that Defendant's representations about the Drones' ability to record HD video were false. With respect to the unfair prong, Plaintiff has pled sufficient facts to state a Section 17200 claim against Defendant. The fraudulent prong of the UCL is governed by the reasonable consumer test: a plaintiff may demonstrate a violation by showing that reasonable members of the public are likely to be deceived. Reading the Amended Complaint as a whole, Plaintiff alleges that Defendant falsely represented that the Drones had HD recording capabilities and failed to disclose what the Drones' actual recording capabilities were. Plaintiff also alleges that the public is likely to be deceived by Defendant's practices because, as evidenced by Plaintiff's reasonable reliance on Defendant's statements. Defendant had unequal bargaining power over the public and the information Defendant made available about the Drones prevented Plaintiff and other consumers from learning until after purchase that the representations about the HD recording capabilities were false. Although Plaintiff alleges that he was actually deceived because actual deception is not required, he is not required to allege when he was exposed to Defendant's representations, as he is in his Section 17500 claim. Thus, his failure to plead the "when" with particularity that was fatal to Count I is not fatal to this portion of Count II. With respect to the fraudulent prong, Plaintiff has pled sufficient facts to state a Section 17200 claim against Defendant. As to the unlawful practices prong, a plaintiff must show a violation of some independent law. Plaintiff bases his claim under the unlawful prong on the alleged violation of Section 17500. However, because Count I fails to state a claim, Plaintiff has also failed to state a claim as to the portion of his Section 17200 claim based on the unlawful prong, and must be dismissed. The dismissal of this portion of Count II is without prejudice because it is possible for Plaintiff to cure the defects in Count I by amendment. The Defendant's Motion to Dismiss the First Amended Complaint is granted insofar as Count I and the portion of Count II based on the unlawful prong of Cal. Bus. & Prof. Code Section 17200 are dismissed. The Motion is denied as to the portion of Count II based on the unfair and fraudulent prongs of Section 17200 and insofar as the dismissal of Count I and the portion of Count II based on the unlawful prong is without prejudice. The Court granted Plaintiffs leave to file a second amended complaint. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/y9a9ush8from Leagle.com. Tyson Howard, Plaintiff, represented by Todd M. Friedman -- todd.friedman@kirkland.com -- Law Offices of Todd M. Friedman, P.C.. DJI Technology, Inc., Defendant, represented by Anthony J. Weibell, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Rd, Palo Alto, CA 94304, Peter Cornelius Holm -- pholm@wsgr.com -- Wilson Sonsini Goodrich & Rosati P.C. & Sumeng Chen, DJI Technology Inc., 435 Portage Ave, Palo Alto, CA, 94306-2213 DOMETIC CORPORATION: Faces "Zimmer" Suit in C.D. California ----------------------------------------------------------- A class action lawsuit has been filed against Dometic Corporation. The case is styled as James Zimmer, Melvin Rich, Ernie Arnold, Sandra Greene, James Mitchell, Kurt Shoemaker, Sr., Randall Ortego, Steven Horner, Sr., James Jackson, Debra Sadler, and Richard Haisch, the Plaintiffs, v. Dometic Corporation, the Defendant, Case No. 2:17-cv-06913 (C.D. Cal., Sep. 19, 2017). Dometic Group is a Swedish manufacturer whose core business is climate, hygiene, sanitation, food and beverage applications within the RV, marine, and automotive industry.[BN] The Plaintiffs are represented by: Caleb Marker, Esq. ZIMMERMAN REED LLP 2381 Rosecrans Avenue Suite 328 Manhattan Beach, CA 90245 Telephone: (877) 500 8780 Facsimile: (877) 500 8781 E-mail: Caleb.Marker@zimmreed.com ECLIPSE FINANCIAL: Faces "Best" Suit in E. Dist. Penn. ------------------------------------------------------ A class action lawsuit has been filed against Eclipse Financial, L.L.C. The case is styled as Brandon Best, individually and on behalf of all others similarly situated, Plaintiff v. Eclipse Financial, L.L.C., Defendant, Case No. 2:17-cv-04526-JD (E.D. Penn., October 10, 2017). Eclipse Financial Consulting LLC provides insurance information and consulting services.[BN] The Plaintiff is represented by: ARI MARCUS, Esq. MARCUS & ZELMAN LLC 1500 ALLAIRE AVE SUITE 101 OCEAN, NJ 07712 Tel: (732) 695-3282 Email: ari@marcuszelman.com ELMCROFT SENIOR: "Gallegos" Suit Moved to S.D. California --------------------------------------------------------- The class action lawsuit titled Misael Gallegos, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. Elmcroft Senior Living, Inc., a Delaware Coporation; Las Villas Del Norte Operations, LLC, a Delaware limited liability company; as Villas De Carlsbad Operations, LLC, a Delaware limited liability company; Grossmont Gardens Operations, LLC, a Delaware limited liability company; Mountview Operations, LLC, a Delaware limited liability company; Rancho Vista Operations, LLC, a Delaware limited liability company; Point Loma Operations, LLC, a Delaware limited liability company; La Mesa Operations, LLC, a Delaware limited liability company; HCG Las Villas Del Norte Operations, LP, a Delaware limited partnership; HCG Las Villas De Carlsbad Operations, LP, a Delaware limited partnership; HCG Grossmont Gardens Operations, LP, a Delaware limited partnership; HCG Mountview Operations, LP, a Delaware limited partnership; HCG Rancho Vista Operations, LP, a Delaware limited partnership; HCG Point Loma Operations, LP, a Delaware limited partnership; HCG La Mesa Operations, LP, a Delaware limited partnership; and DOES 1 through 10, inclusive, the Defendants, Case No. 37-02017-00026828-CU-OE-NC, was removed on Sep. 18, 2017 from the Superior Court of CA, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-01899-BAS-JMA to the proceeding. The case is assigned to the Hon. Judge Cynthia Bashant. Elmcroft provides exceptional Assisted Living, Independent Living, Alzheimer's and Dementia Care facilities and communities for seniors.[BN] The Plaintiff is represented by: Arnab Banerjee, Esq. 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556 4811 Facsimile: (310) 943 0396 The Defendants are represented by: Megan Emily Walker, Esq. FISHER & PHILLIPS LLP 4747 Executive Drive Suite 1000 San Diego, CA 92121 Telephone: (858) 597 9600 Facsimile: (858) 597 9601 E-mail: mewalker@laborlawyers.com ENCORE RECEIVABLE: Spilski Sues over Debt Collection Practices -------------------------------------------------------------- JOSEPH SPILSKI, on behalf of himself and all others similarly situated, the Plaintiff, v. ENCORE RECEIVABLE MANAGEMENT, INC.; a Kansas Corporation; and, JOHN AND JANE DOES NUMBERS 1 THROUGH 25, the Defendants, the Defendant, Case No. 1:17-cv-01249 (E.D. Wisc., Sep. 14, 2017), seeks to recover statutory damages, attorney fees, costs, and all other relief, under the Fair Debt Collection Practices Act. The Plaintiff alleges that Encore used false, deceptive, and misleading practices, and other illegal practices, in connection with its attempts to collect an alleged debt from Plaintiff and other similarly situated Wisconsin consumers. Encore Receivable Management, Inc. provides collections management solutions. It offers pre charge-off account management and primary post charge-off management services. The company serves wireline, wireless, and cable communications service providers; banks; credit card, auto, and installment lenders; and companies who service their private label cards in the United States.[BN] The Plaintiff is represented by: Heather B. Jones, Esq. Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379 7500 Facsimile: (973) 532 5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com heather@sternthomasson.com EQUIFAX INC: Faces "Thomson" Suit over Consumer Data Breach ----------------------------------------------------------- CLINT THOMSON, JUSTIN WILLIAMS, and DEREK SELDERS individually and on behalf of all other similarly situated, the Plaintiffs, v. EQUIFAX INC., the Defendant, Case No. 3:17-cv-02468-M (N.D. Tex., Sep. 14, 2017), seeks to compensation from Equifax in an amount which will ensure that all consumers who are victims of a theft shall receive the benefit of independent third-party credit repair and monitoring services and other monetary compensation for damages resulting from such theft. The Plaintiffs file this complaint on behalf of themselves and on behalf of millions of consumers in the Texas as a class action against Equifax for failing to protect and maintain the confidentiality of those consumers' personal identification and credit information which Equifax collected in connection its business as a consumer credit reporting agency and for failing to provide timely, accurate and adequate notice to those consumers that their information had been stolen and the details of the theft. According to the complaint, on September 7, 2017, Equifax issued a press release, publicly revealing for the first time that criminal third parties had gained access to consumer data maintained by Equifax. It is estimated that approximately 12 million Texas consumers will be affected by the breach. Personal identification and credit information is often misused by cybercriminals to engage in identity theft and financial fraud. Cybercriminals also sell such information on the Dark Web to other criminals who then use the information to engage in identify theft and financial fraud. The stolen information can be used by to obtain fake identification cards and driver's licenses, to open fraudulent financial accounts such as credit cards or loans, to obtain medical care under false pretenses, to poach health insurance coverage, to file for fraudulent tax refunds, to file for fraudulent unemployment or Social Security benefits, and to gain access to online accounts. Equifax has identified each of the Plaintiffs as victims who were affected by the data breach. Equifax is a consumer credit-reporting company. It collects and aggregates information on hundreds of millions of individual consumers and businesses in the United States and worldwide. Equifax maintains databases containing personal identification information and the financial history of U.S. consumers and businesses. Equifax obtains consumer data about names and aliases, Social Security numbers, driver's license numbers, birthdates, current and former addresses, credit dispute information, credit card numbers and usage, loans and loan payments child support, credit limits, rent, utilities, and employer history. Equifax obtains its data from credit card companies, banks, retailers, and lenders who report on the credit activity of individuals to credit reporting agencies and by purchasing public records.[BN] The Plaintiffs represented by: Christopher M. Joe, Esq. Eric W. Buether, Esq. Brian A. Carpenter, Esq. BUETHER JOE &CARPENTER, LLC 1700 Pacific Avenue, Suite 4750 Dallas, TX 75201 Telephone: (214) 466 1272 Facsimile: (214) 635 1828 E-mail: Chris.Joe@BJCIPLaw.com Eric.Buether@BJCIPLaw.com Brian.Carpenter@BJCIPLaw.com EQUIFAX INFORMATION: Faces "Meyers" Suit over Data Breach --------------------------------------------------------- SCOTT MEYERS, JUDY MEYERS, and KARL GORDON EIKOST, individually and on behalf of those similarly situated, the Plaintiffs, v. Equifax Information Services, LLC, the Defendant, Case No. 1:17- cv-06652 (N.D. Ill., Sep. 14, 2017), seeks to recover actual damages as a result of Defendant's violation of the Fair Credit Reporting Act. According to the complaint, Equifax has disclosed that one or more of its servers, which contained Plaintiffs' and Class Members' sensitive personal information including names, full Social Security members, birth dates, and addresses, had been breached or hacked. In early August 2017, before the fact of the Breach was made public, multiple Equifax executives sold shares of Equifax stock, worth at least $1.8 million. Equifax immediately began an internal investigation and contracted with an unidentified third- party cybersecurity firm to conduct review to determine the scope of the hack, including identifying the specific data impacted. Equifax is a consumer credit-reporting company. It collects and aggregates information on hundreds of millions of individual consumers and businesses in the United States and worldwide. Equifax maintains databases containing personal identification information and the financial history of U.S. consumers and businesses. Equifax obtains consumer data about names and aliases, Social Security numbers, driver's license numbers, birthdates, current and former addresses, credit dispute information, credit card numbers and usage, loans and loan payments child support, credit limits, rent, utilities, and employer history. Equifax obtains its data from credit card companies, banks, retailers, and lenders who report on the credit activity of individuals to credit reporting agencies and by purchasing public records.[BN] The Plaintiff is represented by: Thomas A. Demetrio, Esq. Kenneth T. Lump, Esq. CORBOY & DEMETRIO, PC 33 North Dearborn Street, 21st Floor Chicago, IL 60602 Telephone: (312) 346 3191 EQUIFAX INC: Faces "Martin" Sues over Consumer Data Breach ---------------------------------------------------------- DREW MARTIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARY SITUATED PLAINTIFF, the Plaintiff, v. EQUIFAX, INC., & EQUIFAX INFORMATION SERVICES, LLC, the Defendant, Case No. 3:17-cv-00744- CWR-FKB (S.D. Miss., Sep. 14, 2017), seeks to recover remedy the harms Plaintiff has suffered on behalf of himself and similarly situated consumers whose personal identifying information was stolen as a result of the Equifax data breach. The Plaintiff brings this class action complaint against Equifax for its failures to protect and secure consumers' PII, including full names, social security numbers, dates of birth, addresses and some driver's license numbers of Plaintiff and some 143 million similarly situated consumers in the United States. Additionally, Equifax has acknowledged that credit card numbers for approximately 209,000 United States consumers, and dispute information, containing additional PII, for approximately 182,000 United States consumers, have been accessed as part of its data breach. On September 7, 2017, Equifax publicly acknowledged the cybersecurity incident that has potentially impacted approximately half of all U.S. consumers who have credit histories. Equifax admitted that it discovered this data breach on July 29, 2017, and that the unauthorized access to its files, including Plaintiff's and the class members' PII, started in mid-May 2017. Rather than timely disclose its data breach, Equifax waited almost six weeks to publicly disclose the occurrence. In the interim, three Equifax executives sold some $1.8 million of Equifax stock. These executives include Chief Financial Officer John Gamble, who sold approximately $946,000 worth of Equifax stock on August 1; President of United States Information Solutions Joseph Loughran, who sold approximately $584,000 of Equifax stock, also on August 1; and President of Workforce Solutions Rodolfo Ploder, who sold approximately $250,000 of Equifax stock on August 2. Equifax compromised Plaintiff's and the consumer classes' PII due to its failure to properly protect and secure PII. Equifax knew or certainly should have known it was vulnerable to potential data breaches as Equifax experienced several data breaches between 2013 and 2016. Additionally, Experian, a competing consumer reporting agency, has previously been breached, which should have put Equifax on high alert. Equifax had inadequate data security and failed in its duty to protect the PII that it collected during the course of its business from unauthorized disclosure. Equifax intentionally, willfully, recklessly, or negligently failed to take reasonable, adequate measures to ensure the security of its data systems and to protect Plaintiff's and class members' PII Equifax further disregarded the rights of Plaintiff and Class members by intentionally, willfully, recklessly, or negligently failing to disclose to its customers the material fact that it did not have adequate computer systems and security practices to safeguard PII, failing to take available steps to prevent and stop the breach from ever happening, and failing to monitor and detect the breach on a timely basis. As a result of the Equifax Data Breach, Plaintiff's PII and the Class members' PII has been exposed to criminals for misuse. The injuries suffered by Plaintiff and Class members, or likely to be suffered by Plaintiff and Class members as a direct result of the Equifax Data Breach. Equifax is a consumer credit-reporting company. It collects and aggregates information on hundreds of millions of individual consumers and businesses in the United States and worldwide. Equifax maintains databases containing personal identification information and the financial history of U.S. consumers and businesses. Equifax obtains consumer data about names and aliases, Social Security numbers, driver's license numbers, birthdates, current and former addresses, credit dispute information, credit card numbers and usage, loans and loan payments child support, credit limits, rent, utilities, and employer history. Equifax obtains its data from credit card companies, banks, retailers, and lenders who report on the credit activity of individuals to credit reporting agencies and by purchasing public records.[BN] The Plaintiff is represented by: Shane F. Langston, Esq. Rebecca M. Langston, Esq. Greta L. Kemp, Esq. Jason L. Nabors, Esq. LANGSTON AND LANGSTON, PLLC 210 East Capitol Street, Suite 1205 Jackson, MS 39201 Telephone: (601) 969 1356 Facsimile: (601) 968 3866 EQUIFAX INC: Faces "Ramsay" Suit over Consumer Data Breach ---------------------------------------------------------- MARK E. RAMSAY, on behalf of himself and all others similarly situated, the Plaintiffs, v. EQUIFAX, INC. the Defendant, Case No. 4:17-cv-02783 (S.D. Tex., Sep. 14, 2017), seeks compensatory, statutory and punitive damages, as applicable, in favor of Plaintiffs and the other class members against Equifax for all damages sustained as a result of their wrongdoing, in an amount to be proven at trial, by a jury, including interest and attorney's fees. The Plaintiffs file this complaint as a Texas class action on behalf of consumers across the State of Texas harmed by Equifax's failure to adequately protect the consumers' credit and personal information. The Plaintiffs want Equifax to provide fair compensation in an amount that will ensure every consumer harmed by its data breach will not be out-of-pocket for the costs of independent third-party credit repair and monitoring services. These allegations are based on personal knowledge as to Equifax's conduct and made on information, belief, and investigation as to the acts of others. On September 7, 2017, Equifax disclosed in a shareholder prospectus report that, from May 2017 through July 2017, its data security was breached via the Apache Struts Flaw. This flaw was disclosed to industry users of the program in March 2017. Equifax failed to update its open source web based software allowing the data to become exposed to unauthorized third parties. The Plaintiffs contend that Equifax owes a legal duty (not to mention a moral obligation) to all Texas consumers to use reasonable care to protect their credit and personal information from unauthorized access by third parties. Equifax knew that its failure to protect millions of Texas Consumers' credit and personal information from unauthorized access would cause serious risks of credit harm and identity theft for years to come. According to the lawsuit, in an attempt to increase profits, Equifax negligently failed to maintain adequate technological safeguards to protect private information from unauthorized access by hackers. Equifax knew or should have known that failure to maintain adequate technological safeguards could and would eventually result in a massive data breach. Equifax knew or should have known that its database program and safeguards were compromised and therefore could and should have properly implemented data protection measures. Equifax could and should have substantially increased the amount of money it spent to protect against cyber-attacks but chose not to. Innocent consumers should not have to bear the expense caused by Equifax's negligent failure to safeguard their credit and personal information from cyber-attackers. The lawsuit says that, as a direct result of Equifax's negligence as alleged in this complaint, each Plaintiff incurred damages of at least $10.00 a month to pay for third-party credit monitoring services (from a service provider not affiliated with and/or otherwise beholden to Equifax) they otherwise would not have incurred. Additionally, Plaintiffs suffered and/or will suffer actual damages from the substantially increased risk of future identity theft, fraud, and misuse of their personal information. Plaintiffs face years of increased monitoring obligations regarding their financial and personal records. Equifax is a consumer credit-reporting company. It collects and aggregates information on hundreds of millions of individual consumers and businesses in the United States and worldwide. Equifax maintains databases containing personal identification information and the financial history of U.S. consumers and businesses. Equifax obtains consumer data about names and aliases, Social Security numbers, driver's license numbers, birthdates, current and former addresses, credit dispute information, credit card numbers and usage, loans and loan payments child support, credit limits, rent, utilities, and employer history. Equifax obtains its data from credit card companies, banks, retailers, and lenders who report on the credit activity of individuals to credit reporting agencies and by purchasing public records.[BN] The Plaintiff is represented by: George H. Lugrin IV, Esq. Reece Rondon, Esq. Jeffrey T. Bentch, Esq. Samuel J. Dolan, Esq. HALL MAINES LUGRIN, P.C. Williams Tower, Suite 6400 2800 Post Oak Boulevard Houston, TX 77056-6125 Telephone: (713) 871-9000 Facsimile: (713) 871-8962 EQUIFAX INC: Faces "Flores" Suit in Southern Dist. of New York -------------------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is captioned as Shervon Flores and Elio Guzman, on behalf of themselves and all others similarly situated, the Plaintiff, v. Equifax Inc., the Defendant, Case No. 7:17-cv-07088-VB (S.D.N.Y., Sep. 18, 2017). The case is assigned to the Hon. Judge Vincent L. Briccetti. Equifax, Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: Shelly L Friedland, Esq. TRIEF AND OLK 150 East 58 Street New York, NY 10155 Telephone: (212) 486 6060 Facsimile: (212) 317 2946 E-mail: sfriedland@triefandolk.com EQUIFAX INC: Fails to Protect Class Members' PII, Melrath Alleges ----------------------------------------------------------------- JASON MELRATH, individually and on behalf of all others similarly situated v. EQUIFAX, INC., and EQUIFAX CREDIT INFORMATION SERVICES, INC., Case No. 1:17-cv-01324-UNA (D. Del., September 18, 2017), alleges that Equifax disregarded the Plaintiff's and the Class Members' privacy rights by intentionally, willfully, recklessly, or negligently failing to take the necessary precautions required to safeguard and protect their personally identifiable information from unauthorized disclosure. According to Equifax's report dated September 7, 2017, a breach was discovered on July 29, 2017 (the "Breach"). The perpetrators gained access by "[exploiting] a [. . .] website application vulnerability" on one of the company's U.S.-based servers. The hackers were then able to retrieve "certain files." Equifax, Inc., and Equifax Credit Information Services, Inc., are Georgia corporations with their principal place of business located in Atlanta, Georgia. Equifax is one of three nationwide credit-reporting companies that tracks and rates the financial history of consumers in the U.S.[BN] The Plaintiff is represented by: Jesse N. Silverman, Esq. Joshua D. Wolson, Esq. Jerry R. DeSiderato, Esq. DILWORTH PAXSON LLP 1500 Market St., Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575-7000 Facsimile: (215) 575-7200 E-mail: jsilverman@dilworthlaw.com jwolson@dilworthlaw.com JDeSiderato@dilworthlaw.com EQUIFAX INC: Murphy Sues for Failure to Protect Personal Info ------------------------------------------------------------- LESLIE C. MURPHY, MOLLIE MARCIA ROBERTS, and THOMAS LESLIE COOGLE, individually and on behalf of all others similarly situated v. EQUIFAX, INC., Case No. 1:17-cv-03613-ELR (N.D. Ga., September 18, 2017), is brought on behalf of residents of the United States, whose personally identifiable information was compromised as a result of the data breach first disclosed by Equifax in September 2017. On September 7, 2017, Equifax released a statement to the public announcing that there had been a breach of consumers' personally identifiable information by hackers, and that Equifax had been made aware of the breach on July 29, 2017. Equifax is a Delaware corporation with its principal place of business located in Atlanta, Georgia. Equifax is a consumer credit reporting agency, which collects consumers' personally identifiable information from various sources.[BN] The Plaintiffs are represented by: Justin B. Connell, Esq. Stanford G. Wilson, Esq. ELARBEE, THOMPSON, SAPP & WILSON, LLP 229 Peachtree Street, N.E. 800 International Tower Atlanta, GA 30303 Telephone: (404) 659-6700 Facsimile: (404) 222-9718 E-mail: connell@elarbeethompson.com swilson@elabeethompson.com - and - J. Shane Hudson, Esq. HUDSON KING 615 Virginia Avenue North, Suite A Tifton, GA 31794 Telephone: (229) 515-8585 E-mail: jshudson@hudsonkinglaw.com EQUIFAX INC: Maryland Only Class Action Suit Filed After Breach --------------------------------------------------------------- WMAR reports that on September 29, multiple agencies filed a Maryland only class action lawsuit against Equifax after its massive data breach. Smith, Gildea & Schmidt, LLC and Joseph, and Greenwald & Laake, PA filed the first lawsuit at the Baltimore County Circuit Court. The Equifax data breach affected up to 143,000,000 accounts, and millions of those people live in Maryland. "We are working on behalf of all Marylanders who have been affected by this incredible breach of security, and we have filed this class action suit in Maryland to ensure that the harms of this data breach are properly addressed by the Maryland Court system," said Michael Paul Smith, a partner with Smith, Gildea & Schmidt who filed the suit along with Timothy Maloney of Joseph, Greenwald & Laake. According to Equifax, the breach lasted from mid-May through July. During that time people's names, Social Security numbers, birth dates, addresses, and in some cases, driver's licenses numbers were compromised. Hackers also stole credit card numbers from 209,000 people. "The number of people who have been affected by this breach is astounding," said Maloney. "We feel that it is imperative to focus our efforts on Maryland residents who are now at risk of identity theft and other harms because of the sensitive personal information that was exposed at Equifax." Equifax is facing multiple class action lawsuits nationwide, but this is the first to be filed in Maryland State Court for only Maryland residents. [GN] FC BACKGROUND: Faces RTR Suit over Workforce Screening Services --------------------------------------------------------------- REAL TIME RESOLUTIONS, INC., individually and on behalf of a class, the Plaintiffs, v. FC BACKGROUND, LLC, the Defendant, Case No. DC-17-12147 (Tex. Dist. Ct., Sep. 14, 2017), seeks monetary damages and restitution from Defendant arising out of its unfair, deceptive, and unconscionable practice of advertising and selling workforce screening services that it knew, or should have known, were being delivered in an unlawful and/or non-compliant manner. RTR is engaged in mortgage servicing, collection services, and business process outsourcing activities. As a part of its business, RTR maintains multiple call centers. RTR relies on vendors, such as Defendant, to run lawful and fully compliant background checks on the applicants presented by the staffing agency. Consumers, including RTR, reasonably rely on Defendant to ensure that workforce screening services are conducted lawfully and in compliance with all federal laws, including the Fair Credit Reporting Act (FCRA). In fact, Defendant holds itself out as an experienced and highly competent workforce screening company that conducts background checks in a lawful and compliant manner. According to the complaint, Defendant contracted with RTR and agreed to provide employment screening and background check services to RTR. Contrary to its advertising and the language of its agreement with RTR, the truth of the matter, according to the complaint, was that Defendant's workforce screening services were not lawful or compliant with specific government mandates. Among other things, it was using authorization forms that violated the FCRA, as the forms contained liability waivers and other extraneous information that cannot be included within the form. Defendant should have known that the manner in which it was conducting its business operations was unlawful and non-compliant with the FCRA prior to Hargrove I. RTR has reason to believe that Defendant continued engaging in the activities that it knew, or should have known, were unlawful under the FCRA after it resolved Hargrove. Defendant refused to help RTR resolve the lawsuit and denied any responsibility or liability for the damages suffered by RTR. RTR and Mr. Hargrove ultimately settled Hargrove. Fc Background, LLC was founded in 2000. The company's line of business includes providing various business services.[BN] The Plaintiff is represented by: Jacob Sparks, Esq. Leslie Greathouse, Esq. Brian Peterson, Esq. SPENCER FANE LLP 10100 North Central Expressway, Suite 225 Dallas, TX 752314456 Telephone: (214) 750 3610 Facsimile: (214) 750 3612 E-mail: jsparks@spencerfane.com lgreathouse@spencerfane.com bpeterson@spencerfane.com GALE/TRIANGLE INC: Court OK's $650K Class Action Settlement ----------------------------------------------------------- The United States District Court for the Eastern District of California issued a Memorandum and Order granting Parties' Joint Final Approval of Settlement in the case captioned STEVE TURK, individually and on behalf of others similarly situated, Plaintiff, v. GALE/TRIANGLE, INC., a New Jersey corporation; and PERFORMANCE TEAM FREIGHT SYSTEMS, INC., a California corporation; and DOES 1 through 50, inclusive, Defendants, No. 2:16-cv-00783- MCE-DB (E.D. Cal.). Defendants are engaged in the transportation industry and employed Plaintiff and the Settlement Class Members as truck drivers and/or yard goats. Plaintiff alleges that Defendants violated the California Labor Code by failing to pay Plaintiff and the Class for hours worked during rest periods and non-productive time, failing to provide meal and rest periods, failing to issue accurate wage statements, and failing to pay wages due at termination. Plaintiff additionally alleges a violation of California's Unfair Competition Law. Defendants deny these claims. Under the terms of the Settlement Agreement, Defendants have agreed to pay a Gross Settlement Amount of $650,000, which funds will be distributed with no reversion to Defendants. Attorneys' fees ($195,000), litigation costs ($17,925), the enhancement to Plaintiff Turk as the class representative ($10,000), settlement administration costs ($9,499), and California Private Attorneys General Act of 2004 (PAGA) allocation to California Labor and Workforce Development Agency (LWDA) ($7,500) will be deducted from the GSA, resulting in a Net Settlement Value (NSV) of $410,076. Each Settlement Class Members' share of the NSV is based on the number of weeks worked, which number has not been disputed by any of the Class Members. The average Settlement Class Member is estimated to receive over $1,100, and the highest individual settlement is estimated at $9,817.02. The parties have executed the Court-approved plan for providing notice to the class, and the response of the Settlement Class Members was positive, with zero Class Members objecting to the terms of the Settlement and only four opting out. Here, as to class certification, the Court has already determined that certification of the Settlement Class solely for purposes of settlement is appropriate in that: (1) the Class Members are so numerous that joinder of all Class Members is impracticable; (2) there are questions of law and fact common to the Class which predominate over any individual questions; (3) Plaintiff's claims are typical of the claims of the Settlement Class; (4) Plaintiff and his counsel have fairly and adequately represented and protected the interests of the Class; and (5) a class action, and class-wide resolution of the action via class settlement procedures is superior to other available methods for the fair and efficient adjudication of the controversy. No party or class member has objected to certification of the Settlement Class, and there is nothing before the Court to suggest that these prior findings should not be affirmed. The Court therefore affirms its prior certification of the Class for settlement purposes inasmuch as the requirements of Rule Based on the facts described above and the Court's weighing of the strength of the case, the risks of litigation, and the costs of continued litigation -- and especially in light of the fact that (1) the proposed Settlement Agreement emerged after extensive discovery and a day long arms-length mediation, and (2) no Class Member has filed objections and only four have opted out the Court finds the terms of the Settlement Agreement to be fair, reasonable, and adequate. Moreover, With regard to class action settlements, the opinions of counsel should be given considerable weight both because of counsel's familiarity with this litigation and previous experience with cases. Class Counsel has represented that the instant Settlement Agreement is in the best interest of the Settlement Class Members, and the Court has no reason to believe otherwise. Likewise, the Court finds the proposed payment of $9,499 to the Settlement Administrator and $7,500 of the PAGA allocation to LWDA to be fair, reasonable, and in line with similar awards in other cases. Plaintiff's counsel seeks an award of $195,000, which amounts to 30% of the GSA. Based on the Court's review of the case, the positive results received after three years of litigation that included extensive discovery and mediation, the risks taken on by counsel (and specifically, by accepting the case on contingency), and the experience and skill of counsel, the Court finds this award to be fair and reasonable. Though 30% represents the higher end of what is typically deemed acceptable in other cases applying the percent-of-recovery method, the Court finds a 5% increase from the standard 25% benchmark is warranted under the circumstances. Moreover, a comparison to awards typically made in common fund cases suggests that an award of 30% is appropriate here. For these reasons, 30% of the common fund, or $195,000, is a fair and reasonable attorneys' fees award in this case. A full-text copy of the District Court's September 21, 2017 Memorandum and Order is available at http://tinyurl.com/y85r285o from Leagle.com. Steve Turk, Plaintiff, represented by S. Brett Sutton -- brett@suttonhague.com -Sutton Hague Law Corporation, PC. Steve Turk, Plaintiff, represented by Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation, PC & Joseph Vidal Macias -- joseph.macias@maximintegrated.com -- Sutton Hague Law Corporation, PC. Gale/Triangle, Inc., Defendant, represented by Mark David Kemple - - kemplem@gtlaw.com -- Greenberg Traurig. Performance Team Freight Systems, Inc., Defendant, represented by Mark David Kemple, Greenberg Traurig. GAMESTOP CORP: Hit With Class Action Over Data Breach ----------------------------------------------------- Rick Archer, writing for Law360, reports that a putative class action suit filed on September 29 against video game retailer GameStop alleges inadequate cybersecurity led to the theft of an unknown number of customers' credit and debit card numbers during a six-month-long data breach. Crystal Bray and Samuel Cook claimed they and an unknown number of other customers at GameStop Corp.'s online store had their credit and debit card numbers stolen in a data breach between August 2016 and February 2017 because of the company's substandard cybersecurity practices. "The data breach was the inevitable result of GameStop's inadequate data security measures and cavalier approach to data security," they said. According to the complaint, in April GameStop confirmed to media outlets that it was investigating a possible security breach that would have compromised customers' card information between August 2016 and February. The complaint notes an undated statement on GameStop's website says the company was made aware of the breach when a third party reported that customer card data was being offered for sale online. Bray and Cook claimed they made online purchases from GameStop during this period and were first notified of the breach in letters dated June 2. "The letter also stated that GameStop determined on April 18, 2017, that there was the potential for a data breach of defendant's system. That date is nearly 10 days after media outlets began reporting that GameStop was aware of the potential for a data breach," they said. The plaintiffs said between them they had more than $7,600 in fraudulent withdrawals and charges due to the theft of their card numbers. While the funds were recovered and the charges cancelled, both plaintiffs spent several hours addressing the problem, the complaint said The complaint claimed the breach occurred because GameStop's security measures "are in stark contrast and directly conflict" with industry standards and violate Federal Trade Commission guidelines. It also said the company's response to the affected customers was inadequate. "In contrast to what is and has been frequently made available to consumers in recent data breaches, GameStop has not offered or provided any monitoring service or fraud insurance to date," they said. The plaintiffs said they did not know how many customers were affected as of the time of filing, but that the breach took place during the heaviest retail sales seasons of the year. Counsel for the plaintiffs and representatives of GameStop did not immediately respond to requests for comment late on September 29. The plaintiffs are represented by Robert J. Kriner Jr., Esq. -- rk@chimicles.com -- Vera G. Belger, Esq. -- vb@chimicles.com -- Benjamin F. Johns, Esq. -- bj@chimicles.com -- Andrew W. Ferich, Esq. -- af@chimicles.com --and Jessica L. Titler, Esq. -- jt@chimicles.com -- of Chimicles & Tikellis LLP and Cornelius P. Dukelow, Esq. -- cdukelow@abingtonlaw.com -- of Abington Cole & Ellery. Counsel information for GameStop was not immediately available. The case is Crystal Bray et. al. v. GameStop Corp., case number not immediately available, in the United States District Court for the District of Delaware. [GN] GEICO INDEMNITY: Faces "Lorenti" Suit in M. Dist. Fla. ------------------------------------------------------ A class action lawsuit has been filed against Geico Indemnity Company. The case is styled as Anthony Lorenti, on behalf of himself, and all others similarly situated, Plaintiff v. Geico Indemnity Company, Defendant, Case No. 6:17-cv-01755-GKS-DCI (M.D. Fla., October 10, 2017). GEICO Indemnity Company offers auto, life, and home insurance solutions.[BN] The Plaintiff is represented by: Tracy Lynne Markham, Esq. Avolio & Hanlon, PC 2800 N. Fifth St Ste 302 St Augustine, FL 32084 Tel: (904) 794-7005 Fax: (904) 794-7007 Email: tlmarkhamlaw@gmail.com GEO GROUP: Faces "Olmos" Suit in Arizona ---------------------------------------- A class action lawsuit has been filed against GEO Group Incorporated. The case is styled as Timothy Paul Olmos, named as Timothy Olmos, on behalf of himself and all others similarly situated, Plaintiff v. Charles L Ryan, Richard Pratt, Mark Shipman, Jeffery Wrigley, Correct Care Solutions, Unknown Foster Dr., Crystal Bitz, GEO Group Incorporated named as The Geo Group Incorporated and Lori A Linn, Defendants, Case No. 2:17-cv-03665- GMS--JFM (D. Ariz., October 10, 2017). The GEO Group Inc. is a Florida-based company specializing in corrections, detention and mental health treatment.[BN] The Plaintiff appears PRO SE. GOOGLE INC: Faces "Ellis" Suit over Gender Pay Gap -------------------------------------------------- KELLY ELLIS, HOLLY PEASE, and KELLI WISURI, individually and on behalf of all others similarly situated, the Plaintiffs, v. GOOGLE, INC., Defendant, Case No. CGC-17-561299 (Cal. Super. Ct., Sep. 14, 2017), seeks to recover wages due, interest, liquidated damages, and declaratory and injunctive relief enjoining Google from continuing to pay women less than men for substantially similar work, including by segregating women into lesser compensated jobs than men with similar skills and experience. According to the complaint, Google has discriminated and continues to discriminate against its female employees by systematically paying them lower compensation than Google pays to male employees performing substantially similar work under similar working conditions, in violation of the California Equal Pay Act, Labor Code. Google's failure to pay women and men equal compensation for substantially similar work is not justified by any lawful reason. Google has discriminated and continues to discriminate against its female employees by paying female employees less than male employees with similar skills, experience, and duties; by assigning and keeping women in job ladders and levels with lower compensation ceilings and advancement opportunities than those to which men with similar skills, experience, and duties are assigned and kept; and by 20 promoting fewer women and promoting women more slowly than it has promoted similarly-qualified men. The net result of this systemic discrimination is that Google pays women less than men for comparable work. Google has known or should have known of the pay disparity between its female and male employees, yet Google has failed to equalize men's and women's pay for substantially similar work. Google's failure to pay female employees the same compensation paid to male employees for substantially similar work has been and is willful. As a result of Google's discriminatory and unlawful pay, job assignment, and promotion policies and/or practices, Plaintiffs and class members have been denied opportunities and fair wages during the Class Period, and they are entitled to wages due, interest, and liquidated damages. In addition to damages, Plaintiffs also seek declaratory and injunctive relief enjoining Google from continuing to pay women less than men for substantially similar work, including by segregating women into lesser compensated jobs than men with similar skills and experience; and from failing to promote women at the same rate or pace as men. Google Inc. is an American multinational technology company that specializes in Internet-related services and products. These include online advertising technologies, search, cloud computing, software, and hardware.[BN] The Plaintiffs are represented by: James M. Finberg, Esq. Eve H. Cervantez, Esq. Corinne F. Johnson, Esq. ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421 7151 Facsimile: (415) 362 8064 E-mail: jfinberg@altshulerberzon.com ecervantez@altshulerberzon.com cjohnson@altshulerberzon.com - and - Kelly M. Dermody, Esq. Anne B. Shaver, Esq. Michelle Lamy, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery St., 29th Floor San Francisco. CA 94111 Telephone: (415) 956 1000 Facsimile: (415) 956 1008 E-mail: kdermodv@lchb.com ashaver@lchb.com mlamy@lchb.com GREAT WOLF RESORTS: Faces "Anderson" Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Great Wolf Resorts Holdings, Inc. doing business as: Great Wolf Lodge. The case is styled as Derrick Anderson, on behalf of himself and all others similarly situated, Plaintiff v. Great Wolf Resorts Holdings, Inc. doing business as: Great Wolf Lodge, Defendant, Case No. 1:17-cv- 05924 (E.D. N.Y., October 10, 2017). Great Wolf Resorts Holdings, Inc. owns, operates, and/or manages hotel resort properties specializing in in-door water parks.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com GULF WORLD: Faces "Vallee" over Credit Card Receipts ---------------------------------------------------- ANDREW VALLEE, on behalf of himself and all others similarly situated, the Plaintiff, v. GULF WORLD MARINE PARK, INC. (d/b/a Gulf World); and DOES 1 through 10, inclusive, the Defendants, Case No. 5:17-cv-00236-RH-GRJ (N.D. Fla., Sep. 14, 2017), seeks to recover statutory damages, punitive damages, costs and attorney fees, all of which are expressly made available by statute, as a result of Defendants' unlawful practice of violating Fair and Accurate Credit Transactions Act's provisions intended to safeguard against identity theft and credit and debit card fraud. According to the compliant, many of Defendants' business peers and competitors brought their credit and debit card receipt printing processes in compliance with FACTA's requirements by, for example, programming their card machines and devices to prevent them from printing more than the last five digits of the card number and or the expiration date upon the receipts provided to the cardholders. Defendants could have readily done the same. Instead, Defendants knowingly, willfully, intentionally, and recklessly disregarded FACTA's requirements and used cash registers and or other machines or devices that printed receipts in violation of FACTA. Defendant knowingly, willfully, intentionally, and recklessly violated FACTA in conscious disregard of the rights of Plaintiff and the Class.[BN] The Plaintiff is represented by: Dewitt M. Lovelace, Esq. LOVELACE AND ASSOCIATES, PA 12870 U.S. Hwy 98 West, Suite 200 Miramar Beach, FL 32550 Telephone: 850 837 6020 Facsimile: 850 837 4093 E-mail: dml@lovelacelaw.com - and - Chant Yedalian, Esq. CHANT & COMPANY A Professional Law Corporation 1010 N. Central Ave. Glendale, CA 91202 Telephone: 877 574 7100 Facsimile: 877 574 9411 E-mail: chant@chant.mobi - and - Brian K. Herrington, Esq. HERRINGTON LAW, PA 1520 N. State Street Jackson, MS 39202 Telephone: (601) 208 0013 Facsimile: (601) 235 9947 E-mail: brian@herringtonlawpa.com HERBALIFE LTD: Accused by Rodgers of Negligent Misrepresentation ---------------------------------------------------------------- JEFF RODGERS, PATRICIA RODGERS, MICHAEL LAVIGNE, JENNIFER LAVIGNE, CODY PYLE, JENNIFER RIBALTA, IZAAR VALDEZ, FELIX VALDEZ, individually and on behalf of all others similarly situated v. HERBALIFE, LTD.; HERBALIFE INTERNATIONAL, INC.; HERBALIFE INTERNATIONAL OF AMERICA, INC., MARK ADDY, JILLIAN ADDY, DENNIS DOWDELL, GARRAIN S. JONES, CODY MORROW, CHRISTOPHER REESE, GABRIEL SANDOVAL, EMMA SANDOVAL, JOHN TARTOL, LESLIE R. STANFORD, FERNANDO RANCEL, LORI BAKER, MANUEL COSTA, MARK DAVIS, JENNY DAVIS, DANIELLE EDWARDS, GRAEME EDWARDS, THOMAS P. GIOIOSA, SANDRA GIOIOSA, ALCIDES MEJIA, MIRIAM MEJIA, PAULINA RIVEROS, RON ROSENAU, CAROL ROSENAU, AMBER WICK, JASON WICK, JORGE DE LA CONCEPCION, DISNEY DE LA CONCEPCION, JENNIFER MICHELI, GUILLERMO RASCH, CLAUDIA RASCH, SAMUEL HENDRICKS, AMY HENDRICKS, BRADLEY HARRIS, PAYMI ROMERO, ARQUIMEDES G. VALENCIA, RYAN BAKER, KRISTOPHER BICKERSTAFF, MARK MATIKA, ENRIQUE CARILLO, DANIEL J. WALDRON, SUSAN PETERSON, MICHAEL KATZ, and DEBI KATZ, Case No. 1:17-cv-23429-MGC (S.D. Fla., September 18, 2017), seeks relief under the Florida Deceptive and Unfair Trade Practices Act, and for unjust enrichment and negligent misrepresentation. The Plaintiffs seek damages and injunctive relief against the alleged corrupt organization of individuals and entities, who sell, operate, and compel participation in the Circle of Success. The Defendants market their event system as some variation of the "Wheel of Success," the "Cycle of Success," or the "Circle of Success" (the "Circle of Success"). The Circle of Success is graphically represented to participants in dozens of different forms, but all are intended to express the same core theme: attendance at events equals financial success. Herbalife is a global nutrition company that sells weight management, healthy meals and snacks, sports and fitness, energy and targeted nutritional products, as well as personal care products. The Company distributes and sells its products through a network of independent distributors, using the direct selling channel. Herbalife, Ltd., is a Cayman Island corporation with its principal place of business in Los Angeles, California. Herbalife International, Inc., is a Nevada corporation with its principal place of business in Los Angeles. Herbalife International, Inc., is an indirect, wholly-owned subsidiary of Herbalife, Ltd. Herbalife International of America, Inc., is a Nevada corporation with its principal place of business in Los Angeles. Herbalife International of America, Inc., was a wholly-owned subsidiary of Herbalife International, Inc. and an indirect, wholly-owned subsidiary of Herbalife, Ltd. The Individual Defendants are among Herbalife's top earning distributors.[BN] The Plaintiffs are represented by: Etan Mark, Esq. Donald J. Hayden, Esq. Lara O'Donnell Grillo, Esq. MARK MIGDAL & HAYDEN 80 S.W. 8th Street, Suite 1999 Miami, FL 33130 Telephone: (305) 374-0440 E-mail: etan@markmigdal.com don@markmigdal.com lara@markmigdal.com - and - Jason Jones, Esq. JASON JONES @ LAW Telephone: (312) 237-0275 E-mail: jason@jonesatlaw.com HOSPITALITY STAFFING: "Arguelles" Suit Moved to S.D. California --------------------------------------------------------------- The class action lawsuit titled Brenda Arguelles, individually, and on behalf of all others similarly situated current and former employees of Defendants, the Plaintiff, v. Hospitality Staffing Solutions, LLC and DOES 1 through 50, inclusive, the Defendants, Case No. Case No. 37-02017-00029158-CU-OE-CTL, was removed on Sep. 14, 2017 from the Superior Court of California, San Diego County, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv- 01885-BEN-BGS to the proceeding. The case is assigned to the Hon. Judge Roger T. Benitez. Hospitality Staffing Solutions, LLC provides hospitality staffing services to hotels, resorts, casinos, and diamond properties in the United States.[BN] The Plaintiff is represented by: Farzad Rastegar, Esq. RASTEGAR LAW GROUP, APC 1010 Crenshaw Boulevard, Suite 100 Torrance, CA 90501 Telephone: (310) 961 9600 Facsimile: (310) 961 9094 E-mail: farzad@rastegarlawgroup.com The Defendant is represented by: Lisa Mireille Bowman, Esq. OGLETREE DEAKINS One Market Plaza San Francisco, CA 94105-1002 Telephone: (415) 442 4810 Facsimile: (415) 442 4870 E-mail: lisa.bowman@ogletree.com J. R. CARLSON: Faces "Kramarz" Suit over L-Glutamine Product ------------------------------------------------------------ MARTIN KRAMARZ, individually and on behalf of all others similarly situated, the Plaintiff, v. J. R. CARLSON LABORATORIES, INC., the Defendant, Case No. 2017-CH-12609 (Ill. Cir. Ct., Sep. 18, 2017), seeks to enjoin Defendant's ongoing deceptive practices relating to its claims on the labels and advertising of its L-Glutamine dietary supplement products. This case is a consumer class action brought on behalf of consumers who purchased Life Time Fitness L-Glutamine dietary supplement. The Defendant engaged in unfair and/or deceptive business practices by misrepresenting the nature and quality of the Product on the Product's label, and were unjustly enriched. According to the lawsuit, Defendant J. R. Carlson Laboratories, Inc. advertises, markets, sells and distributes the Product throughout the United States, including in the State of Illinois. The Defendant, like many companies in the sports supplement industry, totally ignores competent and reliable scientific data regarding its products and ingredients. L-Glutamine is a naturally-occurring, nonessential, neutral amino acid. It is important as a constituent of proteins and as a means of nitrogen transport between tissues. It is "nonessential" because the human body produces its own glutamine. Glutamine is the most abundant free amino acid in human skeletal muscle and plasma. The effects of acute exercise on plasma glutamine appear to be largely dependent on the duration and intensity of exercise. The lawsuit notes that many healthy people are under the impression, perpetuated by the likes of the Defendant, that a supplemented intake of glutamine has beneficial effects. This is frequently the case among athletes and bodybuilders, who commonly consume glutamine one to three times daily. Glutamine supplementation doses range from 2 to 40 grams per day, which represents 3% to 60% of the recommended intake of amino nitrogen. Simply because a substance, such as glutamine, is a nutrient, does not necessarily mean that its enhanced use is beneficial. Glutamine naturally found within the body does play a role in certain mechanisms supporting muscle growth and recovery. However, as noted in the numerous scientific citations contained herein, glutamine supplementation has been found to be completely ineffective at mimicking these physiological responses. Simply put, the ingestion of Defendant's Product does absolutely nothing for the recovery from exercise or energy for muscle growth.[BN] The Plaintiff is represented by: Jeffrey A. Berman, Esq. Patrick Solberg, Esq. ANDERSON & WANCA Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847 368 1500 Facsimile: 847 368 1501 E-mail: jberman@andersonwanca.com psolberg@andersonwanca.com - and - Nick Suciu III, Esq. Barbat, Mansour & Suciu 1644 Bracken Road Bloomfield Hills, MI 48302 Telephone: (313) 303 3472 E-mail: nicksuciu@bmslawyers.com JLN CONSTRUCTION: Lee Seeks to Recover Unpaid Wages Under FLSA -------------------------------------------------------------- CHRISTOPHER LEE and LADRIAN TAYLOR, Individually and on Behalf of All Similarly Situated Employees v. JLN CONSTRUCTION SERVICES, LLC and NNAMDI C. IWUOHA, Case No. 1:17-cv-02765-RDB (D. Md., September 18, 2017), seeks to recover unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Fair Labor Standards Act of 1938, the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law. JLN Construction Services, LLC, is an incorporated for-profit business with a principal office in Baltimore County, Maryland. JLN specializes in general construction and design-build projects. The Company performs masonry, finishing, demolition and installation work. Nnamdi C. Iwuoha is the owner of JLN.[BN] The Plaintiffs are represented by: George E. Swegman, Esq. Benjamin L. Davis, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 Facsimile: (410) 244-8454 E-mail: gswegman@nicholllaw.com bdavis@nicholllaw.com KITE PHARMA: "Morrissey" Suit Seeks to Enjoin Merger with Gilead ---------------------------------------------------------------- RICHARD MORRISSEY, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. KITE PHARMA, INC., ARIE BELLDEGRUN, DAVID BONDERMAN, FARAH CHAMPSI, IAN CLARK, ROY DOUMANI, FRANZ HUMER, JOSHUA A. KAZAM, RAN NUSSBAUM, JON PEACOCK, STEVEN B. RUCHEFSKY, and OWEN N. WITTE, the Defendants, Case No. 2:17-cv-06771 (C.D. Cal., Sep. 14, 2017), seeks to enjoin Defendants from closing a tender offer or taking any steps to consummate a proposed transaction, unless and until the material information discussed below is disclosed to Kite stockholders or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. According to the complaint, on August 27, 2017, Kite entered into a definitive agreement and plan of merger with Gilead, pursuant to which each Kite stock holder stands to receive $180.00 for each share of Kite common stock they own. On September 5, in order to convince Kite stockholders to tender their shares, the Company's Board authorized the filing of a materially incomplete and misleading Schedule 14D-9 Solicitation/Recommendation Statement with the Securities and Exchange Commission. In particular, the Recommendation Statement contains materially incomplete and misleading information concerning Kite's financial projections and the valuation analyses performed by the Company's financial advisor, Centerview Partners LLC. The Tender Offer is scheduled to expire on October 2, 2017. It is imperative that the material information that has been omitted from the Recommendation Statement is disclosed to the Company's stockholders prior to the forthcoming Expiration Date so they can properly determine whether to tender their shares. Kite Pharma is a publicly held, clinical-stage biopharmaceutical company engaged in the development of novel cancer immunotherapy products with a primary focus on engineered autologous T cell therapy.[BN] The Plaintiff is represented by: David E. Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Telephone: (213) 446 6652 Facsimile: (212) 202 7880 MAJOR LEAGUE: Faces Class Action Over Fan Injuries at Games ----------------------------------------------------------- Larry Neumeister, Fred Lief, Ben Walker, Ronald Blum, Howie Rumberg, Joe Kay, Bernie Wilson and Donna Cassata, writing for Associated Press, report that it might be the shot heard around the baseball world: the rocket-like foul ball that hit a young girl at a New York Yankees game. In the hours after the girl was struck in the face by the 105-mph screamer, the game's commissioner vowed to push harder for all teams to extend protective netting to the end of the dugouts and the Cincinnati Reds and San Diego Padres committed to do just that by next year. A U.S. senator urged the commissioner to "put the safety of your fans first" and extend nets at all ballparks. Several legal observers of baseball, which has long been shielded from lawsuits over fan injuries, saw it as a potential game changer. "America's pastime is breaking America's heart. That little girl, that's everyone's daughter," said lawyer Bob Hilliard, who represents fans in a California lawsuit that seeks class action status to sue on behalf of 1,750 fans hit by balls and bats at games each year. The line drive off the bat of Yankees slugger Todd Frazier on Sept. 20 hit the girl in the face in less than a second, and the game came to a halt as she was treated in the stands. Mr. Frazier and other players from the Yankees and Minnesota Twins kneeled in prayer, and many fans were in stunned silence or in tears. The toddler remained hospitalized on Sept. 21. Her father said soon after she was hit, "She's doing all right. Just keep her in your thoughts." In a statement on Sept. 21, Major League Baseball Commissioner Rob Manfred called the events "extremely upsetting." "Over the past few seasons MLB has worked with our clubs to expand the amount of netting in our ballparks," Mr. Manfred said. "In light of the event, we will redouble our efforts on this important issue." About a third of the 30 major league teams, the Yankees not among them, have at the commissioner's urging extended the netting to at least the far end of the dugout. The Reds have promised to do it by next season's opening day. U.S. Sen. Dick Durbin, an Illinois Democrat, told Mr. Manfred in a letter to push to extend safety netting from 10 to all 30 ballparks. On a visit to the Padres, Mr. Manfred said he was encouraged by the number of conversations MLB had with clubs on Sept. 21 about adding additional netting for 2018. Among them were the Padres, who said they will extend netting to the end of each dugout by opening day. "I think by redoubling I mean continuing to focus and conversations with the clubs to get them to make decisions that make sense in their local markets and given the configurations of their ballparks," Mr. Manfred said. "I think probably the best concrete evidence of redoubling is the number of conversations that took place between my office and individual clubs on this topic." Mr. Hilliard's lawsuit seeks to go further, to force clubs to extend protective netting from foul pole to foul pole. But like other lawsuits over decades, it was tossed out. An appeal will be heard in San Francisco in December. "A day at the ballpark should not be a game of Russian Roulette, especially for children injured by projectiles in disturbingly disproportionate numbers," lawyers wrote in court papers seeking the lawsuit's reinstatement. Most of the fans struck by balls and bats at games each year suffer minor injuries, but a few have been critically injured or killed. The more tragic results include a 14-year-old boy who died four days after he was hit on the left side of his head at Dodger Stadium in May 1970 and a 39-year-old woman who died a day after she was struck in the temple by a foul ball at a San Angelo Colts game in 2010. But fans may be unaware of the stark legal reality of baseball: Successfully suing teams over such cases is nearly impossible. The fine print on every baseball ticket comes with a disclaimer that the bearer "assumes all risk and danger incidental to the game." For the last century or so, baseball has been virtually immune from such lawsuits because of what has become known as the Baseball Rule. Ed Edmonds, a retired professor of law at Notre Dame Law School who co-authored "Baseball Meets the Law," said at least two states, Idaho and Indiana, have turned away from automatic application of the Baseball Rule. But four other states, Arizona, Colorado, Illinois and New Jersey, passed legislation protecting teams from lawsuits. New York real estate executive Andy Zlotnick, who unsuccessfully sued the Yankees after he was hit in the face by a ball at a game six years ago, said he required major reconstructive surgery and still has throbbing pain in his cheek, numbness in his lips and gums, double vision and retina damage. He said he has not gone to a game since. "Nobody should go to a ballpark and come out without an eye or disabled," he said. "Enough is enough." Dina Simpson, a Chardon, Ohio, mother of three young children, said she permanently lost one eye sight after she was struck by a baseball in May at a minor league game in Eastlake, Ohio. "They have the Baseball Rule. They think this happens, you can't sue us, have a nice day. It's sickening. It's absolutely sickening," she said. "I'm praying for that little girl . . . It's heartbreaking and it's preventable." [GN] MARRIOT OWNERSHIP: Faces Labor Class Action in California --------------------------------------------------------- Gordon Gibb, writing for LawyersandSettlements.com, reports that a California labor lawsuit against a subsidiary of hotelier Marriott has been put forward as a class action by a former sales executive who claims she was not properly compensated for hourly work. Stacy McComack also asserts that consent forms associated with background checks included a liability waiver that is alleged to be in violation of regulatory authority. California Class Action Labor Lawsuit Filed Against Marriott Subsidiary The defendant in the proposed California labor law class action is Marriott Ownership Resorts Inc., a division of Marriott that specializes in the development and vending of time-shares. The California labor employment law class action asserts commission sales executives and associates were unable to take meal breaks and rest periods, and were not compensated for them. Ms. McComack, who is identified as the lead plaintiff in the lawsuit, states in Court documents that an overly busy work day often did not allow sales executives the freedom, or opportunity to pause for meal breaks and rest periods as mandated by California labor laws. To that end, according to Law360 (08/21/17), California state labor laws hold that meal breaks and rest periods can only be forfeited if the employee is paid for the missed breaks, and / or meal period. The lawsuit asserts that Marriott failed to properly compensate Ms. McComack and representative class members for those missed breaks. The resulting missed pay, the lawsuit states, also affects overtime pay and creates a situation where the sales executives were essentially working off the clock. "Defendant required plaintiff and California class members to work off the clock without paying them for all the time they were under defendant's control performing post-shift duties, specifically by failing to provide enough labor hours to accomplish all the job tasks that defendant expected plaintiff and California class members to complete," the complaint alleges. "The plaintiff and other California class members forfeited time worked by working without their time being accurately recorded and without compensation at the applicable rates." The California labor lawsuit asserts pay records lack any reference to rest breaks or meal periods. Ms. McComack also alleges that sales reps undertook additional tasks from home, including fielding calls for which the plaintiffs saw no compensation. Plaintiffs further allege Marriott failed to reimburse employees for using their personal mobile phones for work-related purposes. Ms. McComack's California labor lawsuit is Stacy McComack et al. v. Marriott Ownership Resorts Inc., Case No. 3:17-cv-01663, in the US District Court for the Southern District of California. The lawsuit seeks to represent a class of California sales executives who were paid on commission since August 2013. Ms. McComack also seeks damages for a nationwide class of people who have applied to work for Marriott Ownership Resorts since August 2012 -- and this relates to a background check release that included a liability waiver. Ms. McComack alleges the release form in question violates guidance under the Federal Trade Commission, together with alleged violations against the Fair Credit Reporting Act (The Act), which states background checks are not to seek information or include terms beyond what are deemed as standard disclosures under The Act. For this, Ms. McComack seeks statutory damages of $1,000 per applicant, as well as punitive damages, equitable relief and attorneys' fees. [GN] MASSACHUSETTS MUTUAL: Ehrlich Sues over Benefit Payments -------------------------------------------------------- JOHN EHRLICH, for himself and for all others similarly situated, Plaintiff, V. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, the Defendant, Case No. 17-2982F (Mass. Super. Ct., Sep. 18, 2017), asks the Court to compel the Defendant to restore the cost of living benefit payments going forward to the plaintiff and to all of the members of the class. According to the complaint, in August 1988, the plaintiff purchased a disability insurance policy from Connecticut Mutual. The policy consists, inter alia, of a basic policy, which provides certain payments for periods during which the insured is disabled through the policy anniversary date following the insured's 65th birthday; a lifetime rider, so called, which extends the payment of benefits beyond the cut-off date for so long as the insured remains disabled and is alive; and a cost-of-living rider which provides for annual increases in the amount of benefits paid under the policy. The policy remains in full force and effect, and the plaintiff remains totally disabled. The basic monthly payment under the policy is $1,500. By virtue of the cost of living rider, that amount has increased substantially during the term of the plaintiffs disability, and in the last month (July, 2017) for which the defendant has paid to the plaintiff the full amount due under the policy, his total monthly benefit stood at $4,837.50. The plaintiff was born on July 1, 1952. His 65th birthday occurred on July 1, 2017. The anniversary of the policy next after his 65th birthday occurred on August 5, 2017. The defendant takes the position that the cost of living rider is not extended beyond this cut-off date by the lifetime rider, and that the plaintiffs benefit, as of August 5, 2017, reverted back to his basic benefit of $1,500 per month. In September 2015, the defendant sent the plaintiff a letter outlining its contention that the cost of living adjustments to the basic policy would end in August 2017 and that his payments would revert to the base amount. In July, 2017, the defendant wrote the plaintiff again to the same effect. On August 18, 2017, the defendant sent the plaintiff an "Explanation of Benefits" stating that the defendant would deposit in the plaintiffs designated bank account the sum of $1,500, and that this was the total amount of his monthly benefit going forward. The defendant is collaterally estopped from maintaining that the policy at issue has the meaning that it attempts to give it. The defendant has continued to deny cost of living benefits to all of its policy holders similarly situated to the plaintiff notwithstanding its knowledge that it cannot lawfully do so. Massachusetts Mutual Life Insurance Company operates as a mutual life insurance company in the United States.[BN] The Plaintiff is represented by: Joel Z. Eigerman, Esq. 60 Reservoir St. Cambridge MA 02138 Telephone: (617) 547 7166 MASTERCARD INC: Consumer's GBP14-Bil. Class Action Appeal Denied ---------------------------------------------------------------- Richard Crump, writing for Law360, reports that a U.K. competition appeal court on September 28 denied a consumer's attempts to appeal a decision preventing him from bringing a GBP14 billion ($18.7 billion) antitrust suit against Mastercard Inc. over credit card swipe fees. Former chief financial services ombudsman Walter Merricks had moved to appeal a U.K. competition court's decision that the case couldn't proceed as a collective action, which has been dismissed by a panel of English judges. The U.K. Competition Appeal Tribunal, or CAT, unanimously ruled on July 21 that the claim, filed by Merricks on behalf of millions of consumers, had failed several tests necessary for it to be granted a collective proceedings order. Merrick appealed the decision, claiming the tribunal was wrong in its analysis and in the legal test that it applied. He said that had it properly applied relevant legal principles, and considered the clear policy intent behind the introduction of the new collective action regime, the claim against Mastercard would have been allowed to proceed. "There is no potential error of law in the tribunal finding that the claims were not "suitable to be brought in collective proceedings. The application for permission to appeal is therefore refused," the panel of judges led by Judge Peter Roth wrote in judgment. "If we had considered that there was jurisdiction for an appeal, we would have refused permission in this case since we do not consider that the appeal would have any real prospect of success," the judgment stated. The CAT's decision marks another major win for Mastercard in its long-running battles with consumers and retailers over the bank- to-bank fees it sets. The credit card firm notched up a significant High Court victory earlier this year in an interchange fees case brought by a group of retailers. The consumer suit, lodged by Merricks in September, is one of the first to be filed using the U.K.'s new class action regime created in 2015. "We believe that the Competition Appeal Tribunal's judgment to refuse certification for the proposed collective action, and in turn its refusal to appeal the judgment, were the correct decisions, and that any appeal or review of this claim is without merit. Mastercard maintains that this claim is completely unsuitable to be brought under the collective actions regime," a Mastercard spokesman said. Legal representatives for Merricks had not responded to request for comment at the time of publication. Mastercard still faces more than a dozen suits after the company lost its appeal in 2014 against a European Commission ruling that it broke EU competition law by setting a minimum price for cross- border interchange fees. These bank-to-bank charges are paid from a merchant's bank to a card-issuing bank when a purchase is processed. Merricks is represented by Paul Harris QC of Monckton Chambers and Marie Demetriou QC and Victoria Wakefield of Brick Court Chambers and Quinn Emanuel Urquhart & Sullivan LLP. MasterCard is represented by Mark Hoskins QC and Tony Singla of Brick Court Chambers, Ben Williams QC of 4 New Square and Matthew Cook of One Essex Court and Freshfields. The judgment was handed down by Judge Peter Roth, Colin Mayer and Clare Potter. The case is Walter Hugh Merricks CBE v. MasterCard Inc., MasterCard International Inc. and MasterCard Europe S.P.R.L., case number 1266/7/7/16, at the Competition Appeal Tribunal. [GN] MDL 2284: Ct. Affirms Arborist Panel's Denial of "Mojsiej" Appeal ----------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imprelis Arborist Panel's Decision denying of John and Sharon Mojsiej's appeal in the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. Case No. 2:11-md-02284-GEKP. (E.D. Pa.) John and Sharon Mojsiej appeal the decision of the Imprelis Arborist Panel, claiming that several trees should receive higher ratings and/or adjusted tree height assessments, and that other trees should have been included in their claims resolution agreement. 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. DuPont started its own 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 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. 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. The Court also retained exclusive jurisdiction over any action relating to the Settlement. The Mojsiejs' Appeal DuPont offered removal and replacement value for 21 trees and tree care for 9 trees. The Mojsiejs objected to the offer, claiming additional damage and differences in tree heights, as well as seeking additional tree care compensation and an additional payment of greater than 15%. DuPont sent another inspector to review the Mojsiejs' property. Based on that inspection, some trees had improved and others had worsened, resulting in a new offer providing removal and replacement compensation for 21 trees, tree care for 12 trees, and removal payment rather than service at Mr. Mojsiej's request. The Mojsiejs objected again, arguing that certain trees had not been inspected for damage and that the heights for other trees were inaccurate. DuPont denied the objection, and the Mojsiejs appealed to the Arborist Panel. In that appeal, they claimed that DuPont's arborist ignored certain trees in performing his inspection, and they submitted photographs and an arborist report from their own expert. While the appeal was pending, DuPont reviewed the claim again on its own based on the photographs provided and increased its offer to the Mojsiejs. The Mojsiejs chose to proceed with their appeal anyway. After reviewing the information submitted by the Mojsiejs, as well as the multiple claims resolution agreements, the Arborist Panel denied the Mojsiejs' appeal. Taking this middle course, the Court will apply an arbitrary and capricious standard of review. That is, factual findings and conclusions drawn by the Arborist Panel will be set aside only if they are without reason, unsupported by substantial evidence or erroneous as a matter of law Such a standard gives effect to the parties' clear intent that the Arborist Panel's role be more than merely advisory and recognizes their expertise and neutrality, while still giving class members an opportunity for a more meaningful review of the Panel's decisions. The tree rating table for the Settlement Agreement, however, provides that a 3 rating should be assigned to trees showing 40- 70% damage. This discrepancy alone could explain at least some of the inconsistency between Ms. Applequist's evaluations and DuPont's. After reviewing the photographic evidence and expert evaluations submitted by both the Mojsiejs and DuPont, the Arborist Panel concluded that the ratings and heights assigned by DuPont claims resolution agreement should stand, and the Court does not find this conclusion to be arbitrary or capricious. The Mojsiejs' final objection is that there are 3 trees that DuPont has failed to ever acknowledge. For those trees, however, the photographic evidence submitted is not sufficient to demonstrate the cause of damage, and therefore the Arborist Panel's failure to recommend reimbursement for those trees was not arbitrary or capricious. The Court will affirm the Arborist Panel decision and deny the Mojsiejs' appeal. A full-text copy of the District Court's September 21, 2017 Memorandum is available at http://tinyurl.com/yalzqje3from Leagle.com. MDL 2284: Ct. Affirms Arborist Panel's Denial of "Rehn" Appeal -------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imperlis Arborist Panel's Decision denying Richard Rehm's appeal in the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. Case No. 2:11-md-02284-GEKP. (E.D. Pa.). Richard Rehm appeals the decision of the Imprelis Arborist Panel, claiming that DuPont should have rated 18 trees for removal and replacement after he made a warranty claim. 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. DuPont started its own 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 (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 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. 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. The Court also retained exclusive jurisdiction over any action relating to the Settlement. Richard Rehm's Appeal Dr. Rehm reported Imprelis damage to several trees on his property and accepted a claims resolution agreement providing for the removal and replacement of 16 trees and tree care for an additional 18. He later filed a warranty claim, asserting that the 18 trees marked for care had deteriorated to the point where they qualified for removal and replacement. A DuPont arborist inspected Dr. Rehm's property in September 2014 and concluded that the trees had not significantly worsened in condition. DuPont then denied the warranty claim. Dr. Rehm objected to the denial, but he did not provide additional evidence in support of his objection. DuPont denied the objection, and Dr. Rehm appealed to the Arborist Panel. With his appeal, he submitted 9 photographs and a letter from his lawn care operator discussing the condition of some of the 18 trees at issue. The Arborist Panel denied the appeal. Taking this middle course, the Court will apply an arbitrary and capricious standard of review. That is, factual findings and conclusions drawn by the Arborist Panel will be set aside only if they are "without reason, unsupported by substantial evidence or erroneous as a matter of law Such a standard gives effect to the parties' clear intent that the Arborist Panel's role be more than merely advisory and recognizes their expertise and neutrality, while still giving class members an opportunity for a more meaningful review of the Panel's decisions. Dr. Rehm contends that 18 of his Imprelis-damaged trees have significantly worsened, such that they should be removed and replaced. However, the evidence he submitted in support of his claim gave the Arborist Panel virtually no reason to overturn DuPont's warranty decision. The pictures do not show the trees in sufficient detail to determine a cause of damage, and Dr. Rehm's lawn care operator's letter, which states that certain trees are dead and/or hazards, does not include any evidence or reasoning to support those conclusions. The Court, therefore, cannot conclude that the Panel's decision was arbitrary or capricious and will therefore deny the appeal. The Court will affirm the Arborist Panel decision and deny the Dr. Rehm's appeal. A full-text copy of the District Court's September 21, 2017 Memorandum is available at http://tinyurl.com/yalzqje3from Leagle.com. MEDICAL REHABILITATION: Faces "Bungy" Suit in Del. Super. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against Medical Rehabilitation Centers, LLC. The case is styled as Fay Bungy, on behalf of herself and all others similarly situated, the Plaintiff, v. Medical Rehabilitation Centers, LLC d/b/a Exceptional Living Centers, the Defendant, Case No. N17C-09-191 EMD (Del. Super. Ct., Sep. 18, 2017). Medical Rehabilitation Centers, LLC operates and manages long-term care nursing facilities. The Company conducts financial, marketing, and property management.[BN] The Plaintiff is represented by: Kelley M. Huff, Esq. Murphy & Landon 1011 Centre Road, Suite 210 Wilmington, DE 19805 Telephone: (302) 472-8100 Facsimile: (302) 472 8135 E-Mail: khuff@msllaw.com MICHIGAN: Class Action Over Flint Schools Gets Green Light ---------------------------------------------------------- Adam Lidgett, writing for Law360, reports that a Michigan federal judge refused on September 29 to scrap a proposed class action against the state Department of Education and local schools alleging they systematically failed to provide proper services to Flint children with disabilities, students whose health was further jeopardized by longtime exposure to lead in the public water supply. U.S. District Judge Arthur J. Tarnow denied the Michigan Department of Education's motion to dismiss and the Genesee Intermediate School District's motion for judgment, which asked for the claims against it to be tossed. The judge agreed to trim one claim against Flint Community Schools that sought universal preschool after finding that there is no showing the court had the power to order the creation of public universal preschool. The judge wrote that the complaint is clear that the plaintiffs are seeking is a systematic change of the way that the defendants identify and educate children in the Flint School District. "The relief they are seeking is plainly not individual and could not be remedied by individual exhaustion since plaintiffs are challenging the very efficacy of the system employed within the Flint District," the judge wrote. "Further, the representative plaintiffs have emphatically illustrated that the alleged violations are widespread across the Flint schools and repetitive in nature." The proposed class consists of about 30,000 school-age children in Flint who are at risk of developing disabilities because of high levels of lead in the drinking water, the judge noted. The suit was filed in October 2016, and alleged that officials did not act to prevent schoolchildren from being exposed to high levels of lead in the municipal supply of drinking water for a period of 18 months. Now, the needs of children who have been affected by the lead crisis require immediate action from state and local authorities, the complaint said, detailing a lack of resources to help them. The complaint said special education students in Flint are punished with suspensions and expulsions at a higher rate than elsewhere and drop out of school at a higher rate than their peers in other districts. The lead poisoning crisis only exacerbates their situation, the suit said. "Today, the court has given Flint children a chance by ruling that they deserve, at the very least, an opportunity to show that they have not yet received the services to which they are entitled under federal law and how they can and should be helped with sufficient state and local intervention," Kary Moss, the executive director of ACLU of Michigan and an attorney for the plaintiffs, said in a statement. A spokesperson for the Flint Community Schools said in a statement that it couldn't comment on the case, but added, "The well-being of Flint Community Schools students is our number one priority." The Michigan Department of Education declined to comment, citing the pending litigation. Representatives for the Genesee Intermediate School District did not immediately respond to requests for comment on September 29. The plaintiffs are represented by Gregory M. Starner, Esq. Lindsay M. Heck, Esq. Walter A. Ciacci, Esq. -- Dominique N. Forrest, Esq. -- dforrest@whitecase.com -- and Laura A. Grai, Esq. -- lgarr@whitecase.com -- of White & Case LLP, by Kary L. Moss, Esq. Kristine L. Totten, Daniel S. Korobkin and Michael J. Steinberg of the ACLU Fund of Michigan and by David G. Sciarra, Esq. Gregory G. Little, Esq. and Jessica Levin of the Education Law Center. The Michigan Department of Education is represented by Timothy J. Haynes, Travis M. Comstock and Katherine J. Bennett of the Michigan Department of Attorney General. The Genesee Intermediate School District is represented by Timothy J. Mullins and John L. Miller of Giarmarco, Mullins & Horton PC. Flint Community Schools is represented by Donald B. Miller, Frederick A. Berg Jr. and Brett J. Miller of Butzel Long. The case is DR et al. v. Michigan Department of Education et al., case number 2:16-cv-13694, in the U.S. District Court for the Eastern District of Michigan. [GN] MIDLAND CREDIT: Must Show Cause Why "Tripp" Must Not Be Remanded ---------------------------------------------------------------- The United States District Court for the District of Massachusetts issued an order to show cause why the action captioned BETHANY TRIPP, on behalf of herself and all others similarly situated, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC., Defendant, Civil Action No. 16-12588-GAO (D. Mass.), should not be remanded to state court for lack of subject matter jurisdiction. The defendant removed the putative class action from Suffolk County Superior Court, invoking the Court's diversity-of- citizenship jurisdiction. Although the Notice of Removal sufficiently pleads diversity among the parties, the defendant relies entirely on the plaintiff's claim of $1,000,000 of damages in her state Civil Cover Sheet to demonstrate the minimum amount in controversy of $75,000 has been met. However, as another judge in this district recently explained, civil cover sheets are inherently imprecise, and the extent of a civil cover sheet's role in determining the amount in controversy is not settled in this Circuit. Courts in this district and elsewhere have held that although a civil cover sheet may provide evidence of the amount in controversy, it is not in itself dispositive. Other courts have reasoned that a civil cover sheet is simply too imprecise to make the requisite demonstration of the amount in controversy for purposes of diversity jurisdiction. The plaintiff's complaint itself does not allege damages in any specific dollar amount and, based on the allegations and requested relief, the figure included in the Civil Cover Sheet appears to be entirely arbitrary. No justification for that figure appears anywhere in the record. In these circumstances, there is substantial reason to doubt that the amount in controversy exceeds the jurisdictional threshold for invoking diversity jurisdiction. The defendant, who bears the burden of demonstrating that the amount in controversy is satisfied, is ordered to show cause why the action should not be remanded to the state court for lack of subject matter jurisdiction. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/ydyucd73from Leagle.com. Bethany Tripp, Plaintiff, represented by Sergei Lemberg, Lemberg Law, L.L.C., 43 Danbury Road, Wilton, Connecticut Midland Credit Management, Inc., Defendant, represented by Andrew M. Schneiderman -- aschneider@hinshawlaw.com -- Hinshaw & Culbertson LLP & Justin M. Fabella -- jfabella@hinshawlaw.com -- Hinshaw & Culbertson LLP. MONSANTO COMPANY: Faces "Ritchie" Suit over Herbicide Roundup ------------------------------------------------------------- WILLIAM RITCHIE, the Plaintiff, v. MONSANTO COMPANY and JOHN DOES 1-50, the Defendants, Case No. 4:17-cv-02428 (E.D. Mo., Sep. 18, 2017), seeks compensatory damages as a result of Plaintiff's use of, and exposure to, Roundup which caused or was a substantial contributing factor in causing Plaintiff to suffer from cancer, specifically NHL. According to the lawsuit, Plaintiff suffered severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life. The lawsuit alleges that the herbicide Roundup (TM) contains the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. Despite Defendants' knowledge that Roundup was associated with an elevated risk of developing cancer, Defendants' promotional campaigns focused on Roundup's purported "safety profile." Defendants' failure to adequately warn Plaintiff resulted in (1) Plaintiff using and being exposed to glyphosate instead of using another acceptable and safe method of controlling unwanted weeds and pests; and (2) scientists and physicians failing to warn and instruct consumers about the risk of cancer, including NHL, and other injuries associated with Roundup exposure. Defendants failed to seek modification of the labeling of Roundup to include relevant information regarding the risks and dangers associated with Roundup exposure. Monsanto Company is a publicly traded American multinational agrochemical and agricultural biotechnology corporation. It is headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] The Plaintiff is represented by: ERIC D. HOLLAND, Esq. HOLLAND LAW FIRM 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone: 314-241 8111 Facsimile: 314-241 5554 E-mail: eholland@allfela.com - and - Jessica L. Richman, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 723 4627 Facsimile: (516) 723 4727 E-mail: jrichman@yourlawyer.com MONSANTO COMPANY: Faces "Ayres" Suit over Herbicide Roundup ----------------------------------------------------------- DAVID AYRES, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:17-cv-00169-WTM-GRS (S.D. Ga., Sep. 14, 2017), seeks to recover damages suffered by Plaintiff as a direct and proximate result of Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. According to the complaint, the Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. Roundup (TM) refers to all formulation of Defendant's Roundup products, including but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer, and Roundup Custom Herbicide. Monsanto Company is a publicly traded American multinational agrochemical and agricultural biotechnology corporation. It is headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] The Plaintiff is represented by: Eugene Brooks, Esq. BROOKS LAW FIRM 313 West York Street Savannah, Georgia 31401 Telephone: (912) 233 9696 E-mail: gbrooks@brooks-law.com NAT'L FOOTBALL: Expert Issues Opinion, Concussion Suits Pending --------------------------------------------------------------- Scott Farwell, writing for Dallas News, reports that concussions have become a routine part of football at every level, and new research suggests repeated head trauma may lead to a debilitating brain disease. But a Dallas-based expert says that researchers have yet to prove that link definitively -- a stance he shares with the NFL and the owner of America's Team. This spring, Dallas Cowboys owner Jerry Jones said it was "absurd" to think there's enough data to show a link between playing professional football and developing chronic traumatic encephalopathy, a degenerative brain disease. The research, he said, isn't there. But a pair of recent studies by researchers at Boston University - - one that found CTE in 110 of 111 brains donated by NFL players, and another that discovered a marker of the disease in spinal fluid -- offer increasing evidence that over time, the game's high-speed, often head-first, collisions can cause lasting damage. "What more can we show?" said Jonathan Cherry, a neurologist who authored one of the studies. "People who play football have a much higher risk for CTE. We've shown this many times now." A spokesman for the Cowboys said Jones was unavailable to comment for this story, but his remarks in March seemed to contradict congressional testimony by Jeff Miller, the NFL's senior vice president for health and safety policy. When asked that month whether playing football is linked to an increased risk for degenerative brain diseases such as CTE, he replied, "The answer to that is certainly, yes." Mr. Jones later said his comments were not out of step with the league. "The thing that I don't want to get caught up in is semantics, the semantics of it," he said, according to The Washington Post. "We as a league, we have not in any way changed our desire to do everything we can to make it safe, make it safe as to head injury. We hope and will support any data that would give us more insight into any short- and long-term consequences. We would support that." Mr. Jones said he and Mr. Miller agree -- scientists haven't established a clear link between football and brain disorders diagnosed later in players' lives. "That has to have a lot of research, just as the heart did 50 years ago. And certainly, everybody that had heart issues 50 years ago didn't live a normal life," Mr. Jones said. "Nature takes care of that. So no, I didn't think at all that his statements altered anything. . . . It didn't alter anything about where we are." Provocative, but not proof The NFL recently finalized settlement of a six-year, billion- dollar class-action lawsuit brought by more than 20,000 former players and their family members. Other lawsuits are pending, including $20 million being sought by the family of former New England Patriots player Aaron Hernandez, who committed suicide while being tried for murder. But Munro Cullum, a neuropsychologist with the O'Donnell Brain Institute at UT Southwestern Medical Center in Dallas, said the league's legal problems shouldn't be interpreted as evidence that football causes CTE. So far, he says, Mr. Jones is right -- studies have not proved that head trauma leads to the disease. He called the Boston University study that discovered CTE in 110 of 111 former NFL players "provocative," but as science, its usefulness was limited. Here's why: The brains evaluated were not randomly selected. They were provided by family members or medical examiners who suspected the deceased were suffering from a brain disorder like CTE. "We call it a 'convenience sample,'" he said. "It's like going to a health club and seeing people in yoga pants and shirts and then deciding that's what everybody wears. But if you went out to dinner at a nice restaurant and did the same thing, you'd come to a very different conclusion." Mr. Cherry, the researcher from Boston University, said his team was transparent about the limitations of the subset of brains they studied, but it doesn't invalidate the work. "We never said 99 percent of NFL football players are going to develop it," he said. "But if you look at all 1,300 football players who've died [since research began], we showed 110 of them have CTE. So, at the lowest, 9 to 10 percent of NFL players have CTE. And it's most likely much higher than that." Many scientists believe there is a relationship between head trauma and CTE, but a definitive cause-and-effect association has not been proved. "It appears that multiple biological mechanisms and environmental or lifestyle factors could also produce the brain abnormalities found in CTE," according to a fact sheet published by the Sports Neuropsychology Society, an organization of experts studying the disorder. Barring a breakthrough, researchers say the debate over CTE -- what causes it, how to diagnose it, how to treat and prevent it -- could continue for as long as a decade. Scientists first saw evidence of the disease in boxers in the 1920s, when it was called "punch drunk syndrome" or dementia pugilistica. Alzheimer's disease was once nearly impossible to diagnose. Like CTE, symptoms like memory loss, depression and mild cognitive decline were shared by many other disorders. But today, with brain scans, blood samples and psychological screening, doctors get the diagnosis right between 85 and 90 percent of the time. Mr. Cullum, the UT Southwestern researcher, predicts a similar track for CTE. He said awareness of concussions is a good thing, especially for young athletes. Like ankle sprains and other sports injuries, fewer of them over a lifetime is almost certainly better. "But I just want to caution people not to overreact to news of brain injuries, either," he said. "The No. 1 cause of concussions in people under the age of 20 is bicycle accidents. And I never hear anyone saying we should keep kids off bicycles." Did you miss these stories? [GN] NEW YORK, NY: Faces "Stallworth" Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against City of New York. The case is titled as Anthony Stallworth, Parichay Barman, Noor Tani, and New York Taxi Workers Alliance, individually and on behalf of all others similarly situated, the Plaintiffs, v. Meera Joshi, Chris Wilson Stas Skarbo, and City of New York, the Defendants, Case No. 1:17-cv-07119-UA (S.D.N.Y., Sep. 19, 2017). New York City comprises 5 boroughs sitting where the Hudson River meets the Atlantic Ocean. At its core is Manhattan, a densely populated borough that's among the world's major commercial, financial and cultural centers.[BN] The Plaintiffs are represented by: Daniel Lee Ackman, Esq. 222 Broadway 19th Floor New York, NY 10038 Telephone: (917) 282 8178 Facsimile: (917) 591 8300 E-mail: dan@danackmanlaw.com NEW YORK HEALTH CARE: Home Care Workers Sue Over Unpaid Overtime ---------------------------------------------------------------- Caroline Lewis, writing for Crain's New York Business, reports that Lai Yee Chan worked piece-rate in the city's textile factories for more than a decade to support her three children after she emigrated from China in the late 1980s. She sometimes labored until 2 a.m. for such brands as DKNY and saw co-workers faint from the stifling summer heat in a Midtown warehouse. Chan's current workplace, the apartment of an elderly man with Alzheimer's who was partially paralyzed by a stroke, looks nothing like the factory floor. But during the seven years when she cared for him in 24-hour shifts, it felt like a sweatshop just the same. Chan is part of a cohort of New York home care workers that has filed more than a dozen class-action lawsuits against employers to challenge an industrywide practice known as the 13-hour rule, a state-sanctioned policy in which home care workers are paid for just 12 or 13 hours of a 24-hour shift. "Getting paid for 12 or 13 hours is exploitation," said Chan, 62. "This should never have happened in a civilized society." Last month a panel of state appellate court judges agreed. After reviewing two of the lawsuits, the judges ruled that the 13-hour policy was illegal. Although the agencies named as defendants, New York Health Care and Future Care Health Services, want to appeal the decisions, Chan is hoping the rulings will be upheld and serve as legal precedent in her own case. As Chan and her colleagues celebrated last month, owners of the state's 1,500 or so registered home care agencies were frantically contacting their trade associations for guidance on what to do next. They had followed the lawsuits for years through multiple appeals and delays, and now their worst fears were materializing. Eliminating the 13-hour rule would effectively double the cost of providing the round-the-clock assistance many elderly and disabled New Yorkers rely on to remain at home. The rulings also could put agencies on the hook for back wages for any employee who worked a 24-hour shift in the past six years, according to the statute of limitations in New York. That alone could amount to billions of dollars, one trade group estimated. Many of the agencies are nonprofits operating on tight margins and say they could be forced to shutter. "As far as potential costs, it will destroy the industry," said Matthew Hetterich, director of corporate business development at Utopia Home Care, based in Kings Park, Long Island, and president of the Long Island Chapter of the New York State Association of Health Care Providers. How the state's court cases are resolved could determine the future health of home care agencies, the well-being of workers and the choices that families make about the care of their loved ones. The cost of caring Home care is one of the fastest-growing areas of employment in the country, driven by demand from an aging population and a seismic shift in the health system away from costly institutions such as hospitals and nursing homes. In New York home care employed nearly 200,000 as of July, an 8% increase over July 2016. The lion's share, about 149,000, work in New York City, where the home care workforce grew by 12% during that period. That growth has put a lot of pressure on the industry. New York's Medicaid program, which insures low-income residents, is the largest source of revenue for many home care employers. Some agencies rely on it for more than 90% of their income. Medicaid spent $7.2 billion on home care in fiscal 2017, with the state and federal governments splitting the tab. But state officials have stubbornly clung to the 13-hour rule to help keep costs down. "As an industry we can only pay our workers what we're getting paid," said Hetterich. "This is not the case of an evil business that wants to make more and more money." The home care agencies named in the class-action suits have pointed to a 2010 opinion letter from the state Department of Labor asserting that aides can be paid for 13 hours of a 24-hour shift. (Workers are also supposed to get three hours for meals and eight hours of sleep during each shift, at least five of which are uninterrupted -- something aides say is far from guaranteed.) The department based its guidance on a minimum-wage exemption for workers who live full time with their clients. But the September state appellate court decisions ruled that the Labor Department erred in its interpretation of the law. Employees who don't live with their clients full time must be paid for all the hours they are at work, regardless of whether they are sleeping or eating on the job, the judges said. Asked about next steps, the Health Department said it is currently reviewing the rulings. The state Department of Labor did not return Crain's requests for comment. 24-hour shifts While working 24-hour shifts in Chinatown between 2007 and 2014, Chan's workday did not really start or end. She would wake up in a bed catty-corner to the one her client slept in, make him oatmeal for breakfast, bathe him, clothe him, clean the apartment and launder his clothes. When her client had the energy, she would lift him into his wheelchair and take him to church or to hear music in nearby Columbus Park. His lunch and dinner were meals that she cooked, blended into the consistency of baby food, and fed to him. At night, while he slept, she monitored his breathing, periodically helped him shift positions and changed his diaper every two hours, the same as in the daytime. As his Alzheimer's progressed, he often woke up yelling. Chan would try whatever she could think of to get him back to sleep. "Hear that siren?" she would ask in Cantonese, their shared language, if an ambulance went by outside. "If you don't go back to sleep, they'll take you away." That line rarely worked, Chan said with a chuckle. On a summer afternoon a few weeks before the rulings were handed down, Chan chatted with other home health aides as they shared a box of sweet buns at the Chinese Staff and Workers' Association, a grassroots labor organization in Chinatown. The women, current or former employees of the Chinese-American Planning Council Home Attendant Program, are plaintiffs in two class-action lawsuits pending against the nonprofit home care agency. Speaking through a translator, the women agreed that their profession can be incredibly isolating. "In home care you face the same person every day," said Chan. "The patient doesn't speak much. In the garment factory, you can talk among the workers. You can chat." Home health aides who had worked for various agencies told Crain's they suffered from depression as well as physical injuries from lifting patients while working 24-hour shifts. One such worker, Leticia Panama Rivas, a 40-year-old Queens resident from Ecuador, said working as a home attendant 24 hours a day, five days a week for four years left her with a back injury and a failed marriage. "I never saw my husband," said Rivas, who is involved in a class-action suit against her former employer, First Chinese Presbyterian Community Affairs Home Attendant Corp. For her part Chan cobbled together part-time hours from different agencies for about seven years before she was assigned to her 24- hour case. The job kept her away from her husband in Brooklyn for three to five days at a stretch. But working longer hours did not substantially improve her family's finances. Only during the period when Chan was at her client's home five days a week, 24 hours a day, did her income surpass $30,000 per year. Chan accepted the 24-hour assignment, fearing, like many home health aides, that if she didn't, her agency would slash her hours or make her wait months for another job. It was not until she got a mysterious check for about $250, which the Chinese-American Planning Council said was compensation for all of the overtime she was owed between 2007 and 2013, that she started to question the legality of the 13-hour rule. "The check kind of opened my mind," she said. Chan and two colleagues filed suit against the Chinese-American Planning Council in March 2015, with a petition for class-action status. She was encouraged by a Manhattan Supreme Court judge's decision in September of that year not to grant her employer's request to dismiss the case. She never guessed it would be her union, 1199SEIU United Healthcare Workers East, that would prevent the trial from proceeding in court. Growing pains Demand for home care is expected to accelerate as the baby-boom generation ages. But a labor shortage is already underway. "We have a very challenging environment with respect to recruitment and retention of staff," said Al Cardillo, executive vice president of policy and program services at the Home Care Association of New York State. "Dealing with turnover is a major expense." Home care agencies in New York turn away an average of 37 cases per month because they are short-staffed, according to a recent survey by the Home Care Association. At least three agencies reported having to decline more than 100 cases each month. Recruitment has gotten tougher in part because minimum-wage increases in the state mean workers can now earn just as much in fast food and retail, industry leaders say. A decade ago, the state minimum wage was $7.15 per hour, and home care workers typically earned about $10 per hour. That was a blessing for attorney Thomas Small, a 52-year-old Brooklynite with spinal muscular atrophy. Small participates in the state's Consumer-Directed Personal Assistance Program, which allows people to use their Medicaid benefits to recruit and hire aides directly. "It wasn't uncommon to get 40 or 50 people to respond to a Craigslist post, and I could weed through applicants and find people who were really good," said Small, who is policy and outreach director at Concepts of Independence, a nonprofit that helps administer the state's personal assistance program. "Now I run an ad and get five or six responses." While some are demanding a greater investment in the home care workforce, the Cuomo administration is helping employers cope with the gains their employees have already made in recent years, including the minimum-wage increase. The state is investing $6 billion in new funds in the home care workforce between fiscal years 2015 and 2021, the Health Department said. Yet some in the industry say it is still not enough. A feeling of betrayal In late June 2016, Chan marched to the front desk of her union's headquarters and delivered a petition with 70 signatures demanding that 1199 "make a serious effort to investigate whether there was any wrongdoing, illegal activity or corruption conducted by the union staff in dealing with workers' pursuit of their back wages." In December 2015, months after Chan's case had been filed and the motion to dismiss it had been denied, 1199 finalized an agreement with the Chinese-American Planning Council amending their contract. It added a section requiring that all claims asserting that the Chinese-American Planning Council violated state or federal labor laws must be resolved through private mediation and arbitration. The provision, which has become increasingly common in home care contracts, was voted on by union members and ultimately added to all the labor agreements 1199 had negotiated with 50 home care employers, said Helen Schaub, state policy and legislative director for 1199. A judge decided the provision could apply to Chan's case retroactively and ordered Chan and her employer into arbitration. The union said it added the arbitration clause because it is more expedient than going through the courts and would benefit workers. Chan disagreed. She was further disappointed by her union's decision not to pursue the claim that the 13-hour rule violated state and federal regulations. The union opted to represent only the workers' claims that they did not get the requisite sleep and meal breaks. By 1199's estimate, just 8% of the state's home care workers are assigned to 24-hour cases. "From our perspective, in terms of how to best represent our members, we spent a lot of time and energy winning the $15 minimum wage, which affects 100% of members, versus a smaller portion working on live-in cases," Schaub said. Chan's case is now in mediation. But the feeling that her powerful union abandoned her persists. As she and others lost faith in 1199, their relationship with two independent labor organizations, the Chinese Staff and Workers' Association and the National Mobilization Against Sweatshops, deepened. Home care workers spread awareness of their campaign to end the 13-hour rule via word of mouth, while labor organizers drew up fliers asking in multiple languages, "Do you work long hours? Are you paid for all the hours you work of your 24-hour shift? And overtime pay?" The fliers further implored, "Join us!" Home care workers who showed up at the labor groups' narrow, adjacent offices on Grand Street were connected with lawyers at the Urban Justice Center, Virginia & Ambinder, and other firms. Chan and fellow home health aides celebrated last month's court decisions alongside organizers and labor lawyers. They said their fight is just beginning. "Often you win this judgment in court and it ends up just being a piece of paper because it's so easy for employers to move money around and essentially plead bankruptcy and not pay," said Sophie DeBenedetto, an organizer with National Mobilization Against Sweatshops. The Chinese-American Planning Council Home Attendant Program has already insisted it doesn't have the money to pay, said Chan. Making it work The director of the Chinese-American Planning Council Home Attendant Program and several other home care executives declined to speak to Crain's about the 13-hour rule. One firm that did comment was Hometeam, a venture-backed startup that serves a mix of private-pay and Medicaid patients and has built its brand on creating well-paying careers for home health aides. But Hometeam too has taken advantage of the 13-hour rule. A classified ad that the company posted online in August for sleep- in positions in New York City offered $154 for a single 24-hour shift -- the equivalent of $6.42 per hour. Only aides working at least four 24-hour shifts in a week would earn overtime, upping their hourly wage to the equivalent of $7.14. "I don't think it's unreasonable to want an aide to be paid [for all 24 hours]. I want aides to be paid that," said Josh Bruno, founder and chief executive of Hometeam, in an interview at his company's Chelsea headquarters in May. "But it's true to say we would have sweeping changes and change a lot of people's lives if that happens." In the private-pay market, Bruno said, families will likely find alternatives to home care if it becomes too expensive. It has already become harder for Medicaid patients to be approved for 24-hour home care, thanks in large part to the Cuomo administration's Medicaid-reform efforts, said David Goldfarb, a Manhattan attorney specializing in elder law. Rather than being reimbursed directly from the government, home care agencies typically contract with managed-care organizations in order to get paid. The state pays the plans a set amount up- front to cover the needs of each Medicaid beneficiary, which incentivizes them to control the cost of care. Moving forward, Goldfarb said, "I think the state is going to have to recognize that the funds have to be made available to cover whatever the law says you have to pay people for continuous care." But changes intended to benefit workers could lead to unintended consequences, said Allison Cook, New York policy manager at PHI, a national advocacy and training organization for home care workers that is affiliated with a home care agency in the Bronx. In 2015, for example, the Obama administration extended to home care workers the minimum wage and overtime protections that have been afforded to other workers for decades under the Fair Labor Standards Act. Agencies then began splitting up individual cases among workers in order to avoid paying overtime, Cook said. As a result more aides now divide their time between multiple agencies to survive. Despite rate increases from the state, insurers still are not paying enough to cover overtime, said Hetterich of Utopia Home Care. Ultimately, he said, patients pay the price. "When the Fair Labor Standards Act changed and new overtime rules were implemented, we had a lot of comments from families about having two or three different caregivers," he said. "The biggest concern from the industry standpoint is, we do a lot of work with elderly patients who suffer from Alzheimer's and dementia. People with those diseases don't handle change or strangers very well." Another wage mandate could push more of the home care industry into the informal economy, at least for those who can afford to pay out of pocket, warned Bruno. "Instead of aides choosing to work through agencies, they will increasingly choose to work independently," Bruno said. "Families and aides will meet in the middle somewhere, but it will be in the gray market." Some success Chan is not waiting on the courts to improve her working conditions. In 2014 she consulted with her client's wife about splitting each 24-hour shift in two. There was already another aide working the days that Chan was off, and at first her client's wife was concerned about the prospect of having four aides instead of two, Chan said. Eventually the wife agreed. After her client's insurance plan sent an inspector to his home, the patient was approved for what is known as a split-shift case in December 2014, Chan said. Medicaid plans can authorize split-shift care if a patient requires assistance with such tasks as going to the bathroom and changing positions with "such frequency that a live-in 24-hour personal care aide would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide's eight-hour period of sleep," according to the Health Department's website. But insurance plans are reluctant to approve the arrangement because of the cost, elder law attorney Goldfarb said. Healthfirst, the Medicaid plan that insures Chan's client, declined to discuss its policies on split-shift cases, as did the Health Department. Some consumer advocates raise concerns about splitting up cases. "Patients grow attached," said Maria Alvarez, executive director of the Statewide Senior Action Council. "It's a very personal thing." But Chan said the change has made a big difference. "It's better for our jobs and improves our health, and it also allows the patient to get better service," she said. Now that she is not exhausted all the time, Chan has the energy to engage her patient more. He has even begun talking a little. "I ask him, 'Who am I?'" Chan said. He cheekily answers, "Chan Gu Niang," using the Chinese honorific usually reserved for younger women. "I ask him, 'Who is your friend?'" Chan said. "And he says, 'You.'" The demands of workers and organizers go beyond full compensation, said DeBenedetto of the National Mobilization Against Sweatshops. Her organization will continue to encourage workers to sue their employers for back wages, but it also is seeking to work with legislators, consumer-advocacy organizations and other groups to draft legislation ending mandatory 24-hour shifts. If the decisions striking down the 13-hour rule are upheld, the state could re-evaluate everyone approved for 24-hour care and convert the more demanding cases into split-shifts, said Bryan O'Malley, executive director of the Consumer Directed Personal Assistance Association of New York State. "Some people would be able to switch from live- in to 13-hour care, and people would leave at the end of the day," he said. "But many people would still need 24/7 care, and it would certainly drive up the cost of providing services. There's already increased pressure on Medicaid, and this would certainly exacerbate that." Denying aides full pay for all the hours they are on call poses its own threat to the system, said Carmela Huang, Chan's attorney from the Urban Justice Center. "If these workers are denied their full rights," Huang warned, "we're creating a permanent underclass of workers who are engaged in some of the most difficult and important work." [GN] NEW ZEALAND: Class Action Mulled v. Councils Over Leaky Buildings ----------------------------------------------------------------- Adina Thorn on Oct. 2 disclosed that a planned new funded class action will be putting Councils in the firing line for leaky and failed buildings that they have been approved or inspected within the last 10 years. The action, which is intended to be funded by a UK-based litigation funder, means that owners can join the action without the fear of legal and expert fees and the risk of an uncertain outcome. Auckland law firm Adina Thorn Lawyers has secured funding from a UK based litigation funder. She says the action aims at helping those owners who have found themselves saddled with council- approved work that now leaks or has failed in other ways. Broadly anyone can register interest to join the action who has some involvement of Council within 10 years, or has "stopped the clock" by registering with the Weathertight Homes Resolution Service or is part of an existing claim. "Our firm's extensive work in the area of defective buildings has uncovered case after case of people, through no fault of his/her own, have found themselves financially compromised by poor quality design or workmanship and have good claims against Council. They just cannot pursue those claims because of legal and expert costs. This action removes that obstacle. "We have come across owners and Body Corporates with major problems. Many have good claims. They just can't afford to pursue them". "Joining this action means you have access to a large legal and expert team without incurring any of the costs this would usually involve". Adina says the costs of the class action have been underwritten by a UK based litigation funder who will take a share of any damages secured after costs are reimbursed, which means that those joining the action will face no out of pocket expenses. Building surveyor John Dalton says the issue of finding building work that is not up to the required standard is an everyday occurrence in his line of work, be that a matter of workmanship or non-compliant materials. "Many owners are reluctant to get involved because they see the value of their property being discounted, but the reality is that these problems won't fix themselves and will generally get worse over time. "It's a particularly tricky issue where buildings have multiple owners because people have different expectations, resources and views on how issues should be addressed and how they should be paid for. There are always the issues of who 2 should be held accountable for the problems and what it will cost to have them held legally liable? "Clearly the scale of the problem runs to hundreds of millions if not billions of dollars with many property owners naturally asking what value really attaches to a council consent, which is something that takes good money and often considerable effort to secure." Anyone who interested in the action can register at www.adinathorn.co.nz - Council Class Action. Each application will be evaluated on its merits. Facts on the action: -- The proposed action is against Councils (not only Auckland Council) who have carried out any inspections or certification within the last 10 years. -- If you have registered in the WHRS you may be eligible to join this action, even if the Council's acts were before September 2007. -- People in current claims against Council, will be considered to join. -- The class action will be fully funded which means those joining it will face no out of pocket expenses. -- If the action is successful the funder will be reimbursed for the costs of taking the action plus a share of the damages awarded after all costs are met. -- Body corporates and commercial owners can join. -- There is no cost to register interest at www.adinathorn.co.nz. -- Adina Thorn Lawyers is currently undertaking a number of class actions including a $250 million funded class action against James Hardie Group companies for the alleged manufacture and marketing of faulty cladding materials and a $40 million plus funded class action against Carter Holt Harvey for the manufacture of Shadowclad cladding. [GN] NORTHWEST CASCADE: Judge Certifies Class Action Over Odors ---------------------------------------------------------- The Associated Press reports that a judge has certified a lawsuit against Honey Bucket as a class action, allowing residents in Pacific who have complained of odors to join the case. The Seattle Times reports that initially, four neighbors filed a lawsuit against Northwest Cascade and its Honey Bucket and FloHawks divisions, stating that odors, gases and fumes exacerbated their asthma, caused headaches and devalued their properties. [GN] O'REILLY AUTOMOTIVE: Faces Lawsuits Over Windshield Wiper Fluid --------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that one St. Louis man appears to have gone from product-to-product trying to find a windshield wiper fluid he can trust when it's warmer than negative-20 degrees outside -- but, unsatisfied, he recently filed eight class action lawsuits in one day. On July 24, Paul Weishaar and his attorney, asbestos lawyer Benjamin Schmickle, filed a round of lawsuits alleging the makers of various windshield wiper fluids lied on their packaging. They freeze before the advertised temperature of negative-20, the lawsuits say. "(W)hile a reasonable consumer might try a second or third brand of windshield wiper fluid, it is not plausible that a reasonable consumer would continue to purchase a product he viewed as defective on seven or eight different occasions," attorneys for O'Reilly Automotive Stores wrote on Sept. 15. "The allegations directed at O'Reilly are not plausible in light of the other identical lawsuits . . ." O'Reilly submitted those comments while asking a federal judge to dismiss Mr. Weishaar's lawsuit on several grounds. Three days later, Mr. Weishaar notified the court that he was voluntarily dismissing his lawsuit. He did so "without prejudice," indicating a possible intent to refile the claims later. The O'Reilly case was the first to be removed by a defendant to federal court. Five lawsuits are still pending in St. Louis City Circuit Court, a jurisdiction that last year was ranked as the country's most unfair to businesses by a national civil justice reform group. Massive verdicts there in talcum powder litigation have drawn national headlines. [GN] OASIS LEGAL: "Smith" Suit Moved to Middle District of Florida ------------------------------------------------------------- The class action lawsuit titled Heather Smith, individually and on behalf of all those similarly situated, the Plaintiff, v. Oasis Legal Finance, LLC, doing business as: Oasis Finance, the Defendant, Case No. 17-CA-7873, was removed on Sep. 19, 2017 from Hillsborough County Court, to the U.S. District Court for the Middle District of Florida (Tampa). The District Court Clerk assigned Case No. 8:17-cv-02163-VMC-JSS to the proceeding. The case is assigned to the Hon. Judge Virginia M. Hernandez Covington. Oasis Legal Finance, LLC, doing business as Oasis Financial, provides non-recourse consumer legal funding to individuals involved in personal injury litigation.[BN] The Plaintiff is represented by: Craig E. Rothburd, Esq. CRAIG E. ROTHBURD, PA 320 W Kennedy Blvd., Suite 700 Tampa, FL 33606 Telephone: (813) 251 8800 Facsimile: (813) 251 5042 E-mail: crothburd@e-rlaw.com The Defendant is represented by: John F. Meyers, Esq. BARNES & THORNBURG, LLP 3475 Piedmont Rd NE., Suite 1700 Atlanta, GA 30305-2954 Telephone: (404) 264 4017 Facsimile: (404) 264 4033 E-mail: john.meyers@btlaw.com ONLINE INFORMATION: Faces "Shomer" Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Online Information Services, Inc. The case is captioned as Edward Shomer, on behalf of himself and all others similarly situated, the Plaintiff, v. Online Information Services, Inc., d/b/a Online Collections, the Defendant, Case No. 1:17-cv-05502 (E.D.N.Y., Sep. 19, 2017). Online Information Services, Inc. is the nation's leading developer of credit risk assessment and debt recovery 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 Telephone: (917) 299 6612 Facsimile: (347) 665 1545 E-mail: jmizrahilaw@gmail.com ORACLE: Former Employees Sue Over Pay Discrimination ---------------------------------------------------- Megan Rose Dickey, writing for Tech Crunch, reports three female, former Oracle employees, Rong Jewett, Sophy Wang and Xian Murray, are suing Oracle for allegedly paying women less than men in similar jobs. The lawsuit, filed August 28, seeks a class-action status to represent all other women who have worked at Oracle. The lawsuit, first reported by The Information, alleges that Oracle discriminated against women by "systematically paying them lower wage rates than Oracle pays to male employees performing substantially equal or similar work under similar working conditions," the filing states. The time period the lawsuit references is four years prior to the filing and through the date of the trial in California. Referencing how the U.S. Department of Labor sued Oracle in January based on its compliance review that found "systemic discrimination against women" and "gross disparities in pay," the lawsuit states Oracle had known or should have known about the pay disparity between its male and female employees. "Oracle is required to maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of all of its employees throughout California," the lawsuit states. "Oracle therefore knew or should have known that it paid female employees in Covered Positions less than it paid their male counterparts for performing substantially equal or similar work, yet Oracle took no steps to eliminate its unlawful and discriminatory pay practices at any time during the Class Period." The plaintiffs are seeking wages due, interest and liquidated damages plus interest. They also want Oracle to guarantee they won't pay women less than men for similar work in the future. Oracle is not the only tech company facing lawsuits and allegations around gender discrimination. Google is under fire following an internal memo leaked, suggesting that women are inferior to men. That memo came shortly after a judge sided with Google and said the company didn't have to hand over pay data as it relates to gender. Oracle declined to comment. [GN] OREGON: Court Dismisses Class Suit Over DHS In-Home Services ------------------------------------------------------------ The United States District Court for the District of Oregon, Eugene Division, issued an Opinion and Order dismissing Plaintiff's Amended Complaint in the case captioned SD, and ex rel. D.D. and Next Friend of M.D Plaintiff, v. CLIDE SAIKI, et al., Defendants, Case No. 6:17-cv-00770-JR (D. Ore.). Pro se plaintiff, S.D., moves the Court for a preliminary injunction against the Oregon Department of Human Services enjoining it from making any reductions of in-home services funded by the agency and restoring full benefits to any consumer whose benefits have been reduced. Plaintiff filed an amended class action complaint on behalf of herself, her husband (D.D.), and her minor child (M.D.), individually-named defendants. In conjunction with her amended complaint, plaintiff moved for a preliminary injunction that, among other things, requested that the Court enter an order halting further reductions in in-home services by DHS and restoring full benefits of any consumer whose benefits DHS reduced. In seeking a preliminary injunction, plaintiff attaches many of the same state court documents previously submitted in regard to her Motion for Reconsideration. Initially, plaintiffs' claims contain very few underlying factual allegations. Importantly, plaintiff does not delineate which of the 21 individually-named defendants her claims are asserted against. For this reason alone, plaintiff fails to satisfy Fed. R. Civ. P. 8(a) and dismissal pursuant to 28 U.S.C. Section 1915(e) is warranted. Although plaintiff names D.D. and S.D. in her amended complaint and seeks class certification, she has not identified any injury outside of that already articulated in C.S. v. Saiki, except to the extent that she seeks to challenge state court proceedings related to the reduction of D.D.'s benefits and, by extension, her compensation as an in-home care provider; however,, the Court lacks subject-matter jurisdiction over these allegations. For this additional reason, her amended complaint fails. Finally, plaintiff lacks standing to bring claims on behalf of D.D. or M.D. Regarding M.D., it is well-established that a guardian or parent may not bring suit in federal court on behalf of a minor without first retaining an attorney. Because plaintiffs complaint has failed to survive initial sua sponte screenings, the United States Marshal has not yet been directed to effect service on her behalf. The named defendants do not have actual notice of either the complaint or the motion for preliminary injunction. Thus, the Court has no personal jurisdiction over any named defendants. In conducting a sua sponte screening of plaintiffs amended complaint, this Court has found that it does not state a claim upon which relief can be granted and dismissed it, without prejudice, pursuant to 28 U.S.C. Section 1915(e). Therefore, plaintiff has necessarily failed to show, for purposes of justifying preliminary injective relief, any likelihood of success on the merits of her claims at this time. A preliminary injunction is an extraordinary remedy never awarded as of right. Given the status of plaintiffs pleadings and the lack of notice to the named defendants, a preliminary injunction shall not be ordered at this time. Plaintiffs' Motion for Preliminary Injunction is denied. Plaintiffs amended complaint is dismissed, without prejudice. A full-text copy of the District Court's September 21, 2017 Opinion and Order is available at http://tinyurl.com/yaddbhrkfrom Leagle.com. S.D., Plaintiff, Pro Se. PARKING SOLUTIONS: Ct. Adopts Final Approval of Class Settlement ---------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, issued an Order adopting Report and Recommendation of the Magistrate Judge Granting Final Approval of Class Action Settlement in the case captioned Chad Crumbaker, on behalf of himself and those similarly situated, Plaintiffs, v. Parking Solutions, Inc., et al., Defendants, Case No. 2:15-cv-2446 (S.D. Ohio). In this Fair Labor Standards Act suit, the magistrate judge conducted a fairness hearing regarding the proposed collective and class action settlement. The magistrate judge issued a Report and Recommendation finding that: 1. Final class certification is appropriate, class counsel is adequate, and Plaintiff Crumbaker is an appropriate class representative. 2. The proposed settlement of the class members' state-law claims is fair, reasonable, and adequate to all participants and qualifies for approval pursuant. 3. The settlement of the class members' FLSA resolves a clear and actual dispute resolved in an arm's-length negotiation. 4. The service award of $4,000 to Plaintiff Crumbaker is reasonable. 5. The attorneys' fees and expenses award of $111,105, which amounts to 21% of the gross potential settlement value, is fair and reasonable. 6. The class notice was reasonable and appropriate. No objections have been filed to the Report and Recommendation. The District Court, accordingly, adopts the Report and Recommendation grants the motion for final approval of the settlement certifies for settlement purposes the settlement class under the FLSA and Ohio law, finally approves the form, content and distribution of the class notice and claim form, approves the service award to plaintiff and approves class counsel's request for fees and costs. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/y9wvafydfrom Leagle.com. Chad Crumbaker, Plaintiff, represented by Andrew Biller -- abiller@msdlegal.com -- Markovits, Stock & DeMarco, LLC. Chad Crumbaker, Plaintiff, represented by Andrew P. Kimble, Markovits, Stock & DeMarco, LLC. Parking Solutions, Inc., Defendant, represented by D. Patrick Kasson -- pkasson@reminger.com -- Reminger Co., LPA & Tyler Tarney. Aaron Shocket, Defendant, represented by D. Patrick Kasson, Reminger Co., LPA & Tyler Tarney. Robert Rees, Defendant, represented by D. Patrick Kasson, Reminger Co., LPA & Tyler Tarney. PENSKE LOGISTICS: "Stuck" Suit Moved to N.D. California ------------------------------------------------------- The class action lawsuit titled John Fowler, an individual; Arthur Stuck, an individual; Javier Carbajal, an individual; Eliseo Bedoy, an individual; and James Mueller, an individual on behalf of themselves and all others similarly situated and the general public, the Plaintiffs, v. Penske Logistics, LLC, and Does 1-100, the Defendants, Case No. RG16831421, was removed on Sep. 18, 2017 from the Alameda Superior Court, the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:17-cv-05397-MEJ to the proceeding. The case is assigned to the Magistrate Judge Maria-Elena James. Penske Logistics provides supply chain management and logistics services. It offers supply chain management solutions.[BN] The Plaintiffs are represented by: Michael Scott Morrison, Esq. ALEXANDER KRAKOW + GLICK LLP 401 Wilshire Boulevard, Suite 1000 Santa Monica, CA 90401 Telephone: (310) 394 0888 Facsimile: (310) 394 0811 E-mail: mmorrison@akgllp.com The Defendant is represented by: Megan E. Ross, Esq. SCOPELITIS GARVIN LIGHT HANSON & FEARY 2 North Lake Avenue, Suite 560 Pasadena, CA 91101 Telephone: (626) 795 4700 Facsimile: (626) 795 4790 E-mail: mross@scopelitis.com PFIZER INC: Faces "Al Haj" Suit in Northern Dist. of Illinois ------------------------------------------------------------- A class action lawsuit has been filed against Pfizer Inc. The case is entitled as Karmel Al Haj and Timothy A. Woodhams, individually and on behalf of all others similarly situated, the Plaintiffs, v. Pfizer Inc., Case No. 1:17-cv-06730 (N.D. Ill., Sep. 18, 2017). The case is assigned to the Hon. Judge Gary Feinerman. Pfizer Inc. is an American pharmaceutical corporation headquartered in New York City, with its research headquarters in Groton, Connecticut. Pfizer is considered one of the world's largest pharmaceutical companies.[BN] The Plaintiffs are represented by: Elizabeth A. Fegan, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 455 N. Cityfront Plaza Drive NBC Tower-Suite 2410 Chicago, IL 60611 Telephone: (708) 628 4960 E-mail: beth@hbsslaw.com PHILLIPS STEEL: Son Seeks Minimum & OT Wages under Labor Code ------------------------------------------------------------- RALLY S. SON, as an individual, and on behalf of all others similarly situated, the Plaintiff, v. PHILLIPS STEEL COMPANY, a California Corporation, and DOES 1 through 100, Inclusive, the Defendant, Case No. BC675988 (Cal. Super. Ct., Sep. 14, 2017), seeks to recover damages as a result of Defendants' failure to provide meal and rest periods, unpaid minimum and overtime wages, as well as waiting time penalties, and penalties or damages for failure to keep accurate records, penalties under California Labor Code statutes, and for restitution and injunctive relief. According to the complaint, the Defendants regularly required Plaintiff to work hours in excess of 8 hours in a work-day or 40 hours in a work week without the payment of proper minimum and overtime wages due to its time rounding policies, in violation of California Labor Code. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation is unlawful and creates an entitlement to recovery by Plaintiff in a civil action, for the unpaid balance of the full amount of minimum and overtime wages owing, including interest thereon, waiting time penalties pursuant to Labor Code, attorneys' fees, and costs of suit according to the mandate of California Labor Code. Phillips Steel offers a comprehensive line of products for all metal-working needs.[BN] The Plaintiff is represented by: Howard L. Magee, Esq. Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 E-mail: lwlee@diversitylaw.com - and - Edward W. Choi, Esq. Paul M. Yi, Esq. LAW OFFICES OF CHOI & ASSOCIATES, PC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381 1515 Facsimile: (213) 465 4885 E-mail: edward.choi@choiandassociates.com PIER 1 IMPORTS: Terminated as Defendant in "Mathein" ---------------------------------------------------- The United States District Court for the Eastern District of California issued an Order directing the Clerk of Court to terminate Pier 1 Imports, Inc., from the action in the case captioned LAUREN MATHEIN, et al., Plaintiffs, v. PIER 1 IMPORTS (U.S.), INC., et al., Defendants, Case No. 1:16-cv-00087-DAD-SAB (E.D. Cal.). Plaintiffs filed a motion for preliminary approval of class action settlement with Defendant Pier 1 Imports (U.S.), Inc. The parties filed a joint stipulation dismissing only Defendant Pier 1 Imports, Inc. with prejudice pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. In light of the stipulation of the parties, Defendant Pier 1 Imports, Inc., has been terminated and has been dismissed without an award of costs or attorneys' fees. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/y7pmoy6qfrom Leagle.com. Lauren Mathein, Plaintiff, represented by William Anthony Baird-- tbaird@marlinsaltzman.com -- Marlin & Saltzman, LLP. Lauren Mathein, Plaintiff, represented by Stanley D. Saltzman, Marlin & Saltzman, LLP. Christine Sabas, Plaintiff, represented by Stanley D. Saltzman, Marlin & Saltzman, LLP. Pier 1 Imports, Inc., Defendant, represented by Gregory William Knopp -- gknopp@akingump.com -- Akin Gump Strauss Hauer and Feld LLP & Galit Avitan Knotz -- gknotz@akingump.com -- Akin Gump Strauss Hauer & Feld, LLP. PIERATT'S INC: "Henderson" Suit Moved to E.D. Kentucky ------------------------------------------------------ The class action lawsuit titled Herman Henderson, on behalf of himself and ALL others similarly situated, the Plaintiff, v. Pieratt's Inc., the Defendant, Case No. 17-CI-3072, was removed on Sep. 18, 2017 from the Fayette Circuit Court, to the U.S. District Court for the Eastern District of Kentucky (Lexington). The District Court Clerk assigned Case No. 5:17-cv-00377-JMH to the proceeding. The case is assigned to the Hon. Judge Joseph M. Hood. Pieratt's Inc. operates as a retailer of appliances and home furniture. The Company offers services in areas of appliances, electronics, mattresses, and furniture.[BN] The Plaintiff is represented by: Abney & McCarty, PLLC Jeremiah Wesley Reece, Esq. 2950 Breckenridge Lane, Suite 13 Louisville, KY 40220 Telephone: (502) 459 4108 Facsimile: (502) 459 4277 E-mail: jeremiah@amkylaw.com - and - Paul Stewart Abney, Esq. ABNEY & MCCARTY, PLLC 2950 Breckenridge Lane, Suite 13 Louisville, KY 40220 Telephone: (502) 459 4108 Facsimile: (502) 459 4277 E-mail: stewartabney@gmail.com The Defendant is represented by: Mauritia Gauvin Kamer, Esq. STEPTOE & JOHNSON, PLLC - LEXINGTON One Paragon Centre 2525 Harrodsburg Road, Suite 300 Lexington, KY 40504 Telephone: (859) 219 8218 Facsimile: (859) 255 6903 E-mail: mauritia.kamer@steptoe-johnson.com R&R EXPRESS: "Rood" Suit Wants Damages for Non-Payment of Wages --------------------------------------------------------------- BEN ROOD, on behalf of himself and similarly situated employees v. R&R EXPRESS, INC., Case No. 2:17-cv-01223-MRH (W.D. Pa., September 18, 2017), is brought under the Fair Labor Standards Act of 1938, the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law, to recover damages for non-payment of wages. R&R Express, Inc., a Pennsylvania corporation, is a common carrier and engaged in the business of freight brokerage, and provides transportation and logistics solutions throughout the United States and internationally. The Company is headquartered in Pittsburgh, Pennsylvania. The Company uses a combination of its own truck assets and contracted carriers to move "hundreds of thousands of shipments per year" for its customers.[BN] The Plaintiff is represented by: Joseph H. Chivers, Esq. THE EMPLOYMENT RIGHTS GROUP First & Market Building, Suite 650 100 First Avenue Pittsburgh, PA 15222 Telephone: (412) 227-0763 Facsimile: (412) 774-1994 E-mail: jchivers@employmentrightsgroup.com - and - John R. Linkosky, Esq. JOHN LINKOSKY & ASSOCIATES 715 Washington Avenue Carnegie, PA 15106 Telephone: (412) 278-1280 Facsimile: (412) 278-1282 E-mail: linklaw@comcast.net R.T.G. FURNITURE: "Bulgajewski" Suit Moved to M.D. Florida ---------------------------------------------------------- The class action lawsuit titled Charlotte Bulgajewski, on behalf of herself and on behalf of all others similarly situated, the Plaintiff, v. R.T.G. Furniture Corporation, doing business as: Rooms to Go, the Defendant, Case No. 17-CA-7762, was removed on Sep. 19, 2017 from Hillsborough County Court, to the U.S. District Court for Middle District of Florida (Tampa). The District Court Clerk assigned Case No. 8:17-cv-02166-SDM-AAS to the proceeding. The case is assigned to the Hon. Judge Steven D. Merryday. RTG Furniture Corporation retails home furniture. The Company offers sofas, chairs, dining room sets, bedroom furniture, lamps, table sets, ottomans, chaises, and other related products. RTG Furniture serves customers throughout the United States.[BN] The Plaintiff is represented by: Andrew Ross Frisch, Esq. C. Ryan Morgan, Esq. Marc Reed Edelman, Esq. MORGAN & MORGAN, PA 600 N Pine Island Rd, Suite 400 Plantation, FL 33324 Telephone: (954) 318 0268 Facsimile: (954) 333 3515 E-mail: afrisch@forthepeople.com rmorgan@forthepeople.com MEdelman@forthepeople.com The Defendant is represented by: Corey A. Lee, Esq. Jamie Zysk Isani, Esq. HUNTON & WILLIAMS, LLP 1111 Brickell Ave, Suite 2500 Miami, FL 33131 Telephone: (305) 810 2500 Facsimile: (350) 810 2460 E-mail: leec@hunton.com jisani@hunton.com RENTOKIL NORTH AMERICA: "Tovar" Suit Seeks Unpaid Wages ------------------------------------------------------- MATTHEW TOVAR, as an individual and on behalf of all others similarly situated, the Plaintiff, v. RENTOKIL NORTH AMERICA, INC., a Pennsylvania Corporation; and DOES 1 through 100, the Defendant, Case No. BC676386 (Cal. Super. Ct., Sep. 18, 2017), seeks to recover unpaid wages and penalties under California Labor Code. According to the complaint, the Plaintiff was hired by Defendants as a Pest Control Technician on or about August 3, 2016, although he has been on a leave of absence since approximately June 27, 2017. During his employment with Defendants, Plaintiff regularly worked from 7:00 a.m. to 7:00 p.m. or later on weekdays, and occasionally Plaintiff worked on weekends as well. As a Pest Control Technician, Plaintiffs job duties primarily consisted of providing pest control services to Defendants' customers. The Plaintiffs employment with Defendants was terminated during Plaintiffs medical leave. During Plaintiff's employment with Defendants, Plaintiff routinely worked in excess of 8 hours per workday and/or more than 40 hours per workweek, but did not receive overtime compensation equal to one and one-half times his regular rate of pay for working overtime hours. Specifically, Defendants paid Plaintiff non-discretionary incentive pay, including bonuses, commissions and other forms of non- discretionary pay. As a result of Plaintiff receiving Incentive Pay, Defendants did not properly calculate Plaintiffs regular rate of pay for overtime purposes, thereby causing Plaintiff to be underpaid all of his required overtime wages. Defendants failed to provide Plaintiff and other non-exempt employees with all required meal periods, because Defendants did not maintain a lawful meal period policy, and required Plaintiff to enter into an unlawful on-duty meal period agreement. Specifically, Defendants routinely failed to provide duty-free meal periods to Plaintiff and other non-exempt employees, because Defendants required Plaintiff sign an on-duty meal period agreement when he was hired. As a result of this on-duty meal period agreement, Defendants have conceded that Technicians cannot be provided with a duty free meal period for all shifts worked. Rentokil, Inc. provides pest control services for commercial and residential customers in the United Kingdom, the United States and Canada.[BN] The Plaintiff is represented by: Paul K. Haines, Esq. Fletcher W. Schmidt, Esq. Andrew JT Rowbotham, Esq. Stephanie A. Kierig, Esq. HAINES LAW GROUP, APC 2274 East Maple Avenue El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com skierig@haineslawgroup.com ROYAL CARIBBEAN: Hit with CA Over Hurricane Harvey Cancellation --------------------------------------------------------------- Click2Houston reports that a popular cruise line is being sued after passengers said they were forced to fly to Houston at the height of Hurricane Harvey. The class-action lawsuit claims that Royal Caribbean refused to make changes to tickets before the storm, and told passengers that they would not get a refund if they didn't board the ship. Royal Caribbean sends cruise ship to help Puerto Rico Cruises canceled as Hurricane Irma menaces Caribbean Ultimately, the cruise was delayed and then canceled, leaving passengers stranded because of floodwaters. [GN] SAFEGUARD PROPERTIES: Judge OKs Illinois CA Over Home Inspections ----------------------------------------------------------------- Dena Aubin, writing for Reuters, reports that Safeguard Properties, one of the country's largest property inspection companies, must face a class action alleging that some of its inspections are actually attempts to collect debt for a mortgage servicer, a federal judge has ruled. In a decision on September 28, U.S. District Judge Joan Gottschall in Chicago rejected Safeguard's bid to dismiss the lawsuit, saying whether the company is a debt collector subject to federal law on collection practices is an open question that will have to be decided at trial. [GN] SATELLITE COUNTRY: "Prejean" Suit Seeks OT Wages under FLSA ----------------------------------------------------------- CHRISTOPHER PREJEAN, on Behalf of Himself and on Behalf of All Others Similarly Situated, the Plaintiff, v. SATELLITE COUNTRY, INC., the Defendant, Case No. 6:17-cv-01170 (W.D. La., Sep. 14, 2017), seeks to recover overtime wages under the Fair Labor Standards Act. According to the complaint, the Defendant failed to pay Plaintiff and its other Cable Technicians for all hours worked and also failed to pay appropriate overtime wages when they work more than 40 hours in a workweek as required by the FLSA. In addition, SC makes improper deductions from Plaintiff's wages, causing Plaintiff to be paid less than the statutory minimum and overtime wage required by Sections 206 and 207 of the FLSA. As a result, SC violates the minimum and overtime wage provisions of the FLSA. Satellite Country Incorporated operates as television retailer. The Company offers video, internet, and phone solutions for both residential and business consumers. Satellite Country offers Dish Network as the source of its products.[BN] The Plaintiff is represented by: George B. Recile, Esq. Preston L. Hayes, Esq. Ryan P. Monsour, Esq. Matthew A. Sherman, Esq. CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, L.L.P. One Galleria Boulevard, Suite 1100 Metairie, LA 70001 Telephone: (504) 833 5600 Facsimile: (504) 613 4528 SATOSHI NAKAMOTO: Faces Class Action Over Alleged Bitcoin Fraud --------------------------------------------------------------- Tabish Faraz, writing for CoinReport, reports that International attorney Dr. Jonathan Levy announced in an email he sent to CoinReport a global class action lawsuit alleging unlicensed banking, unfair business competition and fraudulent practices by cryptocurrency operators. The lawsuit is Christopher Strunk vs. Satoshi Nakamoto et al. Strunk, a New York-based consumer advocate, alleges his private banking venture, which sought a New York license, was crippled by bitcoin operators providing similar services with no real capital, no regulation and no license. Dr. Levy said in the email, "It is my well-founded belief that the profits in Bitcoin, Ethereum and all the other digital coin based ventures are largely based in fraud, pump and dump tactics, theft and securities violations. The world's largest holder of Bitcoins, worth more than $4 billion is of course the inventor and promoter. And that is a conservative estimate since we have no way of knowing how many proxy accounts the mysterious Satoshi Nakamoto gang controls." It is a rule of economics, says Dr. Levy's email, that for every winner, there must be an equal number of losers, and in this case, there are lots of victims. The winners, says the email, are the promoters of cryptocurrencies, token makers or so-called miners, High Yield Investment Programs, Initial Coin Offerings (ICOs) and all the varied bitcoin-assisted scams and fraud. Mentioning the Fortune Magazine as the source, Dr. Levy says even when investors have broken the bank on bitcoin and ethereum, their accounts have been inexplicably hacked and drained. Dr. Levy goes on to mention recent bitcoin news, including JP Morgan's Jamie Dimon claiming the [bitcoin] fraud is so bad that "people will die!", the SEC issuing a sweeping warning, the Chinese government outlawing ICOs and Fortune, Forbes and The Economist exposing what gives the impression of a massive fraud bigger than the Madoff and Stanford Ponzi schemes combined. The lawsuit may affect those who have been a victim or investor in bitcoin, ethereum and other cryptocurrencies or blockchain and fintech fraud utilizing cryptocurrencies, says the email, adding losses may be actual or lost profits. Dr. Levy advises those who have invested in such ventures may be a victim and not know it. Dr. Levy is licensed and admitted to practice law in the US, Europe, Africa and the Caribbean. He is best known for his class action lawsuits against the UBS Bank and the Vatican Bank and for representing high profile clients like the former deputy prime minister of Yugoslavia and the former president of Taiwan. Dr. Levy is also an adjunct professor of international law and political science. [GN] SECURUS TECHNOLOGIES: Wright Petitioners Oppose Sale to Platinum ---------------------------------------------------------------- Victoria Law, writing for Bloomberg News, reports that once a week for nine months in 2016, Barbara Hughes drove the 90 minutes from her home in Springfield, Ill., to visit her son at Tazewell County jail in Pekin, where he was awaiting trial. But she never got to see him in person. Instead, she had to enter a room with video phones lining two walls and sit down at her assigned station. At Tazewell, inmates' loved ones are allowed one free 20-minute session a week at the video phones. The stations are so cramped and narrow that Hughes and her ex-husband couldn't sit side by side while they talked to their son. (Hughes declined to give her son's name or specify his charges, wanting to protect his future employment prospects.) "It doesn't seem real, even though you're in the same building," she says. The monitors were so high that Hughes, a petite 5-feet-4, had to crane her neck to see. And there was always the ticking clock. "It's a hurry-up thing," she says. "You have to know what you're going to say, because you might get shut off." She could have video-called from home as much as she wanted but would have had to pay $6.95 for 20 minutes. There are 650 U.S. correctional facilities offering some form of video viewing. Like Tazewell, most are county jails, and three- quarters have eliminated in-person visits, often as a stipulation of their contract with the company charging for the video feeds. Tazewell did so in 2014, when it hired Securus Technologies Inc., a prison phone company that now controls about a third of the video market. The business has been lucrative enough to attract the attention of the private equity world. In February, Platinum Equity LLC, the firm run by Detroit Pistons owner Tom Gores, agreed to buy Securus for $1.6 billion, more than double the company's 2012 valuation. The proposed deal has come under scrutiny from both regulatory commissions and prisoners' advocates, delaying its likely approval. Securus Chief Executive Officer Richard Smith says the company is spending a lot to set up and run its video systems for jails, rather than simply selling them the equipment, but he adds that "we expect this to grow faster than our normal business." He estimates Securus will oversee 2.4 million video calls this year, two-thirds of them remote, i.e., paid. Rates vary by jail, from $5 to $12.99 for a 20-minute call and, in at least one jail, $40 for 40 minutes. Even on the low end, though, these charges can be unmanageable: More than two-thirds of people incarcerated in the U.S. reported earning less than $12,000 before their arrest, and their families tend to fall into the same income bracket. Smith says Securus negotiates prices with individual institutions, and the more people who use the service, the lower the fees. "They like the prices to come down, and so do we," he says, "as long as it stimulates additional volume." For now, the bulk of Securus's revenue comes from traditional phone services to 3,500 correctional facilities, a market historically associated with price gouging. In 2000 homebound grandma Martha Wright filed a class action to limit prison phone rates on the grounds that she couldn't afford to communicate with her incarcerated grandson. Her case became a cause celebre for prisoner-rights advocates, many of whom joined the suit and came to be known collectively as the Wright Petitioners. The suit was referred to the Federal Communications Commission, which ruled in 2013 to cap interstate calling rates and in 2015 to extend that cap to in-state calls and prohibit certain fees. This June a federal court ruled in a countersuit filed by Securus and four other companies that the FCC lacked the authority to limit in-state rates. Interstate caps remain intact. The Wright Petitioners, represented by attorney Lee Petro, are now pressing the FCC to deny the sale of Securus to Platinum Equity, arguing that the company has continually violated the commission's previous rulings. "They'll still find ways to extract as much revenue as possible from inmates and their families," Petro says. In June he filed a formal petition protesting the sale, which prevented the FCC from fast-tracking its approval, something Securus and Platinum had sought. Securus maintains that it has complied with all applicable requirements. The deal faced other holdups from public utilities commissions in states where Securus operates. While most states simply require notification of a proposed sale, at least two mandate an in-depth review. California, where Securus has contracts with 65 correctional facilities, approved the deal in August. Alaska, which contracts with Securus for all 14 of its prisons, won't issue a final order on the transaction until mid-December. While the deal awaits approval, Gores, a favorite son of Flint, Mich., has had to weather criticism from prisoners' family members and advocates. "Securus charges an average of $15.78 for a 15- minute intrastate call in Michigan, while other providers charge substantially less," Petro says. "To the extent that Pistons fans will be paying more to speak with their loved ones than it costs to buy a 12-inch pizza at a Pistons game, Mr. Gores should think twice about completing his acquisition of Securus." Platinum Equity declined to comment. Securus may have a better shot at federal clearance than it did last year. FCC Chairman Ajit Pai, who took office in January, previously represented Securus as a partner at Jenner & Block. Prisoners' advocates say Pai's work history presents a conflict of interest that should force him to recuse himself from voting on the company's acquisition. But federal agencies, including the FCC, require recusal from a merger or transaction only if the employee worked for one of the parties within the past year. The FCC's press secretary says Pai has the blessing of the commission's ethics office. At least one FCC commissioner is worried about the costs of Securus's video service. In an email, Obama appointee Mignon Clyburn wrote, "I am concerned about the serious allegations made by the Wright Petitioners. Irrespective of whether the transaction is approved, I hope that the FCC will investigate these issues." The Bristol County House of Correction in Massachusetts is one of Securus's newest video customers. Although the jail previously allowed only noncontact visits through a Plexiglas divider, Sheriff Thomas Hodgson says visitors still found ways to smuggle in drugs and that switching to video eliminates that risk. Several states, including Massachusetts, have introduced bills that would require correctional facilities to offer in-person visits. Hodgson plans to testify against such a mandate. "Whether you're looking through the Plexiglas and talking on the phone or looking through a screen, you're seeing the exact same thing," he says. Hughes disagrees. In October 2016 her son was transferred to a jail that allows in-person visits through Plexiglas, though he has to remain handcuffed and shackled. They're not allowed any physical contact, but still, Hughes says, "I can see his face, his skin, his hair, his beard. I can see if he's doing OK. As a mother, these things are important." [GN] SHINE CORPORATE: Quinn Emanuel Files Class Action ------------------------------------------------- Anna Zhang, writing for The Asian Lawyer, reports that Quinn Emanuel Urquhart & Sullivan has filed a class action lawsuit against Australian Securities Exchange-listed law firm Shine Corporate Ltd., accusing it of misleading investors with its financial disclosure. In the lawsuit, Dodd v. Shine Corporate Ltd., filed by Quinn Emanuel in Queensland Supreme Court on behalf of representative plaintiff and fund manager Allen Dodd, Shine Corporate was blamed for a 73 percent drop in its share price on Jan. 29, 2016, after the firm cut its earnings forecast for the financial year ending June 30, 2016, by half--to $18.4 million (A$26 million) from $38 million (A$54 million). According to filings to the Australian Securities Exchange (ASX), Shine Corporate argued that the decreased profit forecast was due to a more conservative estimate of income from active cases. Quinn Emanuel, alongside Australian litigation funding firm Regency Funding Pty. Ltd., said that Shine Corporate should have known of all the factors that might contribute to a lower income but failed to disclose them to investors between 2014 and 2016. The U.S. litigation firm is now recruiting plaintiffs who were Shine Corporate's investors between August 2014 and January 2016. Shine Corporate was listed in May 2013. The Brisbane-based firm's core business is personal injury law practice, and it, too, handles class actions. The case was filed following the July settlement between another ASX-listed personal injury law firm-Slater and Gordon-and Sydney- based class action firm Maurice Blackburn. Slater and Gordon agreed to pay $27.8 million (A$36.5 million) to its shareholders following a two-year-long legal battle. The Dodd case is led by Quinn Emanuel Sydney partner Damian Scattini, who happens to be an alumnus of both Maurice Blackburn and Slater and Gordon. Scattini, a class actions specialist, joined Quinn Emanuel in 2015 from Maurice Blackburn, where he was practice leader in Queensland. He moved to Maurice Blackburn from Slater and Gordon and worked his way up to become a name partner at his previous firm, Quinn & Scattini . Shine Corporate said in a filing to the ASX that the class actions brought by Quinn Emanuel would be "vigorously defended." [GN] SINGING RIVER: Steven Simpson Removed as Pension Plan Overseer -------------------------------------------------------------- The Associated Press reports that a judge has removed a lawyer who was overseeing a troubled Mississippi hospital pension plan. Circuit Judge James Bell said on Sept. 29 that Steve Simpson, a former judge and state public safety commissioner, had a conflict of interest. Mr. Simpson joined a law firm that once advised Singing River Health System on pension issues. The Sun Herald reports Judge Bell named Jackson County Chancery Clerk Josh Eldridge as the plan's temporary overseer. Mr. Eldridge says he won't charge the pension plan for work. The plan covers 3,100 employees and retirees from two county-owned hospitals. The pension has been frozen for three years with no contributions, as its balance dropped from $150 million to $125 million. Pensions are still being paid, while courts decide on a federal class-action settlement. About 200 retirees oppose the settlement. [GN] SNOWPLOW LH: Faces "Yu" Suit over Downpayment for Condo Purchase ---------------------------------------------------------------- Yu Se Liao Liao, and all other similarly situated individuals and entities who entered into purchase agreements and/or purchased condominium units in the 252 Condominium, the Plaintiff, v. SNOWPLOW LH 2 LLC, the Defendant, Case No. 655902/2017 (N.Y. Sup. Ct., Sep. 18, 2017), seeks to recover declaratory judgment in equity for the Defendant to return the Downpayment paid by Plaintiff to Defendant and/or their escrow agent. According to the complaint, Defendant is the sponsor of a condominium offering plan for the 252 Condominium located at 252 East 57th Street, City, County and State of New York. The Plaintiff agreed to purchase condominium unit No 41D, parking space and Storage Locker No 31 and Storage Locker No 32 in the Condominium pursuant to an "Option Agreement" dated March 25, 2015. The Plaintiff never executed a purchase agreement for the purchase of condominium unit No. 41D in the Condominium. The Option Agreement was never defined as a purchase agreement in the Condominium Offering Plan.[BN] The Plaintiff is represented by: Gary Rosen, Esq. ROSEN LAW LLC 216 Lakeville Road Great Neck, NY 11020 Telephone: (516) 437 3400 SOR TECHNOLOGY: Faces "Dickson" Suit in C.D. California ------------------------------------------------------- A class action lawsuit has been filed against SOR Technology, LLC. The case is captioned as Jeremy Dickson, individually and on behalf of all others similarly situated, the Plaintiff, v. SOR Technology, LLC and Does 1 through 10, inclusive, and each of them, the Defendant, Case No. 2:17-cv-06884-VAP-MRW (C.D. Cal., Sep. 18, 2017). The case is assigned to the Hon. Judge Virginia A. Phillips. SOR Technology provides technology and software services for membership programs, loyalty and employee benefit programs.[BN] The Plaintiff is represented by: Todd M Friedman, Esq. Adrian Robert Bacon, Esq. Meghan Elisabeth George, Esq. Thomas Edward Wheeler, Esq. TODD M FRIEDMAN LAW OFFICES PC 21550 Oxnard Street Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206 4741 Facsimile: (866) 633 0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com SPECIALIZED LOAN: Court Denies Move to Dismiss FAC in "Smith" ------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order denying Defendant's Motion to Dismiss the First Amended Complaint in the case captioned MARGARETTE SMITH, on behalf of herself and all others similarly situated, Plaintiff, v. SPECIALIZED LOAN SERVICING, LLC, Defendant, Case No. 16cv2519-GPC(BLM) (S.D. Cal.). Plaintiff Margarette Smith filed a purported first amended class action complaint against Defendant Specialized Loan Servicing, LLC, for alleged violations of Regulation X of the Real Estate Settlement Procedures Act (RESPA) and California Unfair Competition Law (UCL). Prior to the filing of the FAC, Smith died and the Court granted the movants Zarah Kimble, Sarah Sakinah Groza O'Loughlin, and Seher Basak's motion to substitute them in as plaintiffs. A second amended complaint adding the movants as plaintiffs has not yet been filed. Defendant's motion included an alternative argument, that the class allegations should be struck pursuant to Federal Rule of Civil Procedure, in the event the Court denied its motion to dismiss. Defendant seeks to strike the class allegations in the FAC arguing that Plaintiffs, as successors-in-interests, cannot satisfy the typicality and adequacy requirements for class certification because they are subject to unique defenses that will delay class certification. Defendant contends that while Plaintiffs may be successors-in-interest to the Property at issue, they are not successors in interest to Plaintiff's causes of action. The issues raised by Defendant are factual issues that have not yet been subject to discovery and Plaintiffs should be given the opportunity to present their evidence to support class certification, the Court says. While plaintiffs' class definitions are suspicious and may in fact be improper, plaintiffs should at least be given the opportunity to make the case for certification based on appropriate discovery. The Court concludes that the motion to strike class allegations is premature and Defendant may raise its arguments at the time of class certification. A full-text copy of the District Court's September 21, 2017 Order is available http://tinyurl.com/y92usjsrfrom Leagle.com. Margarette Smith, Plaintiff, represented by Kristen Law Sagafi, Tycko & Zavareei LLP, 483 Ninth Street, Suite 200, Oakland, CA 9460 Margarette Smith, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, 483 Ninth Street, Suite 200, Oakland, CA 9460 Specialized Loan Servicing, LLC, Defendant, represented by Brian Andrew Paino -- bpaino@mcglinchey.com -- McGlinchey Stafford & Dhruv Mohan Sharma -- dsharma@mcglinchey.com -- McGlinchey Stafford. STATE COLLECTION: Faces "Simpson" Suit in E.D. Pennsylvania ----------------------------------------------------------- A class action lawsuit has been filed against State Collection Service, Inc. The case is captioned as MORRIS SIMPSON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. STATE COLLECTION SERVICE, INC., the Defendant, Case No. 2:17-cv- 04170-MAK (E.D. Pa., Sep. 19, 2017). The case is assigned to the Hon. Judge Mark A. Kearney. State Collection Service, Inc. is a collection agency.[BN] The Plaintiff is represented by: Robert P. Cocco, Esq. LAW OFFICES OF ROBERT P. COCCO PC 1500 Walnut St., Ste 900 Philadelphia, PA 19102 Telephone: (215) 351 0200 Facsimile: (215) 922 3874 E-mail: rcocco@rcn.com SULLIVAN UNIVERSITY: Ruling Could Up Suits Over Wage Disputes ------------------------------------------------------------- John Sammon, writing Legal Newsline, reports that a landmark ruling by the Kentucky Supreme Court on Aug. 24 allowing class action lawsuits at the state level in cases involving wage and hour disputes could cause a spike in the number of such lawsuits. "I would think so," Wendy Miller, Esq. --wendy.miller@ogletree.com -- told Legal Newsline when asked if more class actions will result. Miller is an attorney with Ogletree, Deakins, Nash, Smoak & Stewart PC in Nashville, Tenn., who also is admitted to practice in Kentucky. "It is a significant development. It's not that class actions haven't been tried here in Kentucky before at the state level, it's that for the first time the issue has been made clear that you can do a class action." The ruling is virtually certain to open the door to more liability for employers in the future. A state Court of Appeals ruling in 2013 stated that a plaintiff could not bring a class action claim for unpaid wages, wage theft and unpaid overtime. That ruling and continuing controversy prompted the state Supreme Court in 2015 to take up the issue of whether the Kentucky Wages and Hours Act permitted class actions. On Aug. 24, the high court overruled the appellate decision in a case called McCann v. Sullivan University and decided employees could bring class action suits in state courts for wage and overtime-pay violations. Prior to the decision, employees could file class action suits through the federal Fair Labor Standards Act. The Kentucky Wages and Hours Act and state laws previously had not been explicit in stating whether class actions were authorized. "Before the Supreme Court ruling it was in limbo - it was unclear if an employee in Kentucky could bring a class action lawsuit for unpaid wages," Miller said. The high court's ruling said such lawsuits are allowed by state law, and the state's rules of civil procedure authorize class actions. In a class action suit against an employer, the plaintiff must provide proof they are not employed in an administrative, supervisory or outside sales capacity. Miller said the state Legislature is set to do a review of state laws regarding hours and wages. "However, they were going to do that before the Supreme Court decision," she said. "They want to make the laws more consistent." It remains unclear if the state Legislature will challenge the Supreme Court decision. "But it did kind of put it out there for them to look at," Miller said. Miller advised Kentucky employers to review their existing policies and procedures to avoid undiscovered problems turning into litigation. [GN] TENNESSEE: Sued Over License Suspensions Due to Unpaid Fines ------------------------------------------------------------ Julieta Martinelli, writing for Nashville Public Radio, reports that over the last five years, 250,000 Tennesseans have lost the right to drive legally. That's the result of an uncommon state law that makes license suspensions mandatory if drivers can't afford to pay court fees and traffic fines. A new lawsuit accuses the state of violating the constitutional rights of low income Tennesseans. Early in the morning, dozens of people have already piled into two Rutherford County courtrooms. There are more than 100 charges of driving on a suspended license on the day's docket. Anthony Carter has been in this courtroom before. It all started in 2013, when he racked up some traffic tickets across the county line in Nashville. He couldn't afford to pay in full so his license was suspended. But he says he couldn't afford to stop driving to his construction job. "I have seven kids and a mortgage," says Mr. Carter. "I have to go to work." He hoped to save enough money to pay off the tickets before he got caught. Then, he was arrested for driving on a revoked license. He says he was finally given an option to make payments -- but only on the new fees. "They make you do probation until you can pay it off," explains Mr. Carter. "Then you got probation fees, $45 a month, on top of whatever you're trying to pay off." But he had trouble keeping up with the mounting fees and kept getting pulled over. Each time he was arrested, his debt multiplied. The last time, he spent six months in jail. Mr. Carter, like the plaintiffs in the lawsuit, is trapped in what the attorneys called a "vicious cycle of debt from which escape is virtually impossible." Josh Spickler, executive director of the legal nonprofit Just City and one of the attorneys in the suit, says the current law makes no distinction between someone who won't pay and someone who simply can't. "That means that people that don't have money to pay the court debt don't have protection simply because they are poor," Mr. Spickler says. "We have a very, very important public interest in the state of having good drivers and licensed drivers in the street, but a poor driver does not make a bad driver." The lawsuit highlights Rutherford County, where almost 9,000 licenses were suspended due to non payment over five years. Wilson county, with just over 4,000 suspensions, is also a defendant. The suit alleges that clerks routinely failed to inform people they could apply for restricted licenses. Both counties, as well as the cities of Lebanon and Mt. Juliet, their clerks, and the Commissioner of the Tennessee Department of Safety are defendants in the lawsuit. It was filed by legal firm Baker Donelson, Civil Rights Corps, Just City, and the National Center for Law and Economic Justice. They are seeking federal class action lawsuit status. Though most states have similar policies, a new report by the Legal Aid Justice Center highlights that Tennessee is one of only five states who are legally mandated to issue suspensions due to unpaid debt. The state does have a new policy to get people back on the road but only after their license has been suspended in the first place. Only Shelby County is mandated to offer payment plans before the fact. The problem, says Mr. Spickler, are the fees that come with a suspension. The payment plans include the original debt, court costs, application fees, and reinstatement costs. This can add up to hundreds or even thousands of dollars. And if even one payment is missed, the license is once again suspended, and the person becomes ineligible for another payment plan. As for Anthony Carter, he's finally worked out a payment plan with Rutherford County. But he still has problems in Nashville -- with the tickets that pushed him into this cycle in the first place. "They're telling me my tickets are too old to be put on a payment plan," Mr. Carter says. "Right now that's holding me up from getting my license." Mr. Carter says he wants to pay. He just has to figure out how. The Legal Aid Justice Center says similar lawsuits have been filed in four other states: Virginia, California, Michigan, and Montana. [GN] TERANET: Ontario Court Dismisses Appeal in Class Action ------------------------------------------------------- Alex Robinson, writing for Canadian Lawyer Magazine, reports that the Ontario Court of Appeal has upheld a decision dismissing a class action lawsuit against Teranet. Keatley Surveying Ltd. brought the action in 2007 on behalf of Ontario land surveyors against Teranet, which operates the province's electronic land registry system. Class members claimed that Teranet had infringed on their copyright by digitizing, storing and copying plans of surveys they created and deposited in the system. After the lawsuit was certified in 2015, both sides moved for summary judgment. A motion judge dismissed the action last year, finding that land surveyors do not hold copyright in plans registered in the system and that therefore the plaintiff had no claim for breach of copyright. The Court of Appeal upheld the motion judge's decision in Keatley Surveying v. Teranet, holding statutory provisions give the Crown complete control over the publication of registered plans of survey. "I am satisfied that certified copies of plans of survey made available to members of the public under the statutory scheme are works published under the 'direction or control' of the Crown for the purposes of s. 12 of the Copyright Act," Justice David Doherty wrote in the decision. "Pursuant to the terms of that section, copyright in registered or deposited plans of survey 'belongs' to the Crown for the period of time prescribed in that section." Julie Parla, Esq. -- jparla@mccarthy.ca -- of McCarthy Tetrault one of the lawyers representing Teranet in the appeal, says the decision makes it clear that under Canadian copyright law, making copies of a work available to the public through the Electronic Land Registration System constitutes publishing under the Copyright Act. She says the decision provides guidance as to how a particular provision of s. 12 of the Copyright Act is meant to function, and that there was little jurisprudence in of McCarthy Tetrault the area before. "There is also helpful guidance in the way in which provincial statutes are interrelated to and can support the federal statute such that those two aspects work together with the result in this case," says Parla, who is a partner at McCarthy Tetrault LLP. Garth Myers, Esq. -- gmyers@kmlaw.ca -- of Koskie Minsky LLP, counsel for the plaintiffs in the appeal, says the Court of Appeal's conclusion that copyright had been transferred to the Crown as plans of survey are prepared under the Crown's direction or control is incorrect. "Crown copyright has traditionally been held to apply only to works created by the Crown," says Myers, an associate at Koskie Minsky LLP. "By extending it to any work that the Crown makes publicly available, the Crown has been inappropriately given copyright in all sorts of works for which it ought to have no claim." Myers adds the Crown cannot give itself copyright to materials by simply publishing them. He says the decision has impact on all works that are filed by private actors and are then subsequently made public by the Crown. "According to the Court of Appeal, the copyright in these works transfers to the Crown upon the Crown's publication," he says. "In consequence, individuals and corporations must be very careful about submitting valuable copyrighted works in circumstances where they might be published by the Crown." The Court of Appeal did not bother considering a cross appeal by Teranet as the dismissal of Keatley's appeal rendered it moot. Myers declined to answer whether his client intends to seek leave to appeal the decision from the Supreme Court of Canada. The Ministry of the Attorney General, which intervened in the appeal, did not provide comment before deadline. [GN] TRANS UNION: Faces "Jakob" Suit over Fair Credit Reporting Act -------------------------------------------------------------- BRIGITTE A. JAKOB, on behalf of herself and all others similarly situated, the Plaintiff, v. TRANS UNION, LLC, the Defendant, Case No. 2:17-cv-01247-NJ (E.D. Wisc., Sep. 14, 2017), seeks to recover damages of not less than $100 and not more than $1,000, actual damages, punitive damages in an amount to be determined by the jury, attorney's fees, and litigation costs, as well as further relief as may be permitted by law. The case is a consumer class action under the Fair Credit Reporting Act against Trans Union, a national consumer reporting agency. In violation of the FCRA, Trans Union prepares and delivers consumer reports that include information about civil judgments that: (a) the FCRA prohibits Trans Union from reporting and (b) have been paid in full, satisfied, or released, but are not reported by Trans Union as paid, satisfied, or released. TransUnion LLC operates as a credit reporting agency that provides data/insights and information to help consumers and businesses make informed decisions.[BN] The Plaintiff is represented by: James A. Francis, Esq. John Soumilas, Esq. FRANCIS & MAILMAN, P.C. 100 S. Broad Street, Suite 1902 Philadelphia, PA 19110 Telephone: 215 735 8600 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com UNITED STAFFING: "Byers" Suit Seeks OT Wages under Labor Code ------------------------------------------------------------- TONI BYERS, an individual on behalf of herself and others similarly situated, the Plaintiff, v. UNITED STAFFING SOLUTIONS, INC.; and DOES 1 to 10 inclusive, the Defendant, Case No. BC675912 (Cal. Super. Ct., Sep. 14, 2017), seeks to recover overtime wages under the California Labor Code. The Plaintiff alleges that United Staffing Solutions, Inc. failed to include all remuneration in the regular rate of pay when calculating overtime wages and failing to timely pay all wages owing at the termination of employment.[BN] The Plaintiff is represented by: Matthew B. Hayes, Esq. Kye D. Pawlenko, Esq. HAYES PAWLENKO LLP 595 E. Colorado Blvd., Suite 303 Pasadena, CA 91101 Telephone: (626) 808 4357 Facsimile: (626) 921 4932 E-mail: mhayes@helpcounsel.com kpawlenko@helpcounsel.com UNITED STATES: 10th Cir. Affirms Settlement in Prisoner's Suit -------------------------------------------------------------- The United States Court of Appeals, Tenth Circuit, issued an Order and Judgment affirming the District Court's judgment approving class action settlement in the case captioned HAROLD CUNNINGHAM, Plaintiff-Appellant, and PERCY BARRON; ALPHONSO BLAKE; JABBAR CURRENCE; CARLTON DUNBAR; SCOTT FOUNTAIN; SEAN GILLESPIE; CHARLES HIPPS; RONNIE HOUSTON; JOHN LAMB; HERBERT PERKINS; JOHN J. POWERS; ARNELL SHELTON; MARCELLUS WASHINGTON; CENTER FOR LEGAL ADVOCACY, d/b/a Disability Law Colorado, Plaintiffs-Appellees, v. FEDERAL BUREAU OF PRISONS, Defendant-Appellee, No. 17-1054. (10th Cir.). Harold Cunningham, proceeding pro se, appeals the judgment approving the settlement of a class action brought by mentally ill prisoners housed in the federal administrative-maximum facility in Florence, Colorado (ADX). Counsel for several ADX prisoners filed the action alleging that they were denied required mental-health treatment and were so abused by prison personnel that the conditions of their confinement constituted cruel and unusual punishment in violation of the Eighth Amendment. A federal magistrate judge facilitated discovery and settlement negotiations. The BOP agreed to the settlement because it recognized the need for new policies and practices for mentally ill inmates at ADX. The court observed that although the case was triable, the complexities of such a trial are evident. The district court acknowledged that some of the prisoners objected to the settlement because it did not provide for any awards of money damages. The Tenth Circuit reviewed the district court's approval of the settlement for abuse of discretion. A district court may approve a proposed settlement only after finding that it is fair, reasonable, and adequate. Mr. Cunningham first claims that during a hearing in November 2013 the attorney for the class and the magistrate judge agreed to set up a trust fund for payment of money awards to certain prisoners, yet the attorney improperly failed to set it up. But he does not cite to any record evidence for this claim. And what the Tenth Circuit does have in the record does not support the claim. Mr. Cunningham also raises an argument based on his proposed pro se Third Amended Complaint seeking money damages. Contrary to his characterization of the proceedings, however, the BOP responded to the motion to reconsider. And although the district court did not formally rule on the motion, the court implicitly denied it by dismissing the case. Mr. Cunningham next asserts that the settlement agreement should be voided because BOP officials retaliated against him for refusing to agree to the settlement. But he does not identify where he raised a retaliation claim in the district court and he does not argue for the application of plain-error review on appeal. Therefore, the retaliation claim is waived. Even though we do not consider his retaliation claim in this appeal, we note that the settlement order does not foreclose Mr. Cunningham from bringing a separate action for retaliation. Mr. Cunningham argues that an award of money damages was contemplated by the operative complaint because the relief requested included such other relief as the Court deems just and proper. Perhaps so. But even if the complaint had explicitly sought money damages, that would not affect the validity of the ultimate settlement. A settlement is not unfair simply because it does not provide all relief originally sought. Finally, Mr. Cunningham maintains that he is entitled to an award of attorney fees for acting as the lead plaintiff and helping to put the case together. The fees payable to the attorneys for the class were authorized under the Equal Access to Justice Act (EAJA). But "attorney fees are not available for pro se litigants under the EAJA. The judgment is affirmed. A full-text copy of the Tenth Circuit's September 21, 2017 Order and Judgment is available at http://tinyurl.com/ybh6m3osfrom Leagle.com. UNITED STATES: Ct. Adopts Prelim Approval of "Moss" Settlement -------------------------------------------------------------- The United States District Court for the District of Oregon, Medford Division, issued an Order adopting Magistrate Judge's Report and Recommendation granting Unopposed Motion for Preliminary Approval of Class Action Settlement in the case captioned AMICHAEL MOSS, et al., Plaintiffs, v. UNITED STATES SECRET SERVICE, et al., Defendants, Case No. 1:06-cv-03045-CL (D. Ore.). Having reviewed the file of this case, the District Court finds no clear error and adopts the Magistrate Judge's F&R. The Unopposed Motion for Preliminary Approval of Class Action Settlement and Related Relief is granted. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/yc34bg8pfrom Leagle.com. Michael Moss, Plaintiff, represented by Steven M. Wilker -- steven.wilker@tonkon.com -- Tonkon Torp LLP. Michael Moss, Plaintiff, represented by Alexander M. Tinker -- alex.tinker@tonkon.com -- Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, Suite 1191440 20th St NW, Washington, DC 20036-5907, pro hac vice. Lesley Adams, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Beth Wilcox, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Richard Royer, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Lee Frances Torelle, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Mischelle Elkovich, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Anna Vine O'Connell, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. Jackson County Pacific Green Party, Plaintiff, represented by Steven M. Wilker, Tonkon Torp LLP, Alexander M. Tinker, Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. United States Secret Service, Defendant, represented by Brant S. Levine, U.S. Department of Justice & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. Ralph Basham, Defendant, represented by Brant S. Levine, U.S. Department of Justice & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. Tim Wood, Defendant, represented by Brant S. Levine, U.S. Department of Justice & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. Rob Savage, Defendant, represented by Brant S. Levine, U.S. Department of Justice & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. John Doe 1, Defendant, represented by Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. David Towe, Defendant, represented by Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr.. City of Jacksonville, Defendant, represented by Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr.. Ron Ruecker, Defendant, represented by Christina L. Beatty- Walters, Oregon Department of Justice & Christopher A. Perdue, Oregon Department of Justice. Eric Rodriquez, Defendant, represented by Christina L. Beatty- Walters, Oregon Department of Justice. Eric Rodriquez, Defendant, represented by Christopher A. Perdue, Oregon Department of Justice. Sheriff Mike Winters, Defendant, represented by Michael D. Jewett, Attorney at Law, Devin D. Huseby, Jackson County Counsel & Joel C. Benton, Jackson County Counsel. Jackson County, Defendant, represented by Joel C. Benton, Jackson County Counsel, Devin D. Huseby, Jackson County Counsel & Michael D. Jewett, Attorney at Law. John Does 2-20, Defendant, represented by Michael D. Jewett, Attorney at Law, Devin D. Huseby, Jackson County Counsel & Joel C. Benton, Jackson County Counsel. Mark Sullivan, Defendant, represented by Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. Tim F. McClain, Defendant, represented by Christina L. Beatty- Walters, Oregon Department of Justice & Christopher A. Perdue, Oregon Department of Justice. Randie Martz, Defendant, represented by Christina L. Beatty- Walters, Oregon Department of Justice & Christopher A. Perdue, Oregon Department of Justice. Corey Falls, Defendant, represented by Michael D. Jewett, Attorney at Law, Devin D. Huseby, Jackson County Counsel & Joel C. Benton, Jackson County Counsel. Jackson County, Cross Claimant, represented by Michael D. Jewett, Attorney at Law. United States Secret Service, Cross Defendant, represented by Brant S. Levine, U.S. Department of Justice & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch. URBAN SETTLEMENT: Court Denies Move to Strike Class Allegations --------------------------------------------------------------- The United States District Court for District of Colorado issued an Order denying Defendant Bank of America, N.A.'s Motion to Strike Class Allegations in the case captioned RICHARD GEORGE, STEVEN LEAVITT, SANDRA LEAVITT, DARRELL DALTON, and all others similarly situated, Plaintiffs, v. URBAN SETTLEMENT SERVICES, d/b/a Urban Lending Solutions, and BANK OF AMERICA, N.A., Defendants, Civil Action No. 13-cv-01819-PAB-KLM (D. Colo.). BOA argues that all of plaintiffs' class-action allegations should be stricken because plaintiffs will not be able to establish that class certification is appropriate. If that relief is denied, BOA asks that the Court strike plaintiffs' class-action promissory estoppel claims brought under the law of states in which the named plaintiffs do not reside because the named plaintiffs lack standing to bring such claims. BOA admits that the standard for striking class allegations prior to plaintiffs filing a class certification motion is high. To succeed, BOA must show that 'it will be impossible to certify the classes alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove.' Courts are divided on the issue of whether named plaintiffs in a putative class action have standing to bring claims under the law of states where the named plaintiffs do not reside. Plaintiff lacks standing to bring claims under state laws to which Plaintiff has never been subjected and the class action claim must therefore be dismissed for lack of standing. This Court is not persuaded that where a plaintiff resides or suffers an injury has anything to do with Article III standing. The Court agrees with courts that have held that where a named plaintiff resides or suffers an injury is not determinative of whether they have Article III standing. As the Seventh Circuit explained, plaintiffs have standing if they have been injured, the defendants caused that injury, and the injury can be redressed by a judicial decision. Plaintiffs sufficiently allege that their reasonable reliance on defendants' promises led to financial losses and that such losses were caused by defendants. Accordingly, because plaintiffs have demonstrated a case or controversy with defendants that can be redressed by a judicial decision, plaintiffs have shown that they have Article III standing. Whether plaintiffs have a valid cause of action under the laws of any particular state is a separate matter, but one that is not at issue here. It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, the courts' statutory or constitutional power to adjudicate the case. It is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Therefore, the Court will not dismiss plaintiffs' promissory estoppel claims brought under the law of states where the named plaintiffs do not reside. A full-text copy of the District Court's September 21, 2017 Order is available at http://tinyurl.com/yd42seltfrom Leagle.com. Ajay Sood, Movant, Pro Se. Richard George, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP, Ari Y. Brown, Hagens Berman Sobol Shapiro, LLP, 1918 Eighth Avenue, Suite 3300Seattle, WA 98101 & Tyler Stuart Weaver -- tyler@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP. Steven Leavitt, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro, LLP, Ari Y. Brown, Hagens Berman Sobol Shapiro, LLP & Tyler Stuart Weaver, Hagens Berman Sobol Shapiro, LLP. Sandra Leavitt, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro, LLP, Ari Y. Brown, Hagens Berman Sobol Shapiro, LLP & Tyler Stuart Weaver, Hagens Berman Sobol Shapiro, LLP. Darrell Dalton, Plaintiff, represented by Ari Y. Brown, Hagens Berman Sobol Shapiro, LLP & Steve W. Berman, Hagens Berman Sobol Shapiro, LLP. Urban Settlement Services, Defendant, represented by Martin Christopher Bryce, Jr. -- BRYCE BALLARDSPAHR.COM -- Ballard Spahr, LLP, Rachel Rose Mentz -- MENTZR BALLARDSPAHR.COM -- Ballard Spahr, LLP & Sarah Block Wallace -- WALLACES BALLARDSPAHR.COM -- Ballard Spahr, LLP. Bank of America, N.A., Defendant, represented by James W. McGarry, Goodwin Procter, LLP, Exchange Place53 State Street Boston, MA 02109 Benjamin R. Cox, Goodwin Procter, LLP, Keith Eric Levenberg, Goodwin Procter, LLP, Exchange Place53 State Street Boston, MA 02109 & Peter John Korneffel, Jr.- peter.korneffel@bryancave.com -- Bryan Cave LLP. VERASTIQUE ENTERPRISES: Lopez Sues Over Unpaid Overtime Wages ------------------------------------------------------------- MARTIN LOPEZ, and all others similarly situated under 29 U.S.C. Section 216(b) v. VERASTIQUE ENTERPRISES, INC. d/b/a QUICK TRIP MOVERS and MICHAEL I. VERASTIQUE, Case No. 3:17-cv-02524-B (N.D. Tex., September 18, 2017), is brought as a collective action under the Fair Labor Standards Act on behalf of similarly situated employees, who have not been paid overtime wages for work performed in excess of 40 hours weekly. Verastique Enterprises, Inc., doing business as Quick Trip Movers, is a company that regularly transacts business within the Northern District of Texas. Michael I. Verastique is a corporate officer, owner or manager of Verastique Enterprises.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com VOLKSWAGEN AG: Merkel's Party Rejects Call for Class Action ----------------------------------------------------------- Robert Peres, writing for Automotive News, reports that Angela Merkel's Christian Democratic Union party was victorious in the recent German elections, and it appeared that voters didn't care how the chancellor has shielded Volkswagen and other automakers from liability toward domestic consumers and shareholders stemming from the diesel scandal. Experts estimate about 4 million VW vehicles in Germany were affected by defeat devices that manipulated emissions in a laboratory test situation. Yet, Merkel's ruling party has rejected any calls for consumer compensation through class-action litigation, a legal option that Germans -- unlike Americans -- don't have. Volkswagen and other industry giants such as BMW and Daimler, who also have been accused of manipulating emissions systems, have agreed to software updates for all diesel cars already on the roads, claiming this would reduce poisonous nitrogen oxide emissions by 30 percent. This was the result of a "diesel summit" convened by the German government and spearheaded by Merkel. However, many critics say these software updates do little to nothing about the emissions and demand hardware solutions for the vehicles. Manufacturers argue that would cost about 1,500 euros ($1,800) per car and would seriously harm the industry and threaten many jobs. French President Emmanuel Macron, German Chancellor Angela Merkel and U.S. President Donald Trump confer at the G20 in July. Merkel has been called "chief lobbyist" for carmakers because of her protective stance. Around 800,000 jobs in Germany are either directly or indirectly linked to the automobile industry. Calling it to task for its transgressions is a no-no in German politics. Merkel has been called "chief lobbyist" for carmakers because of her protective stance. The opposition, and even her coalition partner, the Social Democrats, have tried to introduce legislation that would specifically enable car owners damaged by Volkswagen to sue collectively in court, without success. The majority coalition party CDU/CSU hasn't even allowed a debate in parliament about a legislative draft prepared by Justice Minister Heiko Maas that would introduce something similar to class-action litigation in Germany. It was stopped cold by Alexander Dobrindt, Germany's transportation minister and lead member of the conservative Christian Social Union. His handwritten comment on the draft read: "We reject this, strike completely!" In sharp contrast, Volkswagen has entered into a settlement with the U.S. Federal Trade Commission that includes hefty compensation for about 600,000 affected American car owners. Large criminal and civil fines, as well as the cost of buybacks, bring the bill for Volkswagen close to $25 billion. Some Volkswagen employees in the U.S. are even facing jail time. None of this is happening in Europe, where 8.5 million VW customers have purchased diesel cars with the illegal devices. Worldwide, there are 11 million defeat devices. Several German plaintiff law firms have been ramping up to sue Volkswagen. Their problem is that they need to bring each case to court separately. One Duesseldorf firm has announced plans to file 5,000 cases. "VW is fighting every claim individually," says Ralph Sauer, partner at Dr. Stoll & Sauer. "If they start to offer a big deal like they did in the U.S., they fear 2.4 million people will want the same thing." The European Commission has issued directives to its member states in the past to implement class-action litigation in order to counter egregious transgressions by businesses against consumers, the last one in 2016. Most European countries have followed the directives and introduced some sort of collective redress in their laws. Not so in Germany. This and the diesel scandal prompted European Justice Commissioner Vera Jourova in March to threaten Volkswagen with enforcement action if the automaker doesn't offer European consumers compensation for their damages. The European Commission hosted a meeting of 22 consumer protection authorities from across the continent, in which they agreed to prepare collective action against VW. So Volkswagen has it coming, even if the German authorities are still treating them with kid gloves. It has been an election time, but maybe all the corporate lobbying against class-action lawsuits has reached a wall? For years, the main arguments were that class actions would burden businesses and promote an "American-style" litigation industry. The worn examples of exorbitant attorney fees, the potential for blackmail and excessive discovery to extract trade secrets don't all work in Germany. German procedural law does not allow pretrial discoveries nor contingency fees for lawyers. Progressive legal academics have long supported changes to German law that would allow groups of claimants to sue together. A smart legislative draft that would enable plaintiffs to initiate group actions, without needing sponsorship by consumer protection agencies or other public entities, died in German parliament. It was denied discussion when introduced Sept. 5. It seems like Merkel still is holding her hands over the automobile industry. Her victory was also a win for the German carmakers. [GN] VOLKSWAGEN GROUP: "Alters" Suit Moved to District of New Jersey --------------------------------------------------------------- The class action lawsuit titled Brett Alters, April Rockstead Barker, Dave Battinieri, Chloe Crater, David Deking, Deloris A. Jones, Malia Moore, Delola Nelson-Reynolds, George O'Connor, and Christine Palmer, individually and on behalf of all others similarly situated, the Plaintiffs, v., Volkswagen Group of America, Inc., Volkswagen A.G., Takata Corporation, and TK Holdings Inc., the Defendants, Case No. 2:17-cv-05863, was transferred on Sep. 19, 2017 from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:17-cv-23433-FAM to the proceeding. The case is assigned to the Hon. Judge Federico A. Moreno. Volkswagen Group of America, Inc., is the North American operational headquarters, and subsidiary of the Volkswagen Group of automobile companies of Germany.[BN] The Plaintiffs are represented by: Caroline F. Bartlett, Esq. James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC. 5 Becker Farm Road Roseland, NJ 07068-1741 Telephone: (973) 994 1700 E-mail: cbartlett@carellabyrne.com jcecchi@carellabyrne.com WELLS FARGO: Faces Lawsuit Over Window and Door Financing --------------------------------------------------------- Jimmie E. Gates, writing for The Clarion-Ledger, reports that a class-action lawsuit has been filed against Wells Fargo Bank and Mississippi Iron Works. "This lawsuit is yet another example of the disgusting manner in which Wells Fargo's well-publicized fraud-scandal touches nearly every consumer product-line that Wells Fargo, and its co-branding agents, have pushed onto an unsuspecting public," attorney Macy Hanson of Madison said in the lawsuit. "This case, specifically, involved the fraudulent consumer credit-product named the Wells Fargo Visa Home Projects Credit Card." The lawsuit, filed in U.S. District Court in Jackson, presents only one side of the legal argument. Wells Fargo and Iron Works have not filed a response. The case has been assigned to federal Judge Tom Lee. Nationally, Wells Fargo, the second largest bank in the United States, has been rocked with scandal over the last year or so for creating fraudulent bank and credit cards accounts. Hanson said the latest lawsuit involves the fraudulent and dishonest financing-scheme devised and perpetuated by the defendants in which unauthorized and never-disclosed Wells Fargo credit cards were used to finance the window and door purchases of Mississippi Iron Works consumer-products. "As detailed in this complaint, the defendants conspired to create a financing-scheme in which Mississippi Iron Works, and its president and owner, Cary W. Crawley (who also acts as a door-to- door salesman), fraudulently signed customers up for unauthorized and concealed Wells Fargo Visa Home Projects Credit Cards," the lawsuit says. The lawsuit says that on Sept. 11, 2014, Crawley, while engaging in unsolicited door-to-door sales in the Yazoo City area, knocked on 69-year-old John Meeks' door. The lawsuit says Crawley was acting in his individual capacity and also, and simultaneously, as a dual agent, for the financial benefit, of Mississippi Iron Works and Wells Fargo Financial National Bank. It says Crawley was canvassing Meeks' neighborhood in Yazoo City in early September 2014 to capitalize, financially, upon a home invasion and robbery of an elderly lady in Yazoo City in late August 2014. Crawley said on September 29 he had contacted Meeks and the homeowner had no problem with him or his work. Crawley said he was basically caught in the middle. He said he uses Wells Fargo, like numerous people and businesses, for financing. "Everybody knows Wells Fargo has some issues," Crawley said. However, Crawley said it was plainly marked on the application that Meeks entered into that Wells Fargo was providing the financing. Meeks agreed to purchase from Mississippi Iron Works three custom security doors, a set of double doors, and installation of "security screens" on all of his first-floor windows at a total cost of $13,950, according to the lawsuit. The lawsuit says the cost of Meeks' purchase, according to the Mississippi Iron Works work order and invoice provided him by the defendants, would be financed through a "60-months, no-interest" closed-end loan, and the words "Wells Fargo" nor "credit card" were ever used in the presence of Meeks. "Nonetheless, the defendants conspired in an unlawful scheme to sign Mr. Meeks up for an unauthorized, fraudulent, and criminal Wells Fargo Visa Home Project Credit Card," the lawsuit says. Hanson said that due to widespread, intentional and systemic fraud related to the Wells Fargo Visa Home Projects Credit Card, as of June the bank had terminated the product line. Hanson has filed several lawsuits against Wells Fargo on behalf of clients this year, including one on behalf of a blind Jackson woman against the bank and window companies. Wells Fargo has sought to force the cases into arbitration saying the parties agreed to arbitration when they signed credit card agreements. Also, a Mississippi mother and her son are part of one of the initial class-action lawsuits filed against Wells Fargo Bank over allegedly forcing hundreds of thousands of auto loan customers to pay for unnecessary and unwanted collateral protection insurance. Dianne Neal and son Robert Neal of Macon and Blaine Boone of Parkville, Maryland, are plaintiffs in the lawsuit filed in federal court in California. [GN] WENDY'S COMPANY: Banczak and Jastrzebska Sue over Beverage Tax -------------------------------------------------------------- MARIAN BANCZAK, and ANGELICA JASTRZEBSKA, both individually and on behalf of all others similarly situated, the Plaintiffs, v. THE WENDY'S COMPANY, WENDY'S RESTAURANTS, LLC., WENDY'S INTERNATIONAL, LLC., WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, LLC., WENDY'S PROPERTIES, LLC, ALL-STAR MANAGEMENT NO.4, INC., ALL-STAR MANAGEMENT NO. 12, INC., BF ILLINOIS, LLC., CALUMET CROSSING MANAGEMENT, INC., TRI CITY FOODS OF ILLINOIS, INC., SABRINA R. HICKS, TFN, INC., and THOMAS F. NOVAK, the Defendants, Case No. 2017-L-315 (Ill. Cir. Ct., Sep. 14, 2017), seeks to recover for overcharges of the Sweetened Beverage Tax imposed and collected by Wendy's in Cook County, Illinois in its drive-thru locations. The case is a consumer class action relating to unlawful over- taxation of sweetened beverages sold by Defendants in its drive- thru locations under the Sweetened Beverage Tax. The Plaintiffs bring this action for Wendy's violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, common law fraud, and money had and received. Wendy's is engaged in the business of operating, developing and franchising a system of quick-service restaurants in the retail sales of food and beverages, including retail sales of sweetened beverages subject to the Sweetened Beverage Tax in Cook County, Illinois.[BN] The Plaintiffs are represented by: David S. Rodriguez, Esq. MILLENNIUM LAW GROUP P.C. 155 N. Michigan Av., Ste 9010 Chicago, IL 60601 Telephone: (312) 729 5291 E-mail: david@millennium-law.com WESTPORT RECOVERY: Accused by "McElveen" Suit of Violating FDCPA ---------------------------------------------------------------- LARA E. MCELVEEN, on behalf of herself and all others similarly situated v. WESTPORT RECOVERY CORPORATION and DEBRA L. GREENBERG, Case No. 0:17-cv-61816-BB (S.D. Fla., September 18, 2017), accuses the Defendants of sending the Plaintiff a communication, which contained false representations of the amount allegedly due -- in violation of the Fair Debt Collection Practices Act. Westport Recovery Corporation is a corporation formed under the laws of the state of Florida with its principal place of business at in Plantation, Florida. Debra L. Greenberg, Esq., is a Florida attorney and a resident of Broward County, Florida, and a principal of Westport. The Defendants regularly use the mail and telephone in a business the principal purpose of which is the collection of debts.[BN] The Plaintiff is represented by: Donald A. Yarbrough, Esq. LAW OFFICE OF DONALD A. YARBROUGH Post Office Box 11842 Fort Lauderdale, FL 33339 Telephone: (954) 537-2000 Facsimile: (954) 566-2235 E-mail: don@donyarbrough.com - and - Joel D. Lucoff, Esq. JDL LAW, P.A. Post Office Box 277534 Miramar, FL 33027 Telephone: (954) 562-0907 E-mail: joel@jdllawpa.com WS ENERGY: "Mansilla" Suit Seeks Unpaid Compensation under FLSA --------------------------------------------------------------- MANUEL MANSILLA, Individually and on behalf of all others similarly situated, the Plaintiff, v. WS ENERGY SERVICES, LLC., the Defendant, Case No. 2:17-cv-00297 (S.D. Tex., Sep. 14, 2017), seeks to recover all available relief, including compensation, liquidated damages, attorneys' fees, and costs, pursuant the Fair Labor Standards Act (FLSA). The Plaintiff and the Putative Class Members are those similarly situated persons who worked for WS Energy since September 14, 2014 and through the final disposition of this matter, and were paid a salary plus job bonuses/day rates, but did not receive overtime for all hours worked over 40 in each workweek. The Plaintiff and the Putative Class Members are also those similarly situated persons who worked for WS Energy since September 14, 2014 and through the final disposition of this matter, and were paid on an hourly basis plus job bonuses/day rates and were actually paid overtime, but the job bonuses/day rates were not included in the calculation of their overtime rate.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452 1279 Facsimile: (361) 452 1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com ZILLOW GROUP: "Shotwell" Securities Suit Cites CFPB Probe --------------------------------------------------------- JAMES SHOTWELL, individually and on behalf of all others similarly situated, the Plaintiff, v. ZILLOW GROUP, INC., SPENCER M. RASCOFF, and KATHLEEN PHILIPS, the Defendants, Case No. 2:17-cv-01387 (W.D. Wash., Sep. 14, 2017), seeks to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the SEC, against the Company and certain of its top officials. The case is a federal securities class action on behalf of all investors who purchased or otherwise acquired a class consisting of all persons other than Defendants who purchased or otherwise acquired Zillow securities between February 12, 2016 and August 8, 2017, both dates inclusive. Zillow Group, Inc. provides e-commerce services. The Company provides information about homes, real estate listings, and mortgages through their website and mobile applications. Zillow serves homeowners, buyers, sellers, renters, and real estate professionals throughout the United States. Founded in 2004, the Company is headquartered in Seattle, Washington and the Company's stock trades on the NASDAQ Global Select Market under the ticker symbol "Z". According to the complaint, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company's co-marketing program did not comply with the Real Estate Settlement Procedures Act; and (ii) as a result of the foregoing, Zillow' public statements were materially false and misleading at all relevant times. In April 2017, Zillow received a Civil Investigative Demand from the Consumer Financial Protection Bureau that questioned whether some of Zillow's advertising revenues violated regulations against kickbacks.[BN] The Plaintiff is represented by: Cliff Cantor, Esq. LAW OFFICES OF CLIFFORD A. CANTOR, P.C. 627 208th Ave. SE Sammamish, WA 98074 Telephone: (425) 868 7813 Facsimile: (425) 732 3752 E-mail: cliff.cantor@outlook.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com * California Helps Workers Sue Their Bosses ------------------------------------------- Josh Eidelson, writing for Bloomberg, reports that the U.S. Supreme Court will consider whether employees have the right to bring class actions against their bosses. With the court's Republican majority restored this year by President Donald Trump, labor advocates aren't holding their breath. Instead, they're pursuing a work-around pioneered on the West Coast. A decade-old California law allows people to act as "private attorneys general," bringing cases against companies on behalf of the government. Activists are urging other states and cities to follow suit. It's the latest skirmish in a long war. Over the past couple of decades, companies have increasingly required their employees -- and their customers -- to surrender the right to class action in a courtroom, and instead bring any grievances to individual arbitration hearings. The California model helps plaintiffs to get around such agreements. "The worker isn't acting just as a worker -- they're acting as an agent of the state, and the state isn't a party to that forced arbitration agreement," says Meg Fosque, lead organizer for the community group Make the Road New York. "It's kind of poetic justice." Her organization is backing a pair of bills to give New York's workers and consumers a similar option. Consumer Complaints More than half of non-union private-sector employers now make their workers sign mandatory arbitration agreements, and 30 percent of those include class-action waivers, the Economic Policy Institute said this week. The left-of-center think-tank carried out a review of arbitrators' disclosures in 2015, and found that corporations engaging in the practice included industry leaders like Anheuser-Busch InBev SA, J.C. Penney Co. and Wells Fargo & Co. It's becoming a common requirement for consumers, too. The Consumer Financial Protection Bureau estimated in 2015 that 53 percent of outstanding credit-card loans went to borrowers who'd signed an agreement for any complaints to be handled via arbitration. For pre-paid cards and storefront payday lenders, such terms were even more widespread. In July, the agency issued a rule that would stop banks and credit-card companies from making customers relinquish their rights to class action, though congressional Republicans are rounding up votes to overturn the rule. Business advocates argue that courtroom class actions are often frivolous shakedowns, and that arbitration represents a cheaper, faster alternative with better outcomes for all parties except attorneys. 'Money for Themselves' "Trial lawyers want to eliminate arbitration as an option in as many spheres as possible, to bring more business and money for themselves," says Ted Frank, who directs the Center for Class Action Fairness at the Competitive Enterprise Institute. "If somebody really prefers to avoid arbitration, they can find a job that doesn't have an arbitration clause." But consumer and labor groups, and the attorneys who represent them, say that class actions are often the only financially feasible way for low-income plaintiffs with non-lucrative claims to redress wrongs. "A class action waiver is in many cases a waiver of rights altogether, practically," says Justin Swartz, a plaintiff's lawyer who's among a group that provided input on the new bills proposed in New York. Plus, they say, arbitrators can be biased -- because their future earnings depend on companies agreeing to keep using them. Recent Supreme Court rulings have favored the employers. In a landmark 2011 decision siding with AT&T, the court overturned a California rule invalidating arbitration agreements that prohibited class action. It found that an act passed by Congress in 1925 to promote the use of arbitration had priority. Also, in a 2013 ruling in favor of American Express that cited the same 1925 law, the court said that class-action waivers can't be invalidated merely because it's unrealistic for consumers to bring their cases one by one. On September 25, when the court considers whether labor laws protect employees' right to collectively sue their boss, activists expect a similar result. Not in California But arbitration advocates haven't been winning everywhere -- and especially not in California. Since the state passed the Private Attorneys General Act of 2004, its courts have repeatedly denied pleas by companies to handle claims in individual arbitration rather than collectively. Under PAGA, employees can bring claims as agents of the state -- though they first have to give their bosses a chance to resolve the case, and the labor commissioner's office retains a veto. If a claim succeeds or gets settled, the payout is shared with the state government, which uses the funds for further labor law enforcement. In a precedent-setting 2014 case, the California Supreme Court allowed a driver to proceed with a PAGA claim against a transportation company, for failing to pay overtime. The court acknowledged the 1925 arbitration act, but said it "does not preclude our Legislature from deputizing employees to prosecute Labor Code violations on the state's behalf." PAGA has enabled some big-money settlements. Bank of America Corp. paid out $15 million for allegedly not providing proper seating for tellers. Wal-Mart Stores Inc. and a group of warehouse contractors reached a $22.7 million agreement to resolve claims including minimum-wage violations. 'Changes the Calculus' "The possibility of a PAGA case changes the calculus for a company, so that they would invest more in compliance and not be as cavalier about the labor standards," says Rachel Deutsch, a Los Angeles-based attorney for the Center for Popular Democracy, which plans to campaign for PAGA-like bills in four states next year. The group also held a conference in July for municipal lawmakers from around the country, who discussed pushing the measures at the city level. New York City's public advocate's office is considering the idea. Business advocates say PAGA shouldn't go viral. "It's essentially open season on employers," says Paul DeCamp, who led the federal Labor Department's Wage and Hour Division under George W. Bush and now defends companies in employment suits. The Supreme Court has declined repeated requests to consider whether California courts were wrong to keep PAGA cases out of arbitration. That will change if more states follow California's lead, says Marshall Babson, a board member of the U.S. Chamber of Commerce's litigation arm. And he says the court may decide to treat PAGA claims the same way as other suits filed by employees. "If it looks like a duck and sounds like a duck, there's a chance it's a duck," Babson says. Labor's supporters say they're confident the law is on their side, despite prior high court defeats. "Arbitration has interfered with the private individual's ability to protect themselves," says attorney David Seligman, who has drafted a model PAGA-like bill for the National Consumer Law Center. "So the state has to figure out a new way to enforce its laws." [GN] * NCEO Analyzes Recent Trends in Employer Stock Plan Litigation --------------------------------------------------------------- Corey Rosen of The National Center for Employee Ownership, in an article for The National Review, reports that a new analysis by the National Center for Employee Ownership shows activity in employer in the last twelve months (July 2016 through July 2017). There were just eight new decisions involving employer stock in 401(k) plans, and 25 decisions involving employee stock ownership plans (ESOPs), all in private companies. Only some of these involved significant amounts of money. Two trends stand out: plaintiffs are having a very hard time prevailing in stock drop cases in public companies and the Department of Labor continues to challenge a handful of what it perceives as excessive prices paid for shares in closely held ESOP companies. Courts Rejecting Plaintiffs in Stock Drop Cases In 2014, the Supreme Court ruled that plaintiffs in cases where retirement funds in 401(k() plans and/or ESOPs were invested in employer company stock, trustees could no longer be presumed to be prudent with respect to the sale or holding of these securities. That seemed like it might be a victory for plaintiffs, but in FifthThird Bank v. Dudenhoeffer, the Court replaced that rule with a requirement that plaintiffs allege a plausible alternative course of action that fiduciaries could have taken with regard to employer stock that would have been better than what they chose to do. The ruling said fiduciaries cannot be required to outguess the markets, so the fact that the stock goes down substantially is not in itself a cause for action. Even if they have information that the stock price will likely go down, if selling stock would itself drive stock prices down, the fiduciaries still are not required to act. Since then, plaintiffs have had a hard time prevailing, and in the 12-month period we covered, no luck at all. Two appeals courts and seven district courts all ruled that employees failed to meet the special pleading. In Whitley v. BP, PLC for instance, The Fifth Circuit dismissed claims that BP 401(k) plan fiduciaries should have disclosed inside information and/or frozen trades of BP stock in its 401(k) pan after the Deepwater Horizon disaster because if they did, stock prices would go down. In Saumer v. Cliffs Natural Resources Inc., the Sixth Circuit, rejected claims by employee participants in Cliffs Natural Resources for similar reasons after employees alleged they should have known the stock would likely fall. In Rinehart v. Lehman Bros. Holdings Inc., the Supreme Court declined to review an appeals court ruling against plaintiffs after a lower court also ruled against the plaintiffs. Plaintiffs had argued that SEC warnings about short sales should have met the special pleadings standards. The same pattern held in district courts. In Martone v. Whole Foods Mkt., Inc., employees noted that company stock dropped 11% in one day after disclosure of a government investigation over pricing irregularities. A district judge, relying on the Fifth Circuit guidance in the BP case described above, ruled that 401(k) plan fiduciaries had no plausible alternative cause of action that would have done more good than harm. In In re 2014 RadioShack ERISA Litig., the court ruled the plaintiffs had not presented any new facts to show that there was inside information that would have been material that would have created a plausible alternative course of action. In a later BP case, In re B.P. P.L.C. Sec. Litig., a federal district court went even further than other courts in a suit about employer stock in the company's 401(k). Employees argued that BP executives could have disclosed safety risks or divert company stock to safer alternatives. The judge said none of the plaintiffs' proposed alternative courses of action, including disclosure of impending problems, would meet the Dudenhoeffer standard. The judge ruled that plaintiffs must allege a course of action that that is "so clearly beneficial that a prudent fiduciary could not conclude that [the action] would be more likely to harm the fund than to help it," and that no prudent fiduciary could have reached an alternative conclusion. Finally, in Wilson v. Edison International, Inc, a district court ruled that two executives were not liable in a proposed class action over Edison stock in 1 401(k) plan because disclosing regulatory problem could have sent the stock price down. ESOPs are much more common in private companies. They are most often used to purchase shares from one or more owners. The most significant litigation involves how much the ESOP pays. The price is determined by an independent outside appraiser and reviewed and approved by the ESOP trustee. In a limited number of cases, the Department of Labor has argued ESOPs overpaid for the shares in its initial purchase of shares. Although these have been high profile in the ESOP community, and have led some to charge the DOL is being too aggressive, it is important to note that only six such cases were decided in the last 12 months, one of which was a settlement, four that went against the defendants, and one that favored the defendant. In Jessop v. Larsen, No. 2:14-cv-00916-BSJ, a court approved a $19.8 million settlement against executives of the failed multi- level juice marketing company MonaVie and ESOP trustee Bankers Trust. MonaVie acquired shares in 2010 with a 10% loan to buy $186.5 million in stock. The stock dropped to almost zero in two years as the company went bankrupt. In Allen v. GreatBanc Trust Co., the Seventh Circuit overturned a lower court ruling that dismissed a case over an ESOP valuation at the ESOP for Personal-Touch Company. The company's stock price dropped just over 50% after the valuation. GreatBanc, the plan trustee, argued that post-transaction declines in stock price are common because of the debt, much as equity value in a home declines after taking out a mortgage. Plaintiffs argued that GreatBanc failed to conduct an adequate investigation of the stock price and approved an interest rate on the ESOP loan two percentage points above what banks were normally charging. The case was remanded. In a very detailed ruling that provides useful general guidance for trustees, in Fish v. GreatBanc Trust Company, a district court ruled in favor of the ESOP trustee, GreatBanc, and members of the Antioch Company board and family who previously owned stock outside of the ESOP. Antioch became a 100% ESOP in 2003, but after spectacular growth, experienced a downturn and went bankrupt. Plaintiffs sued, arguing that the ESOP paid too much for the stock and that the appraisal failed to account for a looming repurchase obligation (the requirement that the company buy back shares from departing employees). The 131-page ruling dismissed all claims, saying that the process the company and GreatBanc used met fiduciary standards, including through review of financial projections, and independent a multi-pronged process for assessing value. Defendants were less successful in Brundle v. Wilmington Tr. N.A. Here a district court ruled that Wilmington Trust must pay $29.8 million to a terminated ESOP. The Constellis Group, which operated Triple Canopy, a major provider of international security services, became 100% ESOP owned in 2013. The deal was financed largely with seller note at 5% interest, with sellers getting a 25% claim on equity in return for the higher interest they argued the risk of the loan would have justified. Plaintiffs said the trustee, Wilmington Trust accepted a substantially inflated valuation, and failed to assess a valuation done a year before for valuing stock options that showed the company worth $100 million less. The court said Wilmington accepted unrealistic financial projections as valid and paid a 10% control premium when the ESOP, although a 100% owner, did not have full control because of covenants in the agreements protecting sellers. A loss of major contracts soon after the ESOP led Constellis and Wilmington to start negotiations that led to the sale of the company and the termination of the ESOP six months after it was created. The stock price declined significantly between the two transactions. Similarly, in Perez v. First Bankers Tr. Servs., Inc., a district court ordered First Bankers Trust (FBT) to pay almost $9.5 million to plaintiffs for failing to adequately protect the interest of ESOP participants by allowing the ESOP to overpay for the shares from the owners of SJP Services. The case revolved mostly around the reliability of company projections. Other Cases Two other cases are worth noting. In Hugler v. Vinoskey, a district court ruled that an employee of an independent ESOP trustee could be sued as a fiduciary individually because he made decisions independently. The decision is the first of its kind in ESOP law. In Forte v. U.S. Pension Committee, the court ruled the plaintiff had purchased or sold Sanofil stock during the period of the alleged artificial price inflation and thus did not have standing. [GN] Asbestos Litigation ASBESTOS UPDATE: Univar Faces Less Than 278 Claims at June 30 ------------------------------------------------------------- Univar Inc. faces fewer than 278 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, "The Company is subject to liabilities from claims alleging personal injury from exposure to asbestos. The claims result primarily from an indemnification obligation related to Univar USA Inc.'s 1986 purchase of McKesson Chemical Company from McKesson Corporation ("McKesson"). Univar USA is also a defendant in a small number of asbestos claims. As of June 30, 2017, there were fewer than 278 asbestos-related claims for which the Company has liability for defense and indemnity pursuant to the indemnification obligation. The volume of such cases has decreased in recent quarters. Historically, the vast majority of the claims against both McKesson and Univar USA have been dismissed without payment. The Company does incur costs in defending these claims. While the Company is unable to predict the outcome of these matters, it does not believe, based upon currently available facts, that the ultimate resolution of any of these matters will have a material effect on its overall financial position, results of operations or cash flows. However, the Company cannot predict the outcome of any present or future claims or litigation and adverse developments could negatively impact earnings or cash flows in a particular future period." A full-text copy of the Form 10-Q is available at https://is.gd/xakaNz Headquartered in Downers Grove, Ill., Univar Inc. is a global distributor of commodity and specialty chemicals. ASBESTOS UPDATE: MRC Global Faces 508 Exposure Suits at June 30 --------------------------------------------------------------- MRC Global Inc. is named a defendant in 508 lawsuits 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, "We are one of many defendants in lawsuits that plaintiffs have brought seeking damages for personal injuries that exposure to asbestos allegedly caused. Plaintiffs and their family members have brought these lawsuits against a large volume of defendant entities as a result of the defendants' manufacture, distribution, supply or other involvement with asbestos, asbestos containing-products or equipment or activities that allegedly caused plaintiffs to be exposed to asbestos. These plaintiffs typically assert exposure to asbestos as a consequence of third- party manufactured products that our MRC Global (US) Inc. subsidiary purportedly distributed. As of June 30, 2017, we are named a defendant in approximately 508 lawsuits involving approximately 1,128 claims. No asbestos lawsuit has resulted in a judgment against us to date, with a majority being settled, dismissed or otherwise resolved. Applicable third-party insurance has substantially covered these claims, and insurance should continue to cover a substantial majority of existing and anticipated future claims. Accordingly, we have recorded a liability for our estimate of the most likely settlement of asserted claims and a related receivable from insurers for our estimated recovery, to the extent we believe that the amounts of recovery are probable. It is not possible to predict the outcome of these claims and proceedings. However, in our opinion, the likelihood that the ultimate disposition of any of these claims and legal proceedings will have a material adverse effect on our consolidated financial statements is remote." A full-text copy of the Form 10-Q is available at https://is.gd/s7yOkR MRC Global Inc., through its subsidiaries, distributes pipes, valves, fittings, and related products and services to the energy industry in the United States, Canada, and internationally. MRC Global Inc. was founded in 1921 and is headquartered in Houston, Texas. ASBESTOS UPDATE: Metlife Unit Had 1,896 New Claims at June 30 ------------------------------------------------------------- Metlife, Inc.'s subsidiary, Metropolitan Life Insurance Company, received 1,896 new 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 says, "MLIC is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. MLIC has never engaged in the business of manufacturing, producing, distributing, or selling asbestos or asbestos-containing products nor has MLIC issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing, or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of MLIC's employees during the period from the 1920's through approximately the 1950's and allege that MLIC learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. MLIC believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against MLIC. MLIC employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. "Claims asserted against MLIC have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. MLIC's defenses (beyond denial of certain factual allegations) include that: (i) MLIC owed no duty to the plaintiffs -- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute, or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of MLIC; (iii) MLIC's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against MLIC, while other trial courts have denied MLIC's motions. There can be no assurance that MLIC will receive favorable decisions on motions in the future. While most cases brought to date have settled, MLIC intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. "As reported in the 2016 Annual Report, MLIC received approximately 4,146 asbestos-related claims in 2016. During the six months ended June 30, 2017 and 2016, MLIC received approximately 1,896 and 2,348 new asbestos-related claims, respectively. See Note 21 of the Notes to the Consolidated Financial Statements included in the 2016 Annual Report for historical information concerning asbestos claims and MLIC's increase in its recorded liability at December 31, 2014. The number of asbestos cases that may be brought, the aggregate amount of any liability that MLIC may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. "The ability of MLIC to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against MLIC when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. "The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. MLIC's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against MLIC, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against MLIC, but which MLIC believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying MLIC's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. "MLIC reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the United States, assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its regular reevaluation of its exposure from asbestos litigation, MLIC has updated its liability analysis for asbestos-related claims through June 30, 2017." A full-text copy of the Form 10-Q is available at https://is.gd/eDRUGc MetLife, Inc., (MetLife) is a provider of life insurance, annuities, employee benefits and asset management. The Company's segments include Retail; Group, Voluntary & Worksite Benefits, and Corporate Benefit Funding. Its three geographic segments are Latin America (collectively, the Americas); Asia, and Europe, the Middle East and Africa (EMEA). In addition, MetLife's Corporate & Other includes MetLife Home Loans LLC (MLHL), the surviving, non- bank entity of the merger of MetLife Bank, National Association (MetLife Bank) with and into MLHL, and other business activities. Through its subsidiaries and affiliates, it operates in the United States, Japan, Latin America, Asia, Europe and the Middle East. The Company's businesses in the Americas offer a range of protection products and services. ASBESTOS UPDATE: WABTec Still Faces PI Claims at June 30 -------------------------------------------------------- Claims have been filed against Westinghouse Air Brake Technologies Corp. ("WABTec") and certain of its affiliates in various jurisdictions across the United States by persons alleging bodily injury as a result of exposure to asbestos-containing products, 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. Further information and detail on these claims is described in the Company's Annual Report on Form 10-K for the year ended December 31, 2016, filed on February 28, 2017. During the first six months of 2017, there were no material changes to the information described in the Form 10-K. In its Form 10-K for the year ended December 31, 2016 filed on February 28, 2017 with the SEC, the Company said, "Most of these claims have been made against our wholly owned subsidiary, Railroad Friction Products Corporation ("RFPC"), and are based on a product sold by RFPC prior to the time that the Company acquired any interest in RFPC. "Most of these claims, including all of the RFPC claims, are submitted to insurance carriers for defense and indemnity or to non-affiliated companies that retain the liabilities for the asbestos-containing products at issue. We cannot, however, assure that all these claims will be fully covered by insurance or that the indemnitors or insurers will remain financially viable. Our ultimate legal and financial liability with respect to these claims, as is the case with other pending litigation, cannot be estimated." A full-text copy of the Form 10-Q is available at https://is.gd/CkQk2W Westinghouse Air Brake Technologies Corporation, doing business as Wabtec Corporation, is a Delaware corporation with headquarters at 1001 Air Brake Avenue in Wilmerding, Pennsylvania. Wabtec is one of the world's largest providers of value-added, technology-based equipment and services for the global rail industry. ASBESTOS UPDATE: General Cable Had 309 Asbestos Cases at June 30 ---------------------------------------------------------------- General Cable Corporation was a defendant in 309 cases 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, "We have been a defendant in asbestos litigation for the past 29 years. Our subsidiaries have been named as defendants in lawsuits alleging exposure to asbestos in products manufactured by us. As of June 30, 2017, we were a defendant in approximately 309 cases brought in state and federal courts throughout the United States. In the six months ended June 30, 2017, 29 asbestos cases were brought against us. In the calendar year 2016, 84 asbestos cases were brought against us. In the last 29 years, we have had no cases proceed to verdict. In many of the cases, we were dismissed as a defendant before trial for lack of product identification. As of June 30, 2017, 50,986 asbestos cases have been dismissed. In the six months ended June 30, 2017, 28 asbestos cases were dismissed. As of December 31, 2016, 50,958 cases were dismissed. With regards to the approximately 309 remaining pending cases, we are aggressively defending these cases based upon either lack of product identification as to whether we manufactured asbestos-containing product and/or lack of exposure to asbestos dust from the use of our product. "As of June 30, 2017, plaintiffs have asserted monetary damages in 162 cases. In 54 of these cases, plaintiffs allege only damages in excess of some dollar amount (about $599 thousand per plaintiff); in these cases there are no claims for specific dollar amounts requested as to any defendant. In 106 other cases pending in state and federal district courts, plaintiffs seek approximately $429 million in damages from as many as 50 defendants. In two cases, plaintiffs have asserted damages related to General Cable in the amount of $20 million. In addition, in relation to these 162 cases, there are claims of $271 million in punitive damages from all of the defendants. However, many of the plaintiffs in these cases allege non-malignant injuries. As of June 30, 2017 and December 31, 2016, we had accrued, on a gross basis, approximately $4.4 million and as of June 30, 2017 and December 31, 2016, had recovered approximately $0.4 million of insurance recoveries for these lawsuits. The net amount of $4.0 million as of June 30, 2017 and December 31, 2016 represents our best estimate in order to cover resolution of current asbestos-related claims. "The components of the asbestos litigation reserve are current and future asbestos-related claims. The significant assumptions are: (1) the number of cases per state, (2) an estimate of the judgment per case per state, (3) an estimate of the percentage of cases per state that would make it to trial and (4) the estimated total liability percentage, excluding insurance recoveries, per case judgment. Management's estimates are based on the Company's historical experience with asbestos related claims. The Company's current history of asbestos claims does not provide sufficient and reasonable information to estimate a range of loss for potential future, unasserted asbestos claims because the number and the value of the alleged damages of such claims have not been consistent. As such, the Company does not believe a reasonably possible range can be estimated with respect to asbestos claims that may be filed in the future. "Settlement payments are made, and the asbestos accrual is relieved, when we receive a fully executed settlement release from the plaintiff's counsel. As of June 30, 2017 and December 31, 2016, aggregate settlement costs were $10.2 million and $9.8 million, respectively. For the six months ended June 30, 2017 and July 1, 2016, settlement costs totaled $0.4 million and $0.1 million, respectively. As of June 30, 2017 and December 31, 2016, aggregate litigation costs were $27.8 million and $27.1 million, respectively. For the six months ended June 30, 2017 and July 1, 2016, the costs of administering and litigating asbestos claims totaled $0.7 million and $0.6 million, respectively. "In January 1994, we entered into a settlement agreement with certain principal primary insurers concerning liability for the costs of defense, judgments and settlements, if any, in all of the asbestos litigation. Subject to the terms and conditions of the settlement agreement, the insurers were responsible for a substantial portion of the costs and expenses incurred in the defense or resolution of this litigation. However, one of the insurers participating in the settlement that was responsible for a significant portion of the contribution under the settlement agreement entered into insurance liquidation proceedings and another became insolvent. As a result, the contribution of the insurers has been reduced and we have had to bear substantially most of the costs relating to these lawsuits." A full-text copy of the Form 10-Q is available at https://is.gd/35myJj General Cable Corporation is engaged in the development, design, manufacture, marketing and distribution of copper, aluminum and fiber optic wire and cable products for use in the energy, industrial, construction, specialty and communications markets. ASBESTOS UPDATE: Former College Technician Exposed to Asbestos -------------------------------------------------------------- Geraldine Scott, writing for EDP24.co.uk, reported that a former college technician from Norfolk who was diagnosed with mesothelioma a year ago has joined with lawyers to appeal to his former colleagues for help as he seeks answers and justice regarding his illness. Graham Buckland, 77, from Emneth near Wisbech, was diagnosed with mesothelioma, a cancer of the lining of the lung associated with asbestos exposure, in September 2016 following a biopsy at the Queen Elizabeth Hospital, King's Lynn. Following the news, he instructed specialist asbestos-related disease lawyers at Irwin Mitchell's Cambridge office to help him discover how he developed the illness and whether more could have been done to protect him. After reviewing his work history, it is believed Mr. Buckland may have been exposed to the deadly material during his time working as a technician at Dacorum College, Hemel Hempstead, for Hertfordshire County Council between 1982 and 1992. Mr. Buckland said he remembered asbestos being removed from the fabric of the building while he worked there and believes his former colleagues will recall the removal work being done. As part of their work, Mr. Buckland's legal representatives are now keen to hear from anyone who may have more information regarding the presence of asbestos at the site during that time period. Mr. Buckland said: "The tiles were often removed, replaced and drilled into, during a range of refurbishment work and, as I had not been given any warnings or protection, I would tend to sweep up any dust myself. When the asbestos removal works eventually took place, it's quite likely that I was again exposed to asbestos dust. "When you go to work you simply never expect that your health may be put at risk, yet I'm stunned by the fact that this appears to be the case. I am desperate to know whether more should have been done to protect me and would be hugely grateful if anyone with information regarding asbestos at the college could come forward. "Any detail no matter how small could make a huge difference." Anyone with information which may be able to help this case is urged to contact Martyn Hayward on 0370 1500 100 or email martyn.hayward@irwinmitchell.com. ASBESTOS UPDATE: EPA to Continue Asbestos Libby Cleanup ------------------------------------------------------- Dillon Tabish, writing for Flathead Beacon, reported that the U.S. Environmental Protection Agency will continue cleaning up asbestos from properties in Lincoln County for another year following an outpouring of last-minute requests. Mike Cirian, remedial project manager for the EPA, said the federal agency will clean up roughly 70 new properties in the Libby area and roughly 50 will be carried over to next year. "We were trying to complete all properties in Libby and we're very close," Cirian said. The cleanups are part of the Superfund program that was initiated in the early 2000s after it was discovered that asbestos- contaminated vermiculite had sickened and killed hundreds in the community. In January, the EPA announced a "last call" for residents of Libby and Troy to participate in the asbestos cleanup. Officials gave residents until March to ask the agency to inspect their property for contamination and potential cleanup at no expense to the property owner. If no inspections were sought, the future cost of remediating any contamination could fall on the individual owner. "We had an overwhelming response" to the last call, Cirian said. Cirian said more than 260 people asked for federal inspections, which led to 70 additional cleanups. From the early 2000s to January 2017, more than 7,500 properties within the Superfund site have been inspected and about 2,440 have required cleanup actions. Four years ago, there were nearly 800 people neglecting federal inspections and potential cleanups of their properties, but that number has dropped to roughly 280 property owners who own 320 properties in the area, Cirian said. ASBESTOS UPDATE: Asbestos Concerns Close Jersey Shore District -------------------------------------------------------------- Jeff Goldman, writing for NJ.com, reported that although asbestos levels at in Pinelands Regional's two schools were found to be within federal and state standards, district officials will keep students home for the fourth consecutive day. The district said it's awaiting word on air quality tests in explaining the closure. In August, a contractor performing a roof-replacement project at the high school pulled out asbestos-containing paper from roofing material, APP.com The school is closed for Columbus Day and will re-open the following day, the district announced. Asbestos refers to six naturally occurring minerals that have the ability to resist heat, fire and electricity. School was closed beginning as precautionary measure, acting Superintendent Maryann Banks said. Asbestos levels were found to have been OK following sampling done by TTI Environmental, the district's environmental consultant, officials said. The SAT test will be administered at the junior high school, the district said on its website. ASBESTOS UPDATE: BART to Remove Asbestos from Powell St. Station ---------------------------------------------------------------- Pete Suratos, writing for NBC, reported that BART is preparing to make some additions to one of its most popular stations in San Francisco, but, in the process, it will have to remove a material that has sparked concern among riders. The agency needs to remove asbestos from three locations at the Powell Street station before installing new ceiling panels and lights. Starting Monday, the work will take place when the station is closed, but a protective enclosure will be visible during business hours. BART says the asbestos has not been a hazard while it remained undisturbed. However, the new installations could cause dusting or flaking of the material so they are taking necessary precautions to inform the public about the construction. Although BART says passengers have nothing to fear because it is common practice to remove asbestos from older buildings, some commuters can't help but be worried that asbestos is dangerous and can, in some cases, lead to cancer. Over the summer, BART removed asbestos as well as lead paint from eight other stations without running into any issues. A special filtering system will be in place at the Powell Street station to ensure that the air in the station is clean. BART will also have safety monitors present during the work, which officials say could take two weeks. ASBESTOS UPDATE: Mesothelioma Case vs J&J Being Heard in Pasadena ----------------------------------------------------------------- Pasadena News Now reported that a Pasadena Courtroom of the Superior Court of California in Los Angeles County is the scene of an important lawsuit with implications for thousands filed by a California woman who alleges she developed mesothelioma -- a type of cancer that develops from the mesothelium, the thin layer of tissue that covers many of the body's internal organs -- from breathing in baby powder and other talcum products manufactured by cosmetics firm Johnson and Johnson, between 1956 and 1993. The case, filed in January, alleges that Johnson and Johnson's talc powder may have been contaminated with asbestos. A report by asbestos.com said the case is the first asbestos- related lawsuit against Johnson and Johnson. Asbestos.com is a website and advocacy group that helps the victims of asbestos exposure and their loved ones. Before this case, courts have issued several notable asbestos- related verdicts against other talc manufacturers, the report said. In April 2015, a California woman won a $13 million lawsuit against Colgate-Palmolive. The jury ruled the plaintiff, Judith Winkel, developed mesothelioma from asbestos in the company's Cashmere Bouquet talcum powder. That same year, a New York jury awarded $10.55 million in a wrongful death case against R.T. Vanderbilt. In 2016, a Los Angeles Superior Court jury awarded Philip Depoian $18 million against talc supplier Whittaker, Clark and Daniels. It remains the largest verdict for mesothelioma linked to talcum powder. After trial, the jury ruled Depoian developed mesothelioma after he was exposed to asbestos-contaminated talc his father brought home from working in a barber shop. While failure-to-warn lawsuits have been filed against asbestos insulation manufacturers, who intentionally added the toxic mineral to products, the cases against talc companies point to negligence among the manufacturers and distributors of talc powder products who reportedly failed to detect a deadly contaminant and false ensured a product's safety. Judge C. Edward Simpson is hearing the Pasadena Courtroom case. Prosecution lawyer Chris J. Panatier, who won the Winkel vs. Colgate-Palmolive case in 2015, is handling the Pasadena Courtroom prosecution. The Asbestos.com report said recently unsealed documents from the lawsuit revealed Johnson and Johnson has known for decades that its talc products may have contained deadly asbestos fibers. The company has marketed their talcum powders as safe for daily feminine hygiene use, but multiple scientific studies have surfaced linking these products with ovarian cancer, the report said. Based upon these findings, and a lack of any warning, at least 5,500 lawsuits have been filed, and five verdicts since 2016 have awarded women over $724 million in damages. Considered one of the world's softest minerals and coveted for its ability to absorb moisture, talc has been mined from deposits interwoven with asbestos fibers. Inhaling or ingesting asbestos fibers can lead to serious diseases, including asbestosis, lung cancer and mesothelioma, according to the American Cancer Society. Some studies suggest asbestos fibers can accumulate in the ovaries of women, potentially leading to ovarian cancer, the Asbestos.com report said. Using talc products on the genitals could be to blame, but there is still much debate regarding exposure pathways, the report added. ASBESTOS UPDATE: J&J Asbestos Talc Caused Illness, Jury Told ------------------------------------------------------------ Daniel Siegal, writing for Law360, reported that Johnson & Johnson has concealed the fact that its talcum powder products contain asbestos for nearly a century, an attorney for a woman alleging she developed mesothelioma after decades of using J&J's products told a California jury during opening statements. During the first day of the trial in Pasadena, California, Chris Panatier of Simon Greenstone Panatier Bartlett PC, representing plaintiffs Tina Herford and Douglas Herford, told the jury that J&J's internal documents revealed that starting at the beginning of the 20th century, when it began selling the product, up until the 1970s, the company had "dozens and dozens" of pieces of evidence showing that there were asbestos minerals contained in the talc it was using in its products -- but that it tried to keep this information from the public. "Tina Herford believed that Johnson's Baby Powder was something that was safe for her to use, and the evidence will show that it was not," he said. "And the evidence will show that J&J has concealed the fact that their talc contains asbestos for about one hundred years. This case is about a betrayal of trust." Panatier said that Tina Herford had used Johnson's Baby Powder in the 1950s, its Shower to Shower product for decades up to the 1980s, and then used the baby powder again on her daughters starting in the 1980s and lasting until 1993. He noted that Tina Herford would have breathed in the talc product -- and its asbestos -- after every diaper change, and after every post-shower use, for decades. Panatier said that asbestos naturally occurs in the deposits of talc that are mined to create J&J's products, and that despite the company claiming a zero tolerance policy for asbestos in its talc, studies in the 1970s, such as one by Mount Sinai Hospital, revealed this wasn't the case. "Now it was in the public domain, and the evidence will show that Johnson & Johnson did absolutely everything it could to discredit that result," he said. Panatier said his clients were seeking tens of millions of dollars in damages, saying it was well deserved after everything they went through after she was diagnosed with mesothelioma in October 2016. The Herfords filed suit in January against a host of companies, alleging that they were responsible for the asbestos that caused Tina Herford's mesothelioma, an asbestos-related lung cancer. The case has headed to trial with claims against J&J, and its talc supplier, Imerys Talc America Inc. Sharla J. Frost of Tucker Ellis LLP, representing J&J, told the jury that the talc J&J used for its cosmetic products was of a high grade that did not contain asbestos -- only five percent of all talc worldwide qualifies for this use -- and that many of the testing results the plaintiffs were pointing to could be referencing talc sources that weren't actually used in the baby powder or Shower to Shower products. "We bought talc, we used talc, that's what the powder it is, evidence is going to be that it didn't contain asbestos, and it didn't cause her mesothelioma," she said. Frost said that rather than J&J's products, the most likely cause of Tina Herford's mesothelioma was the 30 sessions of radiation therapy she received in 1998 as a treatment for breast cancer. Frost added that the American Cancer Society, National Institute of Health and other authorities agree radiation therapy can cause mesothelioma. "We're going to show you that Mrs. Herford had an intense treatment and that radiation caused mesothelioma," she said. The Herfords' trial comes in the wake of a host of lawsuits that have accused J&J's talcum powder of causing harm, not through any alleged asbestos link, but rather by contending that the talcum powder itself causes ovarian cancer when applied to a women's genital area. After five completed trials in St. Louis over the alleged link between J&J's talcum powder products and ovarian cancer, the company was hit with verdicts totaling more than $300 million, but also was cleared of liability in one trial. In the first trial in consolidated Los Angeles County litigation about the issue, a jury awarded plaintiff Eva Echeverria $417 million. The Herfords are represented by Chris Panatier of Simon Greenstone Panatier Bartlett PC. J&J is represented by Sharla J. Frost of Tucker Ellis LLP. The case is Tina Herford et al. v. Johnson & Johnson et al., case number BC646315, consolidated in LAOSD Asbestos Cases, case number JCCP4674, in the Superior Court of the State of California, County of Los Angeles. ASBESTOS UPDATE: Uphill Battle to Ban Use of Asbestos in Vietnam ---------------------------------------------------------------- Duong Tam, writing for VN Express, reported that health industry and construction experts in Vietnam have long been arguing the pros and cons of the use of chrysotile, otherwise known as white asbestos, but construction insiders have so far prevailed by claiming that the material is safe and cheap. A clash of opinions on both sides of the debate at a conference in 2014 shook the public, but ended with former Vice Minister of Construction Nguyen Tran Nam giving his approval for its use due to a lack of "convincing evidence" about its potentially harmful effects. This October, researchers from the Vietnam Union of Science and Technology Associations are meeting again to discuss the country's growing use of what they say is a deadly material. A 2017 report by the World Health Organization showed that as of 2013, Vietnam was among the top 10 consumers of white asbestos out of the 25 countries in the world that were still using it. Back then, the country was using up to 70,000 tons a year. Fast-forward to 2017 and the country now has more than 40 asbestos roofing tile factories that churn out 100 million square meters a year, a quantity that satisfies over 60 percent of the country's roofing material demands. It also buys products containing white asbestos like insulation materials, brake linings, gaskets and pads for automobiles from China, Thailand, India, the U.S., Korea, Japan and Singapore, some of which have already banned the use of the substance domestically. White asbestos is one of six forms of asbestos, all of which are alleged to cause cancer in humans. A 2014 WHO report stated that asbestos in general caused at least 107,000 deaths each year. About half of the fatalities were caused by occupational cancer, but thousands of deaths were attributed to exposure to asbestos in the home. Top 10 asbestos consumers, 2013. Data extracted from the US Geological Survey via the WHO's 2017 Asbestos Report. Despite worldwide concerns, white asbestos remains a contentious topic in Vietnam. Experts at the latest meeting, which took place on Friday, said that Vietnam lacks the research into asbestos-related diseases to put a stop to the use of the material. They agreed it would take at least 20 years to look into the impacts of white asbestos. Three years ago at a conference in Hanoi, experts on the other side of the debate provided research that even dismissed the link to cancer. David Bernstein, a Swiss mediator with extensive experience in public health who was invited to speak at the conference by the Ministry of Construction, said white asbestos is not cancerous like the blue and brown varieties. He said its weak structure allows it to be easily dissolved by the body over the course of 3 to 15 days. Bernstein is an American-born toxicologist based in Geneva who has been researching chrysotile since the late 1990s. According to The Global Investigative Journalism Casebook, Bernstein is the most active of industry-backed scientists who helped fuel the asbestos trade. His work has been cited over 5000 times, yet most have been underwritten by the industry. Court documents show that one sponsor, Union Carbide, paid $400,623 for work by Bernstein in 2003 and 2005, the casebook reports. His work has been cited over 5,000 times, yet most have been underwritten by the industry. Court documents show that one sponsor, Union Carbide, paid $400,623 for work by Bernstein in 2003 and 2005, the casebook reports. At the same conference, Le Thi Hang, deputy director of the Hanoi- based Construction Hospital at the Construction Ministry, said a survey of workers at Vietnam's white asbestos roofing tile factories found no cases of cancer or asbestosis. However, researchers did find a number of workers suffering from chronic respiratory inflammation. After hearing the various arguments, the then Vice Minister of Construction Nguyen Tran Nam said Vietnam would continue to allow the manufacture and use of white asbestos due to a lack of "convincing evidence" against it. The argument seemed to be supported mainly by the material's exceptionally low price. Bach Dinh Thien, director of the Institute for Tropical Construction Materials Research, said they had explored alternatives to white asbestos, but every other option had proved more expensive. He did not go into specifics. Vietnam produced its first roofing materials from white asbestos in 1963 in Ho Chi Minh City and neighboring Dong Nai Province. ASBESTOS UPDATE: Mesothelioma Fears Halts Sydney Opera House Work ----------------------------------------------------------------- Mesothelioma.net reported that the carcinogenic material asbestos is behind an unknown number of total mesothelioma deaths around the world, with industrialized countries like the United States, the United Kingdom and Australia having the dubious distinction of the highest number of these occupational fatalities. Though exposure to asbestos was common through much of the 20th century, increased awareness has led to improved safety precautions on the part of both employers and employees -- but that is not always the case. Electricians working on renovations to the iconic Sydney Opera House recently walked off the job after asbestos was repeatedly found in their work area. Out of fear for their long- term health, workers are defying their employer, and say that they are not returning until the issue is properly addressed. The thirty-five workers who have refused to proceed with their cabling work are all too familiar with asbestos and its potential devastation. According to Electrical Trades Union secretary Dave McKiley, "Throughout my career I've worked with people who have died from asbestos and it's a horrible, horrible miserable disease." Speaking of 25 of his fellow workers who were exposed to asbestos fibers two months ago while working in a service duct, he said, "These guys won't know for 15, 20, maybe 30 years if this exposure is actually fatal." When asbestos was found in the building's wiring, causing the earlier exposure, the builder received notice that they had seven days to remove it or eliminate the threat to workers. Now that asbestos has been found again, the workers are taking matters into their own hands. Though the builder, Laing O'Rourke has indicated that safety is a "top organizational priority", the union is demanding an investigation into why no prohibition notices have been placed on the company to stop work from taking place in contaminated areas. McKinley said, "It is completely unacceptable that workers, performers and the general public continue to be exposed to a toxic substance at this iconic building." The workers are threatening legal action over their exposure. Knowing who to go to for help is essential when mesothelioma or other asbestos-related diseases have affected your life. For more information on the resources available to you, contact the Patient Advocates at Mesothelioma.net at t 1-800-692-8608. ASBESTOS UPDATE: Fly-tipper Caught Dumping Asbestos --------------------------------------------------- Eva Astreinidouon, writing for Oxfordshire Guardian, reported that a fly-tipper who was caught red-handed has been ordered to pay GBP900 after admitting he dumped hazardous asbestos waste. Dean Paul Smith, 36, of Blackthorn Road, Didcot, pleaded guilty to the charge of unlawfully depositing waste and failing to provide information regarding the identification of the driver of the vehicle from which the waste was deposited. He appeared at Oxford Magistrates' Court on September 19 when the court heard how, on February 6, a member of the public contacted the police after seeing two men unloading waste from a vehicle on land off Mill Road in Abingdon. When the police arrived they found the pair trying to move the vehicle that had got stuck in the mud as they attempted to leave the site. They claimed they had stopped at the site to eat lunch, when the vehicle got stuck and they decided to remove the waste in order to lighten the load to free the van. But due to the quantity of rubbish involved, and the hazardous nature of the rubbish, officers from Vale of White Horse District Council investigated the case. Smith, who was the passenger in the vehicle, was given a GBP400 fixed penalty notice for the offence, but after failing to pay this money council officers had to prosecute the case in court. He also declined to name the driver of the vehicle. Cllr Elaine Ware, cabinet member for environmental health at Vale, said: "Whatever the circumstances involved fly-tipping is always a real blight on society. "It costs thousands in public money to clean up and investigate, and is potentially dangerous, especially if, like in this case, it is hazardous waste such as asbestos." ASBESTOS UPDATE: Widow of Asbestos Cancer Victim Seeks Answers -------------------------------------------------------------- Janet Boyle, writing for Sunday Post, reported that walking his daughter down the aisle, Richard Elliott could not have looked any happier. The guests would never have guessed just how ill he was -- or that his wife was carrying a letter in her handbag that no one would ever want to take to a wedding. It was a Do Not Resuscitate note from the hospital, in case Richard collapsed during his daughter Katrina's big day. The respected academic had been diagnosed with asbestos-linked mesothelioma, a type of cancer, just 10 months previously. He was so ill that doctors had expressed serious concerns about allowing him to leave hospital for the wedding. Richard's wife Angela said: "We were all trying so hard to make this the best day of Katrina's life. "But Richard was dying from a cancer people associate with shipyard workers, builders and others who worked with asbestos. "We had to make the best of what we had left and Richard was desperate to fulfil his duties as father of the bride. Carrying a Do Not Resuscitate note in my handbag was the only way his doctors let him out of hospital." Just four days later he passed away from a disease that campaigners brand an industrial disaster. Mesothelioma, commonly linked to heavy industries such as shipbuilding, has nonetheless claimed many white-collar victims including academics, doctors, teachers, office workers and hundreds of others whose working lives never seemed to expose them to asbestos. Speaking out to raise awareness of the illness, Angela said she had married Richard, 61, just six months before his death. After the ceremony at Glasgow's City Chambers, Richard, in an impromptu gesture, guided her to a Christmas funfair in nearby George Square where they rode on the carousel. It was a rare moment of unthinking happiness as Richard's illness worsened. A special moment on the carousel with Angela after their wedding Angela said: "Richard was diagnosed in October 2014 and died the following June. "It is one of the most horrific diseases we know of. "There is no time to get your head around the diagnosis before it progresses. "The first sign was a cough which Richard couldn't shake off. Until then he had been a keen hill walker and very fit." A course of antibiotics failed to shift the cough and he was referred to a chest consultant. "An X-ray prompted a lung biopsy and the results revealed mesothelioma," said Angela. "Richard had begun to suspect it earlier when his doctors asked if he had ever worked with asbestos. "However, his immediate concerns were how to tell me and his two daughters, Katrina and Emma." The couple had met while working together at the MRC-University of Glasgow Centre for Virus Research, where Richard was Professor. Richard had been widowed some years earlier and brought up his daughters, balancing an international career with being a single dad. Angela had taken up the post of technical co-ordinator, ensuring the safety of scientists working with viruses. She said his concern for others never wavered. "Even when he was desperately ill in bed he would sit with his laptop working, mentoring students," she said. "Three members of his lab and others from within the centre were sent to Sierra Leone to run laboratories diagnosing Ebola cases. "They became part of the team which stemmed the spread of the deadly virus and stopped a pandemic." Richard died more than 90 years after the earliest warnings were issued about the links between asbestos and cancer. Angela said: "I feel we were robbed of a wonderful life together. "It was short but wonderful and packed with memories. "Katrina and Emma lost a dad who adored them and messages of condolence flooded in from all over the world." So respected was Richard that the university has named its bio- safety labs after him. Two years on from his death, Angela is campaigning to reduce the death toll from asbestos, which claims the lives of 500 Scots per year. She is desperate to save a new generation of potential victims. Breathing in the deadly microscopic fibres can set in motion a cancer which can take 20 to 50 years to develop. And the true number of deaths is higher than official figures, say doctors, as some patients are too ill to undergo biopsies to confirm it. Instead they are labelled with lung cancer. Angela is at a loss to pinpoint where Richard was exposed to asbestos. "I do not know where he came into contact with it," she said. "But I know that asbestos has been woven into the fabric of countless public buildings and homes. "The fibres are so small they are barely detectable and easily breathed in when disturbed. "We have to protect tomorrow's victims by warning them. "I am one of many women who have lost their husbands and this terrible tragedy needs to stop. Hope for victims lies in a flourishing network of research and drug trials. Chest consultant, Dr Kevin Blyth, of Glasgow's Queen Elizabeth University Hospital, said: "The incidence of mesothelioma is higher in the West of Scotland than in almost any other part of the world. "That is mainly because of its legacy of our shipbuilding and heavy industries that used asbestos. However, we are seeing more patients whose jobs have not been traditionally associated to asbestos." Campaigner and survivor, Mavis Nye, added: "Mesothelioma is the biggest industrial disaster of recent times and the figures are rising. "So many of our workplaces and homes have been built using asbestos." Angela is involved in a mesothelioma focus group project to help improve earlier diagnosis for patients suffering from breathlessness and pains. Asbestos can be found in homes built or refurbished before 2000 and could be lurking in, for example, textured ceilings and garage roof tiles, pipe lagging and window frames. A Scottish Government spokeswoman said: "The Health and Safety Executive provides guidance to local authorities and health boards on the management of asbestos. The Scottish Government welcomes and supports HSE efforts to raise awareness of the dangers. "Our approach to mesothelioma is integrated within our cancer strategy. "Our Scottish Referral Guidelines for Suspected Cancer include a specific section on mesothelioma. "This should aid the identification of those patients who are most likely to have cancer and require urgent specialist assessment." ASBESTOS UPDATE: Council Probes Into Aberdeen Asbestos Claims ------------------------------------------------------------- BBC News reported that the Aberdeen City Council has launched an investigation into claims workers may have been exposed to asbestos at a depot. The alleged incident is understood to have taken place the Kincorth depot at the end of September. An Aberdeen City Council spokeswoman said: "An investigation is being carried out." ASBESTOS UPDATE: Asbestos Remediation Costs Jump to $3.5MM ---------------------------------------------------------- Ken de la Bastide, writing for The Herald Bulletin, reported that the estimated cost to remediate the asbestos in the Madison County Government Center has jumped by 75 percent. At a meeting of the Madison County Council, County Administrator Dan Dykes said the projected cost is now $3.5 million. The original estimate was placed at $2 million. Dykes said the $3.5 million includes the cost of the asbestos removal, new fireproofing, moving and storage of all the county offices, new ceiling tiles, paint and carpeting. That figure doesn't include the estimated $420,000 the county will spend to lease space at the Anderson University building at the Flagship Enterprise Center for the court system and space in the First Savings Tower for the remaining county offices. The Madison County Government Center is expected to be vacated from Nov. 27 through June 30 for the asbestos remediation work to be completed and to finish the installation of the new heating and air conditioning system. The Madison County Council approved a resolution to issue a bond in the amount of $3.5 million to cover the projected costs. The council will vote Nov. 14 on an ordinance to issue up to a 15- year bond for the $3.5 million that will be paid for with county local option income tax revenues. Tom Beeman, council attorney, said the county was considering a $1.55 million bond to pay for the new heating and cooling system and lighting in the courthouse. "I didn't advertise that amount with the asbestos remediation," Beeman said. Beeman said the council can vote to lower the $3.5 million amount at the November meeting, but can't increase it. He said the county might be able to borrow the money at a 2.99 percent interest rate. Dykes said the commissioners will request proposals from local banks to purchase the bonds. Not including interest payments, a $3.5 million bond for 15 years would cost the county $233,333 per year. A 10-year bond would have an annual cost of $350,000 not including the interest payment. Councilman Mike Gaskill cast the only no vote on the resolution to borrow the $3.5 million. Council President Steve Sumner said the council doesn't have an official request from the commissioners to borrow the money. Dykes said the commissioners have not received bids for the asbestos remediation work and related expenditures but should know the costs by the end of November. Sumner said the council earlier this year approved a $1.5 million loan from the general fund operating balance for the new heating and air conditioning system and the lighting with the intent of borrowing the money to repay the general fund. "We didn't need the $1.5 million loan because the county's revenues were higher than projected," Dykes said. Sumner said the county didn't intend to borrow the $1.5 million until the asbestos remediation problem surfaced. Councilman Anthony Emery said the county has already spent $1.5 million on the courthouse and now needs $3.5 million additional. Dykes said the commissioners decided not to do spot remediation of the asbestos in the building and to remove the asbestos from the entire building. "We can't afford to update everything in the courthouse," Councilman Brent Holland said. Dykes said the county needs to improve items like carpeting in the courthouse and painting. "If you spread the cost out over 10 or 15 years, you're not talking about a lot of money for the improvements," he said. ASBESTOS UPDATE: TOSHA Probes Complaint of Asbestos at Hotel ------------------------------------------------------------ News Channel9 reported that the Tennessee Occupational Safety & Health Administration (TOSHA) is looking into a complaint about asbestos made by an employee of The Read House Historic Inn and Suites. TN Department of Labor Communications Director Chris Cannon says TOSHA first received the complaint on August 17, 2017. Cannon says the complaint was initially handled by a letter to the employer. After further evaluation, TOSHA opened an onsite inspection. TN Department of Labor Communications Director Chris Cannon says that TOSHA responds to all employee complaints to determine the truthfulness of the allegations. Cannon says it takes anywhere from six to eight weeks to complete workplace investigations, and TOSHA does not release information or findings during the investigation. Once the investigation ends, TOSHA will release a final report to the public. ASBESTOS UPDATE: Mistrial in Johnson & Johnson Asbestos Talc Case ----------------------------------------------------------------- Nate Raymond, writing for Reuters, reported that a California judge declared a mistrial in a closely watched trial over claims Johnson & Johnson's talc-based products such as Johnson's Baby Powder contained asbestos and caused a woman to develop mesothelioma. Los Angeles Superior Court Judge C. Edward Simpson declared the mistrial just days after jurors heard opening statements in a lawsuit brought by Tina Herford, who claimed she was exposed to asbestos from an early age by J&J's talc products. ASBESTOS UPDATE: Quarries Closed Over Fertilizer Asbestos Scare --------------------------------------------------------------- Stuff.co.nz reported that asbestos safety fears have prompted WorkSafe to order three quarries to stop mining serpentine rock, and fertilizer company Ravensdown has suspended all movement of the material. Serpentine rock containing natural asbestos is also sold by the other main rural services companies as an ingredient in farm fertilizer as a way to get magnesium into the soil. It is estimated about 80 of farms, and predominantly those in Southland and central North Island, have used it at some stage. One of the WorkSafe abatement notices was to Southland Serpentine at Mossburn owned and operated by partners Duncan and Lockey McGregor, and Bob and Lyn Pearson who declined to comment. Serpentine rock is dug from the Mossburn quarry by a digger and transported to McGregors Concrete Te Anau for crushing into 3 millimetre particles before being distributed to fertilizer suppliers. Another quarry company, Rorisons RMD, has operated lime and serpentine quarries in south Waikato for 50 years. WorkSafe's deputy general manager assessments operations and support, Jo Pugh, said Ravensdown revealed that regular testing had shown the presence of low levels of asbestos in serpentine rock it was crushing. WorkSafe requested test results from the quarries mining serpentine rock and Ravensdown manufacturing plants. The tests showed asbestos at or below trace levels. To ensure workers and others handling the product were protected, WorkSafe has placed prohibition notices on three operational quarries associated with the Ravensdown results. It requires them to either produce test results showing no asbestos, or an asbestos management plan before they can re-start mining serpentine rock. "We have received draft plans from two quarries and one is in the process of being prepared. "A fourth quarry has returned test results indicating no presence of asbestos. A fifth quarry which has produced serpentine rock no longer operates. "A prohibition notice has also been placed on a transport company which is currently storing the crushed product and an asbestos management plan is being prepared by the company. "Once the plans are in place, or testing shows no presence of asbestos, WorkSafe will lift the prohibition notices and we expect that to occur in the next few days. "Our risk assessment shows any risk to workers and others handling the product is very low to insignificant," Pugh said. The presence of asbestos in serpentine rock depends on the geology of the particular seam being mined, she said. A Ravensdown spokesman said the company sourced serpentine rock from three quarries but declined to name them for commercial confidentiality reasons. He said serpentine made up about 1 per cent of Ravensdown's $627 million annual sales. "As part of Ravensdown's focus on health and safety, the co- operative took the precautionary measure of suspending sales of its Serpentine Super product on October 3. "As a result of testing of our stocks and products in September, there had been a potential identification of a trace level of naturally occurring asbestos in some of our dunite serpentine rock supplies and manufactured Serpentine Super. "It was a potential identification because since that date testing been negative. "The product remains unavailable at this time pending further tests being conducted by a different laboratory. "These measures are a precautionary approach because the original detected presence was at extremely low level. "We are working on alternatives for customers. The suspended product is a relatively minor product in our portfolio. We do not use these dunite serpentine rocks for the manufacture of any other products so all other products are unaffected. White asbestos or chrysotile can occur naturally in certain seams of the serpentine dunite family of rocks. The risk profile and concentrations of this naturally-occurring type are very different to those found in asbestos-containing building materials," Ravensdown said. ASBESTOS UPDATE: Filings Allege Secondhand Exposure to Son ---------------------------------------------------------- Recently, the St. Louis Record published a story about a complaint that has been filed at the St. Louis Circuit Court. The complaint alleges several companies "failed to warn of the dangerous effects of inhaling, ingesting or otherwise absorbing asbestos." One of the two plaintiffs was recently diagnosed with mesothelioma. He claims that between the early 1950s and 1990, when both of his parents worked at the companies listed in the legal complaint, he was exposed to secondhand asbestos when his parents came home from work. Asbestos is the name given to six naturally occurring fibrous minerals. Due to the unique properties found in these minerals, they were used for decades in thousands of commercial products and building materials. The Agency for Toxic Substances & Disease Registry (ATSDR) reports that significant exposure to any type of asbestos will increase the risk of lung cancer, mesothelioma and asbestosis. The agency also reports that asbestos-related disease has been diagnosed in not just workers that dealt with asbestos and asbestos-containing materials, but also with family members. "The National Cancer Institute has reported that the risk to family members is thought to result from exposure to asbestos fibers brought into the home on the shoes, clothing, skin and hair of workers," said Joe Frasca, Senior Vice President of Marketing at EMSL Analytical, Inc. "This type of exposure to family members is often referred to as secondhand, secondary or take-home asbestos exposure." While there are regulations to protect workers and their families from asbestos, many of these regulations did not exist decades ago. Even today, asbestos can be a significant human health threat if workers do not know they are being exposed or the proper safety precautions and procedures are not put in place. To protect workers and their families, and to help keep companies in regulatory compliance, EMSL Analytical provides material and environmental asbestos testing services. EMSL has also sponsored an educational video about asbestos and secondhand exposure that can be seen at: https://youtu.be/l6pVwqoAMUk. To learn more about EMSL's asbestos or other hazardous material, industrial hygiene and indoor air quality (IAQ) testing services, please visit www.AsbestosTestingLab.com or www.EMSL.com, call (800) 220-3675 or email info@EMSL.com About EMSL Analytical, Inc. EMSL Analytical, Inc. is one of the leading testing laboratories with 40 locations throughout the United States and Canada. EMSL is a nationally recognized and locally focused provider specializing in fast laboratory results for mold, bacteria, Legionella, USP 797, pathogens, asbestos, lead, soot, char & ash from fires, VOC's, odors, radon, formaldehyde, indoor air quality, microbiology, environmental, industrial hygiene, radiological, food, beverage & consumer products and material testing services for the identification of unknown substances. EMSL services both professionals and the general public. EMSL maintains an extensive list of accreditations from leading organizations as well as state and federal regulating bodies including, but not limited to A2LA, AIHA LAP, LLC. (AIHA EMLAP, AIHA IHLAP, AIHA ELLAP), NVLAP, CDC ELITE, CPSC, CA ELAP, NY ELAP, TX DOH, NJDEP and multiple other state accrediting agencies. Please visit our website at www.EMSL.com for a complete listing of accreditations. In addition, EMSL carries a wide range of Sampling Equipment and Investigative Products for environmental professionals. ASBESTOS UPDATE: NY App. Div. Affirms $9MM Award in "Miller" ------------------------------------------------------------ The Appellate Division of the Supreme Court of New York for the First Department affirms the judgment of the Hon. Cynthia S. Kern of the Supreme Court of New York County, entered on September 13, 2016, awarding the Plaintiff Walter Miller $5 million for past pain and suffering and $4 million for future pain and suffering without costs. The Court determines that the Plaintiff's expert testimony was sufficient to establish that Plaintiff's use of the grinder -- manufactured and designed by the Defendant Hennessy Industries' subsidiary, Ammco -- on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause his mesothelioma. Moreover, because the asbestos-laden dust was created by the Plaintiff's use of the Defendant's grinder and the Defendant knew its grinder would be used on asbestos-containing products, the Defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product. Accordingly, the First Department finds that the damages award, as reduced by the trial court and stipulated to by the Plaintiff, to be appropriate. Moreover, based on the evidence adduced at trial, the jury properly apportioned 86% of the fault to the Defendant. The appealed case is IN RE NEW YORK CITY ASBESTOS LITIGATION WALTER MILLER, Plaintiff-Respondent, v. BMW OF NORTH AMERICA, LLC, ET AL., Defendants, HENNESSY INDUSTRIES, Defendant-Appellant, 4599, 190087/14, (App. Div. N.Y. 1st Dept.). A full-text copy of the Decision and Order dated October 5, 2017, is available at https://is.gd/EXZjwY from Leagle.com. Simpson Thacher & Bartlett LLP, New York (Michael J. Garvey of counsel), for appellant. The Karst & Von Oiste Law Firm, New York (Kyle A. Shamberg of counsel), for respondent. ASBESTOS UPDATE: Parties "Richey" Directed to Re-File Filings ------------------------------------------------------------- Judge Brian Morris of the U.S. District Court for the District Montana requires the Plaintiff in the case styled ELMORE B. RICHEY, Plaintiff, v. BNSF RAILWAY COMPANY, et al., Defendants, No. CV-17-80-GF-BMM, (D. Mont.), to re-file the Motion for Leave to Amend the Complaint and any other filings that reflect the amended caption Colleen L. Johnson, as Personal Representative for the Estate of Elmore B. Richey, Deceased, otherwise, the caption cannot be amended before the Court rules on the Motion for Leave to Amend the Complaint. A full-text copy of the Order dated October 3, 2017, is available at https://is.gd/5Fd9Ny from Leagle.com. Elmore B. Richey, Plaintiff, represented by Allan M. McGarvey, McGARVEY HEBERLING SULLIVAN & McGARVEY. Elmore B. Richey, Plaintiff, represented by John F. Lacey, McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C., Roger M. Sullivan, McGARVEY HEBERLING SULLIVAN & McGARVEY, Dustin A. Leftridge, McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. & Ethan A. Welder, McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C.. BNSF Railway Company, Defendant, represented by Anthony Michael Nicastro, KNIGHT NICASTRO, LLC, Caleena D. Svatek, KNIGHT NICASTRO, LLC, pro hac vice, Chad M. Knight, KNIGHT NICASTRO, LLC, Nadia A. Patrick, KNIGHT NICASTRO, LLC & Steven T. Williams, KNIGHT NICASTRO, LLC. John Swing, Defendant, represented by Anthony Michael Nicastro, KNIGHT NICASTRO, LLC, Caleena D. Svatek, KNIGHT NICASTRO, LLC, pro hac vice, Chad M. Knight, KNIGHT NICASTRO, LLC, Steven T. Williams, KNIGHT NICASTRO, LLC & Nadia A. Patrick, KNIGHT NICASTRO, LLC. ASBESTOS UPDATE: "Holzer" Remanded to Missouri State Court ---------------------------------------------------------- Judge Nanette K. Laughrey of the U.S. District Court for the Western District of Missouri remands the case titled JACK HOLZER and MARY BRUESH-HOLZER, Plaintiffs, v. ATHENE ANNUITY & LIFE ASSURANCE CO., et al., Defendants, No. 17-cv-0755-NKL, (W.D. Mo.) to the Circuit Court of Jackson County. The Plaintiffs Jack A. Holzer and Mary F. Bruesh-Holzer filed this action in the Circuit Court of Jackson County on September 12, 2016, alleging that Mr. Holzer contracted mesothelioma and asbestosis from his exposure to asbestos fibers emanating from products manufactured, sold, distributed, and/or installed by the defendants. The Holzers are residents of Kansas, but brought suit in Missouri because Mr. Holzer allegedly was first exposed to asbestos while he worked in the state. Two of the defendants named in the most recent state court petition, KCG, Inc. and Fuhrco, Inc. f/k/a Schutte Lumber Company are citizens of Kansas. The other defendants, including Athene Annuity & Life Assurance Company, are citizens of other states. The Defendant Athene removed this case on the basis of diversity, asserting that the Holzers on the one hand and the Defendants on the other are citizens of different states, and that the amount in controversy exceeds $75,000. While there is no dispute regarding the amount in controversy, however, the Holzers insist that both KCG and Fuhrco, as fellow citizens of Kansas, destroy diversity. Athene insists that the Holzers have no basis in fact or law to sue KCG, and that the Holzers never intended to prosecute their claims against either KCG or Fuhrco. Athene insists that the two Kansas defendants were fraudulently joined. The Holzers deny that they filed suit against either of the Kansas-based defendants with improper purpose and maintain that they intend to seek a default judgment against Fuhrco. The Court finds that Athene does not argue that the Holzers' claims against Fuhrco are without a factual or legal basis. Instead, Athene argues that the Holzers have no intention of prosecuting their claims against Fuhrco. The Court determines that the Holzers' intent to prosecute Fuhrco is irrelevant in light of the undisputed fact that they have a reasonable basis in fact and law to sue Fuhrco. As such, if the Holzers have a reasonable basis for their claims against Fuhrco, joinder of Fuhrco was not fraudulent. Accordingly, the Court grants the Holzers' motion to remand. A full-text copy of the Order dated October 3, 2017, is available at https://is.gd/FWQwcX from Leagle.com. Jack A. Holzer, Plaintiff, represented by Clayton Evan Gillette, Accurso Law Firm. Jack A. Holzer, Plaintiff, represented by Louis Carl Accurso, The Accurso Law Firm. Mary F. Holzer, Plaintiff, represented by Andrew Balcer, Louis Carl Accurso, The Accurso Law Firm & Clayton Evan Gillette, Accurso Law Firm. Athene Annuity & Life Assurance Company, Defendant, represented by Deirdre C. Gallagher, Foley & Mansfield, P.L.L.P., Beth C. Boggs, Boggs, Avellino, Lach & Boggs, LLC, Gino F. Battisti, Foley & Mansfield, PLLP, Katie M. Slaughter, Foley & Mansfield, PLLP & Nicholas Bunnell, Foley & Mansfield, PLLP. KCG, Inc., Defendant, represented by E. Wayne Taff, Law Offices of E. Wayne Taff. Metropolitan Life Insurance Company, Defendant, represented by Charles Lee Joley, Joley, Nussbaumer, Oliver & Beasley P.C. & Georgiann Oliver, Joley, Oliver & Beasley, P.C.. ASBESTOS UPDATE: Ruling Sustaining Bare-Metal Defense Affirmed -------------------------------------------------------------- The U.S. Court of Appeals for the Third Circuit affirms the decision of the District Court with respect to Roberta G. Devries' and Shirley McAfee's strict liability claims, and remand for further proceedings on their negligence claims. These asbestos cases styled IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) ROBERTA G. DEVRIES, Administratrix of the Estate of John B. Devries, Deceased, and Widow in her own right, Appellant in 16-2602, IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) SHIRLEY McAFEE, Executrix of the Estate of Kenneth McAfee, Deceased, and Widow in her own right, Appellant in 16-2669, Nos. 16-2602, 16-2669, (3rd. Cir.) involve the availability of the "bare-metal defense" under maritime law. The defense's basic idea is that a manufacturer who delivers a product "bare metal" -- that is without the insulation or other material that must be added for the product's proper operation -- is not generally liable for injuries caused by asbestos in later- added materials. Appellants Roberta G. Devries and Shirley McAfee are the widows of deceased husbands who served in the U.S. Navy. Each couple filed a Complaint in Pennsylvania state court alleging that the husband contracted cancer caused by exposure to asbestos. Devries alleges that on the U.S.S. Turner from 1957-60, her husband was exposed to asbestos-containing insulation and components that were added onto the ship's engines, pumps, boilers, blowers, generators, switchboards, steam traps, and other devices. McAfee alleges her husband was similarly exposed through his service on two ships and in the Philadelphia Naval Shipyard. Devries and McAfee named a number of defendants, of which Appellee Manufacturers are a subset. The Manufacturers each made their products "bare metal," in that if they manufactured an engine, they shipped it without any asbestos-containing insulation materials that would later be added. Devries and McAfee's Complaints each allege claims of negligence and strict liability. The Manufacturers removed to the Eastern District of Pennsylvania, invoking the bare-metal defense in support of their respective summary judgment motions, arguing that because they shipped their products bare metal, they could not be held liable for the sailors' injuries. The District Court agreed and granted the Manufacturers summary judgment motions. Devries and McAfee each appealed separately, raising an issue as to whether the District Court's decision addressed their negligence claims. The Third Circuit summarily remanded with instructions that the District Court address the negligence issue and also consider a split in authority as to whether a bright-line rule or a fact- specific standard governed the bare-metal defense's availability. On remand, the District Court applied the bright-line-rule version of the bare-metal defense, and clarified that summary judgment had been entered in favor of the Manufacturers on both the strict liability and negligence claims. The Court reasoned that the rule approach was best because, according to the Court's view of the precedents, maritime law favors uniformity and the rule approach was the majority view. Devries and McAfee appealed for a second time. The key question in this case is the bare-metal defense's availability: "When, if ever, should a manufacturer of a product that does not contain asbestos be held liable for an asbestos-related injury most directly caused by parts added on to the manufacturer's product?" The Third Circuit finds that the defense is rooted in both duty and cause because its keystone is the concept of foreseeability. The Third Circuit explains that the "duty" element in a negligence action, foreseeability limits a defendant's liability to only the risks and plaintiffs that are reasonably foreseeable. And in proximate cause, foreseeability limits a defendant's liability to only the injuries that are a reasonably foreseeable result of the defendant's actions. Thus, the Third Circuit concludes that the bare-metal defense is nothing more than the concept of foreseeability, as embedded in the duty of reasonable care in a negligence action and the proximate cause standard in a negligence or strict-liability action, as applied to the facts of a certain subset of asbestos cases. The Third Circuit explains that a manufacturer of a bare-metal product may be held liable for a plaintiff's injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff's injuries were a reasonably foreseeable result of the manufacturer's failure to provide a reasonable and adequate warning. The Third Circuit concludes that although cases will necessarily be fact-specific, already-decided precedents show that a bare- metal manufacturer may be subject to liability if it reasonably could have known, at the time it placed its product into the stream of commerce, that (1) asbestos is hazardous, and (2) its product will be used with an asbestos-containing part, because: (a) the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product's lifetime,8 (b) the manufacturer specifically directed that the product be used with an asbestos-containing part, or (c) the product required an asbestos-containing part to function properly. A full-text copy of the Opinion dated October 3, 2017, is available at https://is.gd/PwkmG7 from Leagle.com. Richard P. Myers [ARGUED], Robert E. Paul, Paul Reich & Myers, 1608 Walnut Street, Suite 500, Philadelphia, PA 19103, Counsel for Appellants. John S. Howarth, Wilbraham Lawler & Buba, 1818 Market Street, Suite 3100, Philadelphia, PA 19103, Counsel for Appellee Buffalo Pumps, Inc. Shay Dvoretzky [ARGUED], Emily J. Kennedy, Jones Day, 51 Louisiana Avenue, N.W., Washington, D.C. 20001, Counsel for Appellee CBS Corp. Lee J. Janiczek, Reilly Janiczek McDevitt Herich & Cholden, PC, One South Penn Square, Suite 410, Widener Building, Philadelphia, PA 19107, Christopher J. Keale, Afigo I. Okpewho-Fadahunsi, Sedgwick, 1085 Raymond Boulevard, One Newark Center, 16th Floor, Newark, NJ 07102, Counsel for Appellee Foster Wheeler LLC. Timothy E. Kapshandy, John A. Heller, Sidney Austin, One South Dearborn, Chicago, IL 60603, Rebecca K. Wood, Wen W. Shen, Sidley Austin, 1501 K Street, N.W., Washington, D.C. 20006, Counsel for General Electric Co. Joseph I. Fontak, Leader & Berkon, 1515 Market Street, Two Penn Center Building, Suite 1200, Philadelphia, PA 19102, Counsel for IMO Industries, Inc. Laurie J. Hepler, Greines Martin Stein & Richland, One Embarcadero Center, Suite 500, San Francisco, CA 94111, Counsel for Appellee Warren Pumps. Carol A. VanderWoude, Marshall Dennehey Warner Coleman & Goggin, 18th Floor, 2000 Market Street, Suite 2300, Philadelphia, PA 19103, Counsel for Appellee Ingersoll Rand Co. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. 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