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C L A S S A C T I O N R E P O R T E R
Friday, January 26, 2018, Vol. 20, No. 20
Headlines
74 FIFTH: Faces "Tello" Suit Over Failure to Pay Overtime Wages
AEP NVH OPCO: "Goings" Suit over Use of Biometric Info Underway
AFSCME COUNCIL: Motion to Dismiss "Chapman" Suit Underway
ALABAMA: Court Narrows Claims in "Thompson" VRA Suit
ALERE INC: Court Denies Certification Bid in "Andren"
ALLSTATE INSURANCE: Court Certifies Class B in "Etter" TCPA Suit
ALLSTATE INSURANCE: Wage Statement Class Decertification Reversed
AMERICAN HONDA: Court Denies Bid for Sanctions in "Aberin" Suit
APARTMENT SHOP: Judge Won't Dismiss Tenants' Lawsuit
APPLE INC: Class Action Over iPhones Filed in Brooklyn
APPLE INC: Class Action #20 Demanding $5 Billion
APPLE INC: Class Action #22 Filed in San Jose, California
APPLE INC: First Class Action in 2018 Filed in Cincinnati
APPLE INC: Faces "Banks" Suit Over iPhone Throttling Issues
AQUA METALS: Klein Law Firm Files Securities Class Action
ARIZONA FOSTER: To Delay Lawsuit Until CA Status is Decided
ASTORIA FINANCIAL: Faces "Karp" Suit Over Sterling Merger Plans
ASTORIA FINANCIAL: Faces MSS 1209 Suit Over Sterling Merger Plans
AVALONBAY COMMUNITIES: Bid to Remand "Nelson" Denied
BANK OF AMERICA: Ct. Certifies Class of Loan Officers in "McLeod"
BLACKROCK INSTN'L: "Baird" Rule 56(d) Motion Briefing Sched Reset
BOEHRINGER INGELHEIM: MAO Suit Fails on 2nd Amended Complaint
BONOBOS INC: Court Won't Dismiss Blind Man's ADA Suit
CALIFORNIA HIGHWAY: Court Strikes "Rogers" Class Claims
CARIBOU COFFEE: Stradtmann Appeals Ruling in "Farnham" Class Suit
CENTRAIS ELETRICAS: Hogan Lovells to Resolve Class Action Suits
CHESAPEAKE OPERATING: Nichols Appeals Ruling to Tenth Circuit
COLES COUNTY, IL: Seventh Circuit Appeal Filed in "Perry" Suit
COLORADO, USA: Apodaca's Time to File Writ Extended to March 9
COMMUNITY EDUCATION: Court Enters Judgment in "Giles" Class Suit
CRST INT'L: Final Judgment on "Gatdula" Remaining Claims Entered
CRYPTO COMPANY: Bronstein, Gewirtz Files Securities Class Action
DANELL CUSTOM: "Rodriguez" Settlement Hearing Moved
DOWNTOWN RESTAURANT: "Reinoso" Wage-and-Hour Suit Underway
DRILL CUTTINGS: "Tauzin" Wage-and-Hour Suit Gets New Judge
ECLINICALWORKS LLC: Suit Says Software Failed to Meet Standards
EL PASO COUNTY, TX: Court Won't Dismiss Suit Over Jury Summons
EQUIFAX INC: Suit by Tosco and Ashley Going to Mediation
FORSTER & GARBUS: Court Certifies Class in "Winslow"
FOUR SEASONS HOTELS: March 9 Management Call in "Liu" Suit
GRADE A: Summary Judgment Bids in "De Leon" Denied
GREAT LAKES: 1st Amended "Nelson" Suit Dismissed
GREYHOUND LINES: March 22 Hearing on Bid to Remand "Smith"
HEARST COMMS: No Duty to Preserve Evidence After Case Dismissal
HATTERAS FINANCIAL: Shareholder Suit Settlement Has Final OK
HEFFLER RADETICH: "Oetting" Barred by Pa. Statute of Limitations
HSS INC: Court Grants $888K Class Action Settlement in "Scott"
INTEL CORPORATION: Sued in Cal. over Misleading Financial Reports
JC PENNEY: Court Grants Final OK of "Ramirez" Class Settlement
JLING INC: Ji to Testify in FLSA/NYLL Suit Trial by Video
KOBE STEEL: Levi & Korsinsky Files Securities Class Suit
KELLOGG BROWN: Court OKs $937K Attorney's Fees in "Totten"
KIMBERLY-CLARK CORP: Court Narrows Claims in "Sebastian"
LEXINGTON INSURANCE: Court Dismisses Commissions Suit
LULAROE: "Atkinson" Suit over Ponzi Scheme Underway
M AND G SUPERMARKET: Seeks Dismissal of "Espinosa" Amended Suit
MACQUARIE INFRASTRUCTURE: La. App. Flips Dismissal of "Moore"
MAHAR MANUFACTURING: "Preciado" Wage-and-Hour Suit Underway
MARATHON PETROLEUM: Court Grants Bid to Dismiss ERISA Suit
MDL 2143: Court Won't Decertify Indirect Purchasers Class
MDL 2280: Settlement in Wage & Hour Class Suit Denied
MDL 2382: Seeks Okay of Class Notice in Wet/Dry Vac MDL
MDL 2796: April 5 Initial Case Status Conference
MDL 2800: "Campbell" Data Breach Suit Moved to N.D. Georgia
MDL 2800: "House" Data Breach Suit Moved to N.D. Georgia
MICHIGAN: 6th Cir. Remands Juvenile Inmates' Suit
MICHIGAN: Rehearing & Release on Habeas Bids in "Rouse" Denied
MICROCHIP TECH: Kisicki May Appear Telephonically at CMC
MICROCHIP TECH: Schmidtke May Appear Telephonically at CMC
MICROSOFT CORP: Argues Against Class Action in Gender-Bias Suit
NEVADA ADULT MENTAL: Bid to Dismiss "Porter" Suit Partly Granted
NEW ORLEANS, LA: Court Grants Partial Summary Judgment in "Cain"
NEW YORK, NY: Second Circuit Appeal Filed in "Stallworth" Suit
NORTHLAND GROUP: Bauer et al. Sue over Debt Collection Practices
PARKCHICAGO: Vendors Ask Judge to Curb Parking Tickets Class Suit
PENN MUTUAL: Court OKS $110MM Class Settlement in "Harshbarger"
PROFESSIONAL BUREAU: Kraus Appeals E.D.N.Y. Judgment to 2nd Cir.
PURDUE PHARMA: Misrepresents Opioids Drug, N. Penn. Fund Claims
QUICKEN LOANS: Eleventh Cir. Appeal Filed in "Jacobs" Class Suit
RECKITT BENCKISER: "Akwei" Suit Transferred to New Jersey Dist.
ROCKWELL COLLINS: "Marchese" Suit over Merger Dropped
RITE AID: First Amended "Stafford" Suit Dismissed
SAN GABRIEL TEMPORARY: "Hernandez" Suit over Unpaid Wages Pending
SAW ENTERTAINMENT: Court Stays "Hughes" Proceedings
SEAWORLD PARKS: Court Won't Stay Discovery in "Anderson"
SECOND CHANCE: Motions to Dismiss "Gogtay" Suit Remains Stayed
SEPHORA USA: Court Needs More Information in Settlement Approval
SERVICE KING: Ninth Circuit Appeal Filed in "Morales" Class Suit
SIGNET JEWELERS: Bronstein, Gewirtz Files Securities Class Action
SIRIUS XM: Bid for Judgment in "Andrews" Suit Taken Off Calendar
STANISLAUS CREDIT: "Maldonado" Suit Ongoing in N.D. Illinois
STONERIDGE INC: Final Okay of Settlement Sought in "Royal" Suit
SYMPHONY'S ON CENTRAL: FACTA Violations, "Allington" Says
TAISHAN GYPSUM: "Allman" Class Suit Transferred to E.D. Louisiana
TAISHAN GYPSUM: "Stutzman" Suit Transferred to E.D. Louisiana
TEMPOE LLC: Bid to Remand "Garcia" Suit Denied
TOOTSIE ROLL: Suit Says Junior Mints Boxes Inflated
TOWER LOAN: Court Awards $150K Atty's Fees in "Kemp"
TRINET GROUP: Court Dismisses "Welgus" Securities Suit
UBIQUITI NETWORKS: Court Grants Final OK of $6.8MM Class Deal
UNITED STATES: Seeks 9th Cir. Review of Ruling in Wash. EO-2 Suit
UNITED STATES: Class Certification Sought in Inland Empire Suit
UNITED STATES: John Anderson Farms Appeal Rulings in "Baley" Suit
UNITED STATES: Asylum Seekers Can File Suit Under Pseudonyms
UNITED STATES: Court Won't Conditionally Certify "Dominick" Class
UNITED STATES: Stay of Removal Bid in "Ibrahim" Partly Granted
VEE PAK INC: Court Grants Prelim Certification to ASI Class
WASHINGTON UNIVERSITY: Ninth Cir. Appeal Filed in Jane Doe Suit
WATERSTONE MORTGAGE: Appeals Order in "Herrington" to 7th Circuit
WAUPACA FOUNDRY: Court Narrows Claims in "Adams" FLSA Suit
WAWA INC: Pfeifer Renews Motion to Certify Class of Participants
WELPAK CORP: Seeks Second Circuit Review of Ruling in "Bond" Suit
WESTWIND ENTERPRISES: Bid to Dismiss "Fancher" Complaint Underway
WHIRLPOOL CORP: Court Narrows Class in "Dzielak" Suit
WILMINGTON TRUST: Brundle Appeals Decision in "Halldorson" Suit
WORLD ACCEPTANCE: Court OKs $16MM Class Settlement in "Epstein"
WORLD ACCEPTANCE: Court Awards $4.8MM Atty's Fees in "Epstein"
WOODLAKE CC: Fails to Respond to Class Action Lawsuit
XBIOTECH INC: Securities Class Action Civil Suit Dismissed
XPO LAST: Court Approves $13.9MM "Ruiz" Class Settlement
Asbestos Litigation
ASBESTOS UPDATE: Court Needs Evidence for Settlement Construction
ASBESTOS UPDATE: 5th Cir. Vacates Remand of PI Suit to State Ct.
ASBESTOS UPDATE: NY App. Dismissed Leave to Appeal "Warren" Suit
ASBESTOS UPDATE: NY App. Denies Appeal of "Miller" Suit
ASBESTOS UPDATE: Crane Co. Wins Summary Ruling in "Davis"
ASBESTOS UPDATE: District Court Refuses to Remand "Sawyer"
ASBESTOS UPDATE: Sedgwick Withdraws as Counsel for GE, et al.
ASBESTOS UPDATE: Claims vs. Garlock, Fairbanks Junked in "Corley"
ASBESTOS UPDATE: Claims vs. Foster Wheeler Dismissed in "Everett"
ASBESTOS UPDATE: WRG Asbestos Trust May File Amicus Curiae Brief
ASBESTOS UPDATE: Ampco-Pittsburgh Has 6,745 Claims at Sept. 30
ASBESTOS UPDATE: Ampco-Pittsburgh Has $154.7MM Liability Reserve
ASBESTOS UPDATE: 56,500 Claims Pending vs. AO at Oct. 1
ASBESTOS UPDATE: Pfizer Still Defends Various Suits at Oct. 1
ASBESTOS UPDATE: OfficeMax Still Responsible for Cases at Sep.30
ASBESTOS UPDATE: Tyson Foods to Appeal $13MM Judgment vs. Unit
ASBESTOS UPDATE: Park-Ohio Industries Faces 89 Suits at Sept. 30
ASBESTOS UPDATE: Kaanapali Land Still Defends Suits at Sept. 30
ASBESTOS UPDATE: Kaanapali Insurance Talks Ongoing at Sept. 30
ASBESTOS UPDATE: D/C Still Defends A&F Lawsuit at Sept. 30
ASBESTOS UPDATE: D/C Lift Stay Issue Still Pending at Sept. 30
ASBESTOS UPDATE: Gardner Denver Had $102.8MM Litigation Reserve
ASBESTOS UPDATE: "Edwards" Suit v. Andrea Electronics Pending
ASBESTOS UPDATE: Claire's Rebuts Asbestos-Contaminated Products
ASBESTOS UPDATE: Study Shows Lake Mead Mice Sick from Asbestos
ASBESTOS UPDATE: Woman Who Swallowed Asbestos Develops Cancer
ASBESTOS UPDATE: Ada City OKs $44,975 Asbestos Removal Project
ASBESTOS UPDATE: Feds Charge Contractor for Removal Violation
ASBESTOS UPDATE: Pipe Replacement Pushed Amid Asbestos Scare
ASBESTOS UPDATE: Libby Amphibole Diseases Threats Persists
ASBESTOS UPDATE: Asbestos-Riddled Building on Brink of Disaster
ASBESTOS UPDATE: PFSH Applies to Strict-Liability PI Claims
ASBESTOS UPDATE: Justices Urged to Turn Tables in Litigation
ASBESTOS UPDATE: Asbestos Abatement on Former Mill Resumes
ASBESTOS UPDATE: Canadian Gov't Takes New Steps on Asbestos Ban
ASBESTOS UPDATE: Feb. 25 Libby Claims Deadline
ASBESTOS UPDATE: Later Added Asbestos Materials Caused Injuries
ASBESTOS UPDATE: Abandoned School Fire Caused Asbestos Risk
ASBESTOS UPDATE: Fla. Justices to Hear Asbestos Dispute in March
ASBESTOS UPDATE: 2,000 Asbestos Tonnes Released in 9/11 Attacks
ASBESTOS UPDATE: $1MM Needed to Remove Asbestos from Infirmary
ASBESTOS UPDATE: Old Homes Demolition Unleashes Asbestos
ASBESTOS UPDATE: Janitor Felt Retaliation After Asbestos Suit
ASBESTOS UPDATE: Old Runway Sub-Base Has Hazardous Asbestos Level
*********
74 FIFTH: Faces "Tello" Suit Over Failure to Pay Overtime Wages
---------------------------------------------------------------
Leonel Almonte Tello, individually and on behalf of others
similarly situated v. 74 Fifth Ave Market, Corp. (d/b/a Valent &
Cook, f/d/b/a Your Way Cafe), Valent & Cook at 57 Street Corp.
(d/b/a Valent & Cook), and Byung Lim (a.k.a. Bruce Lim), Case No.
1:18-cv-00210 (S.D.N.Y., January 10, 2018), is brought against
the Defendants for failure to pay overtime wages in violation of
the Fair Labor Standards Act.
The Defendants own and operate a deli, located at 74 5th Ave, New
York, New York 10011-8005 under the name "Valent & Cook." [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, PC
60 East 42nd Street, Suite 2540
New York, NY 10165
Telephone: (212) 317-1200
E-mail: Michael@Faillacelaw.com
AEP NVH OPCO: "Goings" Suit over Use of Biometric Info Underway
---------------------------------------------------------------
George Goings, individually and on behalf of all others similarly
situated, the Plaintiff, v. AEP NVH Opco, LLC, d/b/a Applied
Acoustics International and UGN, Inc., f/k/a United Globe Nippon,
Inc., the Defendants, Case No. 17-_____, (Ill. Cir., Cook County,
November 9, 2017), seeks to recover damages and other relief from
Defendants' violations for the Biometric Information Privacy Act.
The Plaintiff states that the Defendants' employees are required
to have their fingerprints scanned by a biometric timekeeping
device that exposes the Plaintiff and other similarly situated
employees to serious and irreversible privacy risks and they have
no means to prevent identity theft, unauthorized tracking and
other unlawful or improper use of their information. Despite the
BIPA's provisions, the Defendants disregard their employees'
statutorily protected privacy rights and unlawfully collect,
store, and use employees' biometric data in violation of BIPA.
AEP supplies noise, vibration, and harshness solutions to the
North American automotive industry.[BN]
Plaintiffs is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Andrew C. Ficzko, Esq.
Haley R. Jenkins, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue Suite 2560
Chicago, IL 60601
Telephone: (312) 233-1550
Facsimile: (312) 233-1560
Email: lawyers@stephanzouras.com
AFSCME COUNCIL: Motion to Dismiss "Chapman" Suit Underway
---------------------------------------------------------
In the case, Theodis Chapman, Patrick Nelson and a class of
unknown persons similarly situated, the Plaintiffs, v. AFSCME
Council 31, Local 3477 and unknown persons, the Defendants, Case
No. 1:17-cv-08125, (N.D. Ill., November 9, 2017), the Hon.
Virginia M. Kendall set the briefing schedule as to Defendants'
Motion to Dismiss for Failure to State a Claim.
Judge Kendall set this timeline:
-- Responses were due by Jan. 3, 2018.
-- Replies were due by Jan. 10.
-- Status hearing is set for Feb. 28 at 9:00 a.m.
-- Initial Status hearing set for Jan. 18 at 9:00 a.m.
The lawsuit seeks damages with interest and to recover wages, and
other relief the Court may find appropriate for Defendant's
racial discrimination that involves wrongful termination and
violation of due process.
The Plaintiffs contend that they have a contractual relationship
with the defendants by reason of the collective bargaining
agreement but the plaintiffs and other similarly situated persons
suffered emotional distress, physical distress, loss of
employment and loss of wages as a proximate result of defendants'
race-based discriminatory conduct and disparate treatment.[BN]
Plaintiffs appeared pro se.
Counsel For Defendants:
Robert A. Seltzer, Esq.
CORNFIELD AND FELDMAN LLP
25 East Washington Street, Suite 1400
Chicago, IL 60602-1803
Telephone: (312) 236-6640
E-mail: rseltzer@cornfieldandfeldman.com
ALABAMA: Court Narrows Claims in "Thompson" VRA Suit
----------------------------------------------------
In the case, TREVA THOMPSON, et al., Plaintiffs, v. STATE OF
ALABAMA, et al., Defendants, Case No. 2:16-CV-783-WKW (M.D.
Ala.), Judge W. Keith Watkins of the U.S. District Court for the
Middle District of Alabama, Northern Division, dismissed Counts
3, 4, 5, 6, 7, 8, 9, 10, 14, and 15 either for failure to state a
claim upon which relief can be granted or sua sponte for lack of
subject-matter jurisdiction.
In this putative class action against the State of Alabama and
its officials, the Plaintiffs contend that these laws -- section
177(b) of Article VIII of the Alabama Constitution of 1901, and
section 15-22-36.1 of the Alabama Code -- violate the federal
constitution and section 2 of the Voting Rights Act, 52 U.S.C.
Section 10301.
The 10 individual Plaintiffs are Alabama citizens who, due to
their felony convictions, have been purged from the voter
registration list, have been denied applications to vote, or have
not registered to vote in the state based on the uncertainty of
whether their convictions disqualify them to vote. The
organizational Plaintiff, Greater Birmingham Ministries, expends
financial and other resources to help individuals with felony
convictions determine if they are eligible to vote or to have
their voting rights restored. The organization's central goal is
the pursuit of social justice in the governance of Alabama.
The Plaintiffs also seek to certify a class of the Plaintiffs
defined as all unregistered persons otherwise eligible to
register to vote in Alabama who are now, or who may in the future
be, denied the right to vote because they have been convicted of
a felony. The Complaint also enumerates nine subclasses of them.
The Defendants are the State of Alabama, Alabama's Secretary of
State, the Chair of the Board of Registrars for Montgomery
County, and a Defendant class consisting of all voter registrars
in the State of Alabama. The individual Defendants are sued in
their official capacities only.
In Counts 1 through 12, the Plaintiffs bring a multitude of
challenges against section 177(b). They contend that section
177(b) is racially discriminatory (Counts 1, 2), denies black
voters equal opportunity to participate in the political process
(Count 3), denies the franchise to Plaintiffs without a
compelling state interest (Count 4), restricts free speech and
association (Count 5), and burdens the right to vote (Counts 6,
7). They contend further that section 177(b) disqualifies voters
without due process (Count 8), is vague, arbitrary, and
irrational (Counts 9, 10), is an ex post facto law that
retroactively punishes citizens (Count 11), and imposes cruel and
unusual punishment (Count 12). These counts allege violations
under the First Amendment, the Eighth Amendment, the Fourteenth
Amendment's Equal Protection and Due Process clauses, the
Fifteenth Amendment, and section 2 of the Voting Rights Act, 52
U.S.C. Section 10301 ("VRA").
In Counts 13 through 15, the Plaintiffs allege that section 15-
22-36.1(a)(3) transforms the ability to pay into an electoral
standard, imposes a poll tax on voting, and denies black citizens
the right to vote, in violation of the Fourteenth Amendment's
Equal Protection Clause, the Twenty-Fourth Amendment, and section
2 of the VRA, respectively.
The Plaintiffs ask for a declaratory judgment that section 177(b)
of the Alabama Constitution, on its face and as applied, violates
the First, Eighth, Fourteenth, and Fifteenth Amendments to the
U.S. Constitution, the Ex Post Facto Clause of Article I of the
U.S. Constitution, and section 2 of the VRA. They also seek a
declaratory judgment that section 15-22-36.1(a)(3) of the Alabama
Code violates the Fourteenth and Twenty-Fourth Amendments to the
U.S. Constitution and section 2 of the VRA.
After the enactment of HB 282, the Plaintiffs moved for a
preliminary injunction. After briefing and a hearing, the Court
denied the motion in an opinion entered on July 28, 2017, finding
that the Plaintiffs had not met their high burden for obtaining a
mandatory preliminary injunction. The Court found that, because
Counts 6, 7, 8, 9, and 10 are moot, the Plaintiffs could not
demonstrate a substantial likelihood of success on the merits
and, thus, could not prevail on their preliminary injunction
motion.
In a prior Order, the Court granted in part and denied in part
the Defendants' motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure and noted that a memorandum
opinion would follow.
In sum, Judge Watkins concludes that the Plaintiffs' challenge to
Alabama's constitutional and statutory scheme for the
disenfranchisement and re-enfranchisement of individuals
convicted of crimes of moral turpitude will proceed, but only on
a third of the counts in the Plaintiffs' 15-count complaint.
Consistent with the reasoning of his Opinion, the Judge dismissed
with prejudice for failure to state a claim upon which relief can
be granted Counts 3, 4, 5, 14, and 15; and dismissed without
prejudice for lack of subject-matter jurisdiction Counts 6, 7, 8,
9, and 10.
The action proceeds as to five counts: the Plaintiffs' claims
that section 177(b) of the Alabama Constitution is racially
discriminatory in violation of the Fourteenth Amendment's Equal
Protection Clause and the Fifteenth Amendment (Counts 1 and 2);
their claim that section 177(b) is an ex post facto law that
retroactively punishes citizens (Count 11); their claim that
section 177(b) violates the Eighth Amendment's proscription
against cruel and unusual punishment (Count 12); and the
Plaintiffs' claim that section 15-22-36.1(a)(3) of the Alabama
Code violates the Fourteenth Amendment's Equal Protection Clause
(Count 13).
A full-text copy of the Court's Dec. 26, 2017 Memorandum Opinion
and Order is available at https://is.gd/qJ5vFn from Leagle.com.
Treva Thompson, individually and behalf of all others similarly
situated, Melissa Swetnam, individually and behalf of all others
similarly situated, Antwoine Giles, individually and behalf of
all others similarly situated, Anna Reynolds, individually and
behalf of all others similarly situated, Laura Corley,
individually and behalf of all others similarly situated, Larry
Joe Newby, individually and behalf of all others similarly
situated, Mario Dion Yow, individually and behalf of all others
similarly situated, Jennifer Zimmer, individually and behalf of
all others similarly situated, Timothy Lanier, individually and
behalf of all others similarly situated, Pamela King,
individually and behalf of all others similarly situated &
Greater Birmingham Ministries, Plaintiffs, represented by Aderson
B. Francois -- aderfner@derfneraltman.com -- Institute for Public
Representation, pro hac vice, Armand Derfner --
aderfner@derfneraltman.com -- Derfner & Altman LLC, Danielle
Lang, Campaign Legal Center, pro hac vice, James Uriah
Blacksher -- jblacksher@ns.sympatico.ca -- Attorney at Law,
Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph
Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire --
jmcguire@mandabusinesslaw.com -- McGuire & Associates LLC &
Pamela Karlan -- karlan@stanford.edu -- Stanford Law School, pro
hac vice.
State of Alabama, John H. Merrill, in his official capacity as
Secretary of State, George Noblin, in his official capacity as
Chairman of the Montgomery County Board of Registrars and on
behalf of a class of all voter registrars in the State of Alabama
& Clifford Walker, in his official capacity as Chairman of the
Board of Pardons and Paroles, Defendants, represented by Andrew
L. Brasher, Office of the Attorney General, James William Davis,
Office of the Attorney General, Misty Shawn Fairbanks Messick,
Office of the Attorney General & Mary Mangan, Office of the
Attorney General.
ALERE INC: Court Denies Certification Bid in "Andren"
-----------------------------------------------------
The United States District Court for the Southern District of
California issued an Order denying Plaintiffs' Motion for Class
Certification in the case captioned DINA ANDREN, SIDNEY BLUDMAN,
VIRGINIA CIOFFI, BERNARD FALK, JEANETTE KERZNER-GREEN, CAROL
MONTALBANO, and DONALD RIGOT, individually, and on behalf of
other members of the general public similarly situated,
Plaintiff, v. ALERE, INC., a Delaware corporation, ALERE HOME
MONITORING, INC., a Delaware corporation, ALERE SAN DIEGO, INC.,
a Delaware corporation, Defendant, Case No. 16cv1255-GP C(AGS)
(S.D. Cal.).
Plaintiffs Dina Andren and Sidney Bludman filed a purported class
action complaint alleging that Defendants Alere, Inc., Alere Home
Monitoring, Inc., (AHM), and Alere San Diego, Inc. (Alere SD)
(Alere) unlawfully, deceptively and misleadingly engaged in the
manufacturing, marketing and sale of the INRatio products which
include INRatio PT/INR Monitors, INRatio PT/INR Test Strips,
INRatio2 PT/INR Monitors and INRatio2 PT/INR Test Strips (INRatio
Products).
Plaintiffs seek to certify a Nationwide Class to include,
Nationwide Class: All residents of the United States of America
who, during the period January 1, 2009 through the present,
purchased, rented or otherwise paid for the use of the INRatio
products manufactured, marketed, sold or distributed by
Defendants.
Plaintiffs also seek to certify six sub-classes from States
represented by them: a Colorado, Florida, Georgia, Maryland, New
York and Pennsylvania Sub-Class to include, All residents of
[each Plaintiffs' respective home State] who, during the period
January 1, 2009 through the present, purchased, rented or
otherwise paid for the use of the INRatio products manufactured,
marketed, sold or distributed by Defendants.
Numerosity and Commonality
Defendants do not challenge Plaintiffs' argument that the
putative class is sufficiently numerous or that issues of law or
fact are common to the class.
To establish numerosity, a plaintiff must show that the
represented class is "so numerous that joinder of all members is
impracticable.
As to commonality, Rule 23(a)(2) require Plaintiffs to show there
are questions of law or fact common to the class. Commonality
requires the plaintiff to demonstrate that the class members have
suffered the same injury.
Plaintiffs assert that the significant common question is whether
Alere knowingly omitted material information specifically, that
the INRatio Products contained a defect that produced false and
erroneous results from its marketing materials, labels and
warnings. Plaintiffs also propose that another common question is
whether Alere included material misrepresentations in its packing
by referring to the INRatio Products as monitors' when they were
anything but. Defendants do not dispute Plaintiffs' common
issues of law and fact, and the Court concludes that these common
issues apply to the entire class and satisfy the less rigorous
commonality requirement.
Adequacy
Defendants argue that Plaintiffs are not typical or adequate
representatives because they are claim splitting by seeking only
economic damages and disclaiming personal injury damages.
Plaintiffs argue that claim splitting applies only when a
plaintiff abandons a panoply of relief available to putative
class members and here, they have not abandoned any relief for
personal injuries as their causes of action are not premised on
personal injury and they do not allege any facts that would
entitle class members to personal injury damages; therefore, they
have not split any claims.
Claim Splitting
The Fifth Circuit has recently addressed claim splitting in a
class action case and provides factors for courts to consider
when deciding whether a class representative's decision to forego
certain claims defeats adequacy. Courts should inquire about (1)
the risk that unnamed class members will forfeit their right to
pursue the waived claim in future litigation, (2) the value of
the waived claim, and (3) the strategic value of the waiver,
which can include the value of proceeding as a class (if the
waiver is key to certification).
In this case, Plaintiffs seek to certify an economic injury class
for the cost of the INRatio Products in which Plaintiffs relied
on misrepresentations made by Defendants under the CLRA, fraud,
unjust enrichment, numerous state consumer protection laws, and
breach of the implied warranty of merchantability under four
state laws. In contrast, a plaintiff seeking to file an action
based on personal injuries suffered seeks relief under the
products liability laws. For example, Plaintiff Andren, currently
has a pending state court action seeking personal injury damages
based on products liability under strict liability and
negligence.
Therefore, because the issues that will actually be litigated in
the consumer protection claim are distinct from those in products
liability action, under Cooper, an absent class member may file
another lawsuit seeking relief on personal injury claims based on
different legal theories that were not adjudicated in this case.
The Court concludes that the potential risk that unnamed class
members may be barred from pursuing personal injury claims is
small, not only based on the holding in Cooper, but also the
ability to mitigate the potential risk through the notice and
opt-out procedures, by amending the class definition, or through
an express reservation of the claim.
Value of the Waived Claim
Plaintiffs assert that the total value of their class claim is
over $100 million, which exceeds the value of potential personal
injury suits even though the value of potential personal injury
suits is unknown.
Defendants contend that Plaintiffs have failed to present any
evidence to support their value assessment because while
Plaintiffs argue that the value of the personal injury claims are
unknown they also allege that INRatio kills people and has caused
hundreds or thousands of injuries or death.
In this case, the putative class members most likely received
notice of a nationwide recall of the INRatio Products that was
issued on July 11, 2016. Defendants present five complaints filed
by 25 individual plaintiffs who suffered from personal injuries
due to the INRatio Products. Compared to the thousands or tens of
thousands of individuals who purchased the INRatio Products,6 25
individual plaintiffs' claims for personal injury claims are not
significant in numbers or, potentially, in damages. While the
personal injury claims may be significant in these existing state
court complaints, this is not a case where Plaintiffs seek to
waive damages that are likely to "exceed by many times" the
damages sought in this case. Plaintiffs are not jeopardizing the
class members' ability to pursue far more substantial, meaningful
claims while pursuing relatively insignificant claims.
If the number of putative class plaintiffs opting out creates a
conflict that undermines the adequacy of the representative
plaintiffs, the Court can decertify the class. The Court
concludes that the value of the waiver is not great relative to
the damages sought in this case.
Strategic Value of the Waiver
Courts have recognized the strategic value of waiving claims in
order to achieve class certification and look to the reasons
behind a representative plaintiff's decision to forgo certain
damages or claims and whether the plaintiff's interests align
with those of the class or whether they conflict with class
members who will be prejudiced.
In this case, if Plaintiffs were to seek personal injury damages,
it would require individualized inquiries and both parties
recognize that these individualized inquiries would defeat class
certification. Plaintiffs should not be required to pursue a
damages theory that would potentially defeat class certification
in light of the fact that the risk of preclusion is low and value
of the waived claim is not as great as the economic injury claim.
The Court concludes that there is strategic value to the waiver
of the personal injury claims.
In sum, at this stage of the proceedings, the Court concludes
that the adequacy prong has been satisfied under Rule 23(a)(4).
Typicality
Under typicality, the Court must determine whether the claims or
defenses of the representative parties are typical of the claims
or defenses of the class.
Plaintiffs dispute Defendants' allegation that Andren
intentionally destroyed evidence as they have relied on distorted
chronology and argue that the defenses do not threaten to become
the focus of the litigation as Alere has already conducted all
discovery on these topics.
Defendants summarily raise a couple of defenses that they claim
are not typical of the defenses of the class without explaining
why these defenses would subsume the litigation. Plaintiffs'
claims are all based on Alere's omission that the INRatio
Products were defective. Thus, Plaintiffs' claims are "reasonably
co-extensive with those of absent class members.
The Court concludes that Plaintiffs have demonstrated typicality.
Federal Rule of Civil Procedure 23(b)(3)
Under Rule 23(b)(3), the plaintiff must demonstrate that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy and that the questions
of law or fact common to class members predominate over any
questions affecting only individual members.
Nationwide Class
Defendants argue that Plaintiffs cannot maintain a nationwide
class due to conflict of law principles. In their motion,
Plaintiffs seeks to certify a nationwide class under California's
CLRA, UCL, fraud and unjust enrichment causes of action.
Plaintiffs respond that Defendants have failed to meet their
burden that California law should not apply to a nationwide
class.
Here, Plaintiffs assert that due process is satisfied because
Alere San Diego and AHM are headquartered in California, and in
reply argue, without relying on specific evidence in the record,
that the offending conduct, the marketing and advertising,
emanates from California.
In response, Defendants assert that none of the named Plaintiffs
live in California and they talked to their doctors, received
medical care, learned about, obtained and used INRatio products,
made payments and entered insurance contracts within their states
of residence.
Choice-of-law rules determine whether California law will apply
to the claims of non-residents, and those rules in turn are
circumscribed by due-process considerations.
Plaintiffs assert that due process is satisfied because Alere San
Diego and AHM are headquartered in California, and in reply
argue, without relying on specific evidence in the record, that
the offending conduct, the marketing and advertising, emanates
from California. In response, Defendants assert that none of the
named Plaintiffs live in California and they talked to their
doctors, received medical care, learned about, obtained and used
INRatio products, made payments and entered insurance contracts
within their states of residence.
Besides the fact that AHM and Alere, SD are headquartered in
California, there is no supporting evidence that any marketing
and advertising of the INRatio products emanated from California.
Communications between the FDA and Alere SD, concerning issues
with the INRatio Products do not provide an indication that the
marketing and advertising to Plaintiffs came from Alere SD in San
Diego.
Even if Plaintiffs demonstrated there were significant contacts,
the Court concludes that Defendants have demonstrated that the
conflict of law analysis would bar the application of California
law to a nationwide class.
Once due process is shown, the burden shifts to Defendants to
demonstrate that the laws of another state apply. A federal
court sitting in diversity must look to the forum state's choice
of law rules to determine the controlling substantive law. Here,
the parties do not dispute that California's three-step
governmental interest analysis applies to the choice of law
inquiry.
Material Differences in State Laws
Defendants argue that there are material conflicts between
California law and the laws of other states. Plaintiffs argue
that Defendants fail to meet their burden to demonstrate the
differences among the laws of the various states and only
abstractly show that some differences exist. Defendants have also
failed to address the material differences in state laws that
would have a significant effect on the outcome of a trial.
These differences going to the elements to prove these causes of
action are material and other courts have also made such a
finding. In conclusion, the Court concludes that Defendants have
met their burden demonstrating there are material differences in
state laws.
Other State's Interests in Applying Its Own Laws
In the consumer protection statutes, each state has an interest
in setting the amount of liability for companies conducting
business within its territory and each state has a valid interest
in shielding out-of-state businesses from what the state may
consider to be excessive litigation. Obtaining the optimal
balance between protecting consumers and attracting foreign
business, with resulting increase in commerce and jobs is a
decision properly to be made by the legislatures and courts of
each state.
The Court concludes that the other forty-nine states have an
interest in applying their own consumer protection laws to
injuries or transactions that takes place within their borders.
Which State's Interest is Most Impaired
Defendants argue that each state's interests would be impaired if
California law was applied nationwide because the place of the
wrong occurred in the foreign states where Plaintiffs reside.
In this case, the last event necessary to make Defendants liable
is the state where the misrepresentations were communicated or
advertised to the non-resident plaintiffs, which is the
geographic location where these plaintiffs relied on the
misrepresentation and where they bought the INRatio Products. It
is undisputed that none of the named Plaintiffs reside in
California and that the named Plaintiffs talked to their
physicians, received medical care, learned about and were
prescribed their INRatio Products or purchased the INRatio
Products in their home states, and not in California. Therefore,
according to California law, the foreign states' interest will be
most impaired if the Court applied California law to a nationwide
class.
Therefore, the Court concludes that as to the nationwide class,
common questions of law do not predominate over the questions
affecting individual class members under Rule 23(b)(3).
Accordingly, the Court denies Plaintiffs' motion for class
certification of a nationwide class under California law.
Article III Standing
Defendants also contend that predominance cannot be met because
thousands of putative class members lack Article III standing
because there are individuals who used the INRatio Products, got
accurate results, managed their warfarin dosing effectively and
never lost the use of the device. Plaintiffs reply that the
putative class has Article III standing under Ninth Circuit
precedent.
Plaintiffs claim that all class members suffered an economic
injury because they all purchased the medical device, that was
worthless, and were directed to cease using the devices, thereby
losing use of them when they were recalled. The Court concludes
that the class definition is not overbroad as they include
purchasers of the INRatio Products who were all directed to
discard them by the recall, and thereby, suffered economic
injury.
Therefore, Defendants' Article III standing argument is without
merit.
Plaintiffs' Consumer Protection Claims
Plaintiffs seek to certify sub-classes alleging consumer
protection claims under the laws of Colorado, Florida, Georgia,
Maryland, New York and Pennsylvania.
Georgia and Colorado Consumer Protection Laws Prohibit
Representative Actions for Monetary Relief
In this case, Defendants have raised the defense of learned
intermediary arguing that the doctrine is not amenable to class
wide treatment due to the predominance of individual questions.
In opposition, Plaintiffs have not directly addressed Defendants'
argument. It does not appear that Plaintiffs dispute that INRatio
Products are prescription medical devices and that the learned
intermediary doctrine applies to their case. However, it is not
clear whether Plaintiffs are claiming that Defendants did not
adequately warn the prescribing physicians. While Plaintiffs cite
to Lance to support the proposition that prescribing physicians
are not learned if adequate warnings from the defendant were not
relayed to the physicians, Plaintiffs do not present any argument
or facts to support Lance's proposition to their case.
Because the INRatio Products were prescribed medical devices, in
order to determine whether the learned intermediary doctrine
applies, individualized inquiries will be required to determine
whether Defendants informed the prescribing physicians and
whether each treating physician knew about the risks associated
with the INRatio products and when they knew it.10 As such,
Plaintiffs have not demonstrated, with evidentiary proof, that
the predominance factor has been met.
Therefore, the Court concludes that Plaintiffs have not
demonstrated predominance under Rule 23(b)(3) concerning the
consumer protection claims.
Breach of Implied Warranty of Merchantability
Plaintiffs further seek to certify statewide classes alleging
implied warranty claims under the laws of Colorado, Florida,
Maryland and Pennsylvania as these states have adopted section 2-
314 of the Uniform Commercial Code (UCC).
INRatio Products are Goods, Not Services
Defendants argue that the implied warranty of merchantability
claims apply only to the sale of goods, not services.
Defendants' summary argument is not supported. They do not cite
any evidence that only 10% of its customers actually buy strips
or monitors. The facts support the contrary. Plaintiff Bludman
was a customer of AHM, but he was required to purchase boxes of
replacement INRatio2 test strips to continue his INR testing.
Plaintiff Cioffi was a customer of AHM and she purchased the
INRatio2 PT/INR System for $3,519.00. Plaintiff Falk was also a
customer of AHM and spent $2,558.47 for the INRatio System.
Similarly, Plaintiffs Kerzner-Green, Montalbano and Rigot assert
they were customers of AHM and purchased either the INRatio
System and/or the replacement test strips.
Each of the named Plaintiffs purchased a good or goods;
therefore, Defendants' argument lacks merit.
Statute of Limitations
Defendants raise the question of whether the statute of
limitations will require individual inquiry as there will be
class members who purchased the product as far back as 2009 and
may be barred from being a class member. Defendants present the
question in a conclusory manner, so it is unclear whether the
statute of limitations will give rise to individual issues.
However, Plaintiffs have failed to demonstrate that the discovery
rule applies to extend the statute of limitations in Colorado,
Florida, Georgia, Maryland, New York and Pennsylvania.
Accordingly, because Defendants have raised a question about the
statute of limitation which Plaintiffs have failed to properly
address, the Court concludes that Plaintiffs have not
demonstrated that the predominance factor has been met as it
concerns the statute of limitations on all claims.
Damages
Plaintiffs seek a full-refund damages model to support their
claims. They argue that because the INRatio Products could not
safely and reliably monitor a user's INR, it was worthless.
Defendants argue that Plaintiffs have not articulated a viable
damages model that satisfies Comcast citing to California law.
Here, both parties rely on California law to address Plaintiffs'
full refund damages model theory. Because the Court denies
Plaintiffs' motion to certify a nationwide class, as discussed
above, California law is no longer applicable. Plaintiffs also
seek certification of six state sub-classes but they have not
addressed whether the full refund model is consistent with their
theories of liability under Colorado, Florida, Georgia, Maryland,
New York and Pennsylvania law. Because Plaintiffs have not
demonstrated that their damages model satisfies Comcast, they
have not demonstrated predominance of common issues of law or
fact concerning damages.
Because Plaintiffs fail to satisfy the predominance requirement,
the Court concludes that a class action would not be "superior to
other methods for fairly and efficiently adjudicating the
controversy.
The Court denies Plaintiffs' motion for class certification.
A full-text copy of the District Court's December 20, 2017 Order
is available at https://tinyurl.com/y8j9yu7t from Leagle.com.
Dina Andren, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, represented by Mark
P. Pifko, Baron & Budd.
Dina Andren, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, represented by
Roland K. Tellis, Baron Budd P.C., Thomas Joseph O'Reardon, II,
Blood Hurst & O'Reardon, LLP, Timothy G. Blood, Blood Hurst &
O'Reardon, LLP & Peter B. Klausner, Baron & Budd, PC.
Sidney Bludman, individually, and on behalf of other members of
the general public similarly situated, Plaintiff, represented by
Mark P. Pifko, Baron & Budd, Roland K. Tellis, Baron Budd P.C.,
Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP,
Timothy G. Blood, Blood Hurst & O'Reardon, LLP & Peter B.
Klausner, Baron & Budd, PC.
Virginia Cioffi, Plaintiff, represented by Mark P. Pifko, Baron &
Budd, Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP &
Timothy G. Blood, Blood Hurst & O'Reardon, LLP.
Bernard Falk, Plaintiff, represented by Mark P. Pifko, Baron &
Budd, Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP &
Timothy G. Blood, Blood Hurst & O'Reardon, LLP.
Jeanette Kerzner-Green, Plaintiff, represented by Mark P. Pifko,
Baron & Budd, Thomas Joseph O'Reardon, II, Blood Hurst &
O'Reardon, LLP & Timothy G. Blood, Blood Hurst & O'Reardon, LLP.
Carol Montalbano, Plaintiff, represented by Mark P. Pifko, Baron
& Budd, Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP
& Timothy G. Blood, Blood Hurst & O'Reardon, LLP.
Donald Rigot, Plaintiff, represented by Mark P. Pifko, Baron &
Budd, Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP &
Timothy G. Blood, Blood Hurst & O'Reardon, LLP.
Alere Inc., a Delaware corporation, Defendant, represented by
Andrew A. Kassof, Kirkland & Ellis LLP, pro hac vice, Anthony
John Anscombe, Sedgwick LLP, Brenton Adam Rogers, Kirkland &
Ellis LLP, pro hac vice, Darlene K. Alt, Sedgwick LLP, pro hac
vice, Dennis Francis Murphy, Sedgwick LLP, Mary E. Buckley,
Sedgwick LLP, pro hac vice, Ragan Naresh, Kirkland & Ellis LLP,
pro hac vice & Stephanie Sheridan, Sedgwick Detert Moran and
Arnold.
Alere Home Monitoring, Inc., a Delaware corporation, Defendant,
represented by Andrew A. Kassof, Kirkland & Ellis LLP, pro hac
vice, Anthony John Anscombe, Sedgwick LLP, Brenton Adam Rogers,
Kirkland & Ellis LLP, pro hac vice, Darlene K. Alt, Sedgwick LLP,
pro hac vice, Dennis Francis Murphy, Sedgwick LLP, Mary E.
Buckley, Sedgwick LLP, pro hac vice, Ragan Naresh, Kirkland &
Ellis LLP, pro hac vice & Stephanie Sheridan, Sedgwick Detert
Moran and Arnold.
Alere San Diego, Inc., a Delaware corporation, Defendant,
represented by Andrew A. Kassof, Kirkland & Ellis LLP, pro hac
vice, Anthony John Anscombe, Sedgwick LLP, Brenton Adam Rogers,
Kirkland & Ellis LLP, pro hac vice, Darlene K. Alt, Sedgwick LLP,
pro hac vice, Dennis Francis Murphy, Sedgwick LLP, Mary E.
Buckley, Sedgwick LLP, pro hac vice, Ragan Naresh, Kirkland &
Ellis LLP, pro hac vice & Stephanie Sheridan, Sedgwick Detert
Moran and Arnold.
ALLSTATE INSURANCE: Court Certifies Class B in "Etter" TCPA Suit
----------------------------------------------------------------
In the case, JOHN C. ETTER, individually and on behalf of all
others similarly situated, Plaintiff, v. ALLSTATE INSURANCE
COMPANY, ALLSTATE INDEMNITY COMPANY, ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY, ALLSTATE NORTHBROOK INDEMNITY
COMPANY, ALLSTATE INSURANCE COMPANY OF CALIFORNIA, LOUIS ODIASE,
and DOES 1-5, Defendants, Case No. C17-00184 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Plaintiff's motion to certify two separate classes.
This is a putative class action by the John Etter against
Allstate, and Louis Odiase, an Allstate insurance agent. Etter
asserts a single claim for violation of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act
of 2005, based on allegations that defendants sent a single
unsolicited facsimile advertisement to Etter on Oct. 11, 2016,
without his prior invitation or permission and without the
legally-required opt-out notice language.
Odiase works as an independent contractor for Allstate and has
sent fax advertisements since 2003 using fax broadcasters --
first, 127 High Street, and later WestFax. Over the years, they
developed a "database" or "target list" of potential customers
who had supposedly consented to receive advertisements by fax.
The case concerns two specific mass fax broadcasts in two
separate years -- 2015 and 2016.
On May 25, 2015, Odiase emailed his target list, which contained
28,134 fax numbers, to 127 High Street with instructions to
remove duplicates, divide, and send faxes to the list over a
period of four weeks. Etter's fax number appeared on line 186 of
the target list. Odiase received an invoice for $38.37 from 127
High Street for May 2015 but that invoice contained no
information regarding the number of faxes successfully
transmitted, or to whom. Nor is that information available
elsewhere in the record. Nor does Etter himself have any memory
or proof (like a hard copy of the fax) that he actually received
the fax.
The second mass broadcast occurred over a year later. On Oct.
11, 2016, WestFax issued an invoice to Odiase for $244.05 for
17,432 faxes. The parties seem to agree that this represents the
number of faxes that, at least according to WestFax, were
successfully sent, although the Defendants stress that more
detailed records of the 2016 transmission remain unavailable. In
the course of the litigation, Odiase also produced what appears
to be an exception report with 16,006 entries for the 2016 fax.
Etter himself also has a hard copy of the 2016 fax, which he
appended to his complaint.
Based on the foregoing, Etter seeks to certify two classes
pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3):
a. Class A: All persons or entities successfully sent a
facsimile on or about May 25, 2015, stating, DO YOU KNOW THAT YOU
CAN SAVE UP TO 40-60% ON COMMERCIAL AUTO INSURANCE?, To get your
free quote, please complete the form below and fax to: (510) 234-
0518, and You can unsubscribe at any time. Please fax your
removal request to (877) 256-2022.
b. Class B: All persons or entities successfully sent a
facsimile on or about Oct. 11, 2016, stating, potentially save
40-60% off your Commercial auto insurance, fill out the form
below and FAX YOUR REQUEST TO: 510-234-0518, TEL 510-234-0516, OR
EMAIL: A026315@ALLSTATE.COM, and If you wish to be removed from
our Fax list, please call 888-828-3086.
Judge Alsup granted in part and denied in part Etter's motion for
class certification. He granted certification of the proposed
Class B because the class satisfies the requirements of Rule
23(a) and 23(b)(3) but denied Etter's motion to certify proposed
Class A because he lacks standing.
Accordingly, the Judge certified the class of all persons or
entities successfully sent a facsimile on or about Oct. 11, 2016,
stating, potentially save 40-60% off your Commercial auto
insurance, fill out the form below and FAX YOUR REQUEST TO: 510-
234-0518, TEL 510-234-0516, OR EMAIL: A026315@ALLSTATE.COM, and
If you wish to be removed from our Fax list, please call 888-828-
3086.
He says the class definition shall apply for all purposes,
including settlement. Etter is appointed as the class
representative. The Plaintiff's counsel from the law firms of
Anderson + Wanca and Schubert Jonckheer & Kolbe LLP are appointed
as the class counsel, with Anderson + Wanca as the lead counsel.
Judge Alsup directed that by Jan. 4, 2018, at noon, the parties
shall jointly submit a proposal for class notification, with the
plan to distribute notice by Jan. 25, 2018. In crafting their
joint proposal, the counsel shall please keep in mind the Judge's
guidelines for notice to class members in the "Notice Regarding
Factors to be Evaluated for Any Proposed Class Settlement."
A full-text copy of the Court's Dec. 26, 2017 Order is available
at https://is.gd/qDLAin from Leagle.com.
John C. Etter, individually and as the representative of a class
of similarly-situated persons, Plaintiff, represented by Brian
John Wanca -- bwanca@andersonwanca.com -- Anderson Wanca, pro hac
vice, Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com --
Schubert Jonckheer & Kolbe LLP, Robert C. Schubert --
rschubert@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP &
Ryan Michael Kelly -- rkelley@andersonwanca.com -- Anderson
Wanca, pro hac vice.
Allstate Insurance Company, Allstate Property and Casualty
Insurance Company, Allstate Northbrook Indemnity Company,
Allstate Insurance Company of California & Allstate Indemnity
Company, Defendants, represented by Vickie E. Turner --
vturner@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Kirsten
F. Gallacher -- KGallacher@wilsonturnerkosmo.com -- Wilson Turner
Kosmo LLP & Robert Kenneth Dixon --
rdixon@wilsonturnerkosmo.com -- Wilson Turner Kosmo.
Louis Odaise, Defendant, represented by Elizabeth Williams,
Esq. -- ewilliams@kdvlaw.com -- Kaufman, Dolowich Voluck & Gonzo,
John D. Dalton -- jdalton@kdvlaw.com -- Kaufman Dolowich and
Voluck, LLP, Ian Edward Anderson -- ianderson@kdvlaw.com --
Kaufman Dolowich Voluck, Richard Bradford Wilbur, Williams
Pinelli et al LLP & Sinjan Bose -- sbose@kdvlaw.com -- Kaufman,
Dolowich and Voluck, LLP.
ALLSTATE INSURANCE: Wage Statement Class Decertification Reversed
-----------------------------------------------------------------
IN the case, CHRISTOPHER WILLIAMS, Plaintiff and Appellant, v.
ALLSTATE INSURANCE COMPANY, Defendant and Respondent, Case No.
B272353 (Cal. App.), Judge Laurence D. Rubin of the Court of
Appeals of California for the Second District, Division Eight,
affirmed the trial court's decertification order with respect to
the Off the Clock class and reversed with respect to the Wage
Statement class, and remanded the matter.
Auto field adjusters receive their daily work schedules of
vehicle inspection appointments by logging onto Allstate's 'Work
Force Management System' software loaded onto their work laptops.
Although the adjusters are hourly employees entitled to overtime
if they work more than eight hours a day or 40 hours a week, the
Work Force Management System software is not a time recordkeeping
program, nor does Allstate maintain any other timeclock system.
In December 2007, Williams brought suit against Allstate, on
behalf of himself and all others similarly situated. He alleged
nine causes of action, including: failure to pay overtime wages,
failure to timely furnish accurate itemized wage statements, and
unfair business practices. The remaining six causes of action
are no longer at issue.
Williams moved for class certification. The court granted
certification of an "Off the Clock" class and a "Wage Statement"
class.
The Off the Clock class was defined as the Defendant's
California-based hourly-paid Auto Field Adjusters from Jan. 1,
2005 to June 6, 2011, to the extent that the Defendant failed to
pay for off-the-clock work for the following specific tasks
performed prior to the first inspection of the day; logging on
and off computer systems, preparing and checking voicemail
messages, checking for schedule and travel changes, obtaining
directions to the first inspection if there is a travel change,
and making courtesy calls.
The Wage Statement class was defined as the Defendant's
California-based hourly-paid employees from Dec. 19, 2006 to June
6, 2011, to whom the Defendant did not furnish accurate wage
statements pursuant to Labor Code section 226(a) and (e).
In 2011, in light of intervening U.S. Supreme Court authority
(Wal-Mart Stores, Inc. v. Dukes, the trial court decertified the
Off the Clock class, on the theory that Allstate must be
permitted to litigate its defenses to the claims of each
individual class member -- including its assertion that not all
adjusters worked off the clock, and that some of those who might
have worked off the clock did so for de minimis periods.
Williams filed a petition for writ of mandate, which the Court
summarily denied. He sought review by the state Supreme Court.
The Supreme Court granted the petition and returned the matter to
the Court with directions to issue an order to show cause why
relief should not be granted. The Court issued the order to show
cause, received briefing, held argument, and issued the writ.
The Court granted the writ petition and directed the trial court
to recertify the Off the Clock class. The trial court complied.
With the Off the Clock class recertified, the parties turned to
the Wage Statement class, by cross-motions for summary
adjudication. The trial court denied both motions.
In October 2015, Williams submitted his first trial plan. His
plan began with the undisputed premise that the Off the Clock
class had 284 members and the Wage Statement class had 2,318
members. He contemplated that proof for both classes would rely,
in part, on testimony of "randomly selected class members."
Allstate opposed Williams' first trial plan.
Sixty days later, in the absence of any new trial plan having
been submitted by the Plaintiffs, Allstate moved to decertify the
class as unmanageable. Williams opposed the motion to decertify
by proposing a new trial plan, and sought a court trial on
liability and damages. The court concluded that Williams had
repeatedly failed to propose a reliable plan for trial, and
granted decertification. It adopted its tentative. Williams
filed a timely notice of appeal. A decertification order is
appealable.
While the appeal was pending, the Court of Appeal issued its
opinion in Lubin v. The Wackenhut Corp. Lubin addresses whether
the 2013 amendment to Labor Code section 226, which presumed
injury from a defective wage statement, should be given
retroactive effect. The court concluded that the statute was a
clarification of existing law, which therefore applied to the
Lubin dispute. Williams argues that Lubin changes the legal
landscape on which the parties had litigated the trial plan for
the Wage Statement class. Since injury can now be presumed, it
can be presumed classwide, and there is no need for
representative damage testimony with respect to that class at
all.
Judge Rubin concludes that the trial court did not abuse its
discretion in granting the motion for decertification on
unmanageability. However, new law has undermined the trial
court's conclusion with respect to the Wage Statement class only.
He therefore reverses the court's order with respect to the Wage
Statement class. Williams argues that because the Wage Statement
class is now manageable without representative evidence, the Off
the Clock class is also now manageable. The Judge declines to
decide this issue in the first instance on appeal. He leaves the
issue to the trial court.
For these reasons, Judge Rubin affirmed the decertification order
with respect to the Off the Clock class and reversed with respect
to the Wage Statement class, and remanded the matter. He ordered
that the parties shall bear their own costs on appeal.
A full-text copy of the Court's Dec. 13, 2017 Opinion is
available at https://is.gd/m48ayn from Leagle.com.
Law Offices of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander;
Trush Law Office and James M. Trush for Plaintiff and Appellant.
Seyfarth Shaw, Andrew M. Paley -- apaley@seyfarth.com -- James M.
Harris -- jmharris@seyfarth.com -- Sheryl L. Skibbe --
sskibbe@seyfarth.com -- and Kiran A. Seldon --
kseldon@seyfarth.com -- for Defendant and Respondent.
AMERICAN HONDA: Court Denies Bid for Sanctions in "Aberin" Suit
---------------------------------------------------------------
In the case, LINDSEY AND JEFF ABERIN, et al., Plaintiffs, v.
AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Case No. 16-cv-
04384-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District
Court for the Northern District of California denied the
Defendant's motion for sanctions against Plaintiffs Jordan Moss,
Jared Crooks, and Joy Matza for spoliation of evidence.
The motion arises as part of the Plaintiffs' effort to bring a
nationwide class action against AHM for defects in the
HandsFreeLink ("HFL") Bluetooth pairing device in many makes and
models of Acuras purchased by Plaintiffs and others over the
course of several years. They allege that defects in the HFL
caused their batteries to drain and resulted in other electrical
failures and malfunctions.
In its motion, AHM's contends that Plaintiffs Moss, Crooks, and
Matza committed spoliation of evidence when they sold their cars.
The three Plaintiffs are in different circumstances. When Moss
joined the lawsuit on Oct. 17, 2016, he still owned his car, a
2006 Acura TSX. In the parties' joint case management statement
filed on Nov. 28, 2016, Moss represented that he had taken
reasonable and proportionate steps to preserve relevant evidence
relevant to the issues reasonably evident in this action. In his
response to AHM's first set of requests for production of
documents, however, Moss wrote that he sold and traded in his
vehicle on or about February 2017. Thus, to the extent his car
was relevant evidence in Moss' claim against AHM, he did not
"preserve" it. On Dec. 13, 2017, one day before the hearing on
the motion, Moss voluntarily dismissed his individual claim and
is no longer a Plaintiff.
Unlike Moss, Plaintiffs Crooks and Matza sold their cars before
they joined the case. When Crooks joined the lawsuit in October
2016, he pleaded that he had sold his vehicle in June 2016. At
the time the Plaintiffs as a group represented that they would
make efforts to preserve relevant evidence, Crooks was not yet a
party to the lawsuit. Similarly, when Matza joined the lawsuit
in July 2017, she pleaded that she had sold her vehicle in May
2017, prior to obtaining counsel. Matza also was not a member of
the lawsuit when the Plaintiffs represented that they would make
efforts to preserve relevant evidence.
AHM now moves for terminating sanctions against all the three
plaintiffs. According to AHM, all the three Plaintiffs knowingly
and intentionally got rid of the best and perhaps only evidence
that supports or negates their claims. Specifically, it argues
that each of the Plaintiff's claim depends heavily on facts
concerning their individual vehicle, and presents individual and
now unanswerable questions about each vehicle's history,
aftermarket modifications, alleged damages, and whether the
vehicle suffered from a defect at all. AHM argues that it cannot
defend against the Plaintiffs' claims without access to each the
Plaintiff's vehicle, and that the only adequate sanction is
termination. In the alternative, AHM contends that the Court
should issue an order to show cause why these Plaintiffs should
not be subject to the sanction of dismissal. AHM seeks sanctions
under the Court's inherent power to issue sanctions for bad faith
conduct.
The Plaintiffs oppose the motion, contending that the vehicles
are not relevant evidence under the spoliation doctrine.
According to them, their product-wide defect allegations are
identical for all vehicles, so individual vehicles are not
relevant.
Judge Tigar finds that AHM has not shown that litigation was
probable when either Crooks or Matza sold their cars. Although
AHM contends that the Court can infer from the allegations in the
SAC that Mr. Crooks and Ms. Matza were already contemplating
litigation by the time they sold their vehicles, those
allegations show only that Crooks and Matza knew their vehicles
had battery drain issues at the time they sold them. Those facts
standing alone do not give rise to the inference, much less
establish, that either Plaintiff was contemplating litigation at
the time they sold their car. The Judge concludes that
spoliation sanctions against Crooks and Matza are not warranted.
Unlike plaintiffs Crooks and Matza, Plaintiff Moss sold his car
after he joined the litigation, after he had consulted with
counsel, and after he acknowledged his obligation to preserve
evidence. Now that he has dismissed his individual claim against
AHM and is no longer a Plaintiff, however, AHM's sanctions motion
is moot as to his claim. AHM's motion therefore will be denied
as to him.
For the foregoing reasons, Judge Tigar denied AHM's motion for
sanctions.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/G10Rsb from Leagle.com.
Yun-Fei Lou, Plaintiff, represented by Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Yun-Fei Lou, Plaintiff, represented by Catherine Gannon --
catherineg@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro
hac vice, Christopher A. Seeger -- cseeger@seegerweiss.com --
Seeger Weiss LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss
LLP, pro hac vice, David Brian Fernandes --
dfernandes@baronbudd.com -- Baron & Budd, P.C., James E.
Cecchi -- JCecchi@carellabyrne.com -- Carella Byrne Cecchi Olstein
Brody & Agnello, P.C., James C. Shah, Shepherd Finkelman
Miller & Shah, LLP, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne Cecchi Olstein Brody &
Agnello, P.C., Mark Philip Pifko -- mpifko@baronbudd.com -- Baron &
Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George -- sgeorge@seegerweiss.com -- Seeger Weiss LLP, pro hac
vice, Stephen A. Weiss -- sweiss@seegerweiss.com -- Seeger Weiss
LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
Lindsey Aberin, Plaintiff, represented by Shana E. Scarlett,
Hagens Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman
Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger
Weiss LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP,
pro hac vice, David Brian Fernandes, Baron & Budd, P.C., James E.
Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James
C. Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H.
Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark
Philip Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd,
P.C., Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen
A. Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman,
Hagens Berman Sobol Shapiro LLP, pro hac vice.
Don Awtrey, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C.
Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip
Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C.,
Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen A.
Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, pro hac vice.
Daniel Criner, Plaintiff, represented by Shana E. Scarlett,
Hagens Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman
Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger
Weiss LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP,
pro hac vice, David Brian Fernandes, Baron & Budd, P.C., James E.
Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James
C. Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H.
Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark
Philip Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd,
P.C., Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen
A. Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman,
Hagens Berman Sobol Shapiro LLP, pro hac vice.
John Kelly, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C.
Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip
Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C.,
Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen A.
Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, pro hac vice.
Melissa Yeung, individually and on behalf of all others similarly
situated, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C.
Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip
Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C.,
Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen A.
Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, pro hac vice.
Jeff Aberin, Plaintiff, represented by Catherine Gannon, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger,
Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss
LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
Jared Crooks, Plaintiff, represented by Catherine Gannon, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger,
Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss
LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
Joy Matza, Plaintiff, represented by Catherine Gannon, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger,
Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss
LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
Charles Burgess, individually and on behalf of all other
similarly situated, Consol Plaintiff, represented by Christopher
A. Seeger, Seeger Weiss LLP, pro hac vice, Shana E. Scarlett,
Hagens Berman Sobol Shapiro LLP, Amanda M. Steiner, Terrell
Marshall Law Group PLLC, Brittany A. Madderra, Terrell Marshall
Law Group PLLC, pro hac vice, Catherine Gannon, Hagens Berman
Sobol Shapiro LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss
LLP, pro hac vice, David Brian Fernandes, Baron & Budd, P.C.,
James E. Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello,
P.C., James C. Shah, Shepherd Finkelman Miller & Shah, LLP,
Lindsey H. Taylor, Carella Byrne Cecchi Olstein Brody & Agnello,
P.C., Mark Philip Pifko, Baron & Budd, P.C., Roland K. Tellis,
Baron Budd, P.C., Scott Alan George, Seeger Weiss LLP, pro hac
vice, Stephen A. Weiss, Seeger Weiss LLP, pro hac vice, Steve W.
Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Toby
James Marshall, Terrell Marshall Law Group PLLC, pro hac vice.
American Honda Motor Company, Inc., Defendant, represented by
Livia M. Kiser -- LKISER@SIDLEY.COM -- Sidley Austin LLP, Andrew
Jacob Chinsky -- ACHINSKY@SIDLEY.COM -- Sidley Austin LLP, pro
hac vice, Eric B. Scwartz -- ESCHWARTZ@SIDLEY.COM -- Sidley
Austin LLP & Michael Christian Andolina --
MANDOLINA@SIDLEY.COM -- Sidley Austin LLP, pro hac vice.
APARTMENT SHOP: Judge Won't Dismiss Tenants' Lawsuit
----------------------------------------------------
Randy Furst, writing for Star Tribune, reports that a Hennepin
County district judge said January 5 that The Apartment Shop, a
company controlled by landlords Stephen Frenz and Spiros Zorbalas
may have committed fraud when it sold off nearly 30 apartment
buildings last summer on contracts for deed.
In a ruling with implications for more than 1,000 tenants in 500
apartment units, Judge Kevin Burke said the sale looked
"suspicious." He refused to dismiss a lawsuit brought by tenant
lawyers who seek to have the court void the contract-for-deed
sales, which mean that Frenz and Zorbalas retain legal title to
the property until the full purchase price is paid.
"We are disappointed for the buyers of the properties because
they would like to close on the purchases," said Bradley
Kletscher, Esq. -- bkletscher@bgs.com -- an attorney representing
some of the Frenz and Zorbalas holdings. "As it currently stands
we are continuing with the litigation. It is one stop in a long
litigation process."
He said Burke noted that contract-for-deed sales could also be
legitimate transactions, "so he made comments on both sides of
the fence."
Because of properties that were in disrepair, Zorbalas in 2011
was banned from renting apartments in Minneapolis for five years.
Many of his tenants are low income.
In 2012, Frenz bought the properties from Zorbalas. But in 2016
it was discovered that Zorbalas still had a major financial
stake.
The Minneapolis regulatory services division began proceedings
against Frenz, and in December, the City Council banned Frenz
from renting apartments for five years.
Alleging widespread problems in the buildings, the tenants filed
a class-action lawsuit against Frenz and Zorbalas last year. The
case is being heard by Judge Mary Vasaly.
After the suit was filed, many of the apartment buildings were
sold on contracts for deed.
The fact that the buildings were sold "so rapidly . . . after
Vasaly certified the . . . class action lawsuit under a contract
for deed is suspicious," Burke wrote in his ruling. "If (and the
record is not clear about this) those contracts for deed have
very low down payments -- which effectively is a fraudulent
transfer, [the tenants] may have a strong case."
Michael Cockson, Esq. -- michael.cockson@FaegreBD.com -- a pro
bono attorney representing the tenants, said one of the
properties, at 316 Oak Grove St., was sold on a contract for deed
for $12 million, but "the buyers made a down payment of $2,000,
which comes to .02 percent."
Burke also refused to void formal legal notices that inform the
public there is existing litigation that may affect title to the
property. The notices could make it difficult for the new owners
to resell the apartment buildings.
The city of Minneapolis, which refuses to grant rental licenses
to 23 contract-for-deed owners, is asking a housing court referee
to appoint an administrator to run the apartment buildings and
collect rents. [GN]
APPLE INC: Class Action Over iPhones Filed in Brooklyn
------------------------------------------------------
Patently Apple reports that Marc Honigman has filed Class Action
#21 against Apple for purposely slowing iPhones in the New York
District Court (Brooklyn). An additional four Class Action
lawsuits are reportedly in-the-works in Canada, South Korea,
Australia and France but are not official at this point in time.
Complaint In-Part
The followings excerpts are from Mr. Honigman's formal complaint
before the court: "Apple has consistently represented that its
iOS updates improve rather than hinder the performance and
security of iPhone Devices. For example, Apple's website states:
'Keeping your software up to date is one of the most important
things you can do to maintain your Apple product's security.'
Thus, iPhone users are urged to update their devices to add vital
security updates and bug fixes necessary for the iPhones to
properly function. Users are essentially forced to make a
'choice' between leaving their personal data susceptible to
hackers and identity thieves, or upgrade their iOS software which
remedies serious security breaches. In essence, no reasonable
consumer, including Plaintiff, would leave their iPhone
vulnerable to security breaches by not upgrading to the new iOS
version.
Plaintiff and Class members were unaware that Apple's iOS 10.2.1
and later updates were engineered to intentionally slow down the
performance speed of iPhone Devices or that these updates
otherwise had the effect of hindering the devices' functionality.
Apple's iOS download notifications and its statements on its
website never disclosed to consumers that the slowdown and
reduced functionality of older iPhone devices was a planned
result of iOS updates. Nor did Apple inform consumers that the
shutdown bug that impacted many iPhone Devices might be remedied
by replacing the battery in affected devices and avoiding the
download of new iOS versions. Battery replacement at the Apple
store costs less than $100, whereas the cost to upgrade to a new
iPhone can range between $200 to $1,000, depending on the model.
Nothing on Apple's website or in its iOS notifications informed
consumers of the deleterious impact that iOS software may have on
the devices.
Apple's intentional degradation of the iPhone Device's
performance through the release of iOS impacted the usability of
Plaintiff and the Class members' devices. Effectively, Apple has
forced the obsolescence of Plaintiff and Class member's iPhones
by secretly diminishing their performance.
Causes for Action
Count 1: Violations of Sec 349 of New York General Business Law:
Deceptive Acts and Practices Unlawful
Count 2: Violations of Sec 350 of New York General Business Law:
False Advertising
Count 3: Breach of Express Warranty
Count 4: Negligent Misrepresentation
Count 5: Intentional Misrepresentation
Count 6: Unjust Enrichment [GN]
APPLE INC: Class Action #20 Demanding $5 Billion
------------------------------------------------
Patently Apple reports that Victor Mallh filed Class Action #20
against Apple for purposely slowing iPhones in the New York
District Court (Brooklyn). An additional four Class Action
lawsuits have been made public thus far that are in-the-works in
Canada, South Korea, Australia and France.
Complaint In-Part
In Mr. Mallh's formal complaint before the court he in-part
stated the following: "By concealing the truth as to why older
iPhones performed poorly after the iOS 10 and 11 Updates were
installed, Apple led consumers such as the named Plaintiff to
believe that they needed to purchase a new iPhone. Apple could
have, and should have, timely informed consumers that a new
battery would repair malfunctions related to battery degradation
in older iPhones. However, Apple chose to keep their practice of
throttling iPhone performance a secret, which led consumers such
as the named Plaintiff to believe that they needed to purchase a
new iPhone.
Apple claims that its intentional throttling of performance in
older iPhones was designed to offset problems related to older
batteries and iPhone shutdowns. However, the Plaintiffs and other
consumers cannot and do not control how Apple designs and
implements its iOS updates. Consumers are forced to rely on
Apple's design choices. Consumers also rely on the information
that Apple provides about its iOS updates. Apple controls when
and how iOS updates are implemented, and consumers are forced to
rely on Apple to protect their iPhones. Upon information and
belief, iPhone users cannot revert their iOS software to previous
versions of iOS. Defendant fails to warn consumers that an iOS
update is irreversible. Therefore, it was and it is incumbent
upon Apple not only to implement updates that improve iPhone
performance, but also to warn consumers about the risks involved
with installing updates.
Apple utterly failed to do this with its iOS 10 and 11 Updates.
Although installing an iOS update is voluntary in theory,
consumers eventually are forced to update their iPhone software.
This is due in large part to security concerns, but also because
the Apps on the iPhones would eventually become outdated and the
iPhone user would not be able to update the App and have access
to the updated App features until the iPhone was running the
updated iOS software.
Apple negligently, recklessly and willfully waited until December
20, 2017, which was after Plaintiffs and other consumers
installed iOS 10 and/or iOS 11 Updates to their iPhones, to
inform consumers that Apple has been intentionally limiting older
iPhone performance in certain circumstances through its iOS
updates. Apple caused the Plaintiffs and others harm by failing
to timely inform them about these practices."
As noted from information found on the Court's docket, Mr.
Mallh's Class Action is demanding $5 billion.
Causes for Action
Count 1: Deceptive or Misleading Practices (NYGBL Sec 349 and
Sec 350, ET SEQ)
Count 2: Breach of Contract
Count 3: Negligence
Count 4: Gross Negligence [GN]
APPLE INC: Class Action #22 Filed in San Jose, California
---------------------------------------------------------
Apple Patently reports that John Solak has filed Class Action #22
against Apple for purposely slowing iPhones in the District Court
of Northern California, San Jose. An additional four Class Action
lawsuits are reportedly in-the-works in Canada, South Korea,
Australia and France but are not official at this point in time.
In Mr. Solak's formal complaint before the court, he stated in
his introductory commentary in-part that "Apple markets its
iPhones as premium products with remarkably fast processors and
epic performance. Each year, millions of American consumers
bite -- so many, in fact, that they have made Apple the most
valuable company in the world.
Like every vendor, Apple has duties of truthfulness and candor to
its customers. It also has the duty not to purposely degrade the
performance of its customers' phones, and certainly not without
their knowledge or permission.
Yet Apple has violated these duties by arrogating to itself the
right to throttle the performance of millions of iPhones under at
least three common conditions, such that its behavior will likely
affect millions of consumers. What's more, Apple acted by
misrepresentation and deception. Consumers did not know of, or
consent, to Apple's decision to slow their devices.
Causes for Action
Count 1: TRESPASS TO CHATTELS
Count 2: VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW (CAL.
BUS. & PROF. CODE Sec 17200, et seq.)
Count 3: FRAUDULENT MISREPRESENTATION
Count 4: QUANTUM MERUIT TO RECOVER SUMS RECEIVED BY UNJUST
ENRICHMENT [GN]
APPLE INC: First Class Action in 2018 Filed in Cincinnati
---------------------------------------------------------
Patently Apple reports that Lauri Sullivan-Stefanou along with
Jarrod and Carly Byer filed a Class Action lawsuit against Apple
in Cincinnati, Ohio. This is the first Class Action filed in
2018. The court document shows us that the Plaintiffs were fully
aware of the apology Apple made on December 28th and yet state
that Apple failed to warn them that their iPhone 6 and 7 were
purposely being slowed down by downloading the very updates that
Apple urged them to do for security reasons.
The complaint further noted that "Defendant deceptively touted
the necessity of the Updates and the improvements of the new
software that would result from the Updates." They later noted
that "Nowhere did Apple ever disclose that its updates would
negatively affect the iPhones and their functionality."
This case has one nagging testimony that's out of place.
According to Plaintiff Lauri Sullivan-Stefanou, owner of an
iPhone 6, she "followed Apple's directions and twice updated her
phone. Since then, her phone has exhibited significantly slower
processing speed, Apps take longer to open and when searching for
contacts, the phone takes exceptionally long to locate a contact.
In addition, upon updating the phone, once re-booted, her phone
instructed her to link to Apple i-Pay and requested her credit
card information, which she refused to provide. There was no
instruction to decline linking to Apple i-Pay nor any mention of
i-Pay in the settings."
This is definitely an oddball and suspicious aspect of the
complaint that's likely a different issue altogether. Apple's
Wallet app is known as Apple Pay not i-Pay and Apple would never
have made such a request associated with a legitimate update.
[GN]
APPLE INC: Faces "Banks" Suit Over iPhone Throttling Issues
-----------------------------------------------------------
Ryan Banks, Lauren Weintraub, Anna Luna, Allison Varnell, Amy
Brown, Matthew Homonoff, Jessica Greenshner, Robert Montgomery,
Laura Ciccone, Matthew Shaske, Annamarie Vinacco, Thomas Ciccone
and Dale Johnson, individually and on behalf of all others
similarly situated v. Apple, Inc., Case No. 5:18-cv-00241-HRL
(N.D. Cal., January 10, 2018), seeks redress on a class-wide
basis for Apple's unlawful and deceptive practice of
intentionally slowing down or "throttling" the performance of
certain iPhone models, including the iPhone 6, 6 Plus, 6s, 6s
Plus, SE, 7, and 7 Plus models.
Apple Inc. operates a technology company located at 1 Infinite
Loop, Cupertino, California 95014. [BN]
The Plaintiff is represented by:
Patrice L. Bishop, Esq.
STULL, STULL & BRODY
9430 West Olympic Blvd., Suite 400
Beverly Hills, CA 90212
Telephone: (310) 209-2468
Facsimile: (310) 209-2087
E-mail: pbishop@ssbla.com
- and -
Melissa R. Emert, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Telephone: (212) 687-7230
Facsimile: (212) 490-2022
E-mail: memert@ssbny.com
- and -
Gary S. Graifman, Esq.
Jay Brody, Esq.
KANTROWITZ GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
Facsimile: (845) 356-4335
E-mail: ggraifman@kgglaw.com
jbrody@kgglaw.com
AQUA METALS: Klein Law Firm Files Securities Class Action
---------------------------------------------------------
The Klein Law Firm announces that a class action complaint has
been filed on behalf of shareholders of Aqua Metals, Inc.
(NASDAQ:AQMS) who purchased shares between May 19, 2016 and
November 9, 2017. The action, which was filed in the United
States District Court for the Northern District of California,
alleges that the Company violated federal securities laws.
According to the complaint, throughout the class period
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (a) the Company was touting the
business value of the Interstate Battery Partnership and the JCI
Partnership; (b) the Company was aware of and ignoring material
unresolved deficiencies in the AquaRefine technology and process
preventing large scale development; (c) the Company was
experiencing numerous execution and operational issues preventing
scaling and production ramp up at its facility; and (d) the
Company was unable to produce and generate revenue from its core
business, therefore remaining unprofitable.
Shareholders have until February 13, 2018 to petition the court
for lead plaintiff status. Your ability to share in any recovery
does not require that you serve as lead plaintiff. You may choose
to be an absent class member.
If you suffered a loss during the class period and wish to obtain
additional information, please contact Joseph Klein, Esq. by
telephone at 212-616-4899 or visit
http://www.kleinstocklaw.com/pslra-sbm/aqua-metals-inc?wire=2.
Joseph Klein, Esq. represents investors and participates in
securities litigations involving financial fraud throughout the
nation. Attorney advertising. Prior results do not guarantee
similar outcomes.[GN]
ARIZONA FOSTER: To Delay Lawsuit Until CA Status is Decided
-----------------------------------------------------------
Mary Jo Pitzl, writing for AZ Central, reports that state child-
welfare officials are asking a judge to hold up further work in a
lawsuit over Arizona's foster-care system until a higher court
decides whether the matter should be a class-action suit.
A stay on further proceedings in the long-running suit would save
money and effort, attorneys for the state argued in a motion
filed January 3 with U.S. District Judge Roslyn Silver.
Silver is overseeing a lawsuit filed in 2015 by Children's
Rights, a New York-based organization that advocates for children
in foster care. The group sued the Department of Child Safety, as
well as the Arizona Health Care Cost Containment System, for
maltreatment of kids in foster care. AHCCCS handles the medical,
dental and behavioral-health needs of children in the state's
care.
Class-action Status
In September, Silver certified the case as a class action. That
means the outcome would apply not just to the handful of children
named in the original filing, but to all children in foster care
now and in the future. The suit seeks system reforms ranging from
better practices to keep families together to closing what it
calls a "severe shortage" of medical, dental and behavioral-
health services to foster children.
The state last month won a chance to appeal the class-action
decision to the 9th U.S. Circuit Court of Appeals. And because
that appeal is pending, the state attorneys argue, it makes sense
to put a hold on the underlying case until it's clear whether the
suit will proceed as a class action or a smaller suit affecting
only the two children remaining from the 2015 filing.
"The Ninth Circuit's decision squarely impacts the scope, size
and substance of this litigation," wrote the private attorneys
hired by the state to defend the case.
For example, if the state's appeal is successful, much work on
the underlying case could be moot, they wrote. The 9th Circuit's
eventual decision will make a difference in how much time and
effort is put into interviewing expert witnesses, working through
pretrial procedures and, ultimately, a trial, they noted.
In addition, a stay on the ongoing case would save DCS and AHCCCS
money -- sums that could be redirected to caring for children,
the state's attorneys argued.
The plaintiffs said they will dispute the arguments in a response
they expect to file.
Stay could push action on case into next year
On January 4, attorney Anne Ronan, Esq. with the Arizona Center
for Law in the Public Interest noted a stay would further delay a
case that has lingered for nearly three years already. Currently,
the case is scheduled for a June pretrial order; a stay could
push any significant action in the case into next year, she said.
"It's another year's delay," she said, adding that she and other
plaintiffs contend foster-care problems have not abated. The
center is among the attorneys representing children in foster
care.
Both sides, however, agree that arguments before the 9th Circuit
should be accelerated. Currently, the first briefs in the appeal
are not due until mid-March, meaning a decision on whether the
case should remain a class-action matter might not happen until
late this year, or even later. [GN]
ASTORIA FINANCIAL: Faces "Karp" Suit Over Sterling Merger Plans
---------------------------------------------------------------
Beth Karp, on behalf of herself and all others similarly situated
v. Astoria Financial Corporation, John R. Chrin, John J. Corrado,
Robert Giambrone, Gerard C. Keegan, Brian M. Leeney, Patricia M.
Nazemetz, Ralph F. Palleschi, Monte N. Redman, and Sterling
Bancorp, Case No. 604286/2017 (N.Y. Sup. Ct., January 10, 2018),
is brought on behalf of all public stockholders of Astoria
Financial Corporation, to enjoin the proposed merger between
Astoria and Sterling Bancorp at approximately $2.2 billion.
According to the case, Astoria filed a 14A definitive proxy
statement with the U.S. Securities and Exchange Commission, which
recommends that Astoria stockholders vote in favor of the
Proposed Transaction. However, Proxy omits or misrepresents
material information concerning, among other things: (i) the
Proxy omits material information regarding the process leading to
the Proposed Transaction, including the details regarding the
standstill agreement entered into between Astoria and Party C;
(ii) the Proxy omits material information regarding Astoria's
financial projections and the financial analyses performed by
Astoria's financial advisor, Sandler O'Neill, as well as material
information regarding Sterling's financial projections and the
financial analyses performed by Sterling's financial advisors,
RBCCM and Citi; (iii) the Proxy states that RBCCM's Discounted
Cash Flow Analyses of Astoria and Sterling were performed by
calculating the estimated net present value of the after-tax free
cash flows of Astoria and Sterling; (iv) the Proxy fails to
disclose the basis for Sandler O'Neill's selection of price-to-
2021 earnings per share multiples ranging from 12.0x to 22.0x and
price-to-December 31, 2021 tangible book value per share
multiples ranging from 120% to 320% to derive the Company's
terminal values; (v) the Proxy indicates that, in arriving to the
conclusions of the Pro FormaMerger Analysis, Sandler O'Neill
utilized "certain assumptions" related to, among other things,
transaction expenses, purchase accounting adjustments, and an
estimated dividend payout ratio, as provided by the senior
management of Sterling; (vi) the Proxy fails to disclose the
individual financial metrics for each of the companies selected
by Sandler O'Neill, RBCCM and Citi in Astoria's and Sterling's
Comparable Company Analysis; (vii) the Proxy fails to disclose
the individual financial metrics observed by Sandler O'Neill's
and RBCCM's Selected Transactions Analysis; and (viii) the Proxy
also fails to disclose the amount of the Sandler O'Neill's fee
that is contingent upon the completion of the Proposed
Transaction. The Complaint says the Proposed Transaction will
unlawfully divest Astoria's public stockholders of the Company's
valuable assets without fully disclosing all material information
concerning the Proposed Transaction to Company stockholders. To
remedy defendants' Exchange Act violations, Plaintiff seeks to
enjoin the stockholder vote on the Proposed Transaction unless
and until such problems are remedied.
Astoria Financial Corporation through its subsidiary Astoria
Bank, attracts retail deposits from the general public and
businesses and invests that money primarily in multi-family and
commercial real estate loans. [BN]
The Plaintiff is represented by:
WOLF, HALDENSTEIN, ADLER
270 Madison Avenue
New York, NY
Telephone: (212) 545-4600
Facsimile: (212) 686-0114
- and -
LEVI & KORSINSKY, LLP
30 Broad Street 15th Floor
New York, NY 10004
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
ASTORIA FINANCIAL: Faces MSS 1209 Suit Over Sterling Merger Plans
-----------------------------------------------------------------
MSS 1209 Trust, on behalf of herself and all others similarly
situated v. Astoria Financial Corporation, John R. Chrin, John J.
Corrado, Robert Giambrone, Gerard C. Keegan, Brian M. Leeney,
Patricia M. Nazemetz, Ralph F. Palleschi, Monte N. Redman, and
Sterling Bancorp, Case No. 604286/2017 (N.Y. Sup. Ct., January
10, 2018), is brought on behalf of all public stockholders of
Astoria Financial Corporation, enjoin the proposed merger between
Astoria and Sterling Bancorp at approximately $2.2 billion.
According to the case, Astoria filed a 14A definitive proxy
statement with the U.S. Securities and Exchange Commission, which
recommends that Astoria stockholders vote in favor of the
Proposed Transaction. However, Proxy omits or misrepresents
material information concerning, among other things: (i) the
Proxy omits material information regarding the process leading to
the Proposed Transaction, including the details regarding the
standstill agreement entered into between Astoria and Party C;
(ii) the Proxy omits material information regarding Astoria's
financial projections and the financial analyses performed by
Astoria's financial advisor, Sandler O'Neill, as well as material
information regarding Sterling's financial projections and the
financial analyses performed by Sterling's financial advisors,
RBCCM and Citi; (iii) the Proxy states that RBCCM's Discounted
Cash Flow Analyses of Astoria and Sterling were performed by
calculating the estimated net present value of the after-tax free
cash flows of Astoria and Sterling; (iv) the Proxy fails to
disclose the basis for Sandler O'Neill's selection of price-to-
2021 earnings per share multiples ranging from 12.0x to 22.0x and
price-to-December 31, 2021 tangible book value per share
multiples ranging from 120% to 320% to derive the Company's
terminal values; (v) the Proxy indicates that, in arriving to the
conclusions of the Pro FormaMerger Analysis, Sandler O'Neill
utilized "certain assumptions" related to, among other things,
transaction expenses, purchase accounting adjustments, and an
estimated dividend payout ratio, as provided by the senior
management of Sterling; (vi) the Proxy fails to disclose the
individual financial metrics for each of the companies selected
by Sandler O'Neill, RBCCM and Citi in Astoria's and Sterling's
Comparable Company Analysis; (vii) the Proxy fails to disclose
the individual financial metrics observed by Sandler O'Neill's
and RBCCM's Selected Transactions Analysis; and (viii) the Proxy
also fails to disclose the amount of the Sandler O'Neill's fee
that is contingent upon the completion of the Proposed
Transaction. The Complaint says the Proposed Transaction will
unlawfully divest Astoria's public stockholders of the Company's
valuable assets without fully disclosing all material information
concerning the Proposed Transaction to Company stockholders. To
remedy defendants' Exchange Act violations, Plaintiff seeks to
enjoin the stockholder vote on the Proposed Transaction unless
and until such problems are remedied.
Astoria Financial Corporation through its subsidiary Astoria
Bank, attracts retail deposits from the general public and
businesses and invests that money primarily in multi-family and
commercial real estate loans. [BN]
The Plaintiff is represented by:
LEVI & KORSINSKY, LLP
30 Broad Street 15th Floor
New York, NY 10004
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
- and -
GARDY & NOTIS LLP
126 East 56th St 8th Fl
New York, NY 10022
Telephone: (201) 567-7377
AVALONBAY COMMUNITIES: Bid to Remand "Nelson" Denied
----------------------------------------------------
In the case, AARON NELSON, ASHLEY NELSON, AAYDIN NELSON, BY HIS
GUARDIAN AD LITEM AARON NELSON, AND NTELISENG NKHELA, Plaintiffs,
v. AVALONBAY COMMUNITIES, INC., ABC CORPORATIONS 1-10 AND JOHN
DOES 1-20, Defendants, Civil Action No. 17-0778 (JLL) (D. N.J.),
Judge Jose L. Linares of the U.S. District Court for the District
of New Jersey denied the Plaintiffs' motion to opt out of the
class and remanded the case to state court, but permitted them to
file a delayed claim as part of the settlement class.
The Plaintiffs are actors in The Lion King on Broadway who
resided in the Avalon at Edgewater apartment complex. The
Defendant built, owned, and managed the Avalon. On Jan. 21,
2015, the Avalon burned down in a fire.
As a result of the fire, the Plaintiffs filed a putative class
action against the Defendant in the New Jersey Superior Court,
Law Division, Somerset County. On Feb. 6, 2017, the Defendant
removed the case to the Court. At the time of removal, the Court
was handling a parallel class action that involved the same fire
at the same property.
On March 13, 2017, the Court approved the settlement of the
DeMarco Action. As part of its Opinion and Order approving the
DeMarco Settlement, the Court entered a preliminary injunction
barring and enjoining the plaintiffs and all Settlement Class
Members, to the extent permissible by existing law, from
bringing, filing, commencing, prosecuting (or further
prosecuting), maintaining, intervening in, participating in, or
receiving any benefits from any other lawsuit, arbitration or
administrative, regulatory or other proceeding in law that arose
from the Avalon fire. The class included 101 residents and
occupants of the Russell Building at Avalon at Edgewater as
identified on the operative lease agreements as of Jan. 21, 2015,
whose property in a Russell Building apartment or storage unit
was destroyed by the Fire.
On March 17, 2017, the Defendant filed a letter in the action,
informing the Court and the Plaintiffs' attorney, of the
settlement of the DeMarco Action. The letter maintained that the
Plaintiffs would have the opportunity to opt out of the class
once they received notice of the settlement. On March 21, 2017,
Magistrate Judge Joseph A. Dickson held an in-person status
conference to discuss the future of this matter in light of the
settlement in the DeMarco Action. It is undisputed that the
attorneys for both parties were present at this status
conference. It is also undisputed that the Plaintiffs' attorney
informed Magistrate Judge Dickson that Plaintiffs intended to opt
out of the settlement class.
Pursuant to the Court's order preliminarily approving the
settlement in the DeMarco Action, the Plaintiffs had 45 days from
the date of the settlement notice, or until May 17, 2017 to file
a request for exclusion from the settlement. The Plaintiffs did
not file a request for exclusion.
On July 17, 2017, Magistrate Judge Dickson requested a status
update from the Plaintiffs. While their attorney claims he filed
the requested status update with the Court and served it on Mr.
Lapinksi, the co-lead counsel for the Plaintiffs in the DeMarco
Action, there is no indication on the Court's docket that
Plaintiffs' attorney filed any status update. The deadline to
submit a claim under the settlement agreement was Sept. 21, 2017.
The Plaintiffs have also missed the deadline. The Plaintiffs now
move to opt out of the class and remand the case to state court.
Judge Linares finds that the prejudice to the Defendant by
allowing the Plaintiffs to file a late claim is substantially
less than the prejudice of allowing the Plaintiffs to opt out.
In In re Orthopedic Bone Screw Prods. Liab. Litig., the Third
Circuit noted that the prejudice to the defendant by allowing the
plaintiff to file a delayed claim would be "the loss of a
windfall" and thus defendant would "suffer no prejudice at all."
While he is aware that the defendant's liability in Bone Screw
under the settlement agreement was capped, the Judge says the
scope of the liability of Defendant here is unlikely to be so
large that it justifies granting it a windfall by preventing the
Plaintiffs from filing a delayed claim.
Furthermore, the Judge finds it pertinent that the Plaintiffs are
frequently away from their home due to their jobs as actors in
the Lion King on Broadway. The Defendant notes that it reached
296 of the 299 class members by mail or by e-mail. However, if
the Plaintiffs were not home to receive notice by mail, there was
no constructive notice to inform them of the deadlines to opt out
or file a claim. Nor did the Plaintiffs receive information from
their attorney, who failed to take basic steps to monitor the
settlement process. The Plaintiffs are thus put in the
unenviable position of being penalized by virtue of the nature of
their profession, or, in the alternative, by the missteps of
their attorney. He does not believe the Plaintiffs should suffer
either injustice. As the excusable neglect analysis is an
"equitable inquiry," the Judge exercises its discretion in
allowing the Plaintiffs to file a claim in the DeMarco
Settlement.
For these reasons, Judge Linares denied the Plaintiffs' motion to
opt out of the class and remanded the case to state court, but
permitted the Plaintiffs to file a delayed claim as part of the
settlement class. An appropriate Order accompanies the Opinion.
A full-text copy of the Court's Dec. 13, 2017 Opinion is
available at https://is.gd/uKpC4e from Leagle.com.
AARON NELSON, Plaintiff, represented by RAYMOND ANDREW GRIMES.
ASHLEY NELSON, Plaintiff, represented by RAYMOND ANDREW GRIMES.
AAYDIN NELSON, by his guardian ad litem Aaron Nelson, Plaintiff,
represented by RAYMOND ANDREW GRIMES.
NTELISENG NKHELA, Plaintiff, represented by RAYMOND ANDREW
GRIMES.
AVALONBAY COMMUNITIES, INC., Defendant, represented by DANIEL
JASON DIMURO -- ddimuro@grsm.com -- Gordon & Rees LLP & RONALD A.
GILLER -- rgiller@grsm.com -- GORDON & REES LLP.
BANK OF AMERICA: Ct. Certifies Class of Loan Officers in "McLeod"
-----------------------------------------------------------------
In the case, GINA McLEOD, Plaintiff, v. BANK OF AMERICA, N.A.,
Defendant, Case No. 16-cv-03294-EMC (N.D. Cal.), Judge Edward M.
Chen of the U.S. District Court for the Northern District of
California granted the Plaintiff's motion for class certification
and for appointment of the class counsel.
McLeod was a Mortgage Loan Officer for Defendant Bank of America
from February 2014 to November 2016. She alleges the Bank failed
to reimburse her and other loan officers for use of their
personal vehicles in violation of California Labor Code Section
2802 and a derivative claim under the California Unfair
Competition Law, Business & Professions Code Section 17200 et
seq.
The Plaintiff acknowledges that Defendant has a facially-valid
written policy, but argues that the Bank failed to exercise due
diligence to reimburse putative class members despite having
constructive knowledge they incurred mileage expenses.
Alternatively, she argues that the Defendant had a de facto
policy or practice of not reimbursing Loan Officers for routine
mileage.
The Plaintiff proposes the Court certify the class pursuant to
Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure
defined as all persons who are or have been employed, at any time
from May 9, 2012 through the date of the Court's granting of
class certification in the matter, by Bank of America in
California under the job titles Loan Officer, Senior Loan
Officer, Mortgage Loan Officer, Senior Mortgage Loan Officer, and
Senior Lending Officer.
Bank of America has identified 1,881 individuals who would fall
under the class definition up to July 2017.
Judge Chen granted the Plaintiff's motion for class certification
and for appointment of the class counsel. He certified the class
of all persons who are or have been employed, at any time from
May 9, 2012 through the date of the Court's granting of class
certification in the matter, by Bank of America in California
under the job titles Loan Officer, Senior Loan Officer, Mortgage
Loan Officer, Senior Mortgage Loan Officer, and Senior Lending
Officer.
The Judge certified these questions for resolution on a class-
wide basis under Rule 23(a) and Rule 23(b)(3) with respect to the
Plaintiff's Section 2802 and UCL claims:
1. Whether there was a regular practice of not reimbursing
Loan Officers for mileage incurred and reimbursable under Section
2802;
2. Whether the Defendant had constructive notice of
unreimbursed mileage incurred by the Loan Officers in the
discharge of their duties;
3. Whether the Defendant's constructive notice gave rise to
a duty of due diligence under Section 2802;
4. Whether the Defendant's system-wide efforts (or lack
thereof) satisfied its duty of due diligence under Section 2802;
and,
5. Whether, in light of questions 1-4, Defendant violated
California Labor Code Section 2802 and the UCL.
Finally, the Judge appointed McLeod to represent the Class and
Leonard Carder, LLP as the Class Counsel. He directed the
parties to appear at a Case Management Conference on Jan. 18,
2018 at 10:30 a.m. A joint case management statement must be
filed seven days before the hearing in accordance with the local
rules.
A full-text copy of the Court's Dec. 13, 2017 Order is available
at https://is.gd/7b36gI from Leagle.com.
Gina McLeod, individually and on behalf of all others similarly
situated, Plaintiff, represented by Aaron D. Kaufmann --
akaufmann@leonardcarder.com -- Leonard Carder, LLP.
Gina McLeod, individually and on behalf of all others similarly
situated, Plaintiff, represented by David Philip Pogrel --
dpogrel@leonardcarder.com -- Leonard Carder LLP,
Elizabeth R. Gropman -- egropman@leonardcarder.com --
Leonard Carder LLP & Edward Joseph Wynne --
ewynne@wynnelawfirm.com -- Wynne Law Firm.
Bank of America, N.A., Defendant, represented by Apalla U.
Chopra -- achopra@omm.com -- O'Melveny & Myers LLP, Susannah
Kelly Howard -- showard@omm.com -- O'Melveny& Myers LLP & Adam P.
KohSweeney -- akohsweeney@omm.com -- O'Melveny & Myers LLP.
BLACKROCK INSTN'L: "Baird" Rule 56(d) Motion Briefing Sched Reset
-----------------------------------------------------------------
In the case, Charles Baird et al., Plaintiffs, v. BlackRock
Institutional Trust Company, N.A., et al., Defendants, Case No.
17-cv-1892-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the
U.S. District Court for the Northern District of California, San
Francisco Division, has entered an order modifying the briefing
schedule on the Plaintiffs' Motion for Relief Under Rule 56(d)
and reset the hearing date.
On Dec. 8, 2017, the Plaintiffs filed a Motion for Relief Under
Rule 56(d). The Defendants' response to the Rule 56(d) Motion is
due on Dec. 22, 2017, and the Plaintiffs' reply in support would
be due on Dec. 29, 2017.
In light of the intervening Christmas holiday, the Parties have
conferred and agreed that the Plaintiffs may have a brief
extension of time, until Jan. 4, 2017, to reply. The Parties
have therefore stipulated and agreed that Dec. 22, 2017 would be
the Defendants' response due and (ii) Jan. 4, 2018 would be the
Plaintiffs' reply due. The Parties have also agreed that it is
most efficient to argue the Plaintiffs' Rule 56(d) Motion and the
Defendants' pending Motion to Dismiss the Amended Class Action
Complaint on the same date.
In order to allow time to complete the briefing on the Rule 56(d)
Motion and to align the hearing on the two pending Motions, the
Parties further have agreed that the hearing on the Defendants'
Motion to Dismiss the Amended Complaint, which is currently
scheduled for Jan. 11, 2018, should be postponed by one week.
The Parties have therefore stipulated and agreed that the hearing
on the Defendants' Motion to Dismiss the Amended Complaint should
be rescheduled for Jan. 18, 2018 at 2 p.m.
Pursuant to the Parties' stipulation, Judge Gilliam ordered the
Defendants to file any response to the Plaintiffs' Motion for
Relief Under Rule 56(d) by Dec. 22, 2017 and the Plaintiffs to
file any reply by Jan. 4, 2018. The hearing on the Defendants'
Motion to Dismiss the Amended Complaint, which is currently
scheduled for Jan. 11, 2018, is rescheduled for Jan. 25, 2018 at
2 p.m.
A full-text copy of the Court's Dec. 13, 2017 Order is available
at https://is.gd/D8EZXA from Leagle.com.
Charles Baird, Plaintiff, represented by Nina Rachel Wasow --
nina@feinbergjackson.com -- Feinberg, Jackson, Worthman & Wasow
LLP.
Charles Baird, Plaintiff, represented by Julia Horwitz --
jhorwitz@cohenmilstein.com -- Cohen Milstein Sellers Toll, Karen
L. Handorf -- khandorf@cohenmilstein.com -- Cohen Milstein
Sellers and Toll PLLC, pro hac vice, Michelle C. Yau --
myau@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, pro
hac vice & Todd F. Jackson -- todd@feinbergjackson.com --
Feinberg, Jackson, Worthman and Wasow LLP.
Lauren Slayton, Plaintiff, represented by Julia Horwitz, Cohen
Milstein Sellers Toll & Mary Joanne Bortscheller, Cohen Milstein
Sellers Toll PLLC.
BlackRock Institutional Trust Company, N.A., Defendant,
represented by Brian David Boyle -- bboyle@omm.com -- O'Melveny
Myers LLP, Adam Manes Kaplan -- akaplan@omm.com -- O'Melveny &
Myers LLP, Meaghan McLaine VerGow -- mvergow@omm.com -- OMelveny
and Myers LLP & Randall W. Edwards -- edwards@omm.com --
O'Melveny & Myers LLP.
Blackrock, Inc., Defendant, represented by Brian David Boyle,
O'Melveny Myers LLP, Adam Manes Kaplan , O'Melveny & Myers LLP,
Meaghan McLaine VerGow, OMelveny and Myers LLP & Randall W.
Edwards, O'Melveny & Myers LLP.
The BlackRock, Inc. Retirement Committee, Defendant, represented
by Brian David Boyle, O'Melveny Myers LLP, Adam Manes Kaplan ,
O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny and Myers
LLP & Randall W. Edwards, O'Melveny & Myers LLP.
The Investment Committee of the Retirement Committee, Defendant,
represented by Brian David Boyle, O'Melveny Myers LLP, Adam Manes
Kaplan , O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny
and Myers LLP & Randall W. Edwards, O'Melveny & Myers LLP.
Catherine Bolz, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.
Chip Castille, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.
Paige Dickow, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.
Daniel A. Dunay, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.LLP.
Jeffrey A. Smith, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.
Anne Ackerley, Defendant, represented by Randall W. Edwards,
O'Melveny & Myers LLP & Meaghan McLaine VerGow, OMelveny and
Myers LLP.
BOEHRINGER INGELHEIM: MAO Suit Fails on 2nd Amended Complaint
-------------------------------------------------------------
Jean Goldstein, writing for workerscompensation.com, reports that
as you may recall, several weeks ago we reported on a new spin in
the Medicare Advantage Organizations (MAO) class action realm. At
the root of this latest private cause of action, is a multi-
district ligation (MDL) suit involving a blood-thinning drug
called Pradaxa. The MDL settled in May, 2014, and by way of the
settlement, the Defendants in this latest action became primary
payers.[1][1]
As a quick refresher, the original filed complaint included the
Plaintiffs (MAO-MSO Recovery II, LLC, MSP Recovery, LLC, and MSPA
Claims 1, LLC) and alleged that the Defendants ((Boehringer
Ingelheim Pharmaceuticals, Inc. ("Boehringer, Inc.") and Providio
Medisolution, LLC, and Providio Lien Counsel, LLC, (the "Providio
Defendants")) were obligated to repay all medical costs that were
paid by MAOs for treatment of any injuries associated with the
medication, Pradaxa. Plaintiffs alleged they had valid assignment
agreements from these MAOs. In October 2017, the Court dismissed
the first Amended Class Action for lack of standing because
"Plaintiffs fail[ed] to allege the identity of the MAOs whose
reimbursement rights they claim[ed] to own, the dates of the
assignments, or the essential terms." MAO-MSO RECOVERY II, LLC v.
Boehringer Ingelheim Pharm., Inc., No. 1:17-cv-21996-UU, 2017
U.S. Dist. LEXIS 174940, at 13 (S.D. Fla. Oct. 10, 2017). In
dismissing the Complaint, the Court suggested that the Plaintiffs
attach any assignment agreements to their Second Amended
Complaint. Id. at 14 n.1.
Plaintiffs subsequently filed a Seconded Amended Complaint, to
include Plaintiff, MSP Recovery Claims, Series LLC. MSP Recovery
Claims, Series LLC became a player here because Plaintiffs
identified one Part-C individual who did in fact suffer injuries
from use of Pradaxa. This individual's MAO paid for treatment
related to the Pradaxa, which allowed the Plaintiffs to assert an
argument that Defendants were obligated to repay the costs paid
(in an amount double the amount paid). The MAO assigned its
reimbursement rights to MSP Recovery, LLC, one of the original
named Plaintiffs. However, MSP Recovery, LLC assigned its
recovery rights to MSP Recovery Claims, Series, LLC, the added
Plaintiff in the Seconded Amended Complaint.
Yet, again, the Court opined that the Plaintiffs failed to show
they have standing.[2] The Court found that although the newly
added Plaintiff had an assignment right, the right was acquired
one month after the instant matter commenced. The Court agreed
with the Defendants' argument that "..if a Plaintiff lacks
standing at the commencement of the suit, it cannot then add a
new Plaintiff who does have standing. In simple terms, a
Plaintiff who lacks standing to sue lacks standing to add
additional Plaintiffs." (Recovery v. Boehringer Ingelheim Pharm.,
No. 1:17-cv-21996-UU, 2017 U.S. Dist. LEXIS 213726, 13 (S.D. Fla.
Dec. 12, 2017) Citing to Summit Office Park, Inc. v. U.S. Steel
Corp., 639 F.2d 1278 (5th Cir. 1981). The original Plaintiffs
failed to show they suffered in injury in fact, and therefore
lacked standing to amend the complaint to add a Plaintiff who did
in fact have standing to bring the cause of action. For this
reason, the Court dismissed and closed the case, but not before
indicating that the Plaintiff, MSP Recovery Claims, Series, is
free to file a new complaint based on their assignment contract,
should they wish to do so. There is certainly little doubt that
we will see a new complaint filed by MSP Recovery Claims in the
very near future, as they continue to challenge all things MSP
related. [GN]
BONOBOS INC: Court Won't Dismiss Blind Man's ADA Suit
-----------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order denying Defendant's Motion to
Dismiss the case captioned JOSE DEL-ORDEN, on behalf of himself
and all others similarly situated, Plaintiff, v. BONOBOS, INC.,
Defendant, No. 17-1252 (S.D.N.Y.).
This case is a putative class action by a legally blind plaintiff
claiming that the website of Bonobos, Inc., an establishment that
sells clothing and accessories, including through its website, is
not compliant with the Americans with Disabilities Act (ADA),
because the website denies equal access to blind customers.
Bonobos moves to dismiss the first amended complaint (FAC) of
named plaintiff Jose Del-Orden (Del-Orden). Bonobos argues that
the ADA does not apply to commercial websites. And, Bonobos
argues, even if the ADA does apply, the FAC fails to state a live
ADA claim, because that claim seeks only injunctive relief, and
Bonobos contends that, by the time the FAC was filed, it had
remedied its website to cure the access barriers of which the FAC
complains, leaving no unlawful conduct to enjoin.
The Court agrees with Bonobos that whether the ADA applies to a
website such as Bonobos.com is an open question in the Second
Circuit. However, the Court is persuaded by various authorities
including an instructive Second Circuit decision applying the ADA
to insurance services, decisions of district courts in this
Circuit, and the decisions of other circuit courts of appeal
that the ADA applies to commercial websites in general.
The facts alleged and cognizable here make this narrower theory
of ADA liability, based on the nexus between a commercial website
and the merchant's associated place of public accommodation,
available to the visually impaired plaintiff, Del-Orden. It is
undisputed that Bonobos.com is a service of Bonobos. And the FAC
adequately alleges that the website operates in tandem with
Bonobos' brick-and-mortar stores. In particular, the FAC alleges
that Bonobos.com features a store locator, allowing persons who
wish to shop at Bonobos to learn its location, hours of
operation, and phone numbers.
A review of the website confirms there is a direct and
considerable link between Bonobos' website and the company's
physical stores. The website includes a list of those brick-and-
mortar stores what Bonobos refers to as Guideshops and
information about the services available at the Guideshops. It
Starts With Fit. Start Here, https://bonobos.com/guideshop (last
visited Dec. 18, 2017). What is more, on the webpage for each and
every piece of clothing Bonobos.com offers for sale, an icon
labeled try it on provides a link to the Guideshop page, which
offers the customer the opportunity to try in person the piece of
clothing he was considering on the website.
Thus, as Bonobos has structured its business, the website
directly refers Bonobos' customers to its real-world stores.
Bonobos.com is therefore unquestionably a good, service,
facility, or accommodation of a place of public accommodation,
the Bonobos Guideshop stores, such that discriminatory access to
the website for visually impaired customers, at least as alleged,
would result in their lesser access to these stores.
The Court, accordingly, holds that the ADA extends to Bonobos'
website. That is so both because the ADA, on this Court's
construction, applies to private commercial websites as places of
public accommodation and independently because Bonobos.com
operates in tandem with, and as a point of access to, Bonobos'
brick-and-mortar stores.
A full-text copy of the District Court's December 20, 2017
Opinion is available at https://tinyurl.com/y9ozrwl4 from
Leagle.com.
Jose Del-Orden, on behalf of himself and all others similarly
situated, Plaintiff, represented by Anne Melissa Seelig --
anne@leelitigation.com -- Lee Litigation Group, PLLC.
Jose Del-Orden, on behalf of himself and all others similarly
situated, Plaintiff, represented by C.K. Lee --
cklee@leelitigation.com -- Lee Litigation Group, PLLC.
Bonobos, Inc., Defendant, represented by Meredith Rosen
Cavallaro -- mc@pwlawyers.com -- Paduano & Weintraub, L.L.P. &
Michael Friel Fleming -- mff@pwlawyers.com -- Paduano & Weintraub
LLP.
CALIFORNIA HIGHWAY: Court Strikes "Rogers" Class Claims
-------------------------------------------------------
In the case, KIM EDWARD ROGERS, Plaintiff, v. M. RICHARD, CHP
Captain Commander, et al., Defendants, Case No. 2:17-cv-00149-
JAM-GGH (), Judge John A. Mendez of the U.S. District Court for
the Eastern District of California granted with leave to amend
the Respondent's Motion to Dismiss as to the claims pleaded under
42 U.S.C. section 2000e and 28 U.S.C. section 1983; and granted
without leave to amend the Respondent's Motion to dismiss as to
all other claims pleaded.
The Plaintiff is proceeding pro se and in forma pauperis in this
civil rights matter. On Oct. 10, 2017 the Magistrate Judge
issued Findings and Recommendations that the Respondent's Motion
to Dismissed be granted with leave to amend claims pleaded under
42 U.S.C. section 2000e and 28 U.S.C. section 1983 pursuant to
the instructions given in the Magistrate's Order. The parties
were granted 14 days to object. No objections have been filed.
In accordance with the provisions of 28 U.S.C. Section
636(b)(1)(C) and Local Rule 304, Judge Mendez has conducted a de
novo review of the case. Having reviewed the file, and the
Magistrate Judge's findings and recommendations, he adopted the
findings and recommendations.
Accordingly, the Judge granted with leave to amend the
Respondent's Motion to Dismiss as to the claims pleaded under 42
U.S.C. section 2000e and 28 U.S.C. section 1983; and granted
without leave to amend the Respondent's Motion to dismiss as to
all other claims pleaded. The class action allegations of the
Complaint are stricken without leave to replead.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/Zlr3WU from Leagle.com.
Kim Edward Rogers, Plaintiff, Pro Se.
M. Richard, Defendant, represented by Catherine Woodbridge --
catherine.woodbridge@doj.ca.gov -- Attorney General's Office of
the State of California.
Wesley J. Fish, Defendant, represented by Catherine Woodbridge,
Attorney General's Office of the State of California.
Sean D. Kent, Defendant, represented by Catherine Woodbridge,
Attorney General's Office of the State of California.
Justin A. Thompson, Defendant, represented by Catherine
Woodbridge, Attorney General's Office of the State of California.
Jeffrey A. Nichols, Defendant, represented by Catherine
Woodbridge, Attorney General's Office of the State of California.
Phillip A. Williams, Defendant, represented by Catherine
Woodbridge, Attorney General's Office of the State of California.
C. Vasiliou, Defendant, represented by Catherine Woodbridge,
Attorney General's Office of the State of California.
California Highway Patrol, Defendant, represented by Catherine
Woodbridge, Attorney General's Office of the State of California.
CARIBOU COFFEE: Stradtmann Appeals Ruling in "Farnham" Class Suit
-----------------------------------------------------------------
Susan Stradtmann filed an appeal from a court ruling in the
lawsuit entitled Kristie Farnham v. Caribou Coffee Co. Inc., Case
No. 3:16-cv-00295-wmc, in the U.S. District Court for the Western
District of Wisconsin.
As previously reported in the Class Action Reporter, Caribou
Coffee has reached a $8.5 million settlement in a class action
lawsuit claiming it had sent text messages to phone numbers
without prior written consent of the holders of those phone
numbers.
The Brooklyn Center-based coffee shop chain denied the
allegations, but agreed to discontinue its text marketing
programs.
The lawsuit claims the messages were sent between May 5, 2012,
and July 28, 2017.
The $8.5 million will be used to make cash payments to those who
submit valid claims and attorneys' fees.
The appellate case is captioned as Susan Stradtmann, et al. v.
Caribou Coffee Company, Case No. 18-1067, in the U.S. Court of
Appeals for the Seventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript information sheet was due January 24, 2018;
and
-- Appellant's brief is due on or before February 20, 2018,
for Susan Stradtmann.[BN]
Plaintiff-Appellee KRISTIE FARNHAM, individually and on behalf of
all others similarly situated, is represented by:
Frank Hedin, Esq.
CAREY RODRIGUEZ MILIAN GONYA, LLP
1395 Brickell Avenue
Miami, FL 33131
Telephone: (305) 372-7474
E-mail: fhedin@careyrodriguez.com
Appellant SUSAN STRADTMANN is represented by:
Thomas A. Ogorchock, Esq.
MILLER, SIMON & MAIER
788 N. Jefferson Street
Milwaukee, WI 53202-0000
Telephone: (414) 935-4991
Defendant-Appellee CARIBOU COFFEE COMPANY is represented by:
Erin L. Hoffman, Esq.
FAEGRE BAKER DANIELS LLP
90 S. Seventh Street
2200 Wells Fargo Center
Minneapolis, MN 55402-3901
Telephone: (612) 766-8043
E-mail: erin.hoffman@FaegreBD.com
CENTRAIS ELETRICAS: Hogan Lovells to Resolve Class Action Suits
---------------------------------------------------------------
Luciano Costa, writing for Reuters, reports that Brazilian state-
owned power holding Centrais Eletricas Brasileiras SA has hired
law firm Hogan Lovells to "resolve class action lawsuits" in the
U.S., according to a note published on January 5 on the official
government gazette.
The law firm has been hired before by Eletrobras, as the company
is known, to investigate alleged acts of corruption involving the
company. Eletrobras is one of the state-owned companies ensnared
in Brazil's widest-ever corruption probe, known as "Operation Car
Wash." [GN]
CHESAPEAKE OPERATING: Nichols Appeals Ruling to Tenth Circuit
-------------------------------------------------------------
Plaintiff Bill G. Nichols filed an appeal from a court ruling in
the lawsuit entitled Nichols v. Chesapeake Operating LLC, et al.,
Case No. 5:16-CV-01073-M, in the U.S. District Court for the
Western District of Oklahoma - Oklahoma City.
The appellate case is captioned as Nichols v. Chesapeake
Operating LLC, et al., Case No. 18-6006, in the United States
Court of Appeals for the Tenth Circuit.
As previously reported in the Class Action Reporter, the
Plaintiff has filed an appeal in the lawsuit. That appellate
case is styled as Nichols v. Chesapeake Operating LLC, et al.,
Case No. 17-608.
The Plaintiff filed the class action for alleged breach of lease,
breach of fiduciary duty, fraud, deceit and constructive trust
against the Defendants in the District Court of Beaver County,
Oklahoma, on August 9, 2016. On Sept. 15, 2016, the Defendants
removed the action to the District Court.
In the Class Action Petition, the Plaintiff defines the proposed
class described as all persons who are (a) an Oklahoma Resident;
and, (b) a royalty owner in Oklahoma wells where the Defendant is
or was the operator (or a working interest owner who marketed its
share of gas and directly paid royalties to the royalty owners)
from Jan. 1, 2015 to the date Class Notice is given. The Class
claims relate to royalty payments for gas and its constituents
(such as residue gas, natural gas liquids, helium, nitrogen, or
drip condensate).
The briefing schedule in the Appellate Case is set as follows:
-- Appellant's brief and appendix were due January 23, 2018,
for Bill G. Nichols;
-- Appellees' brief is due on February 6, 2018, for Chesapeake
Exploration LLC and Chesapeake Operating LLC; and
-- Appellant's optional reply brief is due on February 13,
2018, for Bill G. Nichols.[BN]
Plaintiff-Appellant BILL G. NICHOLS, on behalf of himself and all
others similarly situated, is represented by:
Barbara Frankland, Esq.
Rex Sharp, Esq.
REX A. SHARP PA
5301 West 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0500
Facsimile: (913) 901-0419
E-mail: bfrankland@midwest-law.com
rsharp@midwest-law.com
- and -
Michael E. Grant, Esq.
GRANT LAW FIRM
512 NW 12th Street
Oklahoma City, OK 73103
Telephone: (405) 232-6357
Facsimile: (405) 235-3425
E-mail: de1471@coxinet.net
Defendants-Appellees CHESAPEAKE OPERATING LLC and CHESAPEAKE
EXPLORATION LLC are represented by:
Timothy J. Bomhoff, Esq.
Laura J. Long, Esq.
Patrick L. Stein, Esq.
MCAFEE & TAFT
211 North Robinson Avenue, 10th Floor
Oklahoma City, OK 73102
Telephone: (405) 235-9621
E-mail: Tim.Bomhoff@mcafeetaft.com
laura.long@mcafeetaft.com
patrick.stein@mcafeetaft.com
COLES COUNTY, IL: Seventh Circuit Appeal Filed in "Perry" Suit
--------------------------------------------------------------
Plaintiffs James R. Dukeman and Robbie J. Perry filed an appeal
from a court ruling in the lawsuit styled Robbie Perry, et al. v.
Coles County, Illinois, Case No. 2:17-cv-02133-CSB, in the U.S.
District Court for the Central District of Illinois.
As previously reported in the Class Action Reporter, the
Plaintiffs, on behalf of themselves and others similarly situated
as Mattoon Township (Coles County, Illinois) commercial and
industrial property owners, was filed in the District Court on
June 9, 2017, alleging violations of the Civil Rights Act.
The appellate case is captioned as Robbie Perry, et al. v. Coles
County, Illinois, Case No. 17-3615, in the U.S. Court of Appeals
for the Seventh Circuit.
The briefing schedule in the Appellate Case states that
Appellant's brief is due on or before January 31, 2018, for James
R. Dukeman and Robbie J. Perry.[BN]
Plaintiffs-Appellants ROBBIE J. PERRY and JAMES R. DUKEMAN, on
behalf of themselves and others similarly situated as Mattoon
Township (Coles County, Illinois) commercial and industrial
property owners, are represented by:
Erick G. Kaardal, Esq.
MOHRMAN, KAARDAL & ERICKSON, P.A.
150 S. Fifth Street
Minneapolis, MN 55402
Telephone: (612) 465-0927
Facsimile: (612) 341-1076
E-mail: kaardal@mklaw.com
Defendant-Appellee COLES COUNTY, ILLINOIS, is represented by:
Keith E. Fruehling, Esq.
HEYL, ROYSTER, VOELKER & ALLEN
301 N. Neil Street
P.O. Box 1190
Champaign, IL 61824
Telephone: (217) 344-0060
E-mail: kfruehling@heylroyster.com
COLORADO, USA: Apodaca's Time to File Writ Extended to March 9
--------------------------------------------------------------
Jonathan Apodaca, et al., Plaintiffs-Petitioners in the lawsuit
styled Jonathan Apodaca, et al. v. Rick Raemisch, et al., Case
No. 17A651, in the Supreme Court of United States, sought and
obtained from Justice Sonia Sotomayor an extension of the time to
file a petition for a writ of certiorari from January 8, 2018, to
March 9, 2018.
The lower court case is titled JONATHAN APODACA; JOSHUA VIGIL, on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellees v. RICK RAEMISCH, Executive Director,
Colorado Department of Corrections, in his individual capacity;
TRAVIS TRANI, Warden, Colorado State Penitentiary, in his
individual capacity, Defendants-Appellants, Case No. 15-1454, in
the United States Court of Appeals for the Tenth Circuit.
The Tenth Circuit appeal is from the denial of the Defendants'
motion to dismiss the case entered by the U.S. District Court for
the District of Colorado (Case No. 1:15-CV-00845-REB-MJW).
"We conclude that the warden and director did not violate a
clearly established constitutional right. Thus, the district
court erred in denying the motion to dismiss," Circuit Judges
Timothy Tymkovich, Robert E. Bacharach, Nancy Moritz stated.
"Reversed and remanded with instructions to grant the motion to
dismiss the personal-capacity claims based on qualified
immunity."
The lawsuit arose from two inmates kept in administrative
segregation at a Colorado prison for roughly eleven months.
During that time, the inmates were allegedly prohibited from
exercising outdoors, although they were brought to a "recreation
room" five times each week. The alleged prohibition on outdoor
exercise led the two inmates to sue the prison warden and the
director of the Colorado Department of Corrections, invoking 42
U.S.C. Section 1983 and claiming violation of the Eighth
Amendment. For these claims, the inmates relied largely on a
published opinion in our court, Perkins v. Kansas Department of
Corrections, 165 F.3d 803 (10th Cir. 1999).
The warden and director moved to dismiss, arguing that (1) the
alleged prohibition on outdoor exercise did not violate the
Eighth Amendment and (2) qualified immunity applies. For these
arguments, the warden and director distinguish Perkins, relying
largely on an unpublished opinion in appellate court, Ajaj v.
United States, 293 F. App'x 575 (10th Cir. 2008).
The District Court denied the motion to dismiss, reasoning that
the two inmates had stated a plausible claim for relief. Because
the warden and director enjoy qualified immunity, the Tenth
Circuit reverses the order. The Circuit Judges conclude that
even if the alleged prohibition on outdoor exercise had violated
the Eighth Amendment, the underlying constitutional right would
not have been clearly established.[BN]
Plaintiffs-Petitioners Jonathan Apodaca, et al., are represented
by:
Daniel M. Greenfield, Esq.
MACARTHUR JUSTICE CENTER
NORTHWESTERN PRITZKER SCHOOL OF LAW
375 E. Chicago Ave.
Chicago, IL 60611-3069
Telephone: (312) 503-3100
E-mail: daniel-greenfield@law.northwestern.edu
- and -
Elisabeth L. Owen, Esq.
PRISONERS' JUSTICE LEAGUE OF COLORADO LLC
150 E. 10th Avenue
Denver, CO 80203
Telephone: (720) 287-5836
E-mail: lisi@pjlcolorado.com
The Defendants-Respondents are represented by:
Cynthia H. Coffman, Esq., Attorney General
Chris W. Alber, Esq., Senior Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
COLORADO DEPARTMENT OF LAW
Ralph L. Carr Judicial Building
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: (720) 508-6000
Facsimile: (720) 508-6030
E-mail: cynthia.coffman@coag.gov
chris.alber@coag.gov
COMMUNITY EDUCATION: Court Enters Judgment in "Giles" Class Suit
----------------------------------------------------------------
Judge Dolly M. Gee of the U.S. District Court for the Central
District of California entered judgment in the case, AARON GILES,
individually and on behalf of all other persons similarly
situated, and on behalf of the general public, Plaintiff, v.
COMMUNITY EDUCATION CENTERS, INC., a Delaware corporation; and
DOES 1 through 30, inclusive, Defendant, Case No. CV 16-4863-DMG
(KSx) (C.D. Cal.).
The Court has granted final approval of the Joint Stipulation of
Class Action Settlement between the Parties as set forth in the
Court's Order Granting Plaintiffs' Unopposed Motion For Final
Approval Of Class Action Settlement. Accordingly, Judge Gee
entered the Judgment in the matter in accordance with the Court's
Final Approval Order and the Parties' Joint Stipulation of Class
Action Settlement.
A full-text copy of the Court's Dec. 19, 2017 Judgment is
available at https://is.gd/Nbvn7M from Leagle.com.
Aaron Giles, individually and on behalf of all other persons
similarly situated, and on behalf of the general public,
Plaintiff, represented by Brittanee Marksbury, Berenji Law Firm
APC.
Aaron Giles, individually and on behalf of all other persons
similarly situated, and on behalf of the general public,
Plaintiff, represented by Oscar Andres Bustos --
bustos@employeejustice.law -- Berenji Law Firm APC & Shadie Latae
Berenji -- berenji@employeejustice.law -- Berenji Law Firm APC.
Paul Jimenez, individually and on behalf of all other persons
similarly situated, and on behalf of the general public,
Plaintiff, represented by Brittanee Marksbury, Berenji Law Firm
APC, Oscar Andres Bustos, Berenji Law Firm APC & Shadie Latae
Berenji, Berenji Law Firm APC.
Community Education Centers, Inc., Defendant, represented by
David Steven Maoz -- dmaoz@littler.com -- Littler Mendelson APC,
George Saul Benjamin -- gbenjamin@littler.com -- Littler
Mendelson PC & Hovannes G. Nalbandyan -- hnalbandyan@littler.com
-- Littler Mendelson PC.
CRST INT'L: Final Judgment on "Gatdula" Remaining Claims Entered
----------------------------------------------------------------
In the case, ROBERT GATDULA and DEAN RAMIREZ, individually and on
behalf of all others similarly situated, Plaintiffs, v. CRST
INTERNATIONAL, INC., CRST, INC., and CRST VAN EXPEDITED, INC.,
and DOES 1 through 10, Defendants, Case No. 2:11-cv-01285-VAP-OPx
(C.D. Cal.), Judge Virginia A. Phillips of the U.S. District
Court for the Central District of California granted the parties'
Joint Stipulation for Entry of Final Judgment on Remaining
Claims.
With respect to the class action claims asserted against the
Defendant on behalf of the certified Per Diem Class and the
certified Restitution Class, which were resolved in favor of the
Defendant as set forth in the Court's order on March 3, 2017
granting the Defendant's motion for summary judgment, Judge
Phillips entered the judgment in favor of the Defendant and
against the Per Diem Class and the Restitution Class. She
directed the counsel for the Class to promptly give notice of the
Final Judgment on the Per Diem Claims to all members of the
Class.
With respect to the individual claims of the Plaintiffs under the
Fair Labor Standards Act, which were dismissed with prejudice
pursuant to the parties' settlement agreement, the Judge entered
the judgment in favor of the Defendant and against the Plaintiffs
in accordance with the terms of their settlement agreement and
the Court's order approving that settlement on Dec. 7, 2017.
The Clerk of the Court is directed to enter the Judgment pursuant
to Fed. R. Civ. P. 54(b).
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/T4o4n0 from Leagle.com.
Robert Gatdula, Plaintiff, represented by Alexander Isaac Dychter
-- Alex@DychterLaw.com -- Dychter Law Offices APC.
Robert Gatdula, Plaintiff, represented by Dennis Frank Moss --
mdennis@dennismosslaw.com -- Dennis Moss Law Offices, Gregory N.
Karasik -- greg@karasiklawfirm.com -- Karasik Law Firm & Ira
Spiro -- ira@spirolawcorp.com -- Spiro Law Corp.
Dean Ramirez, Plaintiff, represented by Alexander Isaac Dychter,
Dychter Law Offices APC & Gregory N. Karasik, Karasik Law Firm.
CRST International, Inc., Defendant, represented by Christopher
J. Eckhart -- ceckhart@scopelitis.com -- Scopelitis Garvin Light
Hanson and Feary PC, pro hac vice, Adam C. Smedstad --
asmedstad@scopelitis.com -- Scopelitis Garvin Light Hanson and
Feary PC, pro hac vice, Christopher Chad McNatt, Jr. --
cmcnatt@scopelitis.com -- Scopelitis Garvin Light Hanson and
Feary LLP, James H. Hanson -- JHANSON@SCOPELITIS.COM --
Scopelitis Garvin Light Hanson and Feary PC, pro hac vice & R.
Jay Taylor, Jr. -- jtaylor@scopelitis.com -- Scopelitis Garvin
Light Hanson and Feary PC, pro hac vice.
CRST, Inc., Defendant, represented by Christopher J. Eckhart,
Scopelitis Garvin Light Hanson and Feary PC, pro hac vice.
CRST Van Expedited, Inc., Defendant, represented by Adam C.
Smedstad, Scopelitis Garvin Light Hanson and Feary PC, pro hac
vice, Christopher J. Eckhart, Scopelitis Garvin Light Hanson and
Feary PC, pro hac vice, Christopher Chad McNatt, Jr., Scopelitis
Garvin Light Hanson and Feary LLP, James H. Hanson, Scopelitis
Garvin Light Hanson and Feary PC, pro hac vice & R. Jay Taylor,
Jr., Scopelitis Garvin Light Hanson and Feary PC, pro hac vice.
CRYPTO COMPANY: Bronstein, Gewirtz Files Securities Class Action
----------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, notified investors that a
class action lawsuit has been filed against The Crypto Company
("Crypto" or the "Company") (OTCMKTS: CRCW) and certain of its
officers, on behalf of shareholders who purchased Crypto
securities between August 21, 2017, and December 18, 2017, both
dates inclusive ("Class Period"). Such investors are encouraged
to join this case by visiting the firm's site:
http://www.bgandg.com/crcw.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that, throughout the Class Period,
Defendants made materially false and misleading statements and/or
failed to disclose that: (1) Crypto unlawfully engaged in a
scheme to promote and manipulate the Company's stock; and (2) as
a result, Crypto's public statements were materially false and
misleading at all relevant times.
On December 19, 2017, the SEC temporarily suspended Crypto stock
from trading due to concerns that the stock was being manipulated
after the shares surged more than 17,000% in less than 3 months.
The SEC said it was alarmed about "the accuracy and adequacy of
information" relating to the compensation paid for promotion of
its and statements in SEC filings about the plans of the
Company's insiders to sell their stock. Crypto stock was trading
at $575 per share at the time trading was suspended and the
suspension will remain in effect until January 3, 2018.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
http://www.bgandg.com/crcwor you may contact Peretz Bronstein,
Esq. or his Investor Relations Analyst, Yael Hurwitz of
Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you
suffered a loss in Liberty Tax you have until February 20, 2018
to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve
as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. [GN]
DANELL CUSTOM: "Rodriguez" Settlement Hearing Moved
---------------------------------------------------
In the case, FRANCISCO RODRIGUEZ, et al., Plaintiffs, v. DANELL
CUSTOM HARVESTING, LLC, et al., Defendants, Case No. 1:16-cv-
01848-SAB (E.D. Cal.), Judge Stanley A. Boone of the U.S.
District Court for the Eastern District of California continued
the hearing on the Plaintiffs' motion for preliminary approval of
the class action settlement to Jan. 17, 2018, at 10:00 a.m.
Plaintiffs Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan
Manuel Bravo, Estela Patino, Jose F. Orozco, and Antonio Ortiz,
on behalf of themselves and other members of the public similar
situated, filed the action on Dec. 7, 2016, against Defendants
Danell Custom, Rance Danell, Eric Danell, David Danell, and
Justin Danell, alleging wage and hour claims in violation of
federal and state law. They bring claims under the Fair Labor
Standards Act ("FLSA") and the California's Private Attorneys
Generals Act ("PAGA").
Currently before the Court is the Plaintiffs' motion for
preliminary approval of the class action settlement. The Court
heard oral arguments on Dec. 13, 2017.
Judge Boone finds that the parties did not follow the two-step
approach which would have provided initial notice of the FLSA
action to the prospective Plaintiffs and allowed them an
opportunity to opt in. Due to the hybrid nature of the action,
he recognizes the possibility of confusion by the potential class
members. However, he also considers that the proposed class
contains 445 members and the Plaintiffs have had a significant
number, 118 employees, consent in writing to opt-in to the
collective action prior to notice of the FLSA action being sent
to the class. He required the parties to demonstrate that the
notice provided is sufficient to inform the class of the FLSA
opt-in requirements, the Rule 23 opt-out procedures, and the
consequences that will result from the various choices made by
the potential class member.
The Judge also finds it unclear whether the settlement
administrator will make any attempt to verify addresses prior to
the initial mailing of the notice. He directed that the parties
to clarify whether the notices will be mailed to the address
provided by Defendants or if the claims administrator will
attempt to obtain current addresses prior to the initial mailing.
In addition, the Judge says in bringing a representative action
under PAGA, the aggrieved employee is acting as the proxy or
agent of the state's labor law enforcement agencies. Any
settlement of PAGA claims must be approved by the Court. The
proposed settlement must also be sent to the agency at the same
time that it is submitted to the court. He directed the parties
to address whether the proposed settlement was sent to the
agency.
Finally, the Judge finds that Enrique Martinez and John Hill seek
to be appointed as class counsel. In the motion, Mr. Martinez
discusses the qualification of the firm, which is the Law Offices
of John Hill, and his own qualifications. However, the Judge
finds that Mr. Martinez has not addressed whether he has any
conflict of interest in the matter. Further, the motion is
devoid of any information regarding John Hill himself and his
experience or qualifications to act as class counsel. If the
Plaintiffs seek to have Mr. Hill appointed as the counsel, the
Judge requires some evidence to address his qualifications to be
appointed in the matter.
For these reasons, Judge Boone continued the hearing on the
Plaintiffs' motion for preliminary approval of the class action
settlement to Jan. 17, 2018, at 10:00 a.m. to allow the parties
to file supplemental briefing to address the concerns identified.
He directed the Plaintiff to submit supplemental briefing by Jan.
10, 2018.
A full-text copy of the Court's Dec. 13, 2017 Order is available
at https://is.gd/0pFkHs from Leagle.com.
Francisco Rodriguez, Plaintiff, represented by Enrique Martinez,
Law Offices of John E. Hill.
Jesus Hernandez Infante, Plaintiff, represented by Enrique
Martinez, Law Offices of John E. Hill.
Marco Garcia, Plaintiff, represented by Enrique Martinez, Law
Offices of John E. Hill.
Juan Manuel Bravo, Plaintiff, represented by Enrique Martinez,
Law Offices of John E. Hill.
Estela Patino, Plaintiff, represented by Enrique Martinez, Law
Offices of John E. Hill.
Jose F. Orozco, Plaintiff, represented by Enrique Martinez, Law
Offices of John E. Hill.
Antonio Ortiz, Plaintiff, represented by Enrique Martinez, Law
Offices of John E. Hill.
Danell Custom Harvesting, LLC, a California Company, Defendant,
represented by Howard A. Sagaser -- has@sw2law.com -- Sagaser,
Watkins & Wieland, PC, Ian Blade Wieland -- ian@sw2law.com --
Sagaser, Watkins & Wieland, PC & William M. Woolman --
bill@sw2law.com -- Sagaser, Watkins & Wieland PC.
Rance Danell, Defendant, represented by Howard A. Sagaser,
Sagaser, Watkins & Wieland, PC, Ian Blade Wieland, Sagaser,
Watkins & Wieland, PC & William M. Woolman, Sagaser, Watkins &
Wieland PC.
Eric Danell, Defendant, represented by Howard A. Sagaser,
Sagaser, Watkins & Wieland, PC, Ian Blade Wieland, Sagaser,
Watkins & Wieland, PC & William M. Woolman, Sagaser, Watkins &
Wieland PC.
David Danell, Defendant, represented by Howard A. Sagaser,
Sagaser, Watkins & Wieland, PC, Ian Blade Wieland, Sagaser,
Watkins & Wieland, PC & William M. Woolman, Sagaser, Watkins &
Wieland PC.
Justin Danell, Defendant, represented by Howard A. Sagaser,
Sagaser, Watkins & Wieland, PC, Ian Blade Wieland, Sagaser,
Watkins & Wieland, PC & William M. Woolman, Sagaser, Watkins &
Wieland PC.
DOWNTOWN RESTAURANT: "Reinoso" Wage-and-Hour Suit Underway
----------------------------------------------------------
Defendants 42nd Street Lessee, LLC, Ignacio Cipriani, Maggio
Cipriani, Cipriani, USA, Federico Contu, Downtown Restaurant
Company LLC, Anabel Espinal, GC Alpha LLC, GC Ballroom Operator,
LLC have filed their answer to the complaint in the case titled,
Jose Reinoso, on behalf of himself and others similarly situated,
the Plaintiff, v. Downtown Restaurant Company, LLC d/b/a Cipriani
Downtown; GC Alpha, LLC, d/b/a Cipriani Dolci; 42nd Street
Lessee, LLC d/b/a Cipriani; GC Ballroom Operator, LLC d/b/a
Cirpriani Club 55; Cipriani USA, Inc.; Ignazio Cipriani; Maggio
Cipriani; Federico Contu and Anabel Espinal, the Defendants, Case
No. 1:17-cv-08509-VSB, (S.D.N.Y., November 3, 2017).
The Defendants filed their answer on Dec. 4.
Plaintiff's complaint states that he was paid an hourly rate that
is lower than the federal minimum wage until January 2016 and
lower than the New York State minimum wage for his entire
employment. The Defendants inappropriately availed themselves of
the tip credits and as a result the Defendants paid the Plaintiff
the wrong rate for overtime when Plaintiff worked more than 40
hours in a week. Further, Plaintiff's weekly pay stubs failed to
set forth accurately the tip credit being applied to Plaintiff's
wage. Also, the Plaintiff states that he was an excellent
employee who was never reprimanded throughout his 21 years of
employment with Defendants except when the Defendant Federico
Contu became the manager. Mr. Contu is an Italian and favored
Italian service employees over Hispanic ones since he began
working in that position. Thus, Plaintiff for himself and all
other similarly situated employees of the Defendants seeks
damages based on Defendant's unlawful conduct and as a result has
suffered and continues to suffer to emotional distress, physical
pain and suffering, substantial monetary damages including loss
of income.[BN]
Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
Lucas Buzzard, Esq.
JOSEPH KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Telephone: (212) 688-5640
Facsimile: (212) 688-2548 (fax)
DRILL CUTTINGS: "Tauzin" Wage-and-Hour Suit Gets New Judge
----------------------------------------------------------
The case titled, Austin Tauzin and John Baker, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
Drill Cuttings Disposal Company, L.L.C., the Defendant, Case No.
7:17-cv-00217-RAJ, (W.D. Tex., November 3, 2017), has been
reassigned to Judge David Counts for all proceedings.
Judge Robert A. Junell is no longer assigned to case.
The Order was signed by Chief Judge Orlando L. Garcia on Jan. 18.
The complaint states that the Plaintiffs were employed by
Defendant as solids control operators. Plaintiffs and the other
SCO workers regularly work(ed) in excess of 40 hours per seven
day-week as employees of Defendant. However, Defendant did
not/does not pay Plaintiffs and those other SCO workers overtime
premium compensation at time and one-half their respective
regular rates of pay for all hours worked over 40 per workweek,
in violation of the overtime wage requirements of the Fair Labor
Standards Act.
Drill Cuttings Disposal Company is a company that provides drill
cuttings disposal services to the oil and gas industry.[BN]
Plaintiffs are represented by:
Allen R. Vaught, Esq.
BARON & BUDD, P.C.
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Telephone: (214) 521-3605
Facsimile: (214) 520-1181
Email: avaught@baronbudd.com
ECLINICALWORKS LLC: Suit Says Software Failed to Meet Standards
---------------------------------------------------------------
Heather Landi, writing for Healthcare Informatics, reports that
Electronic health records (EHR) vendor eClinicalWorks now faces a
second class action lawsuit in a little over a month as continued
fallout from allegations that the company's software does not
meet Meaningful Use requirements.
One month after a class action lawsuit was filed in New York
alleging that electronic health records vendor eClinicalWorks
failed "millions of patients by failing to maintain the integrity
of patients' records," the EHR vendor is facing another class
action lawsuit filed by two physician practices.
The latest lawsuit adds to the legal problems faced by the
company since last June when eClinicalWorks agreed to pay $155
million to resolve a False Claims Act lawsuit and settle
allegations that it violated federal law by misrepresenting the
capabilities of its software. In the False Claims Act lawsuit,
the U.S. Department of Justice also alleged that eClinicalWorks
paid kickbacks to certain customers in exchange for promoting its
product.
The Justice Department charged that the Westborough, Mass.-based
EHR vendor "falsely obtained that certification for its EHR
software when it concealed from its certifying entity that its
software did not comply with the requirements for certification."
And, the DOJ alleged in its compliant that, as a result of the
deficiencies in eClinicalWorks' software, providers using
eClinicalWorks' software submitted false claims for federal
incentive payments.
In the lawsuit filed in November, Kristina Tot, as an
administrator of the estate of Stjepan Tot, alleges that the
class action was brought against eClinicalWorks for its "breach
of fiduciary duty and gross negligence in failing to provide,
secure and safeguard accurate and reliable health information of
patients throughout the United States and for falsely
representing that its software complied with requirements for
payment of incentives under the Meaningful Use program."
In the second lawsuit, primary care physicians in two different
states assert that eClinicalWorks software and services do not
achieve Meaningful Use standards, as guaranteed by the vendor.
Carrollton Family Clinic in Mississippi and Perrin Curran, M.D.,
who practices at Primary Health Partners in Southern California,
contend in their class action suit that the deficiencies in
eClinicalWorks' software cost them government reimbursement. The
lawsuit was filed in the U.S. District Court of Massachusetts.
"[eClinicalWorks]'s software failed to live up to
[eClinicalWorks]'s promises and guarantees, and its statements
about its software's current compliance with the certification
criteria of the Meaningful Use program were outright false," the
complaint states.
eClinicalWorks spokesman Bhakti Shah said in an emailed
statement, "We have reviewed the Complaint and believe that the
allegations are wholly without merit. eClinicalWorks' software
has been continuously certified for use in connection with the
Meaningful Use program since the program was created, and tens of
thousands of eClinicalWorks users have demonstrated meaningful
use and successfully attested and received incentives.
eClinicalWorks plans to vigorously defend itself against these
allegations.
In the suit, Carrollton Family Clinic says in deciding to use
eClinicalWorks' software, the practice relied on the company's
receipt of certifications from accredited certification bodies as
an assurance that its software satisfied the certification
criteria of the Meaningful Use program. "ECW gave Carrollton
Family Clinic no reason to suspect that ECW had made false
statements to obtain its certifications," the suit stated.
Further, the suit alleges, "Had Carrollton Family Practice known
that ECW's software did not in fact satisfy the requirements of
the Meaningful Use program, it would not have contracted with ECW
and would not have made payments to ECW under the contract." And
the suit alleges that the practices suffered from the defects.
"In 2017, CFC planned to apply for a Meaningful Use incentive
payment based on its use of ECW, but was informed by a
representative of the Mississippi Division of Medicaid that ECW
would not enable her to attest to the meaningful use of certified
EHR software because ECW did not perform formulary checks itself
and required CFC to go through a separate process to verify those
checks.
Both practices allege that eClinicalWorks provided written
guidance on the steps to take to successfully attest for a
Meaningful Use incentive payment using the vendor's software, and
that the practices relied on this written guidance.
In the suit, Curran alleges that in February 2012, he and his
partners in Primary Health Partners submitted an attestation of
Meaningful Use based on their vision of eClinicalWorks software
and the practice received an $18,000 incentive payment. According
to the suit, in the fall of 2015, Curran's 2011 attestation for a
Meaningful Use incentive payment was audited by the government.
"When Dr. Curran attempted to generate an audit log to verify
certain information in his 2011 attestation, ECW's software would
not generate an audit log. As a result of the software's failure
to generate an audit log, Dr. Curran failed his audit and the
government required him to return $18,000," the suit states. [GN]
EL PASO COUNTY, TX: Court Won't Dismiss Suit Over Jury Summons
--------------------------------------------------------------
In the case captioned JOSHUA LUTTRELL, ANDREW DAVIS, MOISES
ROMAN, JOE RODRIGUEZ; AND ON BEHALF OF ALL OTHER PERSONS
SIMILARLY SITUATED, Appellants, v. EL PASO COUNTY, Appellee, No.
08-16-00090-CV (Tex. App.), Appellants are four residents of El
Paso who were found in contempt by Senior Judge Jerry Woodard for
failing to obey a jury summons. Appellants filed a lawsuit on
behalf of themselves and other similarly situated persons, naming
Judge Woodard and El Paso County, requesting a declaration that
their contempt judgments were void for lack of jurisdiction, and
that Judge Woodard imposed court costs and fees in an "illegal"
manner in their cases. In addition, Appellants sought a
permanent injunction restraining and enjoining the defendants
from charging illegal costs and fees in the future, a refund of
all court costs, fines and fees already paid by Appellants.
Because the trial court ultimately dismissed Judge Woodard from
the case, with Appellants' consent, based on the doctrine of
judicial immunity, this left the County as the sole defendant in
the case. The County filed a Plea to the Jurisdiction also
seeking dismissal from Appellants' lawsuit, primarily arguing
that it had governmental immunity from suit. In response,
Appellants amended their Petition, adding an ultra vires claim
against the County, as well as a claim for an illegal "taking"
under the Texas Constitution. Appellants contend that the trial
court erred in granting the County's Plea, arguing that they
raised valid causes of action in their Petition for which the
County's immunity was waived, or in the alternative, that the
trial court erred by not giving them an opportunity to amend
their Petition to correct any jurisdictional defects in their
pleadings, and demonstrate that the trial court had subject
matter jurisdiction over one or more of their claims.
The Court of Appeals of Texas, Eighth District, El Paso, finds
that the petition as it currently stands does not state a valid
cause of action for which the County's immunity was waived;
however, the Tex. App. agrees with Appellants that they should be
given the opportunity to amend their petition to attempt to state
a valid cause of action over which the trial court would have
jurisdiction, and the Tex. App. therefore reverses the trial
court's judgment and remand for that purpose.
The Tex. App. does caution Appellants, however, that any
amendment to their pleadings must focus on the liability of the
County as the only remaining party in the proceeding, with the
recognition that Judge Woodard is no longer a party to the
proceedings, and expressly explain what actions the County took
that would render them liable to Appellants.
A full-text copy of the Tex. App.'s December 20, 2017 Opinion is
available at https://tinyurl.com/y94tqybn from Leagle.com.
James D. Lucas,, 2316 Montana Ave., El Paso, TX 79903, Mark T.
Davis 1554 Lomaland Dr, El Paso, TX 79935, USA, for Joshua
Luttrell, Andrew Davis, Moises Roman, Joe Rodriguez; and on
behalf of all other persons similarly situated, Appellant.
Jo Anne Bernal, 500 E. San Antonio, 5th Floor, Suite 503, El
Paso, Texas 79901, Kevin McCary, 500 E San Antonio Ave Rm 503. El
Paso, TX 79901-2434, for El Paso County, et al., Appellee.
EQUIFAX INC: Suit by Tosco and Ashley Going to Mediation
--------------------------------------------------------
The case titled, Chris Tosco and Mark Ashley, individually and on
behalf of all others similarly situated, the Plaintiff, v.
Equifax Inc., the Defendant, Case No. :17-cv-24136-MGC, (S.D.
Fl., November 9, 2017), has been referred to mediation.
Judge Marcia G. Cooke entered an order dated Dec. 11 referring
the case to mediation. The mediation deadline is March 7, 2018.
Judge Cooke also entered a separate order dated Dec. 11 setting
civil trial date and pretrial deadlines. The Court set this
timeline:
-- Jury Trial set for May 14, 2018 9:30 AM in Miami Division
before Judge Cooke.
-- Calendar Call set for May 9, 2018 3:00 PM in Miami
Division before Judge Cooke.
-- Amended Pleadings due by January 8, 2018.
-- Expert Discovery due by March 21, 2018.
-- Fact Discovery due by Feb. 7, 2018.
-- Joinder of Parties due by Jan. 8, 2018.
-- Final proposed jury instructions and verdict form
deadline April 23, 2018.
-- Mediation Deadline March 7, 2018.
-- In Limine Motions due by April 9, 2018.
-- Dispositive Motions due by Feb. 21, 2018.
-- Daubert Motions due by March 21, 2018.
-- Pretrial Stipulation due by April 9, 2018.
The lawsuit seeks damages with attorneys' fees, costs and
expenses for Defendant's failure to ensure consumers' sensitive
information from data breach.
Equifax is a credit reporting agency that collects and holds a
massive amount of sensitive personal information about tens of
millions of individuals, often without the individuals' knowledge
or consent.
On September 7, 2017, Equifax disclosed to the general public
that its computer systems had been hacked and stated that
criminals exploited a U.S. website application vulnerability to
gain access to certain files. The data breach impacted nearly
half the country's population. Hence, the Plaintiffs individually
and on behalf of other similarly situated consumers brings the
class action against Equifax. As a result of Equifax's inadequate
data security, criminals now possess the personal and financial
information of the Plaintiffs and tens of millions of other
Americans. Plaintiffs allege against Equifax negligence,
violation of Florida Deceptive and Unfair Trade Practices Act,
violation of California Unfair Competition Law, violation of the
California Data Breach Act, willful violation of the Fair Credit
Reporting Act and negligent violation of the Fair Credit
Reporting Act.[BN]
Plaintiffs are represented by;
David M. Buckner, Esq.
Seth Miles, Esq.
Brett E. von Borke, Esq.
Guy Kamealoha Noa, Esq.
BUCKNER + MILES
3350 Mary Street
Miami, FL 33133
Telephone: (305) 964-8003
Facsimile: (786) 523-0485
Email: david@bucknermiles.com
Email: seth@bucknermiles.com
Email: vonborke@bucknermiles.com
E-mail: noa@bucknermiles.com
FORSTER & GARBUS: Court Certifies Class in "Winslow"
----------------------------------------------------
In the case, BARBARA WINSLOW, on behalf of herself and all others
similarly situated, Plaintiff, v. FORSTER & GARBUS, LLP, RONALD
FORSTER, Esq. and MARK GARBUS, Esq., Defendants, Case No. CV 15-
2996 (AYS) (E.D. N.Y.), Magistrate Judge Anne Y. Shields of the
U.S. District Court for the Estern District of New York (i)
denied the Defendants' motion for summary judgment, and (ii)
granted the Plaintiff's motion for class certification under
Rules 23(b)(2) and (3).
The Plaintiff filed the lawsuit on May 22, 2015 pursuant to the
Fair Debt Collection Practices Act, 15 U.S.C.1692 et seq.
("FDCPA") and Section 349 of the New York State General Business
Law ("Section 349"). On July 8, 2015, the Defendants filed their
answer.
On Aug. 6, 2015, the Court held an initial conference, at which
time a discovery schedule was entered. It also directed the
parties to file a joint status letter. On Oct. 26, 2015 the
joint status report was filed, and the next day the Court
scheduled a status conference for Nov. 16, 2015.
During the status conference, the counsel were directed to
produce specific documents, and to further submit a joint status
letter to the Court. On June 22, 2016, after receiving status
letters from counsel, the Court held a telephone conference.
During that conference, the Plaintiff was directed to conduct
depositions pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure depositions, and the Defendants were directed to
produce witnesses with knowledge of documents, the Defendants'
financial net worth, and the relationship between certain
Defendant entities. The Counsel were further directed to submit
a joint status letter.
On Oct. 5, 2016, the counsel submitted a joint status letter,
which stated that there were disputes regarding (i) whether
discovery should be extended to allow the Defendants additional
time in which to appraisal its property (presumably in connection
with the issue of a net worth determination); and (2) the date
when the Plaintiff would move for class certification. On Oct.
31, 2016, the Court held a status conference regarding the
discovery disputes. During that conference, the Court directed
the Plaintiff to seek a pre-motion conference with the District
Court regarding class certification, and advised the Defendants
to submit a letter to the District Court regarding any
dispositive motions that it seeks to make. The parties complied
with the Court's directives and submitted requests for pre-motion
conferences to the District Court.
On Jan. 11, 2017, the District Court held a pre-motion
conference, at which time the Court stayed Tier 2 discovery and
directed parties to submit fully briefed motions by April 21,
2017. On May 12, 2017, the Plaintiff filed her motion for class
certification, and the Defendants filed their motion for summary
judgment.
On July 23, 2017, the Plaintiff filed a notice of supplemental
authority, containing a Bronx County Civil Court decision, which
she states had only recently been discovered, which concluded
that NCSLT had failed to demonstrate that it had taken assignment
of and owned a student loan it sought to collect. Winslow sought
to supplement her opposition to the Defendants' motion for
summary judgment, to further support its argument. On July 27,
2017, the Defendants objected.
On Sept. 28, 2017, the Plaintiff filed an additional notice of
supplemental authority. The Defendants again object to the
Court's consideration of the proposed supplemental authority on
the grounds that it is irrelevant and misleading.
Upon review, the Court agrees with the Defendants' position that
neither supplement authority submitted by the Plaintiff is
relevant to the presently pending motions. Therefore, the Court
will not consider that authority and will proceed to consider the
merits of the matter based upon the earlier submissions of the
parties.
Winslow seeks to represent the following class and two
subclasses:
a. The Class: (i) Natural persons; (ii) Who were sued by
National Collegiate Student Loan Trust 2005 (National
Collegiate); (iii) In a New York state court consumer collection
action; (iv) In an action in which F&G represented National
Collegiate; and (v) in which the Complaint states that a
Plaintiff is authorized to proceed with this actions and/or the
Plaintiff is the original creditor.
b. The FDCPA Subclass: All those who meet the class criteria
set forth in the class description above and who, in addition,
were sent the said complaint within one year of the initiation of
the instant class action.
c. The NYGBL Section 349 Subclass: All those who meet the
class criteria set forth in the class description above and who,
in addition, were sent the said complaint within three years of
the initiation of the instant class action.
Magistrate Judge Shields denied the Defendants' motion for
summary judgment in all respects. She holds that the statement
as to the Trust's original creditor status violated both the
FDCPA and Section 349 as a matter of law. The motion for summary
judgment is denied, without prejudice, with respect to statements
as to (i) the Trust's authorization to proceed with its state
court action and (ii) the liability of the Individual Defendants.
She denied with prejudice the motion for summary judgment on the
ground of abstention.
Having found that the Plaintiff has met the Rule 23(a) and Rule
23(b) requirements, the Magistrate Judge granted the Plaintiff's
motion for class certification under Rules 23(b)(2) and (3).
The Counsel shall appear before the Court for an in person status
conference at 10:30 am on Jan. 18, 2018.
A full-text copy of the Court's Dec. 13, 2017 Memorandum and
Order is available at https://is.gd/b3dAWb from Leagle.com.
Barbara Winslow, on behalf of herself and all others similarly
situated, Plaintiff, represented by Benjamin Silverman, Kakalec &
Schlanger, LLP.
Barbara Winslow, on behalf of herself and all others similarly
situated, Plaintiff, represented by Evan Stone Rothfarb --
erothfarb@kakalec-schlanger.com -- Kakalec & Schlanger LLP &
Daniel Adam Schlanger -- dschlanger@kakalec-schlanger.com --
Kakalec & Schlanger, LLP.
Forster & Garbus, LLP, Defendant, represented by Aaron R. Easley
-- aeasley@sessions.legal -- Sessions Fishman Nathan & Israel LLC
& Glenn M. Fjermedal -- gfjermedal@davidsonfink.com -- Davidson
Fink LLP.
Forster Ronald, Esq., Defendant, represented by Glenn M.
Fjermedal, Davidson Fink LLP.
Mark A. Garbus, Esq., Defendant, represented by Glenn M.
Fjermedal, Davidson Fink LLP.
FOUR SEASONS HOTELS: March 9 Management Call in "Liu" Suit
----------------------------------------------------------
The case titled, Tony Liu and Cathy Li, individually and on
behalf of all others similarly situated, the Plaintiffs, v. Four
Seasons Hotels, LTD and 900 Hotel Venture, LLC d/b/a Four Seasons
Hotel Chicago, Case No. 2017-CH-14949 (Ill. Cir., Cook County,
November 9, 2017), is underway.
A case management call is set before Judge Franklin Ulyses
Valderrama for March 9, 2018, at 9:30 a.m.
The complaint alleges that the Defendants systematically and
automatically collected, used, stored and disclosed the biometric
identifiers or biometric information of Plaintiffs and other
similarly situated employees without first obtaining the written
release required. The Defendants did not properly inform
Plaintiffs or the Class in writing that their biometric
identifiers or biometric information were being collected and
stored nor did it inform them in writing of the specific purpose
and length of term for which their biometric identifiers or
biometric information was being collected, stored, and used. The
Defendants owed to the Plaintiffs and other similarly situated
persons a duty of reasonable care with regard to the biometric
data collection and not to put them at undue risk of harm. With
that, the Defendants breach their duties by failing to implement
reasonable procedural safeguards around the collection of
biometric information.[BN]
Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Andrew C. Ficzko, Esq.
Haley R. Jenkins, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue Suite 2560
Chicago, IL 60601
Telephone: (312) 233-1550
Facsimile: (312) 233-1560
Email: lawyers@stephanzouras.com
Counsel For Defendant(s):
MILLER CANFIELD PADDOCK S
225 W Washington#260
Chicago, IL 60606
Telephone: (312) 460-4200
GRADE A: Summary Judgment Bids in "De Leon" Denied
--------------------------------------------------
In the case, GABRIEL DE LEON, RAMON PENA, JOSE LUIS RAMIREZ, On
behalf of themselves and all others similarly situated,
Plaintiffs, v. GRADE A CONSTRUCTION, INC., Defendant, Case No.
16-cv-348-jdp (W.D. Wis.), Judge James D. Peterson of the U.S.
District Court for the Western District of Wisconsin (i) denied
the Plaintiffs' motion for class certification; (ii) granted the
Defendant's motion to decertify both of the Plaintiffs'
collective actions under the Fair Labor Standards Act ("FLSA");
and (iii) denied with prejudice both the Plaintiffs' motion for
partial summary judgment, and Grade A's motion for partial
summary judgment.
Plaintiffs De Leon, Pena, and Ramirez brought the action under
the FLSA and Wisconsin law, challenging two alleged employment
practices of the Defendant. First, the Plaintiffs challenged a
practice called "banking," under which an employee who worked
more than 40 hours in a particular week could "bank" his overtime
hours rather than get paid for them and then "cash in" the hours
at a later time when the employee worked fewer than 40 hours in a
week. Second, they challenged the way that Grade A allegedly
paid employees it obtained from staffing agency EC Property
Services. According to the Plaintiffs, Grade A would pay those
employees at the same piece rate even when they worked more than
40 hours in a week. The court conditionally certified both
groups as collective actions under the FLSA.
Now several new motions are before the court: (i) the Plaintiffs'
motion to certify the first group of employees (related to
"banking") under Rule 23 of the Federal Rules of Civil Procedure
for violations of Wisconsin law; (2) Grade A's motion to
decertify the FLSA collective actions related to both groups of
employees; (3) the Plaintiffs' motion for partial summary
judgment; (4) Grade A's motion for partial summary judgment; (5)
Grade A's motion to strike as untimely the notice of consent
filed by Jose Medina Coronado; (6) Grade A's motion for leave to
file an untimely set of proposed findings of fact; (7) the
Plaintiffs' motion to strike those proposed findings of fact; and
(8) the Plaintiffs' motion to continue the trial date.
Judge Peterson concludes that class certification is not
appropriate in the case because Plaintiffs have failed to show
that their proposed class is so numerous that joinder of all
members is impracticable. Accordingly, he will deny the
Plaintiffs' motion for class certification of the state law
claims and will grant Grade A's motion for decertification of the
FLSA claims, and will give the Plaintiffs an opportunity to join
more employees as Plaintiffs. He will deny all other motions as
moot or premature, with the exception of the motion to continue
the trial date, which he will grant.
Accordingly, Judge Peterson (i) denied the Plaintiffs' motion for
class certification; (ii) granted the Defendant's motion to
decertify both of the Plaintiffs' collective actions under the
FLSA; (iii) denied without prejudice both the Plaintiffs' and the
Defendants' motions for partial summary judgment; (iv) denied as
moot Grade A's motion to strike as untimely the notice of consent
filed by Jose Medina Coronado, Grade A's motion for leave to file
an untimely set of proposed findings of fact, and the Plaintiffs'
motion to strike those proposed findings of fact; and (vi)
granted the Plaintiffs' motion to continue the trial date.
The Judge struck the schedule. He gave the Plaintiffs until Jan.
16, 2018, to file an amended complaint for the purpose of adding
or dropping parties. No later than Feb. 14, 2018, the parties
should submit a joint report to the court on the question whether
additional discovery is needed or whether the case may proceed
directly to dispositive motions, along with a proposed schedule.
If the parties cannot agree, they may submit separate reports.
Once the Court receives the parties' input, it will set a new
schedule for the remainder of the case.
A full-text copy of the Court's Dec. 13, 2017 Opinion and Order
is available at https://is.gd/7iTMnp from Leagle.com.
Gabriel De Leon, Plaintiff, represented by Yingtao Ho, Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C..
Ramon Pena, Plaintiff, represented by Yingtao Ho, Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C..
Jose Luis Ramirez, Plaintiff, represented by Yingtao Ho,
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C..
Fernando Lara Lopez, Plaintiff, represented by Yingtao Ho,
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C..
Ernesto Bustos, Plaintiff, represented by Yingtao Ho, Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C..
Grade A Construction Inc., Defendant, represented by Joseph S.
Goode -- JGOODE@LLGMKE.COM -- Laffey, Leitner & Goode, LLC, Mark
M. Leitner -- MLEITNER@LLGMKE.COM -- Laffey, Leitner & Goode, LLC
& Allison Laffey -- ALAFFEY@LLGMKE.COM -- Laffey, Leitner &
Goode, LLC.
GREAT LAKES: 1st Amended "Nelson" Suit Dismissed
------------------------------------------------
In the case, NICOLE DENISE NELSON, individually and on behalf of
all others similarly situated, Plaintiff, v. GREAT LAKES
EDUCATIONAL LOAN SERVICES, INC., and DOES, 1-10, Defendants, Case
No. 3:17-CV-00183-NJR-SCW (S.D. Ill.), Judge Nancy J.
Rosenstengel of the U.S. District Court for the Southern District
of Illinois granted Great Lakesa and John Doe Defendants' Motion
to Strike and to Dismiss Plaintiff's First Amended Class Action
Complaint.
Nelson is an Illinois resident who began repaying her student
loans on Dec. 14, 2009. The Defendant is Nelson's student loan
servicer. As a loan servicer, Great Lakes is responsible for
managing borrowers' accounts, processing payments, assisting
borrowers, and communicating with borrowers about the repayment
of their loans.
In the process of paying her own student loans, Nelson
experienced financial hardship and called Great Lakes on multiple
occasions to obtain information regarding repayment options.
Each time, Nelson was routed to a call center employee who, she
alleges, followed a script that was designed to steer her into
forbearance. As a result, Nelson was enrolled in forbearance
four times by Great Lakes' "expert" call center employees who led
her to believe that was her best option. She also entered
unemployment deferment once as a result of her call to Great
Lakes. Nelson claims Great Lakes' "expert" employees did not
inform her of other alternative repayment options that likely
would have allowed her to make much lower monthly payments.
On May 15, 2017, Nelson filed the First Amended Class Action
Complaint, alleging Great Lakes and certain John Does deceptively
and systematically deterred her from obtaining access to income-
driven repayment plans and instead steered her and other student
loan borrowers into forbearance. She alleges Great Lakes and the
John Doe Defendants engaged in numerous unfair acts and
practices, including holding themselves out to be experts,
recommending forbearance to borrowers, and failing to inform
borrowers of all options-- all in an effort to save Great Lakes
significant amounts of money. Nelson claims she relied upon the
information provided by Great Lakes, which caused her to go into
forbearance rather than enter a repayment plan better suited for
her circumstances.
Nelson seeks to represent two classes of persons made up of
student loan borrowers who have been similarly placed in
forbearance without being adequately informed of alternative
repayment options. Specifically, Nelson has identified these two
classes as:
a. Illinois Consumer Fraud Class: All individuals who
reside in Illinois or who entered into student loan contracts in
Illinois, who since Feb. 21, 2014, were subjected to the
Defendants' unfair and deceptive conduct, as further described in
Count I, and were placed in forbearance without being advised of
alternate repayment options.
b. Illinois Constructive Fraud Class: All individuals who
reside in Illinois or who entered into student loan contracts in
Illinois, who since Feb. 21, 2012, were subjected to the
Defendants' unfair, misleading, and/or deceptive conduct, as
further described in Count II, who were placed in forbearance
without being advised of alternate repayment options.
Nelson, individually and on behalf of the class mentioned,
asserts two claims under Illinois law. In Count I, she alleges a
violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act on behalf of the Illinois Consumer Fraud Class. In
Count II, she alleges constructive fraud on behalf of the
Illinois Constructive Fraud Class. Nelson also alleges a third
count, negligent misrepresentation, regarding statements made
specifically to her.
Before the Court is Great Lakes' Motion to Strike and to Dismiss
Plaintiff's First Amended Class Action Complaint. Great Lakes
has moved to strike 28 factual allegations cited in the complaint
that are allegedly copied, verbatim, from another lawsuit, as
well as twelve factual allegations derived from anonymous
internet postings on www.glassdoor.com. Great Lakes further
moves to dismiss Nelson's claims because they are preempted by
federal law and because she fails to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Judge Rosenstengel finds that the conclusion that Nelson's claims
in Count I involve disclosures is supported by the elements of
the cause of action itself. Nelson has pointed to no Illinois
state law prohibition against the underlying practice at issue,
i.e., "steering" a customer toward a plan that is more favorable
to the business. Rather, she brings her claim under the Illinois
Consumer Fraud and Deceptive Business Practices Act, which
requires an intent that the consumer rely on the concealment or
omission of a material fact.
Count II is also preempted, as it is, "at bottom," a claim that
Great Lakes failed to disclose additional information in its
correspondence and on its website. Nelson essentially claims
Great Lakes breached an alleged fiduciary duty by failing to
disclose information relevant to choosing a repayment plan,
disclosures that are expressly regulated by Section 682.205.
Finally, in Count III, Nelson alleges negligent misrepresentation
as to statements made specifically to her. Again, the Judge
finds this claim involves information that Nelson asserts Great
Lakes should have disclosed to her and, as such, it is expressly
preempted. Having found Nelson's claims as pleaded to be
expressly preempted, she needs not determine whether conflict
preemption also applies or whether Nelson has stated a claim
pursuant to Rule 12(b)(6). The Judge will deny as moot the
Defendants' Motion to Strike.
Accordingly, because Nelson's claims are expressly preempted,
Judge Rosenstengel granted the Motion to Dismiss filed by Great
Lakes and the John Doe Defendants, and denied as moot their
Motion to Strike. The First Amended Class Action Complaint is
DISMISSED without prejudice. In an abundance of caution, the
Judge granted Nelson leave to file a Second Amended Class Action
Complaint, on or before Jan. 19, 2018. Failure to file a Second
Amended Class Action Complaint as ordered will result in the
dismissal of the action with prejudice.
A full-text copy of the Court's Dec. 19, 2017 Memorandum and
Order is available at https://is.gd/WN05DM from Leagle.com.
Nicole Denise Nelson, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Brandon M. Wise --
bwise@prwlegal.com -- Peiffer Rosca et al.
Nicole Denise Nelson, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Paul A. Lesko --
plesko@prwlegal.com -- Peiffer Rosca et al.
Great Lakes Educational Loan Services, Inc, Defendant,
represented by Abby L. Risner -- alr@greensfelder.com --
Greensfelder, Hemker et al & John C. Drake --
jdrake@greensfelder.com -- Greensfelder, Hemker et al.
Doe, 1-10, Defendant, represented by John C. Drake, Greensfelder,
Hemker et al.
GREYHOUND LINES: March 22 Hearing on Bid to Remand "Smith"
----------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order scheduling the hearing on the Motion
to Remand and Stay in the case captioned JUSTIN SMITH,
individually and on behalf of all others similarly situated,
Plaintiffs, v. GREYHOUND LINES, INC., a Delaware Corporation; and
DOES 1 to 100, inclusive, Defendants, Case No. 2:17-CV-02238-TLN-
AC (E.D. Cal.).
This Stipulation and proposed Order is entered into between
Plaintiff Plaintiff and Defendant.
Plaintiff filed a Motion to Remand on November 21, 2017 and the
Hearing for that Motion is scheduled for January 11, 2018 at 2:00
p.m. in Courtroom 2, 15th Floor of the United States District
Court for the Eastern District of California.
Defendant filed a Motion to Stay the Action on November 21, 2017
and the Hearing for that Motion is scheduled for January 11, 2018
at 2:00 p.m. in Courtroom 2, 15th Floor of the United States
District Court for the Eastern District of California.
The Court, having considered the stipulation and finding good
cause, ordered that Plaintiff's Motion to Remand Hearing
currently set for 2:00 p.m. on January 11, 2018 is continued to
2:00 p.m. on March 22, 2018; and Defendant's Motion to Stay
Hearing currently set for 2:00 p.m. on January 11, 2018 is
continued to 2:00 p.m. on March 22, 2018.
A full-text copy of the District Court's December 18, 2017 and
Order is available at https://tinyurl.com/y7xn8bvn from
Leagle.com.
Justin Smith, Plaintiff, represented by Galen T. Shimoda --
attorney@shimodalaw.com -- Shimoda Law Corp.
Justin Smith, Plaintiff, represented by Justin Paul Rodriguez --
jrodriguez@shimodalaw.com -- Shimoda Law Corp.
Greyhound Lines, Inc., Defendant, represented by David J. Dow --
ddow@littler.com -- Littler Mendelson, Pc & Kelsey Elizabeth
Papst -- kpapst@littler.com -- Littler Mendelson.
HEARST COMMS: No Duty to Preserve Evidence After Case Dismissal
---------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order holding that once David Grenke's
lawsuit was dismissed, Hearst did not have a duty to preserve
evidence relevant to Josephine James Edwards' claim until the
filing of Suzanne Boelter's complaint.
Josephine James Edwards brought a class action complaint against
Hearst Communications, Inc., alleging unlawful disclosure of
magazine subscribers' personal data in violation of a Michigan
privacy law, the Video Rental Privacy Act ("VRPA"). Class-wide
discovery is ongoing.
The first VRPA action against Hearst was filed in the Eastern
District of Michigan on September 24, 2012, by David Grenke, in
the case captioned Grenke v. Hearst Communications, Inc., 12-CV-
14221.
According to the company's counsel, Hearst was not subject to any
lawsuits alleging violations of the VRPA prior to the Grenke
litigation, and faced no additional VRPA suits during the
pendency of that action. Hearst's counsel is also unaware of any
pre-suit letters or inquiries about the VRPA, either before or
during Grenke. After the dismissal of Grenke on February 23,
2015, Hearst was unaware of any complaints, pre-suit letters, or
inquiries regarding alleged violations of the VRPA until May 21,
2015, when the Boelter lawsuit was filed in this District.
Hearst's counsel also believes that, at the time the suit was
dismissed, the law firm that had brought Grenke was the only law
firm actively filing any lawsuits under the VRPA. According to
Hearst's counsel, an attorney who signed the stipulation of
dismissal on Grenke's behalf stated that his law firm did not
intend to bring another suit against Hearst for violations of the
VRPA.
The duty to preserve evidence arises when the party has notice
that the evidence is relevant to litigation or when a party
should have known that the evidence may be relevant to future
litigation. The duty arises most commonly when suit has already
been filed, providing the party responsible for the destruction
with express notice, but also on occasion in other circumstances,
as for example when a party should have known that the evidence
may be relevant to future litigation.
Given that Grenke was dismissed with prejudice on a joint motion,
the lack of other suits brought against Hearst under the VRPA,
the absence of threats or other specific information indicating
that suit might follow, and the nature of injury caused by the
alleged action, it was reasonable for Hearst to believe that no
future litigation was forthcoming, the Court held.
The Court cannot find, on the record before it, that Hearst
should have known when Grenke was dismissed that evidence from
that case might be relevant to future litigation. Thus, the
Court concludes that Hearst had no duty to preserve evidence
relevant to a VRPA claim until Boelter was filed on May 21, 2015.
Edwards' arguments otherwise are unavailing. She has failed to
demonstrate why Hearst should have been on notice of future
litigation, and, has instead relied on distinguishable cases and
resorted to an unpersuasive policy argument about the purpose of
class actions.
Edwards requests that the Court strike or overrule Hearst's
objections to her Request for Production No. 34, which seeks all
documents concerning Hearst's policies, procedures or practice
for retention or destruction of documents or ESI at any time from
December 20, 2009 through July 31, 2016, and direct Hearst to
produce all responsive documents.
Hearst, which failed to brief the issue in depth, contends that
because it had no legal duty to preserve documents after Grenke
concluded, then a fortiori Hearst's litigation hold notice and
related communications in Grenke cannot possibly be relevant.
The Court rejects Hearst's argument that, as a result of it
having no pre-Boelterduty to preserve, the material sought is a
fortiori not relevant, Hearst's memoranda erroneously construe
Request 34 as if it were only a request for litigation hold
notices and related documents, and also improperly assume that
the destruction of documents or ESI from 2009 to 2015 would be
relevant to this action only if Hearst continued to have a legal
duty to preserve evidence after Grenke's dismissal.
However, Request 34 contemplates more than merely litigation hold
notices, and the Court finds that the material it seeks is
relevant to Edwards' claims. The Court's relevancy finding is
entirely unrelated to any duty to preserve evidence that might
have existed during the pendency of a prior action (Grenke).
Rather, the Court finds that the material sought is relevant to
Edwards' claims in this action. In a case about Hearst's alleged
transmissions of subscriber data, how Hearst dealt with documents
and ESI is plainly relevant. Edwards may, therefore, seek
discovery about Hearst's document retention and destruction, if
any, dating back to December 20, 2009.
Thus, the Court directs Hearst to respond anew to Request 34 in a
comprehensive manner and in conformity with the Court's ruling
today as well as with applicable law, including Rules 26 and 34
of the Federal Rules of Civil Procedure and Local Civil Rule
26.2. If privilege is to be invoked, then Hearst must prepare and
serve a privilege log.
The Court concludes that, once Grenke was dismissed, Hearst did
not have a duty to preserve evidence relevant to Edwards' claim
until the filing of the Boelter complaint.
The case is captioned JOSEPHINE JAMES EDWARDS, Plaintiff, v.
HEARST COMMUNICATIONS, INC., Defendant, No. 15-CV-
9279(AT)(JLC)(S.D.N.Y.).
A full-text copy of the District Court's December 18, 2017
Opinion and Order is available at https://tinyurl.com/y75a9l4f
from Leagle.com.
Josephine James Edwards, on behalf of herself and all others
similarly situated, Plaintiff, represented by David Phillip
Milian -- dmilian@crgolaw.com -- Carey Rodriguez Greenberg
O'keefe, LLP.
Josephine James Edwards, on behalf of herself and all others
similarly situated, Plaintiff, represented by Frank Hedin -
fhedin@gmail.com -- Carey Rodriguez Milian Gonya, LLP, Joseph
Ignatius Marchese -- marchese@bursor.com -- Bursor & Fisher,
P.A., Philip Lawrence Fraietta -- pfraietta@bursor.com -- Bursor
& Fisher, P.A., Scott A. Bursor -- scott@bursor.com -- Bursor &
Fisher, P.A., Thomas K. Landry -- tlandry@careyrodriguez.com --
Carey Rodriguez Milian Gonya, LLP & John Christopher Carey --
jcarey@careyrodriguez.com -- Carey, Rodriguez, Greenberg & Paul,
LLP.
Hearst Communications, Inc., Defendant, represented by Jonathan
R. Donnellan, Hearst Corporation Office of the General Counsel &
Kristina E. Findikyan, The Hearst Corporation Office of General
Counsel, 300 West 57th Street, 40th Floor. New York, NY 10019.
HATTERAS FINANCIAL: Shareholder Suit Settlement Has Final OK
------------------------------------------------------------
In the case, IN RE HATTERAS FINANCIAL, INC. SHAREHOLDER
LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, Lead Case No.
1:16cv445 (M.D. N.C.), Judge Thomas D. Schroeder of the U.S.
District Court for the Middle District of North Carolina granted
final approval of the settlement.
These Consolidated Actions came before the Court for the
Settlement Hearing on Nov. 8, 2017, pursuant to the Court's Order
of Preliminary Approval of Settlement, Form and Manner of Notice,
and Scheduling of Settlement Hearing dated July 3, 2017, and upon
a Stipulation and Agreement of Settlement dated May 4, 2017.
Judge Schroeder has heard and considered evidence in support of
the motion for final approval of the proposed settlement set
forth in the Stipulation. One shareholder mailed a letter
directly to the Court, describing the additional disclosures
obtained by the Plaintiffs as "trivial information" and objecting
to the requested $700,000 in attorneys' fees as a "totally
extravagant amount." The Judge shared the letter with all
counsel. At the Nov. 8 hearing, the co-lead Plaintiffs' counsel
advised the Court it could consider the letter, and no other
counsel objected.
After full consideration of all matters of record, and upon
finding that notice to the Class was adequate and sufficient, and
considering the entire matter of the proposed Settlement, Judge
Schroeder granted final approval of the Settlement. The parties
to the Stipulation are authorized and directed to comply with and
to consummate the Settlement in accordance with the terms and
provisions of the Stipulation.
The Judge certified the Class described as any and all persons
who were record holders or beneficial owners of any share(s) of
the common stock of Hatteras at any time during the period
beginning on and including April 10, 2016, and ending on and
including July 12, 2016, including any and all of their
respective successors in interest, predecessors, representatives,
trustees, executors, administrators, heirs, assigns or
transferees, immediate and remote, and any person or entity
acting for or on behalf of, or claiming under any of them,
excluding the Defendants and the members of the immediate
families of the Directors.
Except with regard to any award of attorneys' fees and expenses,
the Consolidated Actions are dismissed with prejudice in their
entirety as to the Defendants and against the Plaintiffs and all
other Class Members and with each party bearing his, her, or its
own costs.
The Lead Counsel will be awarded attorneys' fees for all four
cases in the aggregate amount of $350,790. As to expenses,
Hatteras has presumably reviewed the expenses and has not raised
any concern over them. The Judge notes that Mr. Wilson's
affidavit seeks to recover for telephone charges. In the absence
of an explanation why that is not overhead, he denied it.
Otherwise, in the absence of any objection by Hatteras, the
expenses appear reasonable, and the Judge awarded the Lead
Counsel $21,892.28 in expenses.
A full-text copy of the Court's Dec. 19, 2017 Memorandum Opinion,
Order, and Final Judgment is available at https://is.gd/jWmdoi
from Leagle.com.
JAMES WILSON, Co-Lead Plaintiff pursuant to Order filed
11/18/2016, Plaintiff, represented by JAMES M. WILSON, JR. --
jwilson@faruqilaw.com -- FARUQI & FARUQI, LLP.
JAMES WILSON, Co-Lead Plaintiff pursuant to Order filed
11/18/2016, Plaintiff, represented by NANCY ROUTH MEYERS , WARD
BLACK LAW & JANET WARD BLACK -- jwblack@wardblacklaw.com -- WARD
BLACK LAW.
WILLIAM FRIEDMAN, Co-Lead Plaintiff pursuant to Order filed
11/18/2016, Plaintiff, represented by JAMES M. WILSON, JR.,
FARUQI & FARUQI, LLP.
HATTERAS FINANCIAL CORPORATION, Defendant, represented by RICHARD
J. KESHIAN -- Rkeshian@kilpatricktownsend.com -- KILPATRICK
TOWNSEND & STOCKTON LLP & DAVID CLARKE --
david.clarke@dlapiper.com -- DLA PIPER US LLP.
DAVID W BERSON, Defendant, represented by RICHARD J. KESHIAN,
KILPATRICK TOWNSEND & STOCKTON LLP & DAVID CLARKE, DLA PIPER US
LLP.
MICHAEL R HOUGH, Defendant, represented by RICHARD J. KESHIAN,
KILPATRICK TOWNSEND & STOCKTON LLP & DAVID CLARKE, DLA PIPER US
LLP.
BENJAMIN M HOUGH, Defendant, represented by RICHARD J. KESHIAN,
KILPATRICK TOWNSEND & STOCKTON LLP & DAVID CLARKE, DLA PIPER US
LLP.
IRA G KAWALLER, Defendant, represented by RICHARD J. KESHIAN,
KILPATRICK TOWNSEND & STOCKTON LLP & DAVID CLARKE, DLA PIPER US
LLP.
JEFFREY D MILLER, Defendant, represented by JONATHAN DREW SASSER
-- jon.sasser@elliswinters.com -- ELLIS & WINTERS, LLP, JEREMY M.
FALCONE -- jeremy.falcone@elliswinters.com -- ELLIS & WINTERS,
LLP & SCOTT R. HAIBER -- scott.haiber@hoganlovells.com -- HOGAN
LOVELLS US, LLP.
WILLIAM V NUTT, Defendant, represented by RICHARD J. KESHIAN,
KILPATRICK TOWNSEND & STOCKTON LLP & DAVID CLARKE, DLA PIPER US
LLP.
VICKI H WILSON-MCELREATH, Defendant, represented by JONATHAN DREW
SASSER, ELLIS & WINTERS, LLP, JEREMY M. FALCONE, ELLIS & WINTERS,
LLP & SCOTT R. HAIBER, HOGAN LOVELLS US, LLP.
THOMAS D WREN, Defendant, represented by JONATHAN DREW SASSER,
ELLIS & WINTERS, LLP, JEREMY M. FALCONE, ELLIS & WINTERS, LLP &
SCOTT R. HAIBER, HOGAN LOVELLS US, LLP.
HEFFLER RADETICH: "Oetting" Barred by Pa. Statute of Limitations
----------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum holding that the case captioned
JAMES OETTING, Individually and on behalf of all others similarly
situated, Plaintiff, v. HEFFLER, RADETICH & SAITTA, LLP, EDWARD
J. SINCAVAGE, EDWARD J. RADETICH, JR., and MICHAEL T. BANCROFT,
Defendants, Civil Action No. 11-4757 (E.D. Penn.), is barred by
the Pennsylvania two-year statute of limitations.
In the Memorandum and Order, the Court ruled that Missouri
substantive law applied to the case, that Missouri law
incorporated Pennsylvania's statute of limitations through
Missouri's borrowing statute, and that Missouri's savings
statute, which allows certain cases to be refiled within one year
of dismissal, barred application of the borrowed Pennsylvania
statute of limitations.
This class action involves claims asserted by plaintiff James
Oetting on behalf of himself and a certified class of similarly
situated individuals who received payments from a settlement fund
in a long-running multidistrict litigation in the United States
District Court for the Eastern District of Missouri. This case
was originally filed as a separate action in that district but
was transferred to this Court pursuant to 28 U.S.C. Section
1404(a).
Plaintiff seeks damages from defendants for harm suffered by the
class due to fraudulent claims made on the settlement fund by a
former employee of defendant Heffler, Radetich & Saitta, LLP
(Heffler), that were authorized by defendants. Plaintiff asserts
claims for negligence, accountant malpractice, breach of
fiduciary duty, and fraud.
Defendants seek reconsideration of the following rulings in the
August 11, 2017, Memorandum and Order: (1) that the decision of
the United States Court of Appeals for the Eighth Circuit in
Davis v. Liberty Mutual Insurance Co., 55 F.3d 1365 (1995), is
distinguishable from this case and does not bar application of
Missouri's savings statute to a borrowed statute of limitations,
and (2) that Missouri's savings statute may be applied to two
legally distinct plaintiffs, an issue defendants raise for the
first time on reconsideration.
In their Motion, defendants also seek certification for
interlocutory appeal of the question whether docketing of a
supplemental complaint under Federal Rule of Civil Procedure
15(d), without leave of court, commences an action for purposes
of the Missouri savings statute.
The parties do not now dispute the Court's decision on that
issue. In turn, the Missouri savings statute provides that if any
action shall have been commenced within the times respectively
prescribed in sections 516.010 to 516.370, and the plaintiff
therein suffer a nonsuit such plaintiff may commence a new action
from time to time, within one year after such nonsuit suffered or
such judgment arrested or reversed.
In its August 11, 2017, Memorandum and Order, the Court concluded
that the savings statute applied to this case. Defendants
challenge this conclusion as a clear error of law.
Recent decisions by Missouri's intermediate appellate courts have
followed the Missouri Supreme Court's decision in Turner. In
McMillan v. Pilot Travel Ctrs., LLC, 515 S.W.3d 699, 702 (Mo. Ct.
App. 2016), the Court of Appeals of Missouri concluded that
because the Missouri borrowing statute.is clearly included and
referenced in the Missouri saving statute," the savings statute
applied to a borrowed statute of limitations. Likewise, in in
McDonald v. Ward, 919 S.W.2d 251 (Mo. Ct. App. 1996), the Court
of Appeals of Missouri held that because the statutory sections
listed in the savings statute included Missouri's borrowing
statute, the savings statute applied to a borrowed statute of
limitations.
The cases cited by the defendants do not provide a clear and
persuasive indication that the pronouncements of Turner,
McDonald, and McMillan will be modified, limited or restricted.
American Tel. & Tel. Co., 311 U.S. at 236. When a state's highest
court denies review, the policy reasons for following an
intermediate court decision (absent compelling evidence to the
contrary) are strengthened. Sheridan v. NGK Metals Corp., 609
F.3d 239, 254 (3d Cir. 2010). In both McMillan and McDonald, the
Missouri Supreme Court denied an application for transfer and
rehearing, letting the decisions of the Court of Appeals of
Missouri stand well after it decided Thompson. McMillan v. Pilot
Travel Ctrs., LLC, 2017 Mo. LEXIS 177 (Mo. May 2, 2017); McDonald
v. Ward, 919 S.W.2d 251 (Mo. Ct. App. 1996).
Likewise, in Thompson, the Missouri Supreme Court explicitly
overturned an earlier precedential opinion, Dorris v. McClanahan,
725 S.W.2d 870 (Mo. 1987), a case that addressed the application
only of Missouri's tolling statute. Thompson v. Crawford, 833
S.W.2d 868, 872 (Mo. 1992). The Missouri Supreme Court did not
mention Turner, decided fifty-two years earlier, much less
overturn it.
This Court cannot presume the Missouri Supreme Court has
overruled its previous decision unless it proclaims otherwise.
McMillan, 515 S.W.3d at 706. Consequently, Turner and its progeny
remain binding on federal courts interpreting Missouri law. Id.
For the above reasons, the Court concludes it did not err in its
application of the Missouri savings statute to the case.
In their Motion for Reconsideration, defendants also argue for
the first time that Missouri's savings statute does not apply to
actions filed by legally distinct plaintiffs. The Court agrees.
The Court notes that defendants raise the argument that
Missouri's savings statute does not apply to legally distinct
plaintiffs for the first time in their Motion for
Reconsideration. Nonetheless, it is not consistent with the wise
exercise of discretion for the District Court to decline even to
consider an issue because the parties raised it for the first
time on reconsideration if the issue is fundamental to the need
to correct a clear error of law or fact or to prevent manifest
injustice. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 678 (3d Cir. 1999).
This Court, following Max's Seafood, will consider the same-
plaintiff issue notwithstanding the fact that it was raised for
the first time by Motion for Reconsideration.
In their Motion, defendants argue that Missouri's savings statute
does not apply to cases filed by two legally distinct plaintiffs.
The Court agrees.
In Meddis v. Wilson, 74 S.W. 984, 986 (Mo. 1903), the Missouri
Supreme Court held that the savings statute applies only to
legally identical plaintiffs. In that case, the widow and devisee
of a decedent landowner filed a suit of ejectment to reclaim land
from adverse possessors. Following her death, the case was
dismissed for failure to prosecute. A creditor purchased the
land at an estate sale and filed a new ejectment suit after the
statute of limitations had run. The trial court dismissed the
creditor's case as time barred. The Missouri Supreme Court
affirmed, holding that the savings statute by its text is limited
to such plaintiff who instituted the original suit and that no
provision is made for other plaintiffs to take advantage of the
statute.
In this case, however, the Supplemental Complaint in the MDL and
the Complaint filed in this action were filed on behalf of
legally distinct classes. Thus, the relevant question is not
whether the factual matter of the Complaint filed in this action
may relate back to the Supplemental Complaint, but whether two
legally distinct entities may invoke the provisions of the
Missouri savings statute. Under Meddis, they may not.
As the transferee court under 28 U.S.C. Section 1404(a), this
Court is required to apply the state law that would have been
applied had the case remained in the transferor court--namely,
Missouri. Given the above, this Court concludes that Missouri law
bars application of the savings statute to two legally distinct
entities and that such bar applies in this case.
In this case, the notice requirement has been satisfied.
Plaintiffs have been apprised at least three times of the
dispositive nature of the choice of law issue. First, plaintiffs
had notice that the Court would rule on the applicable statute of
limitations at least as early as the Court's June 1, 2017, Order
expressly requiring additional briefing on the applicable statute
of limitations. The parties themselves briefed the issue, in
part, in their earlier choice of laws briefs. Second, the parties
agreed in a telephone conference with the Court on August 4,
2017, that the choice of law and statute of limitations issues
were ripe for ruling.
The Court rules now that Pennsylvania's two-year statute of
limitation requires entering summary judgment in favor of the
defendants. The parties have not challenged that conclusion and
entry of summary judgment for defendants is appropriate.
This Court has determined that Pennsylvania's two-year statute of
limitations bars this action. Consequently, certification of an
interlocutory appeal would not materially advance the termination
of the litigation, and the Motion for Interlocutory Appeal is
denied.
Defendants' Motion for Reconsideration or, in the Alternative, to
Certify Order for Interlocutory Appeal is granted with respect to
this Court's Memorandum and Order dated August 11, 2017 and the
question whether Missouri law bars the application of the
Missouri savings statute to two legally distinct entities, an
issue not addressed in that Memorandum and Order and not
previously raised by defendants. The Court now concludes that the
Missouri savings statute is inapplicable to two legally distinct
entities and thus is inapplicable to the claims in this case.
The Court further determines that this action is barred by
Pennsylvania's borrowed two-year statute of limitations. Upon
reconsideration with respect to those issues, the Motion for
Reconsideration is granted. The Motion for Reconsideration or, in
the Alternative, to Certify Order for Interlocutory Appeal is
denied in all other respects. Because the action is barred by the
Pennsylvania two-year statute of limitations, summary judgment is
entered, sua sponte, in favor of defendants and against
plaintiffs.
A full-text copy of the District Court's December 18, 2017
Memorandum is available at https://tinyurl.com/ycw32nbk from
Leagle.com.
JAMES OETTING, individually and on behalf of all others similarly
situated, Plaintiff, represented by DAVID P. OETTING.
JAMES OETTING, individually and on behalf of all others similarly
situated, Plaintiff, represented by FRANK H. TOMLINSON --
tfrank@gmail.com -- TOMLINSON LAW LLC & JOHN K. WESTON, SACKS
WESTON DIAMOND LLC,1845 Walnut Street, Suite 1600. Philadelphia,
PA 19103
HSS INC: Court Grants $888K Class Action Settlement in "Scott"
--------------------------------------------------------------
The United States District Court for the Central District of
California, Southern Division, issued a Judgment granting
Plaintiffs' Motion for Final Approval of Settlement, and
Plaintiffs' Motion for Attorneys' Fees and Costs in the case
captioned DANIEL SCOTT, individually and on behalf of other
members of the public similarly situated, Plaintiff, v. HSS INC.,
and DOES 1 through 10, inclusive, Defendants, Case No. 8:14-CV-
01911-JLS-RNB (C.D. Calif.).
The Court finds the monetary settlement of $888,428.89 plus the
payment of employer-side payroll taxes on the wage component of
Individual Settlement Payments provided for in the Settlement to
be fair, reasonable, and adequate.
The Court confirms as Class Counsel James Hawkins and Gregory
Mauro of James Hawkins, APLC.
The Court approves payment of $41,000 to Simpluris, Inc., the
appointed Claims Administrator, for the services it has rendered
and will render in administering the settlement as described more
fully in the Settlement Agreement.
The Court approves payment of $18,750 to the California Labor &
Workforce Development Agency as its share of penalties pursuant
to the Private Attorneys General Act, Cal. Lab. Code Section 2698
et seq.
The Court approves payment of $222,107.07 in Attorneys' Fees to
James Hawkins, APLC and litigation costs in the amount of
$30,000.
The Court confirms Plaintiff as the class representatives and
orders payment of $4,000 to the named Plaintiff for his service
as the representative and for his release of claims contained in
the Settlement.
A full-text copy of the District Court's December 18, 2017
Judgment is available at https://tinyurl.com/yd5zea74 from
Leagle.com.
Daniel Scott, Individually and on Behalf of Other Members of the
Public Similarly Situated, Plaintiff, represented by Gregory E.
Mauro -- greg@jameshawkinsaplc.com -- James Hawkins APLC.
Daniel Scott, Individually and on Behalf of Other Members of the
Public Similarly Situated, Plaintiff, represented by James R.
Hawkins James@jameshawkinsaplc.com -- James Hawkins APLC.
HSS Inc., Defendant, represented by Lawrence M. Zavadil --
larry@lzavadillaw.com -- Wheeler Trigg O'Donnell LLP, pro hac
vice, Raymond W. Martin -- martin@wtotrial.com -- Wheeler Trigg
O'Donnell LLP, pro hac vice, Theresa R. Wardon --
wardon@wtotrial.com -, Wheeler Trigg O'Donnell LLP, pro hac vice
& Matthew Martin Sonne -- msonne@sheppardmullin.com -- Sheppard
Mullin Richter and Hampton LLP.
INTEL CORPORATION: Sued in Cal. over Misleading Financial Reports
-----------------------------------------------------------------
Elvis Alvira, Individually and on behalf of all others similarly
situated v. Intel Corporation, Brian M. Krzanich, and Robert H.
Swan, Case No. 2:18-cv-00223 (C.D. Cal., January 10, 2018),
alleges that the Defendants made false and misleading statements,
as well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically, the
Defendants made false and misleading statements and failed to
disclose that: (1) there is a fundamental design flaw in Intel's
processor chips as they contain a feature that makes them
vulnerable to hacking; (2) updates to fix the problems in Intel's
processor chips could cause Intel chips to operate 5-30 percent
more slowly; and (3) as a result, the Defendants' public
statements were materially false and misleading at all relevant
times.
Intel Corporation designs, manufactures, and sells computer,
networking, and communications platforms worldwide. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
JC PENNEY: Court Grants Final OK of "Ramirez" Class Settlement
--------------------------------------------------------------
The United States District Court for the Eastern District of
Texas, Tyler Division, issued an Order adopting the Report and
Recommendation of the Magistrate Judge in the case captioned
ROBERTO RAMIREZ, et al., v. J.C. PENNEY CORPORATION, INC., et al.
Civil Action No. 6:14cv601, (E.D. Tex.).
The Report and Recommendation recommends that the motion be
granted and that the Court enter the Final Approval Order
submitted by the parties.
The Court granted the Plaintiffs' Unopposed Motion for Final
Approval of Class Action Settlement, Certification of Settlement
Class and Approval of Plan of Allocation.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y8qhgybo from Leagle.com.
Robert A Meyer, Mediator, Pro Se.
Roberto Ramirez, Plaintiff, represented by Edward H. Glenn, Jr. -
- eglenn@zamansky.com -- Zamansky LLC, Jacob H. Zamansky --
jake@zamansky.com -- Zamansky LLC, Samuel E. Bonderoff --
samuel@zamansky.com -- Zamansky LLC & Bryan Torrey Forman --
bryan@bryanforman.com -- Forman Law Firm PC.
Thomas Ihle, Plaintiff, represented by Samuel E. Bonderoff,
Zamansky LLC & Bryan Torrey Forman, Forman Law Firm PC.
JC Penney Corporation Inc, Defendant, represented by Howard C.
Shapiro -- howshapiro@proskauer.com -- Proskauer Rose LLP,
Charles Glen Morris, J C Penney Co Inc, John Frederick Bufe,
Potter Minton, a Professional Corporation, 110 N. College, Suite
500, Tyler, Texas 75702, Karl Gustav Nelson --
knelson@gibsondunn.com -- Gibson Dunn & Crutcher, Michael E.
Jones, Potter Minton, a Professional Corporation, 110 N. College,
Suite 500, Tyler, Texas 75702, Robert Rachal, Proskauer Rose LLP,
pro hac vice & Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac
vice, Poydras Center 650 Poydras Street, Suite 1800, New Orleans,
LA 70130
Michael Dastugue, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation, Robert Rachal, Proskauer Rose LLP, pro hac vice &
Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac vice.
Janet Dhillon, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation, Robert Rachal, Proskauer Rose LLP, pro hac vice &
Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac vice.
Kenneth H. Hannah, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation, Robert Rachal, Proskauer Rose LLP, pro hac vice &
Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac vice.
Michael Kramer, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation, Robert Rachal, Proskauer Rose LLP, pro hac vice &
Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac vice.
Ronald Johnson, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation, Robert Rachal, Proskauer Rose LLP, pro hac vice &
Stacey C.S. Cerrone, Proskauer Rose LLP, pro hac vice.
Myron E Ullman III, Defendant, represented by Howard C. Shapiro,
Proskauer Rose LLP, John Frederick Bufe, Potter Minton, a
Professional Corporation, Karl Gustav Nelson, Gibson Dunn &
Crutcher, Michael E. Jones, Potter Minton, a Professional
Corporation.
JLING INC: Ji to Testify in FLSA/NYLL Suit Trial by Video
---------------------------------------------------------
In the case, JUNJIANG JI and DECHENG LI on behalf of themselves
and others similarly situated, Plaintiffs, v. JLING INC. d/b/a
Showa Hibachi, JANNEN OF AMERICA, INC. d/b/a Showa Hibachi, JOHN
ZHONG E HU, JIA LING HU, and JIA WANG HU, Defendants, Case No.
15-CV-4194 (SIL) (E.D. N.Y.), Magistrate Judge Steven I. Locke of
the U.S. District Court for the Eastern District of New York
granted in part and denied in part the Plaintiffs' motion in
limine for the admission into evidence of Ji's deposition
transcripts in lieu of live testimony.
The Plaintiffs were employed as cooks in the kitchen of a
restaurant, Showa Hibachi located in Wantagh, New York. The
corporate Defendants operated Showa Hibachi during the relevant
time period. According to the Plaintiffs, the Individual
Defendants are principals of the corporate the Defendants and are
liable for all Fair Labor Standards Act ("FLSA") and New York
Labor Law ("NYLL") violations.
Presently before the Court in this wage and hour litigation,
brought pursuant to the FLSA and the NYLL for overtime and
minimum wage pay and related statutory violations, is the
Plaintiffs' motion in limine for the admission into evidence of
Plaintiff Ji's deposition transcripts in lieu of live testimony
at trial, or in the alternative to permit him to testify by video
from an alternative location, because, since the commencement of
the action, Ji has moved to China. The Defendants oppose the
motion.
Ji will be permitted to testify at trial by video conference.
Plaintiffs will be responsible for making all attendant
arrangements so that the testimony may go forward and cover all
related costs. Accordingly, the motion to submit deposition
transcripts at trial in lieu of live testimony is denied as moot.
Magistrate Judge Locke finds that it would be difficult to
determine whether Ji is actually unavailable for the purposes of
Rule 32 sufficient to permit him to submit his deposition
testimony at trial in lieu of his live appearance. Fortunately,
and unlike the situation presented to the Court in the Yi Cao
case, where the Plaintiffs' counsel here also represented the
Plaintiff there, Ji has moved in the alternative to appear at
trial via video link pursuant to Fed. R. Civ. P. 43. The
Magistrate Judge will grant that application, thereby obviating
the need to submit Ji's deposition transcript in place of his
live testimony. Accordingly, he will deny the Plaintiffs' motion
to submit Ji's deposition transcript at trial in place of his
live testimony.
The Magistrate Judge will grant the Plaintiffs' motion in limine
to permit Ji to testify remotely at trial by video conference.
Initially, he recognizes the extreme expense and related
inconvenience involved in having to travel from China to the
United States for the purpose of a trial. This expense and
inconvenience are more significant in the case of an undocumented
low wage worker, such as a cook, whom the parties agree was being
paid $105 per day, and who risks arrest by his attendance. The
opposite conclusion would create an incentive for employers to
hire and take advantage of undocumented low wage workers because
job losses might cause them to leave the country and thereby
forfeit their statutory rights.
Further, he notes that Ji was already deposed by videoconference
and no issues were brought to the Court's attention in terms of
difficulty with logistics. Although the Advisory Committee Note
to Rule 43 indicates that the admission of deposition testimony
may be preferable to remote testimony by video, the Court
disagrees. A video connection for trial, where all parties are
present, will allow the trier of fact to assess credibility while
subjecting Ji to cross-examination in a manner that a deposition
transcript would not allow.
In order to safeguard against any outside influence from the
remote location, the Magistrate Judge directs that, with the
exception of a videographer with no knowledge of the substantive
facts of the case, Ji is to be alone in the room where he is
testifying unless the Court directs otherwise, and he may not
converse with anyone about his testimony during the course of his
testimony. Finally, the he directs that the Plaintiffs be
responsible for making whatever arrangements are necessary for
the remote testimony including covering whatever costs are
incurred.
For these reasons, Magistrate Locke granted in part and denied in
part the Plaintiffs' motion in limine. Their motion is granted
in that Ji will be permitted to testify at trial by video link,
which they will arrange for and incur the costs of, if any.
Further, as procedural safeguards during his testimony, Ji will
be alone at his remote location with the exception of a
videographer, and will not communicate with anyone about his
testimony during such time as he is testifying. Because Ji will
be testifying at trial by video, his motion to submit his
deposition testimony at trial is denied as moot.
A full-text copy of the Court's Dec. 19, 2017 Memorandum and
Order is available at https://is.gd/hyvKEr from Leagle.com.
Junjiang Ji, Plaintiff, represented by John Troy, Troy &
Associates, PLLC.
Junjiang Ji, Plaintiff, represented by Kibum Byun , Troy Law,
PLLC.
Decheng Li, on behalf of themselves and others similarly
situated, Plaintiff, represented by John Troy, Troy & Associates,
PLLC & Kibum Byun, Troy Law, PLLC.
Jling Inc., doing business as Showa Hibachi, Defendant,
represented by Jian Hang -- jhang@hanglaw.com -- Hang &
Associates, PLLC, Phillip Hakyeon Kim , Hang & Associates, PLLC &
William M. Brown -- wbrown@hanglaw.com -- Hang & Associates,
PLLC.
Jannen of America, Inc., doing business as Showa Hibachi,
Defendant, represented by Jian Hang, Hang & Associates, PLLC,
Phillip Hakyeon Kim -- pkim@hanglaw.com -- Hang & Associates,
PLLC & William M. Brown, Hang & Associates, PLLC.
John Zhong E. Hu, Defendant, represented by Jian Hang, Hang &
Associates, PLLC, Phillip Hakyeon Kim, Hang & Associates, PLLC &
William M. Brown, Hang & Associates, PLLC.
Jia Ling Hu, Defendant, represented by Jian Hang, Hang &
Associates, PLLC, Phillip Hakyeon Kim, Hang & Associates, PLLC &
William M. Brown, Hang & Associates, PLLC.
Jia Wang Hu, Defendant, represented by William M. Brown, Hang &
Associates, PLLC.
KOBE STEEL: Levi & Korsinsky Files Securities Class Suit
--------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Kobe Steel Ltd. ("Kobe Steel") (OTCMKTS: KBSTY)
between May 29, 2013 and October 12, 2017. You are hereby
notified that a securities class action lawsuit has been
commenced in the USDC for the Southern District of New York. To
get more information go to:
http://www.zlk.com/plsra-c/kobe-steel-ltd?wire=2
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll-
free: (877) 363-5972. There is no cost or obligation to you.
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or
failed to disclose that: (i) the Company falsified data on many
of its products; (ii) the Company sold products that failed
quality control tests in violation of laws and regulations; (iii)
the Company's financial performance relied on selling products
that did not meet quality standards in violation of laws and
regulations; (iv) the Company would incur significant costs and
lose customers if customers became aware of the quality of the
products; (v) the Company's compliance initiatives, corporate
governance and risk management activities were ineffective and
inadequate at preventing misconduct; and (vi) the Company's
internal reporting systems failed to foster employee
participation and adequately address employee concerns, and
senior management hyper-emphasized profitability at all costs,
promoting a culture of corner-cutting and deterring employees
from making claims over product quality.
If you suffered a loss in Kobe Steel you have until February 26,
2018 to request that the Court appoint you as lead plaintiff.
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff.
Levi & Korsinsky is a national firm with offices in New York,
California, Connecticut, and Washington D.C. The firm's attorneys
have extensive expertise and experience representing investors in
securities litigation, and have recovered hundreds of millions of
dollars for aggrieved shareholders. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
KELLOGG BROWN: Court OKs $937K Attorney's Fees in "Totten"
----------------------------------------------------------
The United States District Court for the Central District of
California issued a Judgment approving Class Action Settlement in
the case captioned DAVID L. TOTTEN, an individual, and all others
similarly situated, Plaintiff, v. KELLOGG BROWN & ROOT, LLC, et
al., Defendants, Case No. ED CV 14-01766-DMG (DTBx) (C.D. Cal.).
The Court approves the following payments:
(a) attorneys' fees payable to Class Counsel in this matter in
the amount of $937,500;
(b) allowable costs in this matter in the amount of
$21,168.62, and
(c) enhancement award of $20,000 to the Class Representative
for expending significant time and effort assisting Class
Counsel.
The Court finds that these amounts, and KBR's agreement to pay
these amounts, are fair and reasonable. KBR is directed to make
payments out of the Maximum Settlement Amount to be deposited in
the Qualified Settlement Fund, through the Claims Administrator,
in accordance with the terms of the Stipulation.
The claims administration costs of $30,000 to the Claims
Administrator, Rust Consulting, Inc., are fair and reasonable.
KBR is directed to deposit sufficient funds in the Qualified
Settlement Fund such that Rust may deduct its costs from the
Maximum Settlement Amount and pay itself.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y7x66acu from Leagle.com.
David L. Totten, an individual, and all others similarly
situated, Plaintiff, represented by Lee R. Feldman --
lee@leefeldmanlaw.com -- Feldman Browne Olivares APLC.
David L. Totten, an individual, and all others similarly
situated, Plaintiff, represented by Michael Rubin --
mrubin@altshulerberzon.com -- Altshuler Berzon LLP, Alicia
Olivares -- alicia@leefeldmanlaw.com -- Feldman Browne Olivares &
Leonard H. Sansanowicz -- leonard@leefeldmanlaw.com -- Feldman
Browne Olivares APC.
Kellogg Brown & Root, LLC, a Delaware Corporation, Defendant,
represented by Kathryn P. Conard -- kpc@millerlawgroup.com --
Miller Law Group PC, Malcolm A. Heinicke --
Malcolm.Heinicke@mto.com -- Munger Tolles and Olson LLP, Holly
R. Lake -- hlake@millerlawgroup.com -- Miller Law Group, Kelly D.
Reese -- kr@kullmanlaw.com -- Kullman Firm, pro hac vice, Nicole
Herter Perkin -- nperkin@millerlawgroup.com -- Miller Law Group
PC, Rachel E. Linzy -- rel@kullmanlaw.com -- The Kullman Firm,
pro hac vice & Samuel Zurik, III -- sz@kullmanlaw.com -- The
Kullman Firm, pro hac vice.
KIMBERLY-CLARK CORP: Court Narrows Claims in "Sebastian"
--------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting in part and denying in part
Defendant's Motion to Dismiss in the case captioned BRITTANY
SEBASTIAN, individually, on behalf of herself and other similarly
situated; ASHLEY LYNNE POPOWITZ, individually, on behalf of
herself and others similarly situated, Plaintiffs, v. KIMBERLY-
CLARK CORPORATION; KIMBERLY-CLARK WORLDWIDE, INC.; KIMBERLY-CLARK
GLOBAL SALES, LLC, Defendants, Case No. 17cv442-WQH-JMA (S.D.
Cal.).
The matter before the Court is the motion to dismiss the first
amended complaint, or in the alternative, the motion to stay the
case, filed by Kimberly-Clark Corp., Kimberly-Clark Worldwide,
Inc., and Kimberly-Clark Global Sales, LLC.
Defendant manufactures, markets, promotes, advertises, and sells
baby-care products, including products under the Huggies Natural
Care brand name. Defendant advertises the Products as being
hypoallergenic, fragrance and alcohol free, with a touch of aloe
and Vitamin E, providing that the wipes feature Defendant's
simplest formula ever for a gentle clean. On the packaging of the
Products, Defendant represents the Products as being natural,
both by the prominent representation 'Natural Care' and by the
Products' various packaging designs, which include nature images,
such as green coloring and leaves.
Because the Products contain phenoxyethanol, caprylyl glycol,
cocamidopropyl betaine, and sodium citrate, they are mislabeled,
misleading, and misbranded. Defendant materially misled and
failed to adequately inform consumers that the Products contain
non-natural, synthetic ingredients. Plaintiffs bring this action
as a class action pursuant to Federal Rule of Civil Procedure
23(b)(2) and 23(b)(3) on behalf of themselves, on behalf of all
other similarly situated, and define three classes. Plaintiffs
bring their UCL, FAL, and CLRA claims for the California
subclass, the FDUTPA claim for the Florida subclass, and the
breach of express warranty and quasi-contract claims for the
California subclass, Florida subclass and the nationwide class.
Defendant contends that Plaintiffs' claims fail because they rest
on a facially implausible theory of consumer deception. Defendant
contends that Huggies Natural Care Wipes make no false or
deceptive representations on the packaging or in the challenged
advertisements.
Plaintiffs contend that the FAC properly pleads facts sufficient
to demonstrate consumer deception. Plaintiffs contend that the
terms hypoallergenic and gentle, and the phrase feature our
simplest formula ever for a gentle clean are not statements of
mere puffery. Plaintiffs contend that use of the term natural
can be misleading regardless of whether the advertisement uses a
qualifier such as All Natural or 100% Natural.
The Court ordered that the motion to dismiss filed by Defendant
is granted in part and denied in part. Defendant's motion to
dismiss is granted as to the breach of express warranty claim
brought under Florida law, the quasi-contract claim brought under
Florida law, and the CLRA claim with respect to any monetary
damages, restitution, or damages arising from use of the term
hypoallergenic. The motion to dismiss is denied in all other
respects. The Defendant's motion to stay is also denied.
Representations made on the label or in advertisements of the
Huggies Natural Care Baby Wipes may be misleading and deceptive
even though the representations do not directly contradict the
ingredients listed on the label. Further, the Court concludes
that the statements simple formula and "gentle" are not mere
puffery in the context of this litigation about alleged
misrepresentations regarding the ingredients in baby wipes.
The Court concludes that this is not the rare situation where
granting a motion to dismiss Plaintiff's claims regarding
deceptive advertising is appropriate. The Court concludes that
Plaintiffs have alleged sufficient facts to support an inference
that a reasonable consumer would be deceived by the advertising
and packaging of Huggies Natural Care Baby Wipes products.
Defendant contends Plaintiffs lack standing to bring claims
related to the other configurations of Huggies Natural Care wipes
because they purchased only the soft packages of Huggies Natural
Care wipes. Defendant contends that Plaintiffs have not pled
sufficient facts to establish that the different categories of
products in the product line are substantially similar.
Plaintiffs contend that they have pled sufficient facts to
establish standing by alleging that their claims arise out of
Defendants' product line, of which they purchased soft packages
of Huggies Natural Care Wipes. Plaintiffs contend that the
products in the Huggies Natural Care product line and the
misrepresentations about the products are substantially similar.
In this case, Plaintiffs allege that Defendant manufactures,
markets, promotes, advertises, and sells baby-care products,
including [products] under the Huggies Natural Care brand name.
Plaintiffs allege that this action arises out Defendant's Huggies
Natural Care Baby Wipes, which are offered for sale in the
following configurations: (1) soft packages containing 32 or 56
wipes, (2) pop-up tubs' containing 40 or 64 wipes, (3) Clutch n'
Clean' packages, and (4) refill packages containing numerous
wipes. Plaintiffs allege that they purchased soft packages of
Natural Care Wipes containing 32 and 56 wipes. Plaintiffs'
allegations regarding the misrepresentations in advertising and
labeling encompass all of the configurations of Huggies Natural
Care Baby Wipes. Plaintiffs allege that the various
configurations of the Huggies Natural Care Baby Wipes contain the
same "non-natural, synthetic, and/or artificial ingredients.
The Court finds that Plaintiffs have alleged sufficient
similarities between the different configurations of Huggies
Natural Care Baby Wipes products and the alleged
misrepresentations about the Huggies Natural Care Baby Wipes
products to avoid dismissal at this stage of the proceedings.2
Any contentions regarding differences between the products or
representations about the products are best addressed at the
class certification stage under Rule 23.
Defendant contends that Plaintiffs lack standing to pursue
injunctive relief because Plaintiffs allege a mere possibility
that they would purchase Huggies Natural Care wipes in the
future.
To have standing to pursue prospective injunctive relief, Article
III of the United States Constitution requires a plaintiff to
demonstrate a real and immediate threat of repeated injury in the
future.
In this case, Plaintiffs seek injunctive relief and allege that
it is possible that Plaintiffs would purchase the Products in the
future if the Products were properly labeled, and/or the
ingredients complied with the labeling and advertising
statements, including that they only contained natural'
ingredients, and no longer contained phenoxyethanol, caprylyl
glycol, cocamidopropyl betaine, and sodium citrate. The Court
concludes that viewed in the light most favorable to Plaintiffs
and under the recent authority from the Ninth Circuit Court of
Appeals, Plaintiffs allege sufficient facts to establish standing
to seek injunctive relief.
Defendant contends that Plaintiffs' claim for breach of express
warranty fails under both California and Florida law because it
does not establish the exact terms or existence of an express
warranty.
In this case, Plaintiffs bring the breach of express warranty
claim as consumers who purchased products premised on misleading
or deceptive content on Defendant's advertisements and product
packaging. The Court concludes that these facts are analogous to
Florida cases in which courts have concluded that notice was
required to defendant-manufacturers in breach of express warranty
actions. Jovine, 795 F. Supp. 2d at 1335, 1339-30; Lamb, 2012 WL
12871963.
Further, this Court finds persuasive the rationale offered by the
court in Lamb: The point of the notice requirement is to allow
the warrantor an opportunity to cure the problem rather than
defend a lawsuit. The reason for requiring notice applies to a
manufacturer every bit as much as to a seller. The Court
concludes that, under the facts of this case, Florida law
required Plaintiffs to provide notice to Defendant. The motion to
dismiss the breach of express warranty claim under Florida law is
granted.
Defendant contends that Plaintiffs fail to state a claim for
quasi-contract because Plaintiffs fail to allege that Defendant
was obligated to do, and failed to do, something in exchange for"
the benefit that Defendant retained.
Plaintiffs contend that they properly pled their claim under
California and Florida law, and that Defendant is misinterpreting
Florida law.
In this case, Plaintiffs allege that they relied on Defendant's
misleading advertising scheme when they purchased Huggies Natural
Care wipes and that they would not have purchased the Products,
or would have purchased the same on different terms, if they had
known the truth. Plaintiffs allege that they "conferred a
benefit on Defendant in the form of the purchase price of the
Products. Plaintiffs allege that Defendant benefitted through
revenue generated from the sales of the Huggies Natural Care baby
wipes products. Plaintiffs allege that this benefit is
"inequitable and unjust because the benefit was obtained by
Defendant's fraudulent and misleading representations and
omissions.
The Court concludes that Plaintiffs have alleged sufficient facts
to state a claim for quasi-contract under California law.
The essential elements that must be shown to prove unjust
enrichment5 under Florida law are a benefit conferred on the
defendant by the plaintiff, the defendant's appreciation of the
benefit, and the defendant's acceptance and retention of the
benefit under circumstances that make it inequitable for it to
retain the benefit without paying the value thereof.
In this case, Plaintiffs allege that they "conferred a benefit on
Defendant in the form of the purchase price of the Products.
However, Plaintiffs allege that they purchased the products from
Target, Publix, and Costco locations, rather than from Defendant.
The Court concludes that Plaintiffs fail to allege sufficient
facts to establish that they directly conferred a benefit onto
Defendant.
The motion to dismiss the claim for quasi-contract under Florida
law is granted.
Alternatively, Defendant contends that the Court should stay this
action under the primary jurisdiction doctrine. Defendant
contends that the underlying question of what constitutes a
natural cosmetic is within the jurisdiction of the FDA.
Plaintiffs contend that the Court should not stay this matter
pursuant to the primary jurisdiction doctrine because a
determination regarding the term natural is not a current
priority of the FDA.
In this case, Plaintiffs' claims also involve the definition of
the word natural for purposes of cosmetic labeling. This Court
determines that a stay pursuant to the primary jurisdiction
doctrine is improper because the FDA is aware of but has
expressed no interest in" the issues involving the use of the
term natural in cosmetic labeling. Further, invoking the primary
jurisdiction doctrine would needlessly delay the resolution of
the claims at issue in this action. At this stage in
proceedings, the Court does not exercise its discretion to stay
this matter under the primary jurisdiction doctrine.
The motion to stay is denied.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y7x66acu from Leagle.com.
Brittany Sebastian, individually, on behalf of herself and others
similarly situated, Plaintiff, represented by Michael Thomas
Fraser -- mfrazer@thefrazerlawfirm.com -- The Fraser Law Firm,
P.C..
Brittany Sebastian, individually, on behalf of herself and others
similarly situated, Plaintiff, represented by Naomi B. Spector --
nspector@kamberlaw.com -- KamberLaw LLP & Christopher Decker Moon
-- cmoon@kamberlaw.com -- KamberLaw LLP.
Ashley Lynne Popowitz, individually, on behalf of herself and
others similarly situated, Plaintiff, represented by Michael
Thomas Fraser, The Fraser Law Firm, P.C., Naomi B. Spector,
KamberLaw LLP & Christopher Decker Moon, KamberLaw LLP.
Kimberly-Clark Corporation, Defendant, represented by Theodore
Joseph Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson, Dunn
& Crutcher LLP, Timothy William Loose -- tloose@gibsondunn.com --
Gibson, Dunn & Crutcher LLP, Andrew S. Tulumello --
atulumello@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Theane
E. Kapur -- TKapur@gibsondunn.com -- Gibson Dunn & Crutcher.
Kimberly-Clark Worldwide, Inc., Defendant, represented by
Theodore Joseph Boutrous, Jr., Gibson, Dunn & Crutcher LLP,
Timothy William Loose, Gibson, Dunn & Crutcher LLP, Andrew S.
Tulumello, Gibson Dunn & Crutcher LLP & Theane E. Kapur, Gibson
Dunn & Crutcher.
Kimberly-Clark Global Sales, LLC, Defendant, represented by
Theodore Joseph Boutrous, Jr., Gibson, Dunn & Crutcher LLP,
Timothy William Loose, Gibson, Dunn & Crutcher LLP, Andrew S.
Tulumello, Gibson Dunn & Crutcher LLP & Theane E. Kapur, Gibson
Dunn & Crutcher.
LEXINGTON INSURANCE: Court Dismisses Commissions Suit
-----------------------------------------------------
The United States District Court for the District of
Massachusetts issued a Memorandum and Order granting Defendants'
Motion to Dismiss the case captioned NORMA EZELL, LEONARD
WHITLEY, and ERICA BIDDINGS, on behalf of themselves and all
others similarly situated, Plaintiffs, v. LEXINGTON INSURANCE
COMPANY; AMERICAN INTERNATIONAL GROUP, INC.; AIG ASSURANCE
COMPANY; AIG PROPERTY CASUALTY COMPANY; AIG SPECIALTY INSURANCE
COMPANY; AMERICAN GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION
FIRE INSURANCE COMPANY OF PITTSBURG, P.A.; AGC LIFE INSURANCE
COMPANY; AMERICAN GENERAL ANNUITY SERVICE CORPORATION; and AIG
DOMESTIC CLAIMS, INC., Defendants, Civil Action No. 17-10007-NMG
(D. Mass.).
Plaintiffs' bring this putative class action against ten
insurance companies and subsidiaries Defendants' alleging that
certain commissions charged in connection with annuity payments
are unlawful.
Ezell and Whitley settled claims against Community Eldercare
Services and CLC of West Point, which were insured by Lexington,
in April, 2003. The terms of the settlement of Ezell and Whitley
included a lump sum payment and a payment of $200,000 to be
annuitized to provide periodic payments beginning in June, 2003.
Ezell and Whitely allege they were unaware that the amount listed
in the settlement agreement, $200,000, included a commission that
would be paid by defendants to someone working on behalf of
defendants to settle the claim.
Biddings entered into a settlement agreement in August, 2009,
resolving wrongful death and personal injury claims against Bull
Motors LLC, which was insured by Lexington. Like the settlement
of Ezell and Whitley, Biddings's settlement agreement with
Lexington provided for a cash payment and a set of periodic
payments with a then "present value" of $1,642,000.
Biddings alleges that she was unaware that 4% of the $1,642,000
annuity premium would be paid to AIG Approved Broker Douglas
"Chuck" Smith. The complaint states that Biddings did not know
that the amount to be annuitized included a commission that would
be paid to someone working on behalf of defendants to settle the
claims brought against Lexington in its capacity as liability
insurer to Bull Motors.
Plaintiffs here allege that they were injured by defendants'
failure to annuitize the amount agreed upon in the terms of the
settlement. In their reply memorandum, defendants suggest that
plaintiffs' complaint cannot be read to allege that the annuity
was not fully funded. Plaintiffs' complaint, however, maintains
that defendants failed to do exactly that. Plaintiffs have
alleged a cognizable injury sufficient to give them standing.
Defendants also aver that plaintiffs' claims are barred by the
terms of their original settlement agreements. They contend that
the general releases of any claims against Lexington or its
affiliates, together with the merger clauses in the agreements,
preclude plaintiffs from now claiming that they are entitled to
any payment not provided for in the contract.
Plaintiffs respond that their claims are not barred under state
law because the contractual release language does not apply to a
subsequent fraudulent inducement or concealment claim.
It is undisputed that Mississippi law applies to the settlement
agreements of Ezell and Whitley and Florida law governs
Biddings's settlement agreement.
Under Mississippi law, a settlement agreement is treated as a
contract and the court, when interpreting that contract,
determines first whether the contract is ambiguous as a matter of
law.
Because the release language was ambiguous, the court held that
it could not conclude, as a matter of law, that the fraudulent
inducement claim in [the suit] was barred by the express terms of
the cited provision.
Ezell and Whitley are not barred by the general release in the
settlement agreement from bringing their fraud, civil RICO or
unjust enrichment claims.
Biddings's settlement is governed by Florida law. Under Florida
law, a general contractual release does not bar a fraud claim
where an agreement is procured by fraud or misrepresentation
unless the contract explicitly states that it is incontestable on
the ground of fraud.
Biddings alleges that her decision to enter into the settlement
agreement was induced by a fraudulent misrepresentation in the
form of a promise of future payments having a specified cost or
present value. Her claims are not barred by the terms of the
settlement agreement under Florida law.
Civil RICO
Count I of plaintiffs' complaint alleges that defendants,
together with the brokers participating in AIG's Approved Broker
program, formed an association-in-fact for the purpose of
conducting structured settlement transactions.
To state a RICO claim under 18 U.S.C. Section 1961, a plaintiff
must allege four elements: (1) conduct, (2) of an enterprise, (3)
through a pattern, (4) of racketeering activity.
The plaintiffs fail to plead adequately that the defendants and
non-party brokers associated together for a common illegal
purpose as opposed to merely conducting their business in
parallel. The complaint alleges that defendants maintain an
Approved Broker List of brokers to sell annuities for structured
settlements. Those on the list are known as Agency Partners who
have allegedly engaged in parallel conduct, namely concealing the
fact that their broker's fees are bundled into the represented
annuity costs in an effort to push the sale of AIG annuities.
Those allegations do not, however, rise to the level of an
association-in-fact enterprise because the complaint does not
state how the brokers collaborated with each other or if the
brokers were even aware of each other's participation in the
alleged scheme.
Count I of the Complaint will be dismissed without prejudice.
Fraudulent Misrepresentations
Plaintiffs allege that defendants made false and misleading
representations concerning the value of the payments agreed to in
the settlement agreement. They contend that defendants assumed an
affirmative duty to disclose and that by concealing the true cost
of the annuities, defendants violated that duty. In their
complaint, plaintiffs further allege that they relied upon
defendants' misrepresentations to their detriment and financial
injury.
Although it is not entirely clear from the face of the complaint
or the opposition memorandum, plaintiffs presumably impute this
duty to Lexington, the defendant with whom they entered into
settlement agreements. Plaintiffs' complaint concedes, however,
that the commissions were paid by the annuity issuers and not by
Lexington. They have not adequately alleged that Lexington, the
party that would be subject to the duty, knew about the
commissions or had any role in paying the commissions.
Nor do plaintiffs cite a single authority that would suggest that
Lexington, as the settling party, had the affirmative duty to
disclose the commission paid by a third party (and in the case of
Biddings's settlement, a non-party) insurance company. Instead,
plaintiffs continue to refer collectively to AIG and defendants
and do not specify which party made representations or owed a
duty to disclose.
Defendants' motion to dismiss Count II will be allowed and Count
II will be dismissed without prejudice.
Unjust Enrichment
Plaintiffs allege that AIG Parent was benefited by its uniform
policy and practice of deception and that it unjustly failed to
reimburse plaintiffs for those benefits.
To state a claim for unjust enrichment under Florida law, a
plaintiff must allege that (1) the plaintiff conferred a benefit
on the defendant, (2) the defendant had knowledge of that benefit
and accepted that benefit and (3) it would be inequitable under
the circumstances for the defendant to retain the benefit.
Plaintiffs' conclusory allegation that AIG Parent was benefited
by its policy of deception is insufficient to meet the heightened
pleading standards under Rule 9. Plaintiffs bring the unjust
enrichment claim against only defendant AIG Parent but they fail
to allege specific facts as to AIG Parent's role in the scheme to
deceive the plaintiffs. Instead, they lump defendants together
into one corporate conglomeration called AIG and make only a
conclusory allegation devoid of factual support.
Count III of the complaint will be dismissed without prejudice.
Defendants' motion to dismiss is allowed and the complaint is
dismissed in its entirety without prejudice.
A full-text copy of the District Court's December 20, 2017
Memorandum Order is available at https://tinyurl.com/yd7aq9w6
from Leagle.com.
Norma Ezell, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Craig R. Spiegel --
ronnie@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac
vice.
Norma Ezell, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Kristen A. Johnson
kristenj@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Richard
B. Risk, Jr. -- dick@risklawfirm.com -- Risk Law Firm, PA, pro
hac vice & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman
Sobol Shapiro LLP, pro hac vice.
Leonard Whitley, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Craig R. Spiegel, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Kristen A. Johnson,
Hagens Berman Sobol Shapiro LLP, Richard B. Risk, Jr., Risk Law
Firm, PA, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Erica Biddings, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Craig R. Spiegel, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Kristen A. Johnson,
Hagens Berman Sobol Shapiro LLP, Richard B. Risk, Jr., Risk Law
Firm, PA, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Lexington Insurance Company, Defendant, represented by William T.
Hogan, III -- bill.hogan@nelsonmullins.com -- Nelson, Mullins,
Riley & Scarborough, LLP, Adam H. Offenhartz --
aoffenhartz@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, pro
hac vice, James L. Hallowell -- jhallowell@gibsondunn.com --
Gibson, Dunn & Crutcher LLP, pro hac vice, Nancy E. Hart --
nhart@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac
vice, Patrick T. Uiterwyk -- patrick.uiterwyk@nelsonmullins.com -
- Nelson Mullins Riley & Scarborough LLP & Peter M. Wade --
pwade@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac
vice.
American International Group, Inc., Defendant, represented by
William T. Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP,
Adam H. Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac vice,
James L. Hallowell, Gibson, Dunn & Crutcher LLP, pro hac vice,
Nancy E. Hart, Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick
T. Uiterwyk, Nelson Mullins Riley & Scarborough LLP & Peter M.
Wade, Gibson, Dunn & Crutcher LLP, pro hac vice.
AIG Assurance Company, Defendant, represented by William T.
Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP, Adam H.
Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac vice, James L.
Hallowell, Gibson, Dunn & Crutcher LLP, pro hac vice, Nancy E.
Hart, Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick T.
Uiterwyk, Nelson Mullins Riley & Scarborough LLP & Peter M. Wade,
Gibson, Dunn & Crutcher LLP, pro hac vice.
AIG Property Casualty Company, Defendant, represented by William
T. Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP, Adam H.
Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac vice, James L.
Hallowell, Gibson, Dunn & Crutcher LLP, pro hac vice, Nancy E.
Hart, Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick T.
Uiterwyk, Nelson Mullins Riley & Scarborough LLP & Peter M. Wade,
Gibson, Dunn & Crutcher LLP, pro hac vice.
AIG Specialty Insurance Company, Defendant, represented by
William T. Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP,
Adam H. Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac vice,
James L. Hallowell, Gibson, Dunn & Crutcher LLP, pro hac vice,
Nancy E. Hart, Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick
T. Uiterwyk, Nelson Mullins Riley & Scarborough LLP & Peter M.
Wade, Gibson, Dunn & Crutcher LLP, pro hac vice.
American General Life Insurance Company, Defendant, represented
by William T. Hogan, III, Nelson, Mullins, Riley & Scarborough,
LLP, Adam H. Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac
vice, James L. Hallowell, Gibson, Dunn & Crutcher LLP, pro hac
vice, Nancy E. Hart, Gibson, Dunn & Crutcher LLP, pro hac vice,
Patrick T. Uiterwyk, Nelson Mullins Riley & Scarborough LLP &
Peter M. Wade, Gibson, Dunn & Crutcher LLP, pro hac vice.
National Union Fire Insurance Company of Pittsburgh, PA.,
Defendant, represented by William T. Hogan, III, Nelson, Mullins,
Riley & Scarborough, LLP, Adam H. Offenhartz, Gibson, Dunn &
Crutcher, LLP, pro hac vice, James L. Hallowell, Gibson, Dunn &
Crutcher LLP, pro hac vice, Nancy E. Hart, Gibson, Dunn &
Crutcher LLP, pro hac vice, Patrick T. Uiterwyk, Nelson Mullins
Riley & Scarborough LLP & Peter M. Wade, Gibson, Dunn & Crutcher
LLP, pro hac vice.
AGC Life Insurance Company, Defendant, represented by William T.
Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP, Adam H.
Offenhartz, Gibson, Dunn & Crutcher, LLP, pro hac vice, James L.
Hallowell, Gibson, Dunn & Crutcher LLP, pro hac vice, Nancy E.
Hart, Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick T.
Uiterwyk, Nelson Mullins Riley & Scarborough LLP & Peter M. Wade,
Gibson, Dunn & Crutcher LLP, pro hac vice.
American General Annuity Service Corporation, Defendant,
represented by William T. Hogan, III, Nelson, Mullins, Riley &
Scarborough, LLP, Adam H. Offenhartz, Gibson, Dunn & Crutcher,
LLP, pro hac vice, James L. Hallowell, Gibson, Dunn & Crutcher
LLP, pro hac vice, Nancy E. Hart, Gibson, Dunn & Crutcher LLP,
pro hac vice, Patrick T. Uiterwyk, Nelson Mullins Riley &
Scarborough LLP & Peter M. Wade, Gibson, Dunn & Crutcher LLP, pro
hac vice.
AIG Claims, Inc., formerly known as AIG Domestic Claims, Inc.,
Defendant, represented by William T. Hogan, III, Nelson, Mullins,
Riley & Scarborough, LLP, Adam H. Offenhartz, Gibson, Dunn &
Crutcher, LLP, pro hac vice, James L. Hallowell, Gibson, Dunn &
Crutcher LLP, pro hac vice, Nancy E. Hart, Gibson, Dunn &
Crutcher LLP, pro hac vice, Patrick T. Uiterwyk, Nelson Mullins
Riley & Scarborough LLP & Peter M. Wade, Gibson, Dunn & Crutcher
LLP, pro hac vice.
LULAROE: "Atkinson" Suit over Ponzi Scheme Underway
---------------------------------------------------
Melissa Atkinson, individually for herself and all others
similarly situated, the Plaintiff, v. LLR, Inc., d/b/a Lularoe
and Does 1 through 100, the Defendants, Case No. 5:17-cv-02287-
ODW-SHK, (C.D. Cal., November 9, 2017), remains pending.
On Nov. 21, Atkinson filed a notice saying her case is related to
Case No. 5:17-cv-02102-AB-SHK.
In a Nov. 27 Order, the Court entered an Order transferring the
case from Judge Otis D. Wright, II to Judge Andre Birotte Jr for
all further proceedings.
The lawsuit seeks to recover damages caused by Defendant's
operation of a fraudulent pyramid scheme and endless chain scheme
in violation of California Penal Code, California Civil Code and
California's False Advertising Law.
Since at least 2013, LuLaRoe has been operating and conducting
business in California, and throughout the United States which
purports to be a lawful and legitimate company. However, in
reality, the Defendant is the founder of an enterprise that is
and always has been an illegal pyramid scheme/endless chain
scheme referred to as the "LuLaRoe Pyramid". As a direct and
proximate result of Defendants' conduct, including their
operation of an endless chain scheme, Plaintiff and the Class
members have lost money or property and suffered an injury in
fact. Further, the complaint alleges that the Defendants' acts
and practices also constitute "unfair" business acts and
practices in that: (i) they violated the policy and spirit of
such laws; (ii) they were immoral, unethical, oppressive,
unscrupulous and substantially injurious to consumers; (iii) they
harmed consumers in a manner that substantially outweighs any
legitimate benefits of Defendant's conduct; and (iv) the injury
was not one that consumers reasonably could have avoided.[BN]
Plaintiff is represented by:
Alexander M. Schack, Esq.
Natasha N. Serino, Esq.
LAW OFFICES OF ALEXANDER M. SCHACK
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127
Telephone: (858) 485-6535
Facsimile: (858) 485-0608
Email: alexschack@amslawoffice.com
Email: natashaserino@amslawoffice.com
M AND G SUPERMARKET: Seeks Dismissal of "Espinosa" Amended Suit
---------------------------------------------------------------
Maximo D Cuevas, and M and G Supermarket Inc. filed on January
22, 2018, a motion to dismiss for lack of jurisdiction the
amended complaint filed in the case, Maricela Espinoza, and all
others similarly situated, the Plaintiff, v. M and G Supermarket
Inc., Maximo D. Cuevas and Mary L. Cuevas, the Defendants, Case
No. 1:17-cv-24137-MGC, (S.D. Fl., November 9, 2017).
Responses due by Feb. 5, 2018.
The complaint alleges that the Defendants have employed several
other similarly situated employees like Plaintiff who have not
been paid overtime and or minimum wages for work performed in
excess of 40 hours weekly from the filing of the complaint back
three years. The Plaintiff worked an average of 54 hours a week
for Defendants and was paid an hourly rate but was never paid the
extra half time rate for any hours worked over 40 hours in a week
as required by the Fair Labor Standards Act. Further, the
Defendants improperly classified Plaintiff as an independent
contractor so that they could attempt to avoid complying with
federal and state laws, including, but not limited to, the
failure to pay Federal payroll taxes and state unemployment
taxes. [BN]
Plaintiff is represented by:
Jamie H. Zidell, Esq.
Alejandro Guillermo Martinez-Maldonado, Esq.
K. David Kelly, Esq.
Adam Berman, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
Counsel For Defendant(s):
Brian Jay Militzok, Esq
MILITZOK LAW, P.A
Wells Fargo Building
4600 Sheridan Street, Ste 402
Hollywood, FL 33021
Telephone: (954) 780-8228
Facsimile: (954) 719-4456
MACQUARIE INFRASTRUCTURE: La. App. Flips Dismissal of "Moore"
-------------------------------------------------------------
In the case, HELEN MOORE, ET AL., v. MACQUARIE INFRASTRUCTURE
REAL ASSETS, ET AL, Case No. 17-264 (La. App.), Judge John D.
Saunders of the Court of Appeal of Louisiana for the Third
Circuit reversed the trial court's ruling dismissing the
Plaintiffs' claims and remanded the matter.
Plaintiffs Moore, Calvin I. Trahan, and Lawrence E. L'Herisson,
shareholders in Cleco, initiated a class action suit against a
multitude of Defendants: Bruce Williamson, Cleco's Chief
Executive Officer; Cleco's Board of Directors: William H. Walker,
Jr., Elton R. King, William L. Marks, Logan W. Kruger, Peter M.
Scott, III, Shelley Stewart, Jr., and Vicky A. Bailey; Darren J.
Olagues, President of Cleco Power; Como 1 L.P.; and Como 3 Inc.,
in the Ninth Judicial District Court, to recover damages
personally sustained by them as a result of the sale/merger of
Cleco. In response, the Defendants filed peremptory exceptions
of no cause of action and no right of action to the Plaintiffs'
class action petition.
During the pendency of the action, hearings were held before the
Louisiana Public Service Commission ("LPSC") with the LPSC
eventually voting to approve the sale/merger of Cleco. By joint
motion, the temporary restraining order Plaintiffs had obtained
in an attempt to enjoin the sale of Cleco was dissolved. By
agreement, the Plaintiffs amended their petition to include a
direct cause of action against the Defendants. In the interim,
the sale/merger of Cleco was perfected.
After oral arguments were presented to the court, the trial court
sustained the Defendants' peremptory exceptions of no cause of
action and no right of action. The Plaintiffs timely filed a
motion for devolutive appeal.
Pursuant to that motion, they are presently before the Court
alleging three assignments of error:
1. The District Court erred by granting Appellees'
exceptions of both no right and no cause of action when the
reasons for its ruling only concerned whether Appellants have the
right to bring their asserted claims.
2. The District Court erred by finding that Appellants'
claims were derivative in nature even though they sought to
remedy damages personally sustained rather than enforce a right
of the Company.
3. The District Court erred to the extent that it applied
any res judicata effects to this action as a result of the
Regulatory Proceeding before the LPSC.
The Defendants argue that the trial court correctly sustained
their exception of no cause of action based on the absence of a
direct cause of action. Judge Saunders finds that a direct cause
of action existed at the time the suit was filed under former
La.R.S. 12:91. As such, he finds that the Defendants' argument to
be without merit and that the trial court erred in sustaining the
Defendants' exception of no cause of action that dismissed the
class action petition.
This finding pretermits the second assignment of error. He
declined to address the third assignment of error, as it relates
to statements made by the trial court in its reasons for judgment
rather than the judgment. The Judge remanded the matter to the
trial court for further proceedings consistent with the Opinion.
The costs of the proceeding are assessed to Williamson, Walker,
Jr., King, Marks, Kruger, Scott, III, Stewart, Jr., Bailey,
Olagues, Como 1, and Como 3.
A full-text copy of the Court's Dec. 13, 2017 Order is available
at https://is.gd/QqTryZ from Leagle.com.
Jerold Edward Knoll, Sr., Edmond H. Knoll, The Knoll Law Firm,
233 South Main Street, Marksville, La 71351-0426, (318) 253-6200,
COUNSEL FOR PLAINTIFFS/APPELLANTS: L. E. L'Herisson, Helen Moore,
Calvin I. Trahan.
Andrew A. Lemmon -- andrew@lemmonlawfirm.com -- Attorney at Law,
15058 River Road, Hahnville, LA 70057, (985) 783-6789, COUNSEL
FOR PLAINTIFFS/APPELLANTS: L. E. L'Herisson, Helen Moore.
Paul Marett Brannon, Attorney at Law, 4916 Lake Como Avenue,
Metairie, LA 70006, (504) 430-1401, COUNSEL FOR
INTERVENORS/APPELLEES: William H. Seely, Charles L. McNeely.
Lewis Kahn -- lewis.kahn@ksfcounsel.com -- Michael J. Palestina -
- michael.palestina@ksfcounsel.com -- Kahn Swick & Foti, LLC, 216
Covington Street, Madisonville, LA 70447, (504) 455-1400, COUNSEL
FOR PLAINTIFF/APPELLANT: Calvin I. Trahan.
W. Raley Alford, III -- wra@stanleyreuter.com -- Jennifer L.
Thornton -- jlt@stanleyreuter.com -- Eva J. Dossier --
ejd@stanleyreuter.com -- Stanley, Reuter, Ross, Thornton &
Alford, L.L.C., 909 Poydras, Suite 2500, New Orleans, LA 70112,
(504) 523-1580, COUNSEL FOR DEFENDANTS/APPELLEES: Cleco
Corporation, Elton R. King, William L. Marks, Shelley Stewart,
Jr., Bruce Williamson, William H. Walker, Jr., Peter M. Scott,
III, Logan W. Kruger, Vicky A. Bailey, Darren J. Olagues.
Edward J. Fuhr -- efuhr@hunton.com -- Eric J. Feiler --
efeiler@hunton.com -- Johnathon E. Schronce --
jschronce@hunton.com -- Hunton & Williams LLP, 951 E. Byrd
Street, Richmond, VA 23219, (804) 788-8200, COUNSEL FOR
DEFENDANTS/APPELLEES: William H. Walker, Jr., Peter M. Scott,
III, William L. Marks, Shelley Stewart, Jr., Vicky A. Bailey,
Logan W. Kruger, Elton R. King, Bruce Williamson, Darren J.
Olagues.
James P. Gillespie -- james.gillespie@kirkland.com -- Matthew E.
Papex, Kirkland & Ellis LLP, 655 Fifteenth St., N.W., Washington,
DC 20005, (202) 879-5000, COUNSEL FOR DEFENDANTS/APPELLEES: Cleco
Partners L.P. (f.k.a. Como 1 L.P.), Como 3, Inc.
Sebastiano Tornatore -- stornatore@zlk.com -- Shannon L. Hopkins
-- shopkins@zlk.com -- Attorney at Law, 733 Summer St., Suite
304, Stamford, CT 06901, (212) 363-7500, COUNSEL FOR
INTERVENORS/APPELLEES: William H. Seely, Charles L. McNeely.
Vincent S. Wong -- VW@WongESQ.com -- Attorney at Law, 39 E.
Broadway, Suite 304, New York, NY 01000-2000, (212) 584-2740,
COUNSEL FOR INTERVENORS/APPELLEES: William H. Seely, Charles L.
McNeely.
David T. Wissbroecker -- DWissbroecker@rgrdlaw.com -- Maxwell R.
Huffman -- mhuffman@rgrdlaw.com -- Edward M. Gergosian, David A.
Knotts -- dknotts@rgrdlaw.com -- Robbins, Geller, Rudman & Dowd,
LLP, 655 W. Broadway, Suite 1900, San Diego, CA 92101, (619) 231-
1058, COUNSEL FOR PLAINTIFFS/APPELLANTS: Helen Moore, L. E.
L'Herisson.
Patrick P. Powers, Willie C. Brisco, 8150 N. Central Expressway,
Suite 1575, Dallas, TX 75206, (214) 239-8900, COUNSEL FOR
PLAINTIFFS/APPELLANTS: L. E. L'Herisson, Helen Moore.
Hamilton P. Lindley, 4125 W. Waco Drive, Waco, TX 76710, (254)
753-6437, COUNSEL FOR PLAINTIFF APPELLANT: Helen Moore, L. E.
L'Herisson.
Edward E. Rundell -- erundell@goldweems.com -- Charles Weems --
cweems@goldweems.com -- Evelyn Breithaupt --
ebreithaupt@goldweems.com -- Gold Weems Bruser Sues & Rundell,
P.O. Box 6118, 2001 MacArthur Drive, Alexandria, LA 71307, (318)
445-6471, COUNSEL FOR DEFENDANTS/APPELLEES: Cleco Partners L.P.
(f.k.a. Como 1 L.P.), Como 3, Inc.
MAHAR MANUFACTURING: "Preciado" Wage-and-Hour Suit Underway
-----------------------------------------------------------
Juan Preciado, on behalf of himself and all others similarly
situated, the Plaintiff, v. Mahar Manufacturing Corp. and Does 1
through 50, the Defendants, Case No. BC682456, (Cal. Sup. Ct.,
Los Angeles County, November 3, 2017), seeks unpaid wages with
damages, penalties, attorney's fees, interests and costs based on
Labor Code violations.
The complaint alleges these causes of action against the
Defendant: failure to pay lawful wages, failure to provide lawful
meal periods or compensation in lieu thereof, failure to provide
lawful rest periods or compensation in lieu thereof, failure to
timely pay wages, knowing and intentional failure to comply with
itemized employee wage statement provisions and violations of the
Unfair Competition Law.
The Plaintiff worked as a stocker from June 2016 through August
2017. He was classified as non-exempt employee. The Plaintiff
and other similarly situated employees were required to report on
average 15 minutes before the start of the shift and were not
paid for the time. They were frequently required to work more
than eight hours in a day or more than 40 hours in a workweek
without proper overtime compensation. Also, they were never
provided with a minimum and uninterrupted 30-minute meal period.
They were not compensated one hour of pay at their regular rate
of compensation for each workday that a lawful rest period was
not provided, in violation of California labor laws, regulations,
and IWC Wage Orders.
Mahar is doing business as Fiesta and is engaged in the wholesale
manufacture and distribution of toys.[BN]
Plaintiff is represented by:
James R. Hawkins, Esq.
Isandra Fernandez, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949)387-6676
MARATHON PETROLEUM: Court Grants Bid to Dismiss ERISA Suit
----------------------------------------------------------
The United States District Court for the Northern District of
Ohio, Western Division, issued an Order granting Plaintiff's
Motion to Dismiss the case captioned Jefferey Yates, Plaintiff,
v. Rodney Nichols, et al., Defendants, Case No. 3:17CV1389 (N.D.
Ohio).
This is a breach-of-fiduciary-duty and putative class-action case
arising under the Employee Retirement Income Security Act
(ERISA).
Marathon Petroleum spun off from its parent company, Marathon
Oil. When Marathon Petroleum established its employee-retirement
plan, the defendants plan administrator Rodney Nichols, the
plan's investment committee, and members of that committee
allegedly placed $88 million in plan assets into a fund holding
only Marathon Oil common stock. Participants could then hold the
stock or sell it and invest the proceeds in a different fund, but
they could not purchase additional Marathon Oil stock.
At the time of the plan's creation, Marathon Oil stock traded at
$33.28 per share. Within months of the spin-off, shares had
dropped below $20; by mid-June, 2017, Marathon Oil's stock was
worth less than $13 per share.
Plaintiff Jefferey Yates, a former Marathon Petroleum employee
and plan participant, brought this suit in June, 2017, on behalf
of himself, the Marathon Petroleum Thrift Plan, and all similarly
situated plan participants. He raises essentially three claims
for breaches of the defendants' fiduciary duties and a claim of
co-fiduciary liability.
Plaintiff first alleges that defendants breached their duty of
prudence by permitting participants to invest in Marathon Oil
common stock. According to plaintiff, the Marathon Oil stock was
excessively risky and thus an imprudent option for an employee-
retirement plan.
ERISA requires the fiduciary of a pension plan to act prudently
in managing the plan's assets. The statute imposes a prudent
person standard by which to measure fiduciaries' investment
decisions and disposition of assets and also imposes other
obligations."
In Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459, 2471
(2014), the Supreme Court held that, where a stock is publicly
traded, allegations that a fiduciary should have recognized from
publicly available information alone that the market was over- or
undervaluing the stock are implausible as a general rule, at
least in the absence of special circumstances.
Accordingly, the Court concluded that ERISA fiduciaries, who
likewise could reasonably see little hope of outperforming the
market based solely on publicly available information, may, as a
general matter, likewise prudently rely on the market price.
The Claim Rests Entirely on Publicly Available Information
Here, plaintiff's claim that the defendants breached the duty of
prudence by investing in Marathon Oil, and by failing to make a
timely divestiture, depends entirely on publicly available
information. In the absence of special circumstances, then, the
claim will be implausible.
Plaintiff's opposition brief does not appear to identify any
special circumstances.
The closest plaintiff comes to challenging defendants' reliance
on Marathon Oil's stock price are his allegations that defendants
failed to engage in a prudent decision-making process. But Sixth
Circuit precedent holds that these types of omissions are not
special circumstances.
Plaintiff contends that Dudenhoeffer applies only to prudence
claims alleging that a particular stock is either over- or
undervalued, and not to claims that the stock is too risky or
volatile. But the Sixth Circuit has rejected this argument. In
Saumer, supra, 853 F.3d at 862, the Circuit read Dudenhoeffer to
foreclose breach of prudence claims based on public information
irrespective of whether such claims are characterized as based on
alleged overvaluation or alleged riskiness of a stock. Plaintiff
also contends that Dudenhoeffer applies only when the investment
at issue is either an employer security" or an employee stock-
ownership plan (ESOP), but this is a misreading of Dudenhoeffer.
In rejecting that presumption, the Court held that the same
standard of prudence applies to all ERISA fiduciaries, including
ESOP fiduciaries, with the limited exception that ESOP
fiduciaries are under no duty to diversify the ESOP's holdings.
Having clarified that point, the Court held that an ERISA
fiduciary's assumption that a major stock market provides the
best estimate of the value of the stocks traded on it that is
available to him would never, absent special circumstances,
support a plausible prudence claim.
Plaintiff has not stated a plausible claim for breach of the duty
of prudence
Plaintiff's second claim is that defendants breached their
fiduciary duties by failing to conduct an appropriate
investigation of the merits of continued investment in Marathon
Oil.
Although a fiduciary generally must investigate an investment's
merits, a fiduciary's failure to investigate an investment
decision alone is not sufficient to show that the decision was
not reasonable. Instead, a plaintiff must show a causal link
between the failure to investigate and the harm suffered by the
plan.
Any breach of the defendants' duty to investigate did not cause a
loss to the plan, for, even in the face of adverse public
information about Marathon Oil stock, defendants could have
prudently relied on the security's market price as an unbiased
assessment of the security's value in light of all public
information. Saumer, supra, 853 F.3d at 863, rejecting failure-
to-investigate claim where plaintiffs have not pled what, if
anything, the fiduciaries might've gleaned from publicly
available information that would undermine reliance on the market
price.
The Court agrees with the defendants that, absent an investment
that is either imprudent or improperly diversified, there can be
no recovery for a failure to investigate.
Plaintiff has not, for this additional reason, stated a plausible
failure-to-investigate claim.
Plaintiff's third claim alleges that defendants breached their
duty to diversify plan assets when they invested $88 million, or
6.5% of the plan's funds, in Marathon Oil stock.
Defendants contend that plaintiff has no diversification claim
because the Plan was, and is, amply diversified. They explain
that participants could invest in numerous investment options on
the Plan menu, plus thousands of additional mutual funds through
a brokerage window.
Plaintiff responds that the Court can, and should, consider the
diversification question at the individual fund level. To support
his position, plaintiff relies on Spano v. The Boeing Co., 125
F.Supp.3d 848(S.D. Ill. 2014).
In that case, participants in Boeing's 401(k) plan alleged that
one of the plan's eleven investment options the so-called
Technology Fund was an imprudent investment because it was
undiversified and concentrated in the technology sector, which
plaintiffs maintained was a risky, volatile sector of the
economy.
Here, there is no question that the Marathon Petroleum plan,
taken as a whole, offered diverse options. Moreover, 93.5% of the
plan's assets were in funds that plaintiff has not challenged as
imprudent, undiversified, or otherwise improper.
But the logical endpoint of plaintiff's argument seems to be that
offering a single-stock investment option within a defined-
contribution plan always violates the duty of prudence. After
all, a single-stock investment option will always be risky, given
that the value of the investment depends exclusively on the
success of the issuing company. Furthermore, plaintiff has not
explained why it is that placing a mere 6.5% of the plan assets
as opposed to some other amount in Marathon Oil stock breached
the defendants' diversification duties.
The Court concludes that plaintiff has not stated a plausible
diversification claim.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/ybrzzcju from Leagle.com.
Jefferey Yates, On behalf of a class of others similarly situated
and on behalf of Marathon Petroleum Thrift Plan, Plaintiff,
represented by Gregory Y. Porter -- gporter@baileyglasser.com --
Bailey & Glasser.
Jefferey Yates, On behalf of a class of others similarly situated
and on behalf of Marathon Petroleum Thrift Plan, Plaintiff,
represented by Douglas P. Needham -- dneedham@ikrlaw.com --
Izard Kindall & Raabe, Mark George Boyko --
mboyko@baileyglasser.com -- Bailey & Glasser, Mark P. Kindall --
mkindall@ikrlaw.com -- Izard Kindall & Raabe, Robert A. Izard --
rizard@ikrlaw.com -- Izard Kindall & Raabe, pro hac vice & Ryan
T. Jenny -- rjenny@baileyglasser.com -- Bailey & Glasser.
Rodney P Nichols, Administrator for Marathon Petroleum Thrift
Plan, Defendant, represented by Thomas P. Dillon -- tdillon@slk-
law.com -- Shumaker, Loop & Kendrick, Anne E. Rea --
AREA@SIDLEY.COM -- Sidley Austin, Eric S. Mattson --
EMATTSON@SIDLEY.COM -Sidley Austin & Lisa E. Schwartz --
LSCHWARTZ@SIDLEY.COM -Sidley Austin.
Marathon Petroleum Corporation Savings Plan Investment Committee,
Defendant, represented by Thomas P. Dillon, Shumaker, Loop &
Kendrick, Anne E. Rea, Sidley Austin, Eric S. Mattson, Sidley
Austin & Lisa E. Schwartz, Sidley Austin.
Timothy Griffith, Defendant, represented by Thomas P. Dillon,
Shumaker, Loop & Kendrick, Anne E. Rea, Sidley Austin, Eric S.
Mattson, Sidley Austin & Lisa E. Schwartz, Sidley Austin.
Tom Kaczynski, Defendant, represented by Thomas P. Dillon,
Shumaker, Loop & Kendrick, Anne E. Rea, Sidley Austin, Eric S.
Mattson, Sidley Austin & Lisa E. Schwartz, Sidley Austin.
John Does, 1-10, Defendant, represented by Anne E. Rea, Sidley
Austin, Eric S. Mattson, Sidley Austin & Lisa E. Schwartz, Sidley
Austin.
MDL 2143: Court Won't Decertify Indirect Purchasers Class
---------------------------------------------------------
The United States District Court for the Northern District of
California, San Francisco Division, issued an Order denying
Defendant's Motion to Decertify Indirect Purchasers Class in the
case captioned IN RE OPTICAL DISK DRIVE ANTITRUST LITIGATION.
This Document Relates to: ALL INDIRECT PURCHASER ACTIONS, Case
No. 10-md-02143-RS (N.D. Cal.).
The standard for decertification is the same as it is for class
certification: whether the requirements of Federal Rule of Civil
Procedure 23 are met.
Rule 23(b)(3) provides that a class action may be maintained
where the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.
Defendants move for decertification on the grounds that IPPs have
failed to offer class-wide evidence in support of their reduced
quality theory of pass-through, arguing that their theory is
built on an unsupported assumption, refuted and undermined by the
record evidence.
As noted in the last round of class certification briefing, the
crucial point is that whether the IPPs theory is right or wrong,
it is something that can be decided on a class-wide basis. While
the merits of the theory have proven to be unsupported by the
record evidence, that theory was nonetheless appropriate for
disposition on a class-wide basis, which Defendants have shown
through their successful Motion for Summary Judgment.
Defendants' Motion for Decertification of the Indirect Purchaser
Plaintiff Class is denied.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y9pqgkx7 from Leagle.com.
CMP Consulting Services, Inc., Plaintiff, represented by Dianne
M. Nast -- dnast@nastlaw.com -- NastLaw LLC.
CMP Consulting Services, Inc., Plaintiff, represented by
Christopher T. Heffelfinger -- cheffelfinger@bermandevalerio.com
-- Berman Tabacco, Joseph R. Saveri -- jsaveri@saverilawfirm.com
-- Joseph Saveri Law Firm, Inc., Kevin Bruce Love --
klove@hanzmancriden.com -- Hanzman Criden & Love, P.A., Laurence
D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP,
Linda M. Fong -- lfong@kaplanfox.com -- Kaplan Fox & Kilsheimer
LLP, Michael E. Criden -- mcriden@cridenlove.com -- Criden & Love
P.A. & Steven Noel Williams -- swilliams@cpmlegal.com -- Cotchett
Pitre & McCarthy LLP.
LG Electronics, Inc., Defendant, represented by Ameri Rose
Klafeta -- aklafeta@eimerstahl.com -- Eimer Stahl LLP, Ian T.
Simmons -- isimmons@omm.com -- O'Melveny & Myers LLP, Jacob
Michael Hamann -- jhamann@eimerstahl.com -- Eimer Stahl LLP,
Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP,
Samuel R. Miller -- srmiller@sidley.com -- Sidley Austin LLP,
Sarah Hargadon -- neimer@eimerstahl.com -- Eimer Stahl LLP &
Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer
Stahl LLP, pro hac vice.
Hitachi-LG Data Storage, Inc., also known as HP Inc., Defendant,
represented by Anthony C. Biagioli Anthony.Biagioli@ropesgray.com
-- Ropes & Grat LLP, Emily Jessica Derr --
Emily.Derr@ropesgray.com -- Ropes and Gray LLP, pro hac vice,
Jane E. Willis -- Jane.Willis@ropesgray.com -- Ropes & Gray LLP,
Kaede Toh -- Kaede.Toh@ropesgray.com -- Ropes and Gray LLP, Mark
Samuel Popofsky -- Mark.Popofsky@ropesgray.com -- Ropes and Gray
LLP & Michelle Lynn Visser -- Michelle.Visser@ropesgray.com --
Ropes and Gray LLP.
MDL 2280: Settlement in Wage & Hour Class Suit Denied
-----------------------------------------------------
In the case, IN RE MORGAN STANLEY SMITH BARNEY LLC WAGE AND HOUR
LITIGATION, Case No. MDL 2280, Civ. No. 2:11-3121 (D. N.J.),
Judge Wiliam J. Martini of the U.S. District Court for the
District of New Jersey denied the parties' joint motion for
judicial approval of their settlement agreement.
The Plaintiffs bring the putative collective action under the
Fair Labors Standards Act ("FLSA"), and three putative wage and
hour class actions against MSSB.
On Feb. 28, 2017, the Court granted summary judgment in favor of
MSSB and dismissed all of the Plaintiffs' outstanding claims with
prejudice. The Plaintiffs subsequently filed an appeal. The
parties now jointly move for judicial approval of their
settlement agreement.
Judge Martini holds that the Court's summary judgment opinion
produced a precedent concerning the FLSA's application at
considerable cost to the public in the form of the Court's time
and resources, which it will not diminish by approving the
parties' agreement. Simply put, there is nothing to settle. The
parties are free to dismiss their appeal of the rulings in the
case at a price acceptable to them, for which they do not need
the Court's permission. Accordingly, the Judge denied the
parties' joint motion for settlement approval. An appropriate
order follows.
A full-text copy of the Court's Dec. 19, 2017 Opinion is
available at https://is.gd/zAq73y from Leagle.com.
NICK PONTILENA, on behalf of himself and all others similarly
situated, Plaintiff, represented by JEFFREY G. SMITH --
smith@whafh.com - -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP.
NICK PONTILENA, on behalf of himself and all others similarly
situated, Plaintiff, represented by MICHAEL MILTON LISKOW, WOLF
MALDENSTEIN ADLER FREEMAN & HERZ LLP, ROBERT ABRAMS --
abrams@whafh.com -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP &
STEPHEN PATRICK DENITTIS -- sdenittis@denittislaw.com -- DENITTIS
OSEFCHEN, PC.
DENISE OTTEN, Plaintiff, represented by JEFFREY G. SMITH, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, MICHAEL MILTON LISKOW, WOLF
MALDENSTEIN ADLER FREEMAN & HERZ LLP, ROBERT ABRAMS, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, STEPHEN PATRICK DENITTIS,
DENITTIS OSEFCHEN, PC & ERIK H. LANGELAND, WOLF MALDENSTEIN ADLER
FREEMAN & HERZ LLP.
JIMMY KUHN, Plaintiff, represented by JEFFREY G. SMITH, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, MICHAEL MILTON LISKOW, WOLF
MALDENSTEIN ADLER FREEMAN & HERZ LLP, ROBERT ABRAMS, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, STEPHEN PATRICK DENITTIS,
DENITTIS OSEFCHEN, PC & ERIK H. LANGELAND, WOLF MALDENSTEIN ADLER
FREEMAN & HERZ LLP.
GREGG VANASSE, Plaintiff, represented by JEFFREY G. SMITH, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, ROBERT ABRAMS, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, STEPHEN PATRICK DENITTIS,
DENITTIS OSEFCHEN, PC & Andrew H. Berg Sammartino & Berg.
HOWARD ROSENBLATT, Plaintiff, represented by JEFFREY G. SMITH,
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP, MICHAEL MILTON LISKOW,
WOLF MALDENSTEIN ADLER FREEMAN & HERZ LLP, ROBERT ABRAMS, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, STEPHEN PATRICK DENITTIS,
DENITTIS OSEFCHEN, PC & ERIK H. LANGELAND, WOLF MALDENSTEIN ADLER
FREEMAN & HERZ LLP.
MORGAN STANLEY SMITH BARNEY LLC, Defendant, represented by DANIEL
F. MURPHY, JR. -- dmurphy@putneylaw.com -- PUTNEY, TWOMBLY, HALL
& HIRSON, ESQS.,JESSICA R. PERRY, WOLF HALDENSTEIN ADLER FREEMAN
& HERZ LLP,MARK ANTHONY HERNANDEZ -- mhernandez@putneylaw.com --
PUTNEY TWOMBLY HALL & HIRSON LLP & TRISH M. HIGGINS --
thiggins@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE LLP.
MORGAN STANLEY & CO., INC., Defendant, represented by TRISH M.
HIGGINS, ORRICK HERRINGTON & SUTCLIFFE LLP.
MDL 2382: Seeks Okay of Class Notice in Wet/Dry Vac MDL
-------------------------------------------------------
The Plaintiffs and Defendant in the multidistrict litigation
styled IN RE: EMERSON ELECTRIC CO. WET/DRY VAC MARKETING AND
SALES LITIGATION, MDL No. 4:12-md-02382-HEA (E.D. Mo.), file a
joint motion for approval of class notice.
Pursuant to the Court's Order dated December 1, 2017, the parties
have conferred and have agreed upon attached short form notice to
be provided to the Class by the Plaintiff's interim class counsel
at a later date.
The Parties agree that the notice accurately and appropriately
updates the Class regarding the Certification Order and provides
a fair opportunity to opt-out from automatic inclusion in the
Class, which shall result in a binding resolution, one way or the
other, for the Class members, who elect not to opt-out, according
to the Joint Motion.
A copy of the Joint Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=CGfXhN3K
The Plaintiffs are represented by:
Eric D. Holland, Esq.
R. Seth Crompton, Esq.
THE HOLLAND LAW FIRM
300 North Tucker Boulevard, Suite 801
St. Louis, MO 63101
Telephone: (314) 241-8111
Facsimile: (314) 241-5554
E-mail: eholland@allfela.com
scrompton@allfela.com
- and -
John Simon, Esq.
Anthony G. Simon, Esq.
THE SIMON LAW FIRM
800 Market Street, Suite 1700
St. Louis, MO 63101
Telephone: (314) 241-2929
Facsimile: (314) 241-2029
E-mail: jsimon@simonlawpc.com
asimon@simonlawpc.com
- and -
Richard J. Arsenault, Esq.
NEBLETT, BEARD & ARSENAULT
2220 Bonaventure Court
P.O. Box 1190
Alexandria, LA 71309
Telephone: (216) 621-8484
Facsimile: (216)771-1632
E-mail: rarsenault@nbalawfirm.com
- and -
John R. Climaco, Esq.
CLIMACO, WILCOX, PECA, TARANTINO & GAROFOLI CO., L.P.A.
55 Public Square, Suite 1950
Cleveland, OH 44113
Telephone: (216) 621-8484
Facsimile: (216) 771-1632
E-mail: jrclim@climacolaw.com
- and -
Charles E. Schaffer, Esq.
LEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: cschaffer@lfsblaw.com
- and -
Jordan L. Chaikin, Esq.
PARKER WAICHMAN LLP
3301 Bonita Beach Road, Suite 101
Bonita Springs, FL 34134
Telephone: (239) 390-1000
Facsimile: (239) 390-0055
E-mail: jchaikin@yourlawyer.com
- and -
Reginald Terrell, Esq.
THE TERRELL LAW GROUP
Post Office Box 13315, PMB #148
Oakland, CA 94661
Telephone: (510) 237-9700
Facsimile: (510) 237-4616
E-mail: Reggie2@aol.com
The Defendant is represented by:
Joseph C. Orlet, Esq.
Matthew R. Grant, Esq.
HUSCH BLACKWELL LLP
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Telephone: (314) 480-1500
Facsimile: (314) 480-1505
E-mail: joseph.orlet@huschblackwell.com
matt.grant@huschblackwell.com
MDL 2796: April 5 Initial Case Status Conference
------------------------------------------------
The United States District Court for the Northern District of
California issued an Order setting deadlines for filing of
initial and responsive pleadings in IN RE: GERMAN AUTOMOTIVE
MANUFACTURERS ANTITRUST LITIGATION. This Order Relates To: ALL
ACTIONS. MDL No. 2796 CRB (JSC). (N.D. Cal.).
The Court appointed Plaintiffs' Lead Counsel and the Plaintiffs'
Steering Committee. With these appointments made, the Court now
sets deadlines for the filing of initial and responsive pleadings
in this MDL, schedules an initial case status conference, and
requests that Plaintiffs' Lead Counsel submit a proposed protocol
for common benefit work and expenses.
Mr. Burns, as Co-Lead Counsel, must file a consolidated class
action complaint on behalf of a Direct Purchaser Putative Class;
both consolidated class action complaints must be filed on or
before Thursday, March 15, 2018.
Defendants must answer, move to dismiss, or otherwise respond to
the consolidated class action complaints on or before Thursday,
May 17, 2018.
The Court will conduct an initial case status conference on
Thursday, April 5, 2018 at 10:00 a.m.in Courtroom No. 6, 17th
Floor, 450 Golden Gate Avenue, San Francisco, California.
Plaintiffs' Lead Counsel and lead counsel for each Defendant are
required to appear in person at the conference. On or before
Friday, March 30, 2018, Plaintiffs' Lead Counsel and lead counsel
for each Defendant must submit a joint written statement.
Plaintiffs' Lead Counsel and lead counsel for each Defendant must
be prepared at the April 5, 2018 conference to answer questions
from the Court regarding written submissions, litigation status,
and evidence preservation.
Lead counsel for each Defendant, may listen to the April 5, 2018
initial case status conference through CourtCall and thus need
not incur the expense and burden of attending this conference in
person. Access to the conference may be arranged by calling Court
Call at (866) 582-6878 not later than 3:00 p.m. on April 4, 2018.
Court Call participants may only listen to the proceedings.
On or before Friday, January 19, 2018, Plaintiffs' Lead Counsel
shall submit a proposed pre-trial order with a proposed protocol
for common benefit work and expenses. The proposed protocol shall
set specific guidelines and rules for work done and expenses
incurred for the common benefit of all Plaintiffs in this MDL. As
an example of the level of detail that is requested, Plaintiffs'
Lead Counsel are encouraged to review Pre-trial Order No. 11
A full-text copy of the District Court's December 20, 2017 Order
is available at https://tinyurl.com/y6wmwpa8 from Leagle.com.
Steven Lewis, on behalf of themselves and other similarly
situated, Plaintiff, represented by Emily Catherine Aldridge --
ealdridge@bfalaw.com -- Bleichmar Fonti & Auld LLP.
Steven Lewis, on behalf of themselves and other similarly
situated, Plaintiff, represented by Lesley Elizabeth Weaver -
lweaver@bfalaw.com -- Bleichmar Fonti & Auld LLP, Matthew
Sinclair Weiler -- mweiler@bfalaw.com -- Bleichmar Fonti & Auld
LLP & Roxanne Barton Conlin -- ldg@roxanneconlinlaw.com --
Roxanne Conlin and Associates, pro hac vice.
Travis Burton, on behalf of themselves and other similarly
situated, Plaintiff, represented by Emily Catherine Aldridge,
Bleichmar Fonti & Auld LLP, Lesley Elizabeth Weaver, Bleichmar
Fonti & Auld LLP, Matthew Sinclair Weiler, Bleichmar Fonti & Auld
LLP & Roxanne Barton Conlin, Roxanne Conlin and Associates, pro
hac vice.
Gabriel Briscoe, individually and on behalf of all others
similarly situated, Plaintiff, represented by Gretchen Freeman
Cappio -- gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro
hac vice, Jeffrey Greg Lewis -- jlewis@kellerrohrback.com --
Keller Rohrback L.L.P., Juli E. Farris --
jfarris@kellerrohrback.com -- KELLER ROHRBACK L.L.P., Lynn
Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice, Roxanne Barton Conlin, Roxanne Conlin and
Associates, pro hac vice & Ryan McDevitt --
rmcdevitt@kellerrohrback.com -- Keller Rohrback L.L.P..
Marilyn Fong, individually and on behalf of all others similarly
situated, Plaintiff, represented by Lisa P. Mak --
lmak@minamitamaki.com -- Minami Tamaki LLP, Roxanne Barton
Conlin, Roxanne Conlin and Associates, pro hac vice & Sean
Tamura-Sato -- seant@minamitamaki.com -- Minami Tamaki LLP.
Juan Barrera, Plaintiff, represented by Christopher A. Seeger --
cseeger@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, David
R. Buchanan -- dbuchanan@seegerweiss.com -- Seeger Weiss LLP, pro
hac vice, Jennifer Rebecca Scullion -- jscullion@seegerweiss.com
-- Seeger Weiss LLP, Roxanne Barton Conlin, Roxanne Conlin and
Associates, pro hac vice & Scott Alan George --
sgeorge@seegerweiss.com -- Seeger Weiss LLP, pro hac vice.
Amir Berenjian, Plaintiff, represented by Demetrius Xavier
Lambrinos, Joseph Saveri Law Firm, Inc., Joseph R. Saveri, Joseph
Saveri Law Firm, Inc., Kyla Jenny Gibboney, Joseph Saveri Law
Firm, 555 Montgomery Street, Suite 1210. San Francisco,
California 94111. Roxanne Barton Conlin, Roxanne Conlin and
Associates, pro hac vice & Ryan James McEwan, Joseph Saveri Law
Firm, Inc., 555 Montgomery Street, Suite 1210. San Francisco,
California 94111..
Hamid Berenjian, Plaintiff, represented by Demetrius Xavier
Lambrinos, Joseph Saveri Law Firm, Inc., Joseph R. Saveri, Joseph
Saveri Law Firm, Inc., Kyla Jenny Gibboney, Joseph Saveri Law
Firm, Roxanne Barton Conlin, Roxanne Conlin and Associates, pro
hac vice & Ryan James McEwan, Joseph Saveri Law Firm, Inc..
Mark Undestad, Plaintiff, represented by Demetrius Xavier
Lambrinos, Joseph Saveri Law Firm, Inc., Joseph R. Saveri, Joseph
Saveri Law Firm, Inc., Kyla Jenny Gibboney, Joseph Saveri Law
Firm, Roxanne Barton Conlin, Roxanne Conlin and Associates, pro
hac vice & Ryan James McEwan, Joseph Saveri Law Firm, Inc..
Elie Sasson, Plaintiff, represented by Jennie Lee Anderson -
jennie@andrusanderson.com -- Andrus Anderson LLP & Roxanne
Barton Conlin, Roxanne Conlin and Associates, pro hac vice.
Powders Automobiles, Inc., Individually and on behalf of all
other similarly situated formerly known as Powders Volkswagen,
Inc. formerly known as Powders Volkswagen Audi, Inc., Plaintiff,
represented by Michelle Adrien Parfitt, Ashcraft Gerel LLP.
BMW North America, LLC, Defendant, represented by Belinda S. Lee
-
belinda.lee@lw.com -- Latham & Watkins LLP, Daniel Murray Wall -
- dan.wall@lw.com -- Latham & Watkins LLP & Michael Lacovara --
michael.lacovara@lw.com -- Latham & Watkins LLP.
Volkswagen Group of America, Inc., Defendant, represented by
Amanda F. Davidoff -- davidoffa@sullcrom.com -- Sullivan and
Cromwell LLP, pro hac vice, Samantha Frances Hynes --
hyness@sullcrom.com -- Sullivan and Cromwell LLP, pro hac vice,
Sharon L. Nelles -- nelless@sullcrom.com -- Sullivan and Cromwell
LLP, Steven L. Holley -- holleys@sullcrom.com -- Sullivan and
Cromwell LLP, pro hac vice & Suhana S. Han -- hans@sullcrom.com -
- Sullivan and Cromwell LLP, pro hac vice.
MDL 2800: "Campbell" Data Breach Suit Moved to N.D. Georgia
-----------------------------------------------------------
The case, Gary Campbell, individually and on behalf of all others
similarly situated, the Plaintiff, v. Equifax, Inc., the
Defendant, Case No. 2:17-cv-01657, (W.D. Wash., November 3,
2017), has been transferred to the U.S. District Court for the
Northern District of Georgia and consolidated in MDL No. 2800, In
re Equifax, Inc., Customer Data Security Breach Litigation.
The Case was transferred pursuant to a Conditional Transfer Order
dated Dec. 27.
The lawsuit seeks damages, restitution and other equitable relief
for Defendant's violation of the Washington Consumer Protection
Act.
The class action stems from a data breach that the Defendant
discovered on July 29, 2017. On September 7, 2017, the Defendant
announced that it had suffered a breach that exposed the names,
Social Security numbers, birth dates, addresses and driver's
license numbers for over 140 million United States consumers. In
addition, the Defendant admitted that credit card numbers for
approximately 209,000 customers were beached and dispute
documentation for approximately 182,000 customers was also
accessed which included addition personally identifiable
information or PII. The Washington Consumer Protection Act
protects both consumers and competitors by promoting fair
competition in commercial markets for goods and services. The
Plaintiff and other similarly situated consumers' PII was in the
possession of the Defendant at the time of the Breach.
Allegations in the complaint states that the Defendant expressly
represented that it would safeguard and protect the Plaintiff and
other similarly situated consumers' PII. Defendant's conduct was
deceptive by failing to honestly disclose its true data security
practices at the time it accepted and maintained the PII of the
Plaintiff and other similarly situated consumers. Defendant knew
or should have known that it was not complying with its own data
security representations and obligations.[BN]
Plaintiff is represented by:
Christopher L. Thayer, Esq.
McKean J. Evans, Esq.
PIVOTAL LAW GROUP, PLLC
IBM Building, Suite 1217
1200 5th Avenue
Seattle, WA 98101
Telephone: (206) 340-2008
Facsimile: (206) 340-1962
Email: Cthayer@PivotalLawGroup.com
Email: MEvans@PivotalLawGroup.com
MDL 2800: "House" Data Breach Suit Moved to N.D. Georgia
--------------------------------------------------------
The case titled, Jesse House, on behalf of himself and all others
similarly situated, the Plaintiff, v. Equifax Inc., and Equifax
Information Services, LLC, the Defendants, Case No. 4:17-cv-
00392-SMR-SBJ, (S.D. Iowa, November 3, 2017), has been
transferred to U.S. District Court for the Northern District of
Georgia, and consolidated in MDL No. 2800, In re Equifax, Inc.,
Customer Data Security Breach Litigation.
The Conditional Transfer Order was entered Dec. 18.
The lawsuit seeks damages, injunction and other relief over
Defendants' violations of the federal Fair Credit Reporting Act
("FCRA"), negligence, negligence per se, contract claims, unjust
enrichment, and bailment.
The Plaintiff Jesse House has been a consumer of Defendants'
services and entrusted Defendants with his personal information.
The Defendants owed Plaintiff and other similarly situated
consumers a duty of care to take adequate measures to protect the
information entrusted to them, to detect and stop data breaches,
and to inform Plaintiff and the Class of data breaches that could
expose Plaintiff and the Class to harm. However, Equifax failed
to do so. The Plaintiff alleges the violations of Equifax under
the Federal Fair Credit Reporting Act in which Equifax furnished
consumer reports by disclosing their consumer reports to
unauthorized entities and computer hackers to access their
consumer reports; knowingly and/or recklessly failing to take
security measures that would prevent unauthorized entities or
computer hackers from accessing their consumer reports; and/or
failing to take reasonable security measures that would prevent
unauthorized entities or computer hackers from accessing their
consumer reports. With that, Equifax was negligent in failing to
maintain reasonable procedures designed to limit the furnishing
of consumer reports to the purposes outlined under the FCRA.
Further, Equifax breached its duties and is negligence per se
that PII would not have been accessed by unauthorized
individuals.[BN]
Plaintiff is represented by:
Brian Galligan, Esq.
GALLIGAN REID PC
300 Walnut St., Suite 5
Des Moines, IA 50309
Telephone: (515) 282-3333
Facsimile: (515) 282-0318
Email: bgalligan@galliganlaw.com
- and -
Kevin Sharp, Esq.
SANFORD HEISLER SHARP, LLP
611 Commerce St., Suite 3100
Nashville, TN 37203
Telephone: (615) 434-7001
Facsimile: (615) 434-7020
Email: ksharp@sanfordheisler.com
MICHIGAN: 6th Cir. Remands Juvenile Inmates' Suit
-------------------------------------------------
Since 2010, Plaintiffs Henry Hill, et al., have sought federal
court review of the punishments Michigan may constitutionally
impose on individuals convicted of first-degree murder for acts
they committed as children. When the U.S. Court of Appeals for
the Sixth Circuit last considered this case, the legal landscape
had changed in a few fundamental ways: The Supreme Court had
twice ruled that the unique characteristics of youth must factor
into sentencing decisions for juvenile offenders facing life
imprisonment, and the Michigan Legislature had amended its
statutory scheme to implement these rulings.
Recognizing the import of these developments, the Sixth Circuit
remanded the case to the district court with express instructions
that the parties be authorized to amend the pleadings. The
Plaintiffs heeded the circuit court's opinion and filed a Second
Amended Complaint (SAC) in June 2016.
Now, as before, they assert that Michigan's sentencing scheme and
parole system deny youth offenders a meaningful opportunity for
release. The district court determined that jurisprudential
concerns barred Plaintiffs' claims and dismissed the SAC in its
entirety.
Although the Sixth Circuit agrees that certain claims in the SAC
may not proceed, it does not find that the concerns articulated
by the district court require dismissal of the entire action.
Accordingly, the Sixth Circuit affirms the district court's
dismissal of Counts I and II, reverses the district court's
dismissal of Counts IV, V, and VI, and remands for further
proceedings.
The appeals case is captioned HENRY HILL, et al., Plaintiffs-
Appellants, v. RICK SNYDER, et al., Defendants-Appellees, No. 17-
1252 (6th Cir.).
A full-text copy of the Sixth Circuit's December 20, 2017 Order
is available at https://tinyurl.com/y9pbhkun from Leagle.com.
ARGUED: Deborah LaBelle, Ann Arbor, Michigan, 221 N. Main St.,
Ste. 300. Ann Arbor, MI 48104, for Appellants.
B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
ON BRIEF: Deborah LaBelle, Ann Arbor, Michigan, Brandon J.
Buskey, Steven M. Watt, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, New York, New York, Daniel S. Korobkin ,Michael J.
Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN,
Detroit, Michigan, for Appellants.
B. Eric Restuccia, Margaret A. Nelson, Joseph Froehlich, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellees.
MICHIGAN: Rehearing & Release on Habeas Bids in "Rouse" Denied
--------------------------------------------------------------
In the case captioned ARTHUR J. ROUSE, et. Al., Plaintiffs, v.
STATE OF MICHIGAN, et. Al., Defendants, Case No. 2:17-CV-12276
(E.D. Mich.), Judge Denise Page Hood of the U.S. District Court
for the Eastern District of Michigan, Southern Division, denied
the Plaintiffs' denied the motions for rehearing, the application
to proceed without fees and costs on appeal, and the motion for
release on habeas corpus.
The seven incarcerated Plaintiffs filed a proposed class action
complaint and a petition for a writ of mandamus and a writ of
habeas corpus. The joint petition for writ of habeas corpus was
dismissed without prejudice on Aug. 8, 2017. On Oct. 25, 2017,
the Court dismissed the complaint and the petition for writ of
mandamus without prejudice because the Plaintiffs failed to
comply with an order to correct a deficiency in the case.
Plaintiffs Rouse and Merriman have filed several motions, as well
as Notices of Appeal with the Sixth Circuit.
Judge Hood holds that the Court lacks jurisdiction to consider
the Plaintiffs' motion for rehearing or to alter or amend the
pleadings because they've filed notices of appeal in the case.
Because the Plaintiffs filed notice of appeals, the Court lacks
jurisdiction to amend its original opinion and order to consider
the merits of their motions. Likewise, because jurisdiction of
the action was transferred from the district court to the Sixth
Circuit Court of Appeals upon the filing of the notices of
appeal, Plaintiff Merriman's application to proceed in forma
pauperis on appeal would be more appropriately addressed to the
Sixth Circuit.
Finally, the Judge indicated when he dismissed the joint petition
for writ of habeas corpus that each of the Plaintiff in the case
was free to each file their own separate habeas petition
challenging their own convictions. He will thus deny Plaintiff
Rouse's motion for release on habeas corpus without prejudice to
him filing a petition for writ of habeas corpus in a separate
case.
Judge Hood denied the motions for rehearing, the application to
proceed without fees and costs on appeal, and the motion for
release on habeas corpus.
A full-text copy of the Court's Dec. 19, 2017 Opinion and Order
is available at https://is.gd/z3KGPO from Leagle.com.
Arthur Rouse, Plaintiff, Pro Se.
Lance Goldman, Plaintiff, Pro Se.
Chris Harner, Plaintiff, Pro Se.
William Merriman, Plaintiff, Pro Se.
Cedric Simpson, Plaintiff, Pro Se.
Frank Doyle, Plaintiff, Pro Se.
Robert Wilburn, Plaintiff, Pro Se.
John Does, Plaintiff, Pro se.
Jane Does, Plaintiff, Pro se.
MICROCHIP TECH: Kisicki May Appear Telephonically at CMC
--------------------------------------------------------
In the case, PETER SCHUMAN, an individual, and WILLIAM COMPLIN,
an individual, on behalf of themselves and on behalf of others
similarly situated, Plaintiffs, v. MICROCHIP TECHNOLOGY
INCORPORATED, a corporation; ATMEL CORPORATION, a corporation;
and ATMEL CORPORATION U.S. SEVERANCE GUARANTEE BENEFIT PROGRAM,
an employee benefit plan, Defendants, Case No. 4:16-CV-05544-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District
Court for the Northern District of California granted the
Defendants' Motion for Leave to Appear Telephonically at the
December 19, 2017 Case Management Conference.
Judge Gilliam allowed the Defendants' counsel Mark Kisicki to
appear telephonically at the Case Management Conference scheduled
for Dec. 19, 2017 at 2:00 p.m. The Counsel will contact Court.
Call at (866) 582-6878 to make arrangements for the telephonic
appearance.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/jnSnC0 from Leagle.com.
Peter Schuman, Plaintiff, represented by Cliff Michael Palefsky ,
McGuinn Hillsman & Palefsky.
Peter Schuman, Plaintiff, represented by Connie K. Chan --
cchan@altber.com -- Altshuler Berzon LLP, Michael Rubin --
mrubin@altber.com -- Altshuler Berzon LLP, Raphael N. Rajendra --
rrajendra@altber.com -- Altshuler Berzon, William B. Reilly, Law
Office of William Reilly & Keith A. Ehrman -- keith@mhpsf.com --
McGuinn, Hillsman & Palefsky.
William Coplin, Plaintiff, represented by Cliff Michael Palefsky,
McGuinn Hillsman & Palefsky, Connie K. Chan, Altshuler Berzon
LLP, Michael Rubin, Altshuler Berzon LLP, Raphael N. Rajendra,
Altshuler Berzon, William B. Reilly, Law Office of William Reilly
& Keith A. Ehrman, McGuinn, Hillsman & Palefsky.
Microchip Technology Incorporated, Defendant, represented by Mark
E. Schmidtke, Ogletree, Deakins, Nash, Smoak, Stewart, P.C., pro
hac vice, Mark Gerard Kisicki -- mark.schmidtke@ogletree.com --
Ogletree Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C..
Atmel Corporation, Defendant, represented by Mark E. Schmidtke --
mark.kisicki@ogletree.com -- Ogletree, Deakins, Nash, Smoak,
Stewart, P.C., pro hac vice, Mark Gerard Kisicki, Ogletree
Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty --
sean.nalty@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C..
Atmel Corporation U.S. Severance Guarantee Benefit Program,
Defendant, represented by Mark E. Schmidtke, Ogletree, Deakins,
Nash, Smoak, Stewart, P.C., pro hac vice, Mark Gerard Kisicki,
Ogletree Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C..
MICROCHIP TECH: Schmidtke May Appear Telephonically at CMC
----------------------------------------------------------
In the case, PETER SCHUMAN, an individual, and WILLIAM COMPLIN,
an individual, on behalf of themselves and on behalf of others
similarly situated, Plaintiffs, v. MICROCHIP TECHNOLOGY
INCORPORATED, a corporation; ATMEL CORPORATION, a corporation;
and ATMEL CORPORATION U.S. SEVERANCE GUARANTEE BENEFIT PROGRAM,
an employee benefit plan, Defendants, Case No. 4:16-CV-05544-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District
Court for the Northern District of California granted the
Defendants' Motion for Leave to Appear Telephonically at the
December 19, 2017 Case Management Conference.
Judge Gilliam allowed the Defendants' counsel Mark Schmidtke to
appear telephonically at the Case Management Conference scheduled
for Dec. 19, 2017 at 2:00 p.m. The Counsel will contact Court
Call at (866) 582-6878 to make arrangements for the telephonic
appearance.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/s6uBBk from Leagle.com.
Peter Schuman, Plaintiff, represented by Cliff Michael Palefsky ,
McGuinn Hillsman & Palefsky.
Peter Schuman, Plaintiff, represented by Connie K. Chan --
cchan@altber.com -- Altshuler Berzon LLP, Michael Rubin --
mrubin@altber.com -- Altshuler Berzon LLP, Raphael N. Rajendra --
rrajendra@altber.com -- Altshuler Berzon, William B. Reilly, Law
Office of William Reilly & Keith A. Ehrman -- keith@mhpsf.com --
McGuinn, Hillsman & Palefsky.
William Coplin, Plaintiff, represented by Cliff Michael Palefsky,
McGuinn Hillsman & Palefsky, Connie K. Chan, Altshuler Berzon
LLP, Michael Rubin, Altshuler Berzon LLP, Raphael N. Rajendra,
Altshuler Berzon, William B. Reilly, Law Office of William Reilly
& Keith A. Ehrman, McGuinn, Hillsman & Palefsky.
Microchip Technology Incorporated, Defendant, represented by Mark
E. Schmidtke , Ogletree, Deakins, Nash, Smoak, Stewart, P.C., pro
hac vice, Mark Gerard Kisicki -- mark.schmidtke@ogletree.com --
Ogletree Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty ,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C..
Atmel Corporation, Defendant, represented by Mark E. Schmidtke --
mark.kisicki@ogletree.com -- Ogletree, Deakins, Nash, Smoak,
Stewart, P.C., pro hac vice, Mark Gerard Kisicki, Ogletree
Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty --
sean.nalty@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C..
Atmel Corporation U.S. Severance Guarantee Benefit Program,
Defendant, represented by Mark E. Schmidtke, Ogletree, Deakins,
Nash, Smoak, Stewart, P.C., pro hac vice, Mark Gerard Kisicki,
Ogletree Deakins Nash Smoak & Stewart P.C. & Sean Patrick Nalty,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C..
MICROSOFT CORP: Argues Against Class Action in Gender-Bias Suit
---------------------------------------------------------------
Rachel Lerman and Matt Day, writing for The Seattle Times,
reports that Microsoft defended itself January 5 against a
lawsuit claiming widespread gender discrimination at the company,
saying that its pay and promotion system does not discriminate
against women, and that employees' claims shouldn't be considered
together.
The lawsuit, filed by three current or former female employees,
is seeking class-action status, which could add 8,630 women to
the list of plaintiffs. The suit seeks to represent all women who
worked in technical roles at Microsoft since September 2012.
Microsoft said class-action status isn't warranted for the
lawsuit because there is no common cause for employees'
discrimination complaints.
The plaintiffs' suit asserts that women at Microsoft lost out on
$100 million to $238 million in pay and on 500 promotions because
of the company's discrimination.
Microsoft's process for promoting employees and giving raises is
biased against women, the suit claims, and the company was aware
that it was favoring men. Specifically, the lawsuit says that
when women and men in similar roles are found to have performed
equally well, women are given fewer promotions and raises after
managers confer during the company's review process.
Microsoft takes issue with basic tenets of the women's claims,
asserting that the company has nearly equal pay between men and
women who hold the same positions.
The Redmond company said the plaintiffs did not show any
connection between the part of the review process that involves
managers discussing each employee's performance and the alleged
pay disparity. Employee-review processes also vary between teams
and managers with few binding company guidelines, Microsoft
argued, so couldn't act as a system to discriminate.
"Plaintiffs' claims are simply not the stuff of which class
actions are made," Microsoft's response reads.
Gender-discrimination cases against other tech giants, including
Google and Uber, are piling up as the industry faces vocal
allegations it creates unwelcoming and sometimes hostile working
environments for women. Diversity at tech companies has been
forced into the spotlight as activist investors and employees
call on the powerful businesses to examine their demographics.
Katherine Moussouris complained of gender discrimination by
Microsoft in a suit filed in U.S. District Court in Seattle in
September 2015. She and her co-plaintiffs in October 2017 asked
U.S. District Judge James Robart to grant the case class-action
status.
Many of the claims that former female employees submitted as part
of that motion said that equally qualified men on their teams
were promoted faster and given more raises than they were while
working at Microsoft.
Some claims allege more blatant discriminatory treatment. One
former employee said she was denied a higher-level job because a
male manager said he did not want to "waste a promotion" on her
in case she became pregnant. Another said she was docked points
during a performance review because she was told she did not
smile enough.
The lawsuit criticizes a Microsoft-conducted study that showed
women at the company earn 99.9 cents for every dollar earned by
men in identical roles.
The women suing Microsoft hired researchers to study the
company's policies. Those studies found that Microsoft's
promotion and raise processes caused substantial pay gaps between
men and women who performed equally well.
Microsoft in turn claims the plaintiffs' studies were conducted
improperly, partly by ignoring the nuances of Microsoft's pay-
tier system that can award different salaries to employees with
the same job titles.
The company concedes in its filing that in large organizations,
"some employees inevitably fail to live up to standards" for
treating everyone equally. But it says it has a robust
investigative team to deal with discrimination complaints that
arise, and it denies that systemic bias is taking place through
its review process.
The plaintiffs will have a chance to respond and Microsoft has
asked for oral arguments before a judge decides whether to make
the case a class-action suit. [GN]
NEVADA ADULT MENTAL: Bid to Dismiss "Porter" Suit Partly Granted
----------------------------------------------------------------
Judge Andrew P. Gordon of the U.S. District Court for the
District of Nevada granted in part the Defendants' motion to
dismiss the case, CLORISSA D. PORTER and WILLIAM D. SPENCER, on
behalf of themselves and all those similarly situated,
Plaintiffs, v. SOUTHERN NEVADA ADULT MENTAL HEALTH SERVICES, et
al., Defendants, Case No. 16-cv-02949-APG-PAL (D. Nev.).
Porter and Spencer bring the putative class action against
Southern Nevada Adult Mental Health Services ("SNAMHS"), also
known as Rawson-Neal Psychiatric Hospital, and numerous
individuals employed by the state of Nevada. In their first
amended complaint, the they allege violations of the Fourth,
Eighth, and Fourteenth Amendments under 42 U.S.C. Section 1983;
Title II of the Americans with Disabilities Act ("ADA"); and the
Emergency Medical Treatment and Active Labor Act ("EMTALA").
The Plaintiffs allege that Rawson-Neal engages in a policy or
practice of involuntarily discharging mentally ill, indigent
patients on anti-psychotic medications, placing them in taxis
bound for the local Greyhound station, and providing them with
bus tickets to cities throughout the United States, where the
patients often have no contacts or plans for alternative care.
Porter and Spencer seek to represent similarly situated persons
who were former patients of Rawson-Neal and were subjected to
these alleged discharge procedures. They allege that the
hospital's actions violate their Fourth, Eighth, and Fourteenth
Amendment rights, as well as Title II of the ADA, and EMTALA's
prohibition on "patient-dumping."
This is not the first time these allegations have been raised
before the District Court of Nevada. On June 11, 2013, plaintiff
James Brown filed a putative class action raising the same causes
of action brought here. Judge Mahan granted the Defendants'
motion to dismiss the allegations on the merits before class
certification was determined, and gave Brown an opportunity to
amend his complaint. Instead, Brown filed a motion for
reconsideration, which Judge Mahan denied. Brown did not amend
his complaint despite two extensions of time to do so. On July
24, 2014, Judge Mahan dismissed the case with prejudice for
failure to comply with court orders as a sanction under Federal
Rule of Civil Procedure 41(b). Judge Mahan did not address the
class nature of the complaint in either the merits dismissal or
the 41(b) dismissal.
Brown appealed to the Ninth Circuit, but did not mention the
41(b) ruling in his opening brief, instead arguing that Judge
Mahan's dismissal on the merits was erroneous. On Nov. 4, 2016,
in a 2-1 split decision, the Ninth Circuit found that it could
not reach the merits in light of the final 41(b) dismissal. The
court also held that Brown waived any argument against the 41(b)
dismissal by not raising it in his opening brief.
The Plaintiffs in the instant case filed their complaint on Dec.
21, 2016, the day the Ninth Circuit's mandate in Brown issued.
All of the Defendants move to dismiss the complaint. The
Plaintiffs also filed a motion for class certification while the
Defendants' motion to dismiss was pending.
Judge Gordon granted in part the Defendants' motion to dismiss.
He holds that the claims of the Plaintiffs are barred by the
applicable statute of limitations and are therefore dismissed
with prejudice. Because this is a putative class action, he
granted leave to file a second amended complaint, consistent with
the Order, to substitute a Named Plaintiff whose claims are not
time-barred. The Plaintiffs must file and serve a second amended
complaint in accordance with this order on or before Jan. 30,
2018.
The Judge denied the plaintiffs' motion for class certification
as premature with leave to refile after a second amended
complaint is filed. This denial should not be construed to end
any applicable tolling that putative class members may benefit
from due to the filing of the action.
A full-text copy of the Court's Dec. 13, 2017 Order is available
at https://is.gd/DMEgb9 from Leagle.com.
Clorissa D. Porter, Plaintiff, represented by Allen Lichtenstein
, Allen Lichtenstein, Ltd.
Clorissa D. Porter, Plaintiff, represented by Mark Edwin Merin ,
Law Office of Mark E. Merin.
William D. Spencer, Plaintiff, represented by Allen Lichtenstein
-- allaw@lvcoxmail.com -- Allen Lichtenstein, Ltd & Mark Edwin
Merin -- mark@markmerin.com -- Law Office of Mark E. Merin.
Southern Nevada Adult Mental Health Services, a mental health
treatment operation licensed by the State of Nevada also known as
Rawson-Neal Psychiatric Hospital, Defendant, represented by Linda
C. Anderson, Nevada Attorney General's Office.
Chelsea Szklany, and as Hospital Administrator re: Southerm
Nevada Adult Mental Health Services, Defendant, represented by
Linda C. Anderson, Nevada Attorney General's Office.
Linda J. White, and as statewide Psychiatric Medical Director of
the State of Nevada, Defendant, represented by Gerald L. Tan --
gltan@cktfmlaw.com -- Carroll Kelly Trotter Franzen McKenna &
Peabody & Robert Cary McBride -- rcmcbride@cktfmlaw.com --
Carroll, Kelly, Franzen, McKenna & Peabody.
Joanne Malay, in her official capacity as Hospital Adminstrator
of Southern Nevada Adult Mental Health Services, Defendant,
represented by Linda C. Anderson, Nevada Attorney General's
Office.
Paul Shubert, in his official capacity as Bureau Chief of Nevada
Bureau of Health Care Quality and Compliance, the licensing
authority, Defendant, represented by Linda C. Anderson, Nevada
Attorney General's Office.
Richard Whitely, in his official capacity as Director of Nevada
Department of Health and Human Services, a department of the
State of Nevada, Defendant, represented by Linda C. Anderson,
Nevada Attorney General's Office.
Cody Phinney, in his official capacity as Administrator of Nevada
Division of Public and Behavioral Health formerly known as Nevada
Division of Health formerly known as Nevada Division of Mental
Health & Developmental Services, Defendant, represented by Linda
C. Anderson, Nevada Attorney General's Office.
Leon Ravin, in individual capacity as previous Associate Medical
Director of Rawson-Neal Psychiatric Hospital and in his official
capacity as Statewide Psychiatric Medical Director of the State
of Nevada, Defendant, represented by Linda C. Anderson, Nevada
Attorney General's Office.
Leo Gallofin, in his official capacity as Associate Medical
Director of Rawson-Neal Psychiatric Hospital, Defendant,
represented by Linda C. Anderson, Nevada Attorney General's
Office.
NEW ORLEANS, LA: Court Grants Partial Summary Judgment in "Cain"
----------------------------------------------------------------
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana granted in part and denied in part the
parties' crossmotions for partial summary judgment in the case,
ALANA CAIN, ET AL., v. CITY OF NEW ORLEANS, ET AL, SECTION "R"
(2), Civil Action No. 15-4479 (E.D. La.).
The Plaintiffs are former criminal defendants in the Orleans
Parish Criminal District Court ("OPCDC"). Each Named Plaintiff
pleaded guilty to various criminal offenses between 2011 and
2014. All the Named Plaintiffs, except Reynaud Variste, were
appointed counsel. The Court previously dismissed Variste's and
Thaddeus Long's claims for equitable relief. Thus, only Cain,
Ashton Brown, Reynajia Variste, and Vanessa Maxwell have live
claims for equitable relief.
The remaining Defendants are OPCDC Judges Laurie A. White, Tracey
Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin
Pittman, Byron C. Williams, Camille Buras, Karen K. Herman,
Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate
Judge Harry Cantrell ("Judges"); OPCDC Judicial Administrator
Robert Kazik; and Orleans Parish Sheriff Marlin Gusman.
The Plaintiffs filed the civil rights putative class action under
42 U.S.C. Section 1983, challenging the manner in which the OPCDC
collects post-judgment court debts from indigent criminal
defendants. The Judges impose various costs on convicted
criminal defendants at their sentencing.
First, the Judges may impose a fine, which is divided evenly
between OPCDC and the District Attorney. Second, they may order
a criminal defendant to pay restitution to victims. Third, the
Judges impose various fees that go to OPCDC: (i) a mandatory $5
fee; (ii) additional fees up to $500 on a misdemeanant and $2,500
on a felon; (iii) court costs up to $100; (iv) a fee of $14 for
the Indigent Transcript Fund, which compensate[s] court reporters
for the preparation of all transcripts for indigent defendants;
and (v) additional costs under Louisiana Code of Criminal
Procedure Article 887(A) for the Indigent Transcript Fund.
Fourth, the "court costs" imposed by Judges also include fees
that go to other entities, such as the Orleans Public Defender,
the DA, and the Louisiana Supreme Court. After sentencing, OPCDC
may further assess criminal defendants for the costs of drug
treatment and drug testing.
Separately, the Sheriff collects a 3% fee on bail bonds secured
by commercial sureties. Sixty percent of this fee, or 1.8% of
the bonds, goes to OPCDC.
As a result of their criminal convictions, the Named Plaintiffs
were assessed fines and fees ranging from $148 (imposed on Long)
to $901.50 (imposed on Cain).
The Plaintiffs filed this civil rights action under 42 U.S.C.
Section 1983, alleging violations of their Fourth and Fourteenth
Amendment rights, and violations of Louisiana tort law. They
brought the action on behalf of themselves and all others
similarly situated.
The first amended complaint, filed shortly after the initial
complaint, named the following defendants: (1) The City of New
Orleans, (2) OPCDC, (3) Sheriff Gusman, (4) Clerk of Court Arthur
Morrell, (5) Judicial Administrator Kazik, and (6) the Judges.
The Court has summarized the Plaintiffs' seven counts as follows:
a. The Defendants' policy of issuing and executing arrest
warrants for nonpayment of court debts is unconstitutional under
the Fourth Amendment and the Due Process Clause of the Fourteenth
Amendment;
b. The Defendants' policy of requiring a $20,000 fixed
secured money bond for each Collections Department warrant
(issued for nonpayment of court debts) is unconstitutional under
the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment;
c. The Defendants' policy of indefinitely jailing indigent
debtors for nonpayment of court debts without a judicial hearing
is unconstitutional under the Due Process Clause of the
Fourteenth Amendment;
d. The Defendants' scheme of money bonds to fund certain
judicial actors is unconstitutional under the Due Process Clause
of the Fourteenth Amendment. To the extent defendants argue this
scheme is in compliance with Louisiana Revised Statutes Sections
13:1381.5 and 22:822, governing the percentage of each surety
bond that judicial actors receive, those statutes are
unconstitutional;
e. The Defendants' policy of jailing indigent debtors for
nonpayment of court debts without any inquiry into their ability
to pay is unconstitutional under the Due Process Clause and the
Equal Protection Clause of the Fourteenth Amendment, and the
Judges' authority over both fines and fees revenue and ability-
to-pay determinations violates the Due Process Clause;
f. The Defendants' policy of jailing and threatening to
imprison criminal defendants for nonpayment of court debts is
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment because it imposes unduly harsh and punitive
restrictions on debtors whose creditor is the State, as compared
to debtors who owe money to private creditors; and
g. The Defendants' conduct constitutes wrongful arrest and
wrongful imprisonment under Louisiana law.
After a round of motions, all claims against the City of New
Orleans, the Sheriff, and OPCDC were dismissed, along with Count
Three and claims against the remaining defendants for monetary
and injunctive relief. The Court then granted the Plaintiffs'
leave to re-plead Counts Four and Seven against the Sheriff in
their second amended complaint. The Court also consolidated this
case with LaFrance v. City of New Orleans, 16-14439.
Now, the Plaintiffs seek declaratory relief against the Judges in
their official capacity on Counts One, Two, Four, Five, and Six;
declaratory relief against Administrator Kazik in his individual
capacity on Counts One, Two, and Six; injunctive and declaratory
relief against Sheriff Gusman in his official capacity on Count
Four; and injunctive and declaratory relief as well as damages
against the Sheriff on Count Seven.
As ordered by the Court, the parties have submitted cross-motions
for summary judgment on Counts One, Two, Four, Five, and Six.
Judge Vance granted the Plaintiffs' motion for summary judgment
on Count Five and granted the Defendants' motion for summary
judgment on Counts One, Two, and Four. The parties' motions are
otherwise denied. The Judge dismissed as moot Counts One, Two,
and Four, and dismissed Administrator Kazik from the case.
The Judge held that the Defendants' voluntary policy changes make
it absolutely clear that Collections Department practices could
not reasonably be expected to recur. They've formally revoked
the Collections Department's authority to issue warrants . The
sincerity of this policy change is reflected in their decision to
rescind all warrants issued by the Collections Department for
failure to pay fines and fees, other than for restitution. The
Defendants have met their formidable burden of showing that their
voluntary conduct has mooted Counts One, Two, and Four.
The Judge also held the Judges have not indicated that they have
ceased imprisoning criminal defendants for failure to pay, or
that they now inquire into those criminal defendants' ability to
pay. Evidence in the record confirms that the Plaintiffs still
face the possibility of alleged constitutional injury if they
fail to pay their court debts. For these reasons, the
Defendants' voluntary conduct does not moot Counts Five and Six.
Judge Vance held that the Plaintiffs are entitled summary
judgment on Count Five to the extent they seek a declaration that
the Judges' institutional incentives create an impermissible
conflict of interest when they determine, or are supposed to
determine, the Plaintiffs' ability to pay fines and fees.
A full-text copy of the Court's Dec. 13, 2017 Order and Reasons
is available at https://is.gd/lqJf56 from Leagle.com.
Alana Cain, Plaintiff, represented by William Patrick Quigley --
quigley@loyno.edu -- Loyola New Orleans College of Law.
Alana Cain, Plaintiff, represented by Alec George Karakatsanis,
American Civil Liberties Union Capital Punishment, Anna Lise
Lellelid, LaBas Law Offices, APLC, Christine Elizabeth Hanley --
chanley@orrick.com -- Orrick, Herrington & Sutcliffe, LLP, pro
hac vice, David P. Fuad -- dfuad@orrick.com -- Orrick, Herrington
& Sutcliffe, LLP, pro hac vice, Hallie Nodgaard Ryan, Lawyers
Committee for Civil Rights, pro hac vice, Hsiwen Lo --
hlo@orrick.com -- Orrick, Herrington & Sutcliffe, LLP, pro hac
vice, Jon M. Greenbaum, Lawyers Committee for Civil Rights, pro
hac vice, Jonathan Phillip Guy , Orrick, Herrington & Sutcliffe,
LLP, pro hac vice & Mateya Beth Kelley, Lawyers Committee for
Civil Rights, pro hac vice.
Ashton Brown, Plaintiff, represented by William Patrick Quigley,
Loyola New Orleans College of Law, Alec George Karakatsanis,
American Civil Liberties Union Captial Punishment, Anna Lise
Lellelid, LaBas Law Offices, APLC, Christine Elizabeth Hanley,
Orrick, Herrington & Sutcliffe, LLP, pro hac vice, David P. Fuad,
Orrick, Herrington & Sutcliffe, LLP, pro hac vice, Hallie
Nodgaard Ryan , Lawyers Committee for Civil Rights, pro hac vice,
Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP, pro hac vice, Jon
M. Greenbaum, Lawyers Committee for Civil Rights, pro hac vice,
Jonathan Phillip Guy, Orrick, Herrington & Sutcliffe, LLP, pro
hac vice & Mateya Beth Kelley, Lawyers Committee for Civil
Rights, pro hac vice.
Reynaud Variste, Plaintiff, represented by William Patrick
Quigley, Loyola New Orleans College of Law, Alec George
Karakatsanis, American Civil Liberties Union Captial Punishment,
Anna Lise Lellelid, LaBas Law Offices, APLC, Christine Elizabeth
Hanley, Orrick, Herrington & Sutcliffe, LLP, pro hac vice, David
P. Fuad, Orrick, Herrington & Sutcliffe, LLP, pro hac vice,
Hallie Nodgaard Ryan , Lawyers Committee for Civil Rights, pro
hac vice, Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP, pro hac
vice, Jon M. Greenbaum, Lawyers Committee for Civil Rights, pro
hac vice, Jonathan Phillip Guy, Orrick, Herrington & Sutcliffe,
LLP, pro hac vice & Mateya Beth Kelley, Lawyers Committee for
Civil Rights, pro hac vice.
Reynajia Variste, Plaintiff, represented by William Patrick
Quigley, Loyola New Orleans College of Law, Alec George
Karakatsanis, American Civil Liberties Union Captial Punishment,
Anna Lise Lellelid, LaBas Law Offices, APLC, Christine Elizabeth
Hanley, Orrick, Herrington & Sutcliffe, LLP, pro hac vice, David
P. Fuad, Orrick, Herrington & Sutcliffe, LLP, pro hac vice,
Hallie Nodgaard Ryan , Lawyers Committee for Civil Rights, pro
hac vice, Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP, pro hac
vice, Jon M. Greenbaum, Lawyers Committee for Civil Rights, pro
hac vice, Jonathan Phillip Guy, Orrick, Herrington & Sutcliffe,
LLP, pro hac vice & Mateya Beth Kelley, Lawyers Committee for
Civil Rights, pro hac vice.
Thaddeus Long, Plaintiff, represented by William Patrick Quigley,
Loyola New Orleans College of Law, Alec George Karakatsanis,
American Civil Liberties Union Captial Punishment, Anna Lise
Lellelid, LaBas Law Offices, APLC, Christine Elizabeth Hanley,
Orrick, Herrington & Sutcliffe, LLP, pro hac vice, David P. Fuad,
Orrick, Herrington & Sutcliffe, LLP, pro hac vice, Hallie
Nodgaard Ryan , Lawyers Committee for Civil Rights, pro hac vice,
Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP, pro hac vice, Jon
M. Greenbaum, Lawyers Committee for Civil Rights, pro hac vice,
Jonathan Phillip Guy, Orrick, Herrington & Sutcliffe, LLP, pro
hac vice & Mateya Beth Kelley, Lawyers Committee for Civil
Rights, pro hac vice.
Vanessa Maxwell, Plaintiff, represented by William Patrick
Quigley, Loyola New Orleans College of Law, Alec George
Karakatsanis, American Civil Liberties Union Captial Punishment,
Anna Lise Lellelid, LaBas Law Offices, APLC, Christine Elizabeth
Hanley, Orrick, Herrington & Sutcliffe, LLP, pro hac vice, David
P. Fuad, Orrick, Herrington & Sutcliffe, LLP, pro hac vice,
Hallie Nodgaard Ryan , Lawyers Committee for Civil Rights, pro
hac vice, Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP, pro hac
vice, Jon M. Greenbaum, Lawyers Committee for Civil Rights, pro
hac vice, Jonathan Phillip Guy, Orrick, Herrington & Sutcliffe,
LLP, pro hac vice & Mateya Beth Kelley, Lawyers Committee for
Civil Rights, pro hac vice.
Joseph T Lafrance, Consol Plaintiff, represented by William
Patrick Quigley, Loyola New Orleans College of Law & Anna Lise
Lellelid, LaBas Law Offices, APLC.
Laurie A White, Judge Sect. A of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Tracey Flemings-Davillier, Judge Sect. B of the Orleans Parish
Criminal District Court, Defendant, represented by Dennis J.
Phayer, Burglass & Tankersley, L.L.C., Celeste Brustowicz,
Burglass & Tankersley, L.L.C., Christopher Kent Tankersley,
Burglass & Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass
& Tankersley, L.L.C..
Benedict Willard, Judge Sect. C of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Keva Landrum-Johnson, Judge Sect. E of the Orleans Parish
Criminal District Court, Defendant, represented by Dennis J.
Phayer, Burglass & Tankersley, L.L.C., Celeste Brustowicz,
Burglass & Tankersley, L.L.C., Christopher Kent Tankersley,
Burglass & Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass
& Tankersley, L.L.C..
Robin Pittman, Judge Sect. F of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Byron C. Williams, Judge Sect. G of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Camille Buras, Judge Sect. H of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Karen K. Herman, Judge Sect. I of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Darryl Derbigny, Judge Sect. J of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
Arthur Hunter, Judge Sect. K of the Orleans Parish Criminal
District Court, Defendant, represented by Dennis J. Phayer,
Burglass & Tankersley, L.L.C., Celeste Brustowicz, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
NEW YORK, NY: Second Circuit Appeal Filed in "Stallworth" Suit
--------------------------------------------------------------
Plaintiffs Parichay Barman, New York Taxi Workers Alliance,
Anthony Stallworth and Noor Tani filed an appeal from a District
Court order dated November 22, 2017, in the lawsuit entitled
Stallworth, et al. v. Joshi, et al., Case No. 17-cv-7119, in the
U.S. District Court for the Southern District of New York (New
York City).
The appellate case is captioned as Stallworth, et al. v. Joshi,
et al., Case No. 17-4088, in the United States Court of Appeals
for the Second Circuit.
As previously reported in the Class Action Reporter, the
Plaintiffs have filed an appeal from a ruling entered in their
lawsuit. That appellate case is styled as Stallworth, et al. v.
Joshi, et al., Case No. 17-3678.
The purported class action lawsuit was filed against the City of
New York and others on September 19, 2017. The nature of suit is
stated as civil rights-other.[BN]
Plaintiffs-Appellants Parichay Barman; Anthony Stallworth,
individually and on behalf of all others similarly situated; Noor
Tani, individually and on behalf of all others similarly
situated; and New York Taxi Workers Alliance, individually and on
behalf of all others similarly situated, are represented by:
Daniel L. Ackman, Esq.
LAW OFFICE OF DANIEL ACKMAN
222 Broadway
New York, NY 10038
Telephone: (917) 282-8178
Facsimile: (917) 591-8300
E-mail: dan@danackmanlaw.com
Defendants-Appellees Meera Joshi, Chris Wilson, Stas Skarbo and
City of New York are represented by:
Zachary W. Carter, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-1000
E-mail: zcarter@law.nyc.gov
NORTHLAND GROUP: Bauer et al. Sue over Debt Collection Practices
----------------------------------------------------------------
Jossette Bauer, Cheryl Kobleski and Rafael Cajigas individually
and on behalf of all others similarly situated, the Plaintiffs,
v. Northland Group, Inc., the Defendant, Case No. 2:17-cv-01520-
LA, (E.D. Wis., November 3, 2017), seeks redress for Defendant's
collection practices that violate the Fair Debt Collection
Practices Act.
The class action stems from Defendant's mailed debt collection
letter to Plaintiffs regarding alleged debts which were incurred
for personal, family, or household purposes. The Plaintiffs
allege that the collection letters are misleading, false and
confusing. The collection letters contain language that falsely
implies that a future settlement is only available to Plaintiff
Bauer if payments are made according to a set schedule. On the
other hand, the collection letter falsely threatens that Capital
One may institute possible legal action against Plaintiff
Kobleski when in reality the Defendant has no basis to threaten
that Capital One may sue and it has no influence in Capital One's
litigation strategy. Further, the collection letter to Plaintiff
Kobleski conflicts with and overshadows the debt validation
notice, in that it makes a limited-time settlement offer during
the validation period or shortly thereafter, but does not explain
how the validation notice and settlement offer fit together. The
collection letter to Plaintiff Cajigas is also misleading because
it implies that a consumer may invoke his or her right to obtain
verification of the debt without making the request in writing
when, in fact, a consumer who calls Northland has not effectively
invoked her verification rights.
Northland Group, Inc. is a collection agency, using the mails and
telephone to collect consumer debts originally owed to
others.[BN]
Plaintiffs are represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: jblythin@ademilaw.com
Email: meldridge@ademilaw.com
Email: jfruchter@ademilaw.com
Email: bslatky@ademilaw.com
PARKCHICAGO: Vendors Ask Judge to Curb Parking Tickets Class Suit
-----------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that
asserting legal precedent holds people wrongly receiving parking
tickets have no "freedom from administrative inconvenience,"
attorneys representing the vendors that operate Chicago's on-
street parking meters have asked the court to again pull to the
curb a class action lawsuit alleging problems with the
ParkChicago smartphone app results in illegal tickets issued to
motorists using their phones to pay for parking.
On Dec. 20, attorneys for Chicago Parking Meters LLC and LAZ
Parking Chicago filed a motion in Cook County Circuit Court,
requesting a judge dismiss the lawsuit brought by original named
plaintiff Edward Sanchez and new plaintiff Jennifer Chui.
Chui was added to the action in November, in an attempt to
correct problems identified in the original complaint, filed
almost a year ago by attorneys Philip A. Bock and Jonathan B.
Piper, of the firm of Bock Hatch Lewis & Oppenheim LLC, of
Chicago, initially on behalf of Sanchez and a putative class of
additional plaintiffs.
The lawsuit, filed against Chicago Parking Meters and LAZ,
centered on the rollout of the ParkChicago app in 2014.
Introduced by CPM and LAZ in the aftermath of the signing of
CPM's $1.2 billion, 75-year lease of the city's 36,000 metered
parking spaces, the app was promoted as a way of helping busy
commuters and others parking on the city's streets quickly and
easily pay for parking without having to visit the associated
curbside parking payment kiosk.
According to the lawsuit, the city and its vendors had pledged
the app could help prevent them from getting parking tickets.
While those who pay to park at the kiosk must return to their
vehicle and place a receipt on their dashboard to prove they had
paid to park, those using the app were told parking enforcement
officers would need only run their license plate number to see
they were legally parked.
The app has since been downloaded by hundreds of thousands of
users, who agreed to fund their parking account through an
initial $20 deposit, and to allow the ParkChicago vendors to
replenish the account each time a customer's balance drops below
$10.
However, in the years since the rollout, the lawsuit asserts,
flaws in the system have led to many parking tickets issued to
app users, particularly if a parking enforcement officer arrives
within 15 minutes of the user submitting payment, or if the
parking enforcement officer doesn't run a user's license plate to
determine they had paid.
In his complaint, Sanchez asserted he was issued a ticket in
November 2016, even though he had had paid using the app. Sanchez
said he contested the ticket.
The lawsuit asserts many other ParkChicago users had simply paid
the tickets, rather than endure the inconvenience of challenging
the tickets.
The lawsuit alleged the city, CPM and LAZ Parking's actions
surrounding ParkChicago broke consumer fraud law, and breached
implied warranty and the defendants' fiduciary duty, as keepers
of the funds deposited by ParkChicago users.
However, in September, a Cook County judge dismissed Sanchez's
complaint, noting he had never actually paid any fine, as the
city determined his ticket had been issued to him because he had
failed to input the correct license plate number into the
ParkChicago app when he had parked his car.
To remedy the problems with the lawsuit, Chui was added to the
complaint, asserting, similarly, the city of Chicago had
improperly issued her a ticket when she paid using the app on
Jan. 7, 2017. She had used ParkChicago for 2.5 years without
prior incident, according to the city's motion.
However, in its Dec. 20 motion, the city says Chui's allegations
also suffer similar deficiencies, as she also was able to
successfully challenge her parking ticket without having to pay a
fine, after administrative reviewers determined she had actually
paid for the parking and the attendant who wrote the ticket
didn't first check her license plate electronically.
The defendants further argued even the inconvenience of
challenging the tickets shouldn't be enough to allow the lawsuit
to go forward, as a federal judge had determined in 2008 in a
lawsuit against the Illinois Tollway that the frustration of
having to challenge erroneous tickets is just "an unfortunate
reality of daily life."
And the defendants also challenged the plaintiffs assertions the
city and its vendors had misled or deceived app users concerning
the potential for mistakes or flaws in the system, as the
ParkChicago frequently asked questions tab on the app and webpage
specifically include instructions on how to challenge parking
tickets issued, despite payment.
"Courts routinely dismiss (consumer fraud) claims where, as here,
Defendants disclosed the very information that Plaintiffs allege
was concealed, or where the purportedly withheld information was
available in the public domain," the motion says.
"The (complaint) contains allegations regarding the app's FAQs
webpage statements regarding how a parking enforcement officer is
supposed to determine whether a parker paid via the app and how
to use the app to extend parking time," the motion says. "Yet,
plaintiffs do not even claim, let alone plead facts, that either
statement is false, or that enforcement officers were supposed to
follow some other procedure.
"Indeed, Plaintiffs do not allege that they even reviewed these
statements let alone were deceived by them."
Defendants are represented in the action by attorneys with the
firms of Winston & Strawn LLP, of Chicago, and Ulmer & Berne LLP,
of Chicago. [GN]
PENN MUTUAL: Court OKS $110MM Class Settlement in "Harshbarger"
---------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum Opinion granting Plaintiff's
Motion for Final Approval of the Proposed Class Settlement and
final certification of the settlement class filed pursuant to
Federal Rule of Civil Procedure Rule 23 in the case captioned
DANIEL J. HARSHBARGER and EDITH M. HARSHBARGER, individually, and
on behalf of all persons similarly situated Plaintiffs, v. THE
PENN MUTUAL LIFE INSURANCE COMPANY, Defendant, Civil Action No.
12-6172 (E.D. Pa.).
Plaintiffs, who own five participating (par) whole life insurance
policies issued by Penn Mutual, filed this civil action on behalf
of themselves and other similarly situated persons (Class),
seeking damages and/or equitable relief resulting from Penn
Mutual, inter alia, for alleged breaches of contract, violations
of Pennsylvania's Unfair Trade Practices and Consumer Protection
Law (Consumer Protection Law), and failure to pay the full amount
of annual policy dividends out of divisible surplus (Divisible
Surplus) due Plaintiffs under 40 Pa. Stat. Ann. Section 614
(Section 614 or Safety Fund Law).
Under the terms of the Settlement, Penn Mutual would be ordered
to provide the following benefits to eligible policyholders
(Settlement Class Members):
1. For those policyholders who owned In Force Settlement
Policies, Penn Mutual will pay Terminal Dividends in an amount
equal to 1.8 percent of the total Cash Surrender Value for each
In Force Settlement Policy as of December 31, 2015, in addition
to all contractual benefits otherwise due under the policy. Penn
Mutual is obligated under the Settlement to pay Terminal
Dividends for In Force Settlement Policies totaling $97 million,
based on a formula set out in the Stipulation of Settlement that
establishes a minimum cash payment of $25 per In Force Settlement
Policy.
2. For those policyholders who owned Terminated Policies, Penn
Mutual will be ordered by the Department and by this Court to pay
a pro rata share of a $13 million Terminal Dividend Fund to be
established by Penn Mutual, based on a formula set out in the
Stipulation of Settlement. That formula establishes a minimum
cash payment of $25 per Terminated Settlement Policy.
Thus, under the terms of the Settlement, the Settlement Class
Members will receive Terminal Dividends equivalent to cash
payments totaling $110 million.
One of the approximately 500,000 Settlement Class Members voiced
a timely objection to the Settlement and only eleven Settlement
Class Members filed purported objections. Among these purported
objections, four were untimely filed; five were mailed, but not
filed with this Court, as required by the Court's Preliminary
Approval Order; and two raised issues that are unrelated to the
subject matter of this litigation and beyond the scope of the
class release. The small percentage of objectors leads the Court
to conclude that the Settlement is satisfactory to the large
majority of the Settlement Class Members.
This case has been actively litigated from its commencement for
more than five years. By the time of settlement, Penn Mutual had
produced and Class Counsel had reviewed approximately 33,000
pages of documents, including, numerous complex, multi-page
electronic spreadsheets. Thousands of additional filings and
records archived were also reviewed. The parties had exchanged
expert reports for each of their expert witnesses and were
prepared to exchange rebuttal expert reports when they agreed to
engage in mediation.
Even if Plaintiffs were successful in establishing that Penn
Mutual violated the Safety Fund law, Penn Mutual raised several
arguments which could have eliminated or significantly reduced
the amount of underpaid dividends awarded to the class.
Plaintiffs unquestionably faced significant risks in litigating
this case to trial.
A full-text copy of the District Court's December 20, 2017
Memorandum Opinion is available at https://tinyurl.com/yapazohv
from Leagle.com.
DANIEL J. HARSHBARGER, Plaintiff, represented by ANDREW S.
FRIEDMAN -- afriedman@bffb.com -- BONNETT, FAIRBOURN, FRIEDMAN
AND BALINT, P.C..
DANIEL J. HARSHBARGER, Plaintiff, represented by FRANCIS JOSEPH
BALINT, Jr. -- fbalint@bffb.com -- BONNETT FAIRBOURN FRIEDMAN &
BALINT, JASON B. ADKINS -- jadkins@akzlaw.com -- ADKINS KELSTON &
ZAVEZ PC, JOSEPH N. KRAVEC, Jr. -- jkravec@fdpklaw.com --
FEINSTEIN DOYLE PAYNE & KRAVEC, LLC & MARK A. CHAVEZ --
mark@chavezgertler.com -- CHAVEZ & GERTLER LLP.
EDITH M. HARSHBARGER, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS
SIMILARLY SITUATED, Plaintiff, represented by ANDREW S. FRIEDMAN,
BONNETT, FAIRBOURN, FRIEDMAN AND BALINT, P.C., FRANCIS JOSEPH
BALINT, Jr., BONNETT FAIRBOURN FRIEDMAN & BALINT, JASON B.
ADKINS, ADKINS KELSTON & ZAVEZ PC, JOSEPH N. KRAVEC, Jr.,
FEINSTEIN DOYLE PAYNE & KRAVEC, LLC & MARK A. CHAVEZ, CHAVEZ &
GERTLER LLP.
THE PENN MUTUAL LIFE INSURANCE COMPANY, Defendant, represented by
JAY H. CALVERT, Jr. -- jay.calvert@morganlewis.com -- ANAPOL
WEISS, JOHN P. LAVELLE, Jr. -- john.lavelle@morganlewis.com --
MORGAN LEWIS BOCKIUS LLP, JOSEPH B.G. FAY --
joseph.fay@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP & MARISA
J. TILGHMAN, MORGAN LEWIS & BOCKIUS LLP, 1701 Market Street,
Philadelphia, PA 19103- 2921
RICHARD E. KISTLER, Respondent, Pro Se.
CECILY D. CORNISH, Respondent, Pro Se.
MICHAEL GRECCO, Respondent, Pro Se.
DONALD A. SOBERDASH, Respondent, Pro Se.
PATRICIA R. SOBERDASH, Respondent, Pro Se.
THOMAS S. BOMMARITO, Respondent, Pro Se.
RISIE R. HOWARD, Respondent, Pro Se.
JOHN W. MANSFIELD, Respondent, Pro Se.
JEFF BROWN, Respondent, Pro Se.
PROFESSIONAL BUREAU: Kraus Appeals E.D.N.Y. Judgment to 2nd Cir.
----------------------------------------------------------------
Plaintiff Blima Kraus filed an appeal from the District Court's
judgment, and memorandum and order, both dated November 27, 2017,
in the lawsuit styled Kraus v. Professional Bureau of Collections
of Maryland, Inc., Case No. 17-cv-3402, in the U.S. District
Court for the Eastern District of New York.
As previously reported in the Class Action Reporter, the
purported class action lawsuit was filed by the Plaintiff against
the Defendant on behalf of herself and all other similarly
situated consumers on June 6, 2017.
PBCM provides account recovery and collections services for 1st
party and 3rd party collections, and servicing of performing
portfolios.
The appellate case is captioned as Kraus v. Professional Bureau
of Collections of Maryland, Inc., Case No. 17-4137, in the United
States Court of Appeals for the Second Circuit.[BN]
Plaintiff-Appellant Blima Kraus, on behalf of herself and all
other similarly situated consumers, is represented by:
Adam J. Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone: (516) 791-4400
E-mail: fishbeinadamj@gmail.com
Defendant-Appellee Professional Bureau of Collections of
Maryland, Inc., is represented by:
Michael Joseph Riordan, Esq.
MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
Telephone: (973) 993-8100
Facsimile: (973) 425-0161
E-mail: jmriordan@mdmc-law.com
PURDUE PHARMA: Misrepresents Opioids Drug, N. Penn. Fund Claims
---------------------------------------------------------------
The case entitled, United Food and Commercial Workers Health and
Welfare Fund of Northeastern Pennsylvania, on behalf of itself
and all others similarly situated, the Plaintiff, v. Purdue
Pharma, LP, Purdue Pharma, Inc., The Purdue Frederick Company,
Inc., Abbott Laboratories, Abbott Laboratories, Inc., Teva
Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson,
Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen
Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.,
Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Endo
Health Solutions, Inc., Endo Pharmaceuticals, Inc., Watson
Pharmaceuticals, Inc. n/k/a Actavis Inc., Watson Laboratories,
Inc., Actavis, LLC., Actavis Pharma, Inc., f/k/a Watson Pharma,
Inc., McKesson Corporation, Cardinal Health Inc., and Amerisource
Bergen Corporation, the Defendants, Case No. 2:17-cv-05078-TJS,
(E.D. Pa., November 9, 2017), has been transferred to the U.S.
District Court for the Northern District of Ohio.
According to a Dec. 26 docket entry, the case is transferred via
interdistrict transfer system.
The lawsuit seeks damages including interest, reasonable
attorneys' fees and costs for injury sustained as a result of
Defendants' manufactured, promoted, and marketed opioids drugs.
The complaint states that the Defendants misrepresented the
characteristics, uses, and benefits associated with the
prescription, purchase, and use of Opioids by impermissibly
minimizing the risks associated with utilizing Opioids, and
overstating the potential benefits. The Plaintiff also alleges
causes of action against the Defendants such as violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law,
Unjust Enrichment, Breach of Implied Warranties, Civil Conspiracy
and Negligence.[BN]
Plaintiff is represented by:
Roberta D. Liebenberg, Esq.
Ada Pessin, Esq.
FINE, KAPLAN AND BLACK, R.P.C
One S. Broad Street, 23rd Floor
Philadelphia, PA 19107
Telephone: (215) 567-6565
Facsimile: (215) 568-5872
Email: rliebenberg@finekaplan.com
Email: apessin@finekaplan.com
- and -
James E. Miller, Esq.
Jayne A. Goldstein, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
65 Main Street
Chester, CT 06412
Telephone: (860) 526-1100
Facsimile: (866) 300-7367
Email: jmiller@sfmslaw.com
Email: jgoldstein@sfmslaw.com
- and -
James R. Dugan, II, Esq.
David S. Scalia, Esq.
Douglas R. Plymale, Escq.
Lanson Bordelon, Esq.
Mekel Smith-Alvarez, Esq.
THE DUGAN LAW FIRM, APLC
One Canal Place
365 Canal Street, Suite 1000
New Orleans, LA 70130
Telephone: (504) 648-0180
Facsimile: (504) 648-0181
Email: jdugan@dugan-lawfirm.com
Email: dscalia@dugan-lawfirm.com
Email: dplymale@dugan-lawfirm.com
Email: lbordelon@dugan-lawfirm.com
Email: mekel@dugan-lawfirm.com
- and -
Richard J. Hollawell, Esq.
CONSOLE & HOLLAWELL, P.C.
525 Route 73 North, Suite 117
Marlton, N.J. 08053
Telephone: (856) 778-5500
Facsimile: (856) 778-1918
Email: rhollawell@consoleandhollawell.com
QUICKEN LOANS: Eleventh Cir. Appeal Filed in "Jacobs" Class Suit
----------------------------------------------------------------
Plaintiff Alex Jacobs filed an appeal from a court ruling in the
lawsuit titled Alex Jacobs v. Quicken Loans, Inc., Case No. 9:15-
cv-81386-KAM, in the U.S. District Court for the Southern
District of Florida.
The appellate case is captioned as Alex Jacobs v. Quicken Loans,
Inc., Case No. 17-90028, in the United States Court of Appeals
for the Eleventh Circuit.[BN]
Plaintiff-Petitioner ALEX JACOBS, individually and on behalf of
all others similarly situated, is represented by:
Daniel A. Bushell, Esq.
BUSHELL APPELLATE LAW, PA
1451 W Cypress Creek Rd., Suite 300
Fort Lauderdale, FL 33309
Telephone: (954) 666-0220
Facsimile: (954) 666-0225
E-mail: dan@bushellappellatelaw.com
- and -
Marc A. Wites, Esq.
WITES & KAPETAN, PA
4400 N Federal Hwy.
Lighthouse Pt., FL 33064-6507
Telephone: (954) 570-8989
E-mail: mwites@wklawyers.com
Defendant-Respondent QUICKEN LOANS, INC., is represented by:
Brooks R. Brown, Esq.
GOODWIN PROCTER, LLP
901 New York Avenue NW
Washington, DC 20001
Telephone: (202) 346-4000
Facsimile: (202) 346-4444
E-mail: bbrown@goodwinlaw.com
- and -
Andrew Kemp-Gerstel, Esq.
LIEBLER GONZALEZ & PORTUONDO
44 W Flagler Street, Floor 25
Miami, FL 33130
Telephone: (305) 379-0400
Facsimile: (305) 379-9626
E-mail: akg@lgplaw.com
RECKITT BENCKISER: "Akwei" Suit Transferred to New Jersey Dist.
---------------------------------------------------------------
The class action lawsuit filed on August 11, 2017 entitled
Brigitte Akwei, Donna Sims and Joe Drew, individually and on
behalf of all others similarly situated v. Reckitt Benckiser LLC,
Case No. 1:17-cv-06080, was transferred from the U.S. District
Court for the Southern District of New York to the U.S. District
Court for the District of New Jersey. The District Court Clerk
assigned Case No. 2:18-cv-00374 to the proceeding.
The case arises out of Reckitt's packaging, marketing and
advertising of its Air Wick(R) aerosol sprays with misleading
claims about their odor eliminating capabilities.
Reckitt Benckiser LLC is a global manufacturer of household
cleaning supplies and other consumer chemicals. [BN]
The Plaintiff is represented by:
Anne Melissa Seelig, Esq.
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1124
Facsimile: (212) 465-1181
E-mail: anne@leelitigation.com
cklee@leelitigation.com
ROCKWELL COLLINS: "Marchese" Suit over Merger Dropped
-----------------------------------------------------
Mary Marchese, individually and on behalf of all others similarly
situated, the Plaintiff, v. Rockwell Collins, Inc.; Anthony J.
Carbone; Chris A. Davis; Ralph E. Eberhart; John A. Edwardson;
Richard G. Hamermesh; David Lilley; Robert K. (Kelly) Ortberg;
Andrew J. Policano; Cheryl L. Shavers; Jeffrey L. Turner; John T.
Whates; United Technologies Corporation and Riveter Merger Sub
Corp., the Defendants, Case No. 1:17-cv-00128, (N.D. Iowa,
November 3, 2017), has been terminated.
Plaintiffs on Jan. 19 filed a Notice of Voluntary Dismissal. The
civil case was terminated pursuant to a Jan. 22 docket entry.
The class action alleged violation of the Securities Exchange Act
of 1934 that stemmed from a proposed transaction wherein Rockwell
Collins will be acquired by United Technologies Corporation, and
Riveter Merger Sub Corp. The Plaintiff as a shareholder brings
the class action for himself and all others similarly situated
stockholders, alleging that Defendants filed a false and
misleading registration statement with the Securities and
Exchange Commission in connection with the Proposed Transaction.
The Registration Statement omits material information that must
be disclosed to Rockwell's stockholders to enable them to render
an informed decision with respect to the deal.[BN]
Plaintiff is represented by:
Kimberly K. Baer, Esq.
BAER LAW OFFICE
838 5th Avenue
Des Moines, IA 50309
Telephone: (515) 279-2000
Facsimile: (515) 279-2137
Email: kbaer@baerlawoffice.com
- and -
David M. Promisloff, Esq.
Jeffrey J. Ciarlanto, Esq.
PROFY PROMISLOFF & CIARLANTO, P.C.
5 Great Valley Parkway, Suite 210
Malvern, PA 19355
Telephone: (215) 259-5156
Facsimile: (215) 600-2642
Email: david@prolawpa.com
Email: ciarlanto@prolawpa.com
RITE AID: First Amended "Stafford" Suit Dismissed
-------------------------------------------------
Judge Anthony J. Battaglia of the U.S. District Court for the
Southern District of California granted the Defendant's motion to
dismiss the case, BRYON STAFFORD, Individually and on Behalf of
All Others Similarly Situated, Plaintiff, v. RITE AID
CORPORATION, Defendant, Case No. 17-cv-01340-AJB-JLB (S.D. Cal.).
The gravamen of the Plaintiff's operative complaint is that the
Defendant charges a copayment that exceeds its "usual and
customary" price for generic drugs. Thus, the Defendant
purportedly engages in the illegal practice of overcharging
customers enrolled in public or private health care plans for
generic prescription drugs by submitting to third-party payors
claims for payment at prices that Defendant knowingly and
intentionally inflates. As a result, customers like the
Plaintiff, who purchase generic prescription drugs through third-
party plans, pay copayments that are drastically more than the
Defendant's "usual and customary" prices for the same drugs.
The Plaintiff filed his initial complaint on June 30, 2017.
Thereafter, on July 28, 2017, pursuant to the joint motion
granted by the Court, he filed an amended complaint. He alleges
causes of action for violation of (i) Unfair Competition law
("UCL") against the Defendant on behalf of the subclass; (ii)
California Consumer Legal Remedies Act ("CLRA") against Defendant
on behalf of the subclass; (iii) Unjust Enrichment against the
Defendant on behalf of the class and subclass; and (iv) Negligent
Misrepresentation against the Defendant on behalf of the class
and the subclass. In his prayer for relief, the Plaintiff
requests the Court certify his action as a class action, award
compensatory, consequential, and general damages, grant permanent
injunctive relief, and award statutory treble, punitive, or
exemplary damages among other things.
Pending before the Court is the Defendant's motion to dismiss the
Plaintiff's first amended complaint ("FAC"). The Defendant
argues that each of the UCL, CLRA, unjust enrichment, and
negligent misrepresentation claims should be dismissed as they
are time-barred. The Plaintiff opposes the motion.
Judge Battaglia finds that the Plaintiff alleges that Defendant
began reporting an artificially inflated "usual and customary"
price to its third-party payors in late 2008. Thus, the
Plaintiff's UCL cause of action expired in 2012, and his CLRA,
unjust enrichment, and negligent misrepresentation claims were
time-barred in 2011. The Plaintiff filed his complaint in 2017,
well outside of the statute of limitations for his various
claims. However, cognizant of this issue, the Plaintiff's
complaint devotes an entire section to arguing that his claims
should be tolled.
Unfortunately, based on the pleadings, Judge Battaglia concludes
that the Plaintiff has not made any showing of "extraordinary
circumstances" that prevented him from filing his claims within
the statute of limitations. Thus, he has not met his burden of
demonstrating that he is entitled to equitable tolling on any of
his four causes of action. Primarily, the Judge takes issue with
the various contradictions present in the Plaintiff's complaint
that diminish his defense of equitable tolling.
Accordingly, the granted without prejudice the Defendant's motion
to dismiss. He says the Plaintiff may file a second amended
complaint within 21 days of the date of the Order. The Plaintiff
is to only correct the deficiencies noted and provide the Court
with any further factual allegations to demonstrate that
equitable tolling applies to his four causes of action. Failure
to file an amended complaint will result in dismissal of the
case.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/lrg5ci from Leagle.com.
Bryon Stafford, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by David William
Mitchell , Robbins Geller Rudman & Dowd LLP.
Bryon Stafford, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Gregory E. Del
Gaizo -- gdelgaizo@robbinsarroyo.com -- Robbins Arroyo LLP, Jason
Henry Alperstein -- jalperstein@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, pro hac vice, Mark Jeffrey Dearman --
mdearman@rgrdlaw.com -- Robbins, Geller, Rudman & Dowd LLP, pro
hac vice, Robert R. Henssler, Jr. -- bhenssler@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Steven M. McKany --
smckany@robbinsarroyo.com -- Robbins Arroyo LLP, Stuart A.
Davidson -- SDavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, pro hac vice & George C. Aguilar --
gaguilar@robbinsarroyo.com -- Robbins Arroyo LLP.
Rite Aid Corporation, Defendant, represented by Alyssa D.
O'Donnell -- alyssa.odonnell@morganlewis.com -- Morgan, Lewis &
Bockius LLP, Joseph H. Bias -- joseph.bias@morganlewis.com --
Morgan Lewis & Bockius & Thomas J. Sullivan, Jr. --
thomas.sullivan@morganlewis.com -- Morgan, Lewis & Bockius LLP,
pro hac vice.
SAN GABRIEL TEMPORARY: "Hernandez" Suit over Unpaid Wages Pending
-----------------------------------------------------------------
Deanna Hernandez, on behalf of herself and all others similarly
situated, the Plaintiff, v. San Gabriel Temporary Staffing
Services, LLC, d/b/a LaborMax Staffing and Pirate Staffing, and
Does 1 through 50, the Defendants, Case No. 17CV318968, (Cal.
Sup. Ct., November 9, 2017), seeks to recover unpaid wages,
restitution and related relief for Defendants' violations of the
Labor Code and Business and Professions Code.
The Plaintiff alleges that the Defendants failed to provide her
and other similarly situated individuals with meal periods, rest
periods, premium wages for missed meal and rest periods, to pay
for all hours worked, to reimburse for all necessary business
expenses, to provide with accurate written wage statements and to
timely pay them all of their final wages following separation of
employment. Further allegations states that Plaintiff and other
similarly situated persons were trained to clock in for each
shift using their desktop computer and were required to first
turn on their computer and wait for it to boot up that took up to
five to ten minutes which times were not properly recorded as
time worked and resulted for not being paid for all hours worked.
Also, the Defendants failed to pay them all vacation wages after
separation of employment.[BN]
Plaintiff is represented by:
Shaun Setareh, Esq.
H. Scott Leviant, Esq.
SETAREH LAW GROUUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
Email: shaun@setarehlaw.com
Email: scott@setarehlaw.com
SAW ENTERTAINMENT: Court Stays "Hughes" Proceedings
---------------------------------------------------
The United States District Court for the Northern District of
California, San Francisco Division, issued an Order granting
Defendant's Motion to Stay Proceedings in the cases captioned
NICOLE HUGHES, et al., Plaintiffs, v. S.A.W. ENTERTAINMENT, LTD,
et al., Defendants; ELANA PERA, et al., Plaintiffs, v. S.A.W.
ENTERTAINMENT, LTD, Defendant, Case Nos. 16-cv-03371-LB, 17-cv-
00138-LB (N.D. Cal.).
The parties have filed a number of motions.
These two actions are labor disputes brought as putative
collective actions under the Fair Labor Standards Act (FLSA) and
class actions under Federal Rule of Civil Procedure 23. The named
plaintiffs, who bring claims on behalf of themselves and other
putative class members, are or were exotic dancers who are suing
the companies that managed the nightclubs where they worked.
The parties' motions raise a timing issue, however. All of the
parties agree that under a 2016 decision by the Ninth Circuit,
Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), the
arbitration provisions the defendants seek to invoke are
unenforceable. The defendants argue, however, that the Supreme
Court granted certiorari in Morris earlier this year, held
argument on October 2, and may soon issue a decision that
reverses the Ninth Circuit, which would alter the legal landscape
concerning the enforceability of arbitration provisions like the
ones at issue here. The defendants therefore request that the
court defer on ruling on the arbitration issue and stay these
proceedings until the Supreme Court issues its decision. The
plaintiffs, perhaps unsurprisingly, oppose this request.
In Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016),
the Ninth Circuit held that agreement provisions requiring
employees to pursue legal claims against their employers only
through arbitration and to arbitrate only as individuals in
separate proceedings, as opposed to in a collective action,
violate the National Labor Relations Act and are therefore
unenforceable.
The defendants' request for a stay has merit. When the Supreme
Court first granted certiorari in Morris, courts confronted with
similar circumstances as the ones presented here split as to
whether stays were appropriate or not.
The plaintiffs offer two principal arguments as to why the
arbitration provisions would be unenforceable even if the Supreme
Court reversed the Ninth Circuit: (1) the defendants have waived
their right to arbitration, and (2) the arbitration provisions
are unconscionable and therefore unenforceable. The defendants
argue that neither of these arguments is a ground for holding
their arbitration provisions unenforceable.
In evaluating the parties' arguments, the court does not endeavor
to fully adjudicate whether the arbitration provisions are or are
not enforceable. Instead, it examines the issue preliminarily to
determine whether the defendants have made enough of an argument
that the arbitration provisions would be enforceable but for the
Ninth Circuit's opinion in Morris that not staying these
proceedings until the Supreme Court issues its decision in Morris
would subject them to a hardship or inequity.
Specifically, a party seeking to prove waiver of a right to
arbitration must demonstrate: (1) knowledge of an existing right
to compel arbitration; (2) acts inconsistent with that existing
right; and (3) prejudice to the party opposing arbitration
resulting from such inconsistent acts.
Here, the first element of waiver is satisfied: it is undisputed
that the defendants had knowledge that their contracts with the
plaintiffs contained arbitration provisions.
Acts inconsistent with an existing right to compel arbitration
The trickier issue is the parties' competing Morris arguments.
Assuming the Ninth Circuit's opinion in Morris does in fact
render the arbitration provisions here unenforceable and both
sides agree that it does the issue would have been simple if
Morris had been issued after the defendants had moved to compel
arbitration, and the defendants withdrew their motion in the wake
of that decision. In that case, the motion would be futile, and
the defendants therefore could not be deemed to have their right
to make an arbitration argument later if Morris were ever
overturned.
The issue is somewhat trickier here because the Ninth Circuit
issued its Morris opinion before the defendants moved to compel
arbitration, and the defendants nevertheless moved to compel
arbitration in the face of Morris, only to then (so they claim)
belatedly realize that Morris rendered their motion futile.
Nevertheless, the court finds that despite this, the defendants
have not necessarily waived their right to seek arbitration
should Morris be reversed. The futility doctrine, as described by
the Ninth Circuit, focuses on whether there was an existing right
to arbitration under the then-prevailing law in this circuit, not
whether, or when, a party realized what the law was.
Additionally, to hold that a party that belatedly realizes its
motion is futile cannot withdraw it without running the risk of
waiver would create a disincentive for parties to withdraw
motions, thereby increasing costs and taxing the resources of
litigants and the court. The defendants have reasonably strong
arguments that the plaintiffs have not met their heavy burden of
proof, in establishing that the defendants acted inconsistently
with an existing right to compel arbitration.
The court need not definitively resolve all questions on the
issue of waiver here. The ultimate issue at this juncture is
whether the court should stay these proceedings pending the
Supreme Court's decision in Morris, which entails a consideration
of the hardship or inequity that a party might suffer in the
absence of a stay. As described above, the defendants have made
sufficiently strong arguments that they have not waived their
arbitration rights to make a showing that they would suffer
hardship and inequity if they were required to go forward now
before the Supreme Court issues its decision.
The plaintiffs argue that notice should be issued now. To support
their position, the plaintiffs cited to a number of cases in
their briefs and at the December 14, 2017 hearing, in which they
claimed that other courts had allowed notice to be issued before
arbitration issues were settled. In each of those cases, however,
there was at least one named plaintiff who had not signed any
arbitration agreement.
Among other things, those decisions addressed whether it was
appropriate to issue notice in a situation in which many members
of the class had potentially signed arbitration agreements.
By contrast, the issue here is whether notice should be issued in
a situation in which each of the named plaintiffs has signed an
arbitration agreement. In this latter situation, the court finds
it appropriate to stay the issue of notice until after it issues
its determination on the arbitration issue.
The court defers decision on the parties' pending motions. The
court additionally stays these cases pending the Supreme Court's
decision in Morris and the court's decision, to follow
thereafter, on the defendants' motions to compel arbitration. The
court equitably tolls the FLSA statute of limitations for
potential opt-in plaintiffs while these actions are stayed.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/ybnozg83 from Leagle.com.
Nicole Hughes, individually and on behalf of all others similarly
situated, Plaintiff, represented by Matthew David Carlson --
mcarlson@llrlaw.com -- Lichten & Liss-Riordan, P.C..
Nicole Hughes, individually and on behalf of all others similarly
situated, Plaintiff, represented by Shannon Liss-Riordan -
sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C..
Angelynn Hermes, Plaintiff, represented by Matthew David Carlson,
Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten &
Liss-Riordan, P.C..
Penny Nunez, Plaintiff, represented by Matthew David Carlson,
Lichten & Liss-Riordan, P.C. &Shannon Liss-Riordan, Lichten &
Liss-Riordan, P.C..
S.A.W. Entertainment, LTD, doing business as Larry Flynt's
Hustler Club, Defendant, represented by April Pineda Santos --
asantos@longlevit.com -- Long & Levit LLP, Douglas J. Melton --
dmelton@longlevit.com -- Long & Levit LLP & Shane Michael Cahill
-
scahill@longlevit.com -- Long & Levit, LLP.
Gold Club-SF, LLC, doing business as Gold Club San Francisco,
Defendant, represented by Douglas J. Melton, Long & Levit LLP &
Shane Michael Cahill, Long & Levit, LLP.
Jane Roe 1, Interested Party, represented by Steven Gregory
Tidrick -- sgt@tidricklaw.com -- The Tidrick Law Firm.
Jane Roe 2, Interested Party, represented by Steven Gregory
Tidrick, The Tidrick Law Firm.
Jane Roe 3, Interested Party, represented by Steven Gregory
Tidrick, The Tidrick Law Firm.
SEAWORLD PARKS: Court Won't Stay Discovery in "Anderson"
--------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant's Motion for
Protective Order Staying Discovery in the case captioned MARC
ANDERSON, et al., Plaintiffs, v. SEAWORLD PARKS AND
ENTERTAINMENT, INC., Defendant, Case No. 15-cv-02172-JSW (N.D.
Cal.).
Plaintiffs filed their Third Amended Class Action Complaint
(TAC). SeaWorld moved to dismiss portions of the TAC. The Court
denied SeaWorld's motion. Thereafter, the parties appeared for a
case management conference, and the Court issued a scheduling
order, which has been amended on two occasions. The parties also
have engaged in discovery, which has not been without its
disputes.
SeaWorld filed this motion for a protective order. On the same
day, it filed a motion for summary judgment, in which it raises a
variety of arguments as to why Plaintiffs cannot prevail on their
claims.
SeaWorld moves for summary judgment on the basis that, inter
alia, Plaintiffs lack standing to pursue their claims.
Plaintiffs do not dispute that a ruling in SeaWorld's favor on
that issue would be would be dispositive. By this Order, the
Court is not providing an opinion the merits of the motion for
summary judgment. However, having taken a preliminary peek at
the motion, the Court cannot say with confidence that SeaWorld
will be able to show there are no material facts in dispute or
that resolution of the motion will not raise issues about the
Plaintiffs' credibility. The Court concludes that SeaWorld has
not met its burden to show the first prong of the Pacific Lumber
test is satisfied.
Accordingly, the Court denies the motion for a protective order.
Because the facts in SeaWorld's motion for summary judgment
overlap with the facts supporting its motion for sanctions, the
Court concludes those motions should be considered together and
reschedules the hearing on the motion for summary to February 2,
2018 at 9:00 a.m.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y9zvu294 from Leagle.com.
Marc Anderson, on their own behalf and on behalf of a class of
others similarly situated, Plaintiff, represented by Christine
Saunders Haskett -- chaskett@cov.com -- Covington & Burling LLP.
Marc Anderson, on their own behalf and on behalf of a class of
others similarly situated, Plaintiff, represented by Lindsey
Catherine Barnhart -- lbarnhart@cov.com -- Covington Burling LLP,
Tracy Olivia Zinsou -- tzinsou@cov.com -- Covington and Burling
LLP & Udit Sood -- usood@cov.com -- Covington Burling LLP.
Ellexa Conway, on their own behalf and on behalf of a class of
others similarly situated, Plaintiff, represented by Christine
Saunders Haskett, Covington & Burling LLP, Lindsey Catherine
Barnhart, Covington Burling LLP, Tracy Olivia Zinsou, Covington
and Burling LLP & Udit Sood, Covington Burling LLP.
Kelly Nelson, on their own behalf and on behalf of a class of
others similarly situated, Plaintiff, represented by Tracy Olivia
Zinsou, Covington and Burling LLP, Udit Sood, Covington Burling
LLP, Christine Saunders Haskett, Covington & Burling LLP &
Lindsey Catherine Barnhart, Covington Burling LLP.
Juliette Morizur, on their own behalf and on behalf of a class of
others similarly situated, Plaintiff, represented by Tracy Olivia
Zinsou, Covington and Burling LLP, Udit Sood, Covington Burling
LLP, Christine Saunders Haskett, Covington & Burling LLP &
Lindsey Catherine Barnhart, Covington Burling LLP.
SeaWorld Parks and Entertainment, Inc., Defendant, represented by
John Morgan Simpson -- john.simpson@nortonrosefulbright.com --
Norton Rose Fulbright US LLP, Lawrence Yale Iser --
liser@kwikalaw.com -- Kinsella Weitzman Iser Kump & Aldisert LLP,
Gregory Steven Gabriel -- greg.gabriel@monsterenergy.com -
Kinsella Weitzman Iser Kump & Aldisert LLP, Kristen Louise
Spanier -- kspanier@kwikalaw.com -- Kinsella Weitzman Iser Kump &
Aldisert LLP, Michelle C. Pardo --
michelle.pardo@nortonrosefulbright.com -- Norton Rose Fulbright
US LLP & Rebecca E. Bazan --
rebecca.bazan@nortonrosefulbright.com -- Norton Rose Fulbright US
LLP, pro hac vice.
SECOND CHANCE: Motions to Dismiss "Gogtay" Suit Remains Stayed
--------------------------------------------------------------
The motions to dismiss filed by Second Chance, Inc. and Novastar
Appraisals, Inc., in the case titled, Nitin Gogtay and Kiran
Dixit, Plaintiffs, v. Second Chance, Inc. and NovaStar
Appraisals, Inc., the Defendants, Case No. 8:17-cv-03247-PX (D.
Md.), remain pending.
The case was originally filed in October 2017 and captioned,
Nitin Gogtay and Kiran Dixit, individually and for all of those
similarly situated, the Plaintiffs, v. Second Chance, Inc. and
NovaStar Appraisals, Inc., the Defendants, Case No. 8:17-cv-
03247-PX, (Md. Cir., Montgomery County, October 4, 2017).
The defendants jointly removed the case to the federal district
court on Nov. 5.
The plaintiffs have sought to remand the case back to state
court.
On Nov. 20, the parties entered into a stipulation. They agreed
that briefing on the Motions to Dismiss be stayed until the Court
decides the Remand Motion and all appeals, if any, have been
decided.
The lawsuit seeks disgorgement of proceeds, restitution with
damages based on Defendant's false representations to Maryland
consumers. The complaint states that Defendant Second Chance has
kept a secret for several years from consumers in the State of
Maryland. Defendant is cloaking itself as a charity through its
website representation, in documents provided to consumers and in
oral representation to consumers that includes the Plaintiffs.
The Defendant also deceived the Plaintiffs and other Maryland
consumers that it produced "IRS-compliant" appraisals for
Maryland consumers in connection with consumers' deconstructed
house donations to the Defendant and other organizations. The
representations on appraisals were knowingly and intentionally
false and misleading.
Second Chance holds itself out as a charity based in Baltimore,
Maryland, that according to its website it deconstructs buildings
and homes, salvages usable materials and makes those available to
the public through its 200,000-square feet retail space.[BN]
Plaintiff is represented by:
Michnel J. Schrier, Esq.
Ugo Colella, Esq.
DUANE MORRIS LLP
505 9th Street, N.W. Suite 1000
Washington, DC 20004
Telephone: (202) 776-7800
Facsimile: (202) 776-7801
Email: mischrier@duanemorris.com
- and -
John J. Zefutie, Jr., Esq.
DUANE MORRIS LLP One
Riverfront Plaza
1037 Raymond Blvd., Suite 1800
Newark, NJ 07102
Telephone: (973) 424-2039
Facsimile: (973) 556-1499
Email: jizefutie@duanemorris.com
- and -
John W. Leardi, Esq.
BUTTACI LEARDI & WERNER LLC
103 Carnegie CEnter Suite 323
Princeton, NJ 08540
Telephone: (609) 799-5150
Facsimile: (609) 799-5180
Email: jwleardi@buttacilaw.com
Counsel for SecondChance, Inc.:
Derek P Roussillon, Esq.
Joshua Jeremiah Gayfield, Esq.
Dwight W Stone , II, Esq.
Michael Benjamin Brown, Esq.
Miles and Stockbridge PC
100 Light St
Baltimore, MD 21202
Tel: (410) 727-6464
Fax: (410) 385-3700
E-mail: droussillon@milesstockbridge.com
jgayfield@milesstockbridge.com
dstone@milesstockbridge.com
mbbrown@milesstockbridge.com
Counsel for Novastar Appraisals, Inc.:
Stephen G. Grygiel, Esq.
Silverman Thompson Slutkin & White
201 N. Charles Street 26th Floor
Baltimore, MD 21201
Tel: (410) 385-2225
Fax: (410) 547-2432
E-mail: SGrygiel@mdattorney.com
SEPHORA USA: Court Needs More Information in Settlement Approval
----------------------------------------------------------------
The United States District Court for the Northern District of
California issued an order directing Plaintiff's counsel to
provide further information in relation to the Motion for
Preliminary Approval of Class Action Settlement in the case
captioned ALYSSA BURNTHORNE-MARTINEZ, Plaintiff, v. SEPHORA USA,
INC., Defendant, Case No. 16-cv-02843-YGR (N.D. Cal.).
Plaintiff's counsel is directed to provide further information in
a summary chart format from William B. Rubenstein. The Court
requires one modification, namely, to the extent that plaintiff
seeks reimbursement for expert fees, those will be separately
identified.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y9zy7vcp from Leagle.com.
Alyssa Burnthorne-Martinez, Plaintiff, represented by Chaim Shaun
Setareh -- shaun@setarehlaw.com -- Setareh Law Group.
Alyssa Burnthorne-Martinez, Plaintiff, represented by Thomas
Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group.
Sephora USA, Inc., Defendant, represented by Andrew Ralston
Livingston -- alivingston@orrick.com -- Orrick Herrington &
Sutcliffe LLP, Alexandra Elena Heifetz -- alivingston@orrick.com
-- Orrick Herrington Sutcliffe LLP & Kathryn Grzenczyk Mantoan --
kmantoan@orrick.com -- Orrick, Herrington & Sutcliffe LLP.
SERVICE KING: Ninth Circuit Appeal Filed in "Morales" Class Suit
----------------------------------------------------------------
Defendant Service King Paint & Body, LLC, filed an appeal from a
court ruling in the lawsuit styled Abelardo Morales v. Service
King Paint & Body, LLC, Case No. 2:17-cv-04671-RGK-PJW, in the
U.S. District Court for the Central District of California, Los
Angeles.
The appellate case is captioned as Abelardo Morales v. Service
King Paint & Body, LLC, Case No. 18-55028, in the United States
Court of Appeals for the Ninth Circuit.
As reported in the Class Action Reporter, the Defendant has
previously filed an appeal from a court ruling in the lawsuit.
That appellate case is titled Abelardo Morales v. Service King
Paint & Body, LLC, Case No. 17-80154.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant Service King Paint & Body, LLC's opening brief
was
due January 18, 2018;
-- Appellee Abelardo Morales' answering brief was due
January 18, 2018. No reply briefs will be accepted; and
-- Oral Argument is on February 6, 2018, at 9:00 a.m.[BN]
Plaintiff-Appellee ABELARDO MORALES, on behalf of himself and all
others similarly situated, is represented by:
Aparajit Bhowmik, Esq.
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
E-mail: aj@bamlawlj.com
norm@bamlawlj.com
Kyle@bamlawlj.com
Defendant-Appellant SERVICE KING PAINT & BODY, LLC, is
represented by:
Jesse C. Ferrantella, Esq.
Timothy L. Johnson, Esq.
Spencer C. Skeen, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
4370 La Jolla Village Drive, Suite 990
San Diego, CA 92122
Telephone: (858) 652-3100
Facsimile: (858) 652-3101
E-mail: jesse.ferrantella@ogletree.com
tim.johnson@ogletreedeakins.com
spencer.skeen@ogletree.com
SIGNET JEWELERS: Bronstein, Gewirtz Files Securities Class Action
-----------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, notifies investors that a
class action lawsuit has been filed against Signet Jewelers
Limited ("Signet" or the "Company") (NYSE:SIG) and certain of its
officers, on behalf of shareholders who purchased Signet shares
between August 24, 2017, and November 21, 2017, inclusive (the
"Class Period"). Such investors are encouraged to join this case
by visiting the firm's site: http://www.bgandg.com/sig.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the Class Period,
defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) Signet's efforts to convert
IT systems in connection with the credit portfolio transition
were negatively impacting sales; (2) the magnitude of in-store
process changes related to the new credit program were negatively
impacting sales; (3) consequently, Signet was experiencing
systems and process disruptions associated with the outsourcing
of its credit portfolio; (4) the disruptions were negatively
impacting Signet's performance; and (5) as a result, defendants'
positive statements about Signet's business, operations, and
prospects were false and misleading and/or lacked a reasonable
basis.
On November 21, 2017, during Signet's Q3 2017 conference call,
CEO Virginia Drosos revealed that Signet "faced headwinds" from
"disruptions in our systems and processes during our credit
outsourcing transition" which "impacted our comp sales by sixty
basis points." The CEO continued to explain that the disruptions
were caused by the conversion of IT systems and the magnitude of
in-store process changes related to the new program. Following
this news, Signet stock dropped $23.05, or 30%, to close at
$52.79 per share on November 21, 2017.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
http://www.bgandg.com/sigor you may contact Peretz Bronstein,
Esq. or his Investor Relations Analyst, Yael Hurwitz of
Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you
suffered a loss in Signet you have until February 13, 2018 to
request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve
as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration.
Peretz Bronstein, Esq.
Bronstein, Gewirtz & Grossman, LLC
Tel: 212-697-6484
Email: peretz@bgandg.com [GN]
SIRIUS XM: Bid for Judgment in "Andrews" Suit Taken Off Calendar
----------------------------------------------------------------
The motion for summary judgment filed by the Defendant in the
lawsuit captioned James Andrews, et al. v. Sirius XM Radio, Inc.,
Case No. 5:17-cv-01724-PA-AFM (C.D. Cal.), is taken off calendar,
according to the Court's civil minutes.
Before the Hon. Percy Anderson are a Motion for Summary Judgment
filed by the Defendant, was on calendar for January 8, 2018, a
Motion for Leave to Amend Complaint filed by Plaintiff James
Andrews, currently on calendar for January 22, 2018, and a Motion
for Class Certification filed by the Plaintiff, currently on
calendar for February 5, 2018.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and
Local Rule 7-15, the Court finds that the Motion for Summary
Judgment is appropriate for decision without oral argument. The
hearing calendared for January 8 is vacated, and the matter taken
off calendar. The Court says it will notify the parties once it
has issued a ruling on the Motion for Summary Judgment.
Depending on how the Court resolves the Motions for Summary
Judgment and for Leave to Amend, the Motion for Class
Certification may become moot either because Defendant will be
entitled to Judgment or Plaintiff is allowed to add claims that
are not part of the current Motion for Class Certification,
according to the Civil Minutes.
The Court, therefore, vacates the hearing on the Motion for Class
Certification and suspends the briefing schedule. The Court will
issue a further order concerning the briefing schedule for the
Motion for Class Certification after it resolves the Motions for
Summary Judgment and for Leave to Amend.
A copy of the Civil Minutes is available at no charge at
http://d.classactionreporternewsletter.com/u?f=YkUV13xW
STANISLAUS CREDIT: "Maldonado" Suit Ongoing in N.D. Illinois
------------------------------------------------------------
A class action lawsuit against Stanislaus Credit Control Service,
Inc. is underway. The case is titled as Robert Maldonado, on
behalf of himself and all others similarly situated, the
Plaintiff, v. Stanislaus Credit Control Service, Inc., Case No.
1:17-cv-08136, (N.D. Ill., November 9, 2017).
The Honorable John Robert Blakey on Jan. 4, 2018, entered an
order granting Plaintiff's motion to reinstate case.
Judge Blakey set this timeline:
-- any answer must be filed on or before Jan. 22, 2018;
-- MIDP discovery responses must be completed on or before
Feb. 22, 2018.
-- Parties shall meet and confer regarding MIDP and class
discovery.
-- Case management conference set for March 8, 2018, at
10:15 a.m. in Courtroom 1203.
Judge Blakey on Dec. 18 entered an order dismissing the case for
want of prosecution based upon the parties failure to file the
status report required by the Court's Nov. 16 order.
On Dec. 21, Plaintiff asked the Court to reinstate.[BN]
Plaintiff is represented by:
Celetha Chatman, Esq.
Michael Jacob Wood, Esq.
Community Lawyers Group, Ltd.
73 W. Monroe Street Suite 514
Chicago, IL 60603
Telephone: (312) 757-1880
Email: cchatman@communitylawyersgroup.com
Email: mwood@communitylawyersgroup.com
Counsel For Defendant(s):
David M Schultz, Esq.
Louis J. Manetti, Jr., Esq.
HINSHAW AND CULBERTSON LLP
222 North LaSalle Street, Suite 300
Chicago, IL 60601-1081
Tel: (312) 704-3445
E-mail: dschultz@hinshawlaw.com
lmanetti@hinshawlaw.com
STONERIDGE INC: Final Okay of Settlement Sought in "Royal" Suit
---------------------------------------------------------------
The Plaintiffs in the lawsuit titled RICKEY ROYAL, SANDRA
EPPERSON, and GREG HULCY, Individually on behalf of all putative
class members v. STONERIDGE, INC.; STONERIDGE CONTROL DEVICES,
INC. f/k/a JOSEPH POLLAK CORP., Case No. 5:14-cv-01410-F (W.D.
Okla.), move for final approval of class action settlement.
The litigation arises from allegations that Stoneridge designed,
manufactured, and supplied defective clutch safety interlock
devices ("CSIDs") for use in certain manual transmission motor
vehicles. The CSID is a single function switch designed to
prevent a vehicle engine from starting unless the driver fully
depresses the clutch pedal. When a driver depresses the clutch
pedal, a push-rod connected to the pedal mechanism compresses the
springs in the CSID, a copper contact is moved into position so
that the ignition electrical circuit is closed, and engine start-
up can occur. When a driver releases the clutch pedal, the
compression springs are designed to rebound and thereby move the
copper contact out of position, opening the ignition circuit and
preventing engine start up.
The Plaintiffs allege the subject CSIDs were defectively
designed, which can cause the springs to break, which can result
in a vehicle's untended startup or a vehicle's inability to
start.
The Settlement Agreement provides relief to a settlement class
defined as:
All United States residents who currently own vehicles
incorporating "Covered CSIDs," defined as all clutch safety
interlock devices containing model 16813 compression springs
that (1) were built between February 24, 2005 and January 1,
2007; and (2) are not subject to any recall campaign
(included but not limited to Chrysler campaigns 14V-795 and
15V-222).
If the settlement is approved, Members of the Settlement Class
will be eligible to receive from Stoneridge a shipped replacement
CSID containing redesigned 16813-01 springs (the "Replacement
CSIDs"), together with instructions describing the appropriate
procedure for replacing the CSIDs. Each Replacement CSID has a
retail value of approximately $80.
In order to receive Replacement CSIDs, members of the Settlement
Class must (1) elect to participate; (2) properly complete and
submit a claim form with evidence of eligibility (including the
date code their CSID); and (3) do so within the time period set
forth in the Settlement Agreement.
Additionally, Plaintiffs Rickey Royal, Sandra Epperson, and Greg
Hulcy will apply to this Court for, and Stoneridge has agreed not
to oppose, incentive awards in the amount of $5,000 each.
Stoneridge has agreed not to oppose a fee application by the
counsel that requests fees and expenses up to the amount of
$375,000, and not to oppose an application for incentive awards
in the amount of $5,000 each. The Plaintiffs have agreed not to
seek awards in excess of those amounts.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=lGCeA5oJ
The Plaintiffs are represented by:
Jeffrey T. Embry, Esq.
George Cowden IV, Esq.
HOSSLEY EMBRY, LLP
515 S. Vine Avenue
Tyler, TX 75702
Telephone: (903) 526-1772
Facsimile: (903) 526-1773
E-mail: jeff@hossleyembry.com
george@hossleyembry.com
- and -
F. Leighton Durham III, Esq.
Kirk L. Pittard, Esq.
KELLY, DURHAM &PITTARD, LLP
P.O. Box 224626
Dallas, TX 75222
Telephone: (214) 946-8000
Facsimile: (214) 946-8433
E-mail: ldurham@texasappeals.com
kpittard@texasappeals.com
- and -
Simone Gosnell Fulmer, Esq.
FULMER GROUP PLLC
PO Box 2448
Oklahoma City, OK 73101
Telephone: (405) 510-0077
Facsimile: (405) 510-0077
E-mail: sfulmer@fulmergrouplaw.com
SYMPHONY'S ON CENTRAL: FACTA Violations, "Allington" Says
-------------------------------------------------------------
The case entitled, Noah Allington, individually and on behalf of
all others similarly situated, the Plaintiff, v. Symphony's on
Central, Inc., the Defendant, Case No. 2017CH14904 (Ill. Cir,
Cook County, November 9, 2017), is underway.
The lawsuit seeks statutory damages including attorney's fees and
costs for Defendant's violations of the Fair and Accurate Credit
Transactions Act.
The complaint alleges that the Defendant has negligently,
recklessly and/or willfully violated this law and failed to
protect the Plaintiff and others similarly situated persons
against identity theft, credit card fraud, and debit card fraud
by continuing to print the last four digits of the card number
and the full expiration date of the card on receipts provided to
debit card and credit card cardholders transacting business with
the Defendant. The Plaintiff states that on October 28, 2017, he
received from Defendant at its retail store a computer-generated
cash register receipt which displayed the last four digits of
Plaintiffs credit card number and the full expiration date of the
card. With this, the Defendant denied Plaintiff the substantive
statutory right to receive a truncated receipt granted to him by
FACTA and deprived the Plaintiff of the security protections
effectuated by FACTA which created a burden on Plaintiff to take
additional steps to ensure that his credit card account
information would remain private.[BN]
Plaintiff is represented by:
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re, Esq.
Nickolas J. Hagman, Esq.
Maebetty Kirby, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 W. Washington Street, Suite 1220
Chicago, IL 60602
Telephone: (312) 440-0020
Facsimile: (312) 440-4180
Email: tom@attorneyzim.com
Email: sharon@attorneyzim.com
Email: matt@attorneyzim.com
Email: nick@attorneyzim.com
Email: maebetty@attorneyzim.com
TAISHAN GYPSUM: "Allman" Class Suit Transferred to E.D. Louisiana
-----------------------------------------------------------------
The class action lawsuit filed on February 11, 2018 captioned
James and Tamera Allman, et al., individually, and on behalf of
all others similarly situated v. Taishan Gypsum Co., Ltd. f/k/a
Shandong Taihe Dongxin Co., Ltd.; Tai'an Taishan Plasterboard
Co., Ltd.; Beijing New Building Materials Public Limited Co.;
Beijing New Building Materials (Group) Co., Ltd.; China National
Building Material Co., Ltd., Case No. 2:17-cv-00051, was
transferred on January 10, 2018, from the United States District
Court for the Eastern District of North Carolina Northern
Division to the U.S. District Court for the Eastern District of
Louisiana. The District Court Clerk assigned Case No. 2:17-cv-
12513-EEF-JCW to the proceeding.
The case asserts product liability claims.
The Defendants together with its affiliates, subsidiaries and
actual or apparent agents, manufactured, sold, distributed,
marketed and placed within the stream of commerce gypsum drywall.
[BN]
The Plaintiff is represented by:
J. Michael Malone, Esq.
HENDREN & MALONE, PLLC
4600 Marriott Drive, Suite 150
Raleigh, NC 27612
Telephone: (919) 573-1423
E-mail: mmalone@hendrenmalone.com
TAISHAN GYPSUM: "Stutzman" Suit Transferred to E.D. Louisiana
-------------------------------------------------------------
The class action lawsuit filed on November 2, 2017, styled Diane
Stutzman, et al., individually, and on behalf of all others
similarly situated v. Taishan Gypsum Co., Ltd. f/k/a Shandong
Taihe Dongxin Co., Ltd.; Tai'an Taishan Plasterboard Co., Ltd.;
Beijing New Building Materials Public Limited Co.; Beijing New
Building Materials (Group) Co., Ltd.; China National Building
Material Co., Ltd., Case No. 3:17-cv-01209, was transferred on
January 10, 2018, from the U.S. District Court for the Southern
District of Illinois to the U.S. District Court for the Eastern
District of Louisiana. The District Court Clerk assigned Case No.
2:17-cv-12511-EEF-JCW to the proceeding.
The case asserts product liability claims.
The Defendants together with its affiliates, subsidiaries and
actual or apparent agents, manufactured, sold, distributed,
marketed and placed within the stream of commerce gypsum drywall.
[BN]
The Plaintiff is represented by:
Roger C. Denton, Esq.
SCHLICHTER, BOGARD & DENTON
100 S. Fourth St., Suite 900
St. Louis, MO 63102
Telephone: (314) 621-6115
E-mail: rdenton@uselaws.com
TEMPOE LLC: Bid to Remand "Garcia" Suit Denied
----------------------------------------------
In the case captioned ALICIA GARCIA, and PRISCILA DOMINGUEZ, on
behalf of themselves and others similarly situated, Plaintiffs,
v. TEMPOE, LLC, et al., Defendants, Civil Action No. 17-2106
(SDW) (LDW) (D. N.J.), Judge Susan D. Wigenton of the U.S.
District Court for the District of New Jersey denied the
Plaintiffs' Motion to Remand.
Before the Court is the Report and Recommendation ("R&R") issued
on Nov. 15, 2017 by Magistrate Judge Leda Dunn Wettre
recommending that the Plaintiffs' Motion to Remand be denied.
The Plaintiffs objected to the R&R on Nov. 29, 2017, and the
Defendant responded to the Plaintiffs' objections on Dec. 13,
2017.
Judge Wigenton has reviewed the R&R and record in the matter, and
agrees with Magistrate Judge Wettre's analysis and conclusions.
Because the Truth in Consumer Contract, Warranty and Notice Act
("TCCWNA") provides for a civil penalty of not less than $100 and
the Plaintiffs' complaint alleges that each lease agreement
contains six TCCWNA violations, the Magistrate Judge's
calculation of the amount in controversy (i.e., $600 per lease
agreement entered by each class member) was reasonable.
Furthermore, as the Defendant proffers that there are well over
6411 lease transactions at issue, the Judge finds that the amount
in controversy exceeds the $5 million threshold required under
the Class Action Fairness Act ("CAFA"). Magistrate Judge
Wettre's findings as to the class size and amount in controversy
are supported by the record.
Based on the foregoing, and for good cause shown, Judge Wigenton
adopted the R&R of Magistrate Judge Wettre as the conclusions of
law of the Court.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/9LDzr5 from Leagle.com.
ALICIA GARCIA, On behalf of themselves and others similarly
situated, Plaintiff, represented by HENRY PAUL WOLFE --
hwolfe@wolflawfirm.net - THE WOLF LAW FIRM, LLC.
ALICIA GARCIA, On behalf of themselves and others similarly
situated, Plaintiff, represented by YONGMOON KIM --
jhk@thekimlawfirm.com -- Kim Law Firm LLC.
PRISCILA DOMINGUEZ, On behalf of themselves and others similarly
situated, Plaintiff, represented by HENRY PAUL WOLFE, THE WOLF
LAW FIRM, LLC & YONGMOON KIM, Kim Law Firm LLC.
TEMPOE, LLC, Defendant, represented by KATE ELIZABETH JANUKOWICZ,
GIBBONS PC & MICHAEL R. MCDONALD -- mmcdonald@gibbonslaw.com --
GIBBONS, PC.
TOOTSIE ROLL: Suit Says Junior Mints Boxes Inflated
---------------------------------------------------
Jorge Fitz-Gibbon, writing for USA Today, reports that a federal
class-action lawsuit claiming Junior Mints puts too much air and
not enough candy in their little boxes has just gotten a little
bit bigger.
Two more consumers have joined the lawsuit against Tootsie Roll
Industries, which makes Junior Mints, claiming in a new, amended
complaint filed in Manhattan federal court that they felt
"injured" by being short-changed of candy.
"The product is packaged in a non-transparent cardboard box" in a
way that makes it so consumers "cannot see the excessive air in
the container," the complaint said. "The size of the products'
boxes in comparison to the volume of the candy" makes it appear
that people are "buying more than what is actually being sold."
The claims are now part of the lawsuit filed in October by Biola
Daniel of New York City, who said that 40% of the $1.49 box of
Junior Mints she purchased at a Duane Reade pharmacy on 125th
Street was filled with air, or "slack fill."
In the amended complaint, Abel Duran, from the Queens borough of
New York, said the 4.13-ounce box of candy he purchased for $4.49
at a Garden City movie theater on Dec. 28 was only 77% filled.
Trekeela Perkins of Mississippi had a similar gripe with the
$1.29 box she bought at a Walmart in Jackson County.
In court papers filed in response to the lawsuit, lawyers for
Tootsie Roll Industries counter that the "slack fill" in the
candy boxes actually serves a function by keeping the candy
protected and thus actually adds to the value of the candy.
The company also said that Daniel and the other plaintiffs have
failed to prove how they are entitled to damages and that details
about the amount of candy are clearly listed on the boxes.
The candymaker believes "no reasonable consumer could be deceived
by the product packaging because it accurately discloses the
candy's net weight, serving size, and the number of pieces in the
box," lawyers for the company wrote.
They called the lawsuit "a copy-cat case of similar cases in
other jurisdictions," citing civil claims against other products
ranging from egg rolls to deodorants, and said the complaint
"should be dismissed in its entirety."
But Daniel and the other plaintiffs claim they were deceived by
Tootsie Roll. They said the company even markets packages with
different quantities of candy in the same size boxes, labeling
them "XL," to suggest extra large.
"This demonstrates that Defendant does not fill boxes based on
those boxes' capacity," the lawsuit says.
Even a 10.5 ounce "Big Box Size" container of Junior Mints is 39
percent air, according to the complaint. [GN]
TOWER LOAN: Court Awards $150K Atty's Fees in "Kemp"
----------------------------------------------------
The United States District Court for the Southern District of
Mississippi, Northern Division, issued an Order for Final
Approval of Settlement, Authorizing Service Award, and Granting
Application for Attorney's Fees and Expenses in the case
captioned BARBARA J. KEMP, and TIJUANNA HALL, Plaintiffs, v.
TOWER LOAN OF MISSISSIPPI, LLC, D/B/A TOWER LOAN OF BILOXI, and
FIRST TOWER LOAN, LLC D/B/A TOWER LOAN OF EAST GULFPORT,
Defendants, No. 3:15-CV-499-CWR-LRA (S.D. Miss.)
Plaintiffs Barbara J. Kemp and Tijuanna Hall filed a class action
complaint in the United States District Court for the Southern
District of Mississippi against TLM in which they asserted class
and individual claims based on alleged violations of the Truth in
Lending Act, 15 U.S.C. Section 1601 et seq., as amended, and
implementing Regulation Z, 12 C.F.R. Part 1026. Plaintiffs sought
inter alia, monetary damages, rescission, and attorney's fees and
costs.
The Settlement Class is an opt-out class under Rule 23(b)(3) of
the Federal Rule of Civil Procedure. The Settlement Class is
defined as:
All Borrowers of any Mortgage Loan with Tower that has a
Date of Loan from June 1, 2013 through and including November 3,
2015.
Under the Settlement, Tower timely made its initial deposit into
an Escrow Account following this Court's Preliminary Approval.
That deposit created the Settlement Fund, which will be used to
pay: (i) checks to certain Settlement Class Members in the
specific cases described in Paragraph 56 of the Agreement; (ii)
the Court-ordered award of Class Counsel's attorneys' fees,
costs, and expenses; (iii) the Court-ordered Service Awards to
the Class Representatives.
The Court finds that the Settlement provides present, tangible
benefits to approximately 405 Settlement Class Members, all of
whom are current or former Tower customers. Considering the
uncertainty of litigation and comparing that risk with the
recovery afforded by way of this Settlement, along with a means
to avoid protracted and expensive litigation, this factor
strongly supports approval of the Settlement.
Class Counsel undertook a difficult case, and they should be
compensated in accord with their request, which is both warranted
and reasonable given similar fee awards. Based on the findings
below, this Court finds that Class Counsel are entitled to an
award of fees and expenses in the amount of $150,000. The Court
finds that a $150,000 fee (approximately 25% of the projected
Rate Reduction benefit) is appropriate, reasonable, and comports
with customary fee awards in comparable cases.
A full-text copy of the District Court's December 20, 2017 Order
is available at https://tinyurl.com/yc9dzb53 from Leagle.com.
Barbara J. Kemp, on behalf of plaintiffs and a class, Plaintiff,
represented by Daniel A. Edelman, EDELMAN COMBS LATTURNER AND
GOODWIN, 20 South Clark Street, Suite 1500. Chicago, Illinois
60603, pro hac vice.
Barbara J. Kemp, on behalf of plaintiffs and a class, Plaintiff,
represented by James L. Latturner -- jlatturner@edcombs.com --
EDELMAN COMBS LATTURNER AND GOODWIN, pro hac vice, Jason E.
Graeber, JASON GRAEBER ATTORNEY AT LAW, 2462 Pass Road Biloxi, MS
39531 & Tara L. Goodwin, EDELMAN COMBS LATTURNER AND GOODWIN, 20
South Clark Street, Suite 1500, Chicago, IL 60603 pro hac vice.
Tijuanna Hall, on behalf of plaintiffs and a class, Plaintiff,
represented by Daniel A. Edelman, EDELMAN COMBS LATTURNER AND
GOODWIN, pro hac vice, James L. Latturner, EDELMAN COMBS
LATTURNER AND GOODWIN, pro hac vice, Jason E. Graeber, JASON
GRAEBER ATTORNEY AT LAW & Tara L. Goodwin, EDELMAN COMBS
LATTURNER AND GOODWIN, pro hac vice.
Tower Loan of Mississippi, LLC, doing business as Tower Loan of
Biloxi, Defendant, represented by Jane B. Morgan --
jmorgan@watkinseager.com -- WATKINS & EAGER, PLLC, John B.
Howell, III -- jhowell@watkinseager.com -- WATKINS & EAGER, PLLC,
Michael O'Mara Gwin -- mgwin@watkinseager.com -- WATKINS & EAGER,
PLLC & Paul H. Stephenson -- pstephenson@watkinseager.com III --
WATKINS & EAGER, PLLC.
First Tower Loan, LLC, doing business as Tower Loan of East
Gulfport, Defendant, represented by Jane B. Morgan, WATKINS &
EAGER, PLLC & Michael O'Mara Gwin, WATKINS & EAGER, PLLC.
TRINET GROUP: Court Dismisses "Welgus" Securities Suit
------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, issued an Order granting
Defendants' Motion to Dismiss Second Amended Complaint Without
Leave to Amend in the case captioned HOWARD WELGUS, Plaintiff, v.
TRINET GROUP, INC., et al., Defendants, Case No. 15-cv-03625-BLF
(N.D. Cal.).
Defendants filed three motions to dismiss the SAC with prejudice.
First, Defendants TriNet, TriNet's President and Chief Executive
Officer Burton M. Goldfield, TriNet's Chief Financial Officer
William Porter (Officer Defendants) and Martin Babinec, H.
Raymond Bingham, David C. Hodgson, Katherine August-deWilde,
Kenneth Goldman, John H. Kispert, and Wayne B. Lowell (Outside
Directors or Director Defendants) move to dismiss the SAC for
failure to plead falsity and scienter sufficient to meet the
demanding requirements of the Private Securities Litigation
Reform Act (PSLRA).
Second, private equity firm General Atlantic LLC (General
Atlantic) joins TriNet's motion to dismiss and separately moves
to dismiss the SAC on grounds specific to General Atlantic's role
in the events.
Third, J.P. Morgan Securities LLC, Morgan Stanley & Co., LLC,
Deutsche Bank Securities Inc., Jefferies LLC, Stifel, Nicolaus &
Company, Incorporated, and William Blair & Company, LLC
(Underwriter Defendants), join TriNet's motion to dismiss and
separately raise arguments unique to the underwriters as
independent grounds for dismissal.
This is the Court's second look at the pleadings in this
securities fraud class action brought by lead plaintiff Howard
Welgus (Plaintiff) against Defendant TriNet Group, Inc. (TriNet)
and its officers and directors for violations of federal
securities laws.
Plaintiff alleges that TriNet made material misrepresentations
regarding, among other things, its risk management capabilities,
data analytics capabilities, and the Company's limited exposure
to excessive insurance claims. After TriNet's Initial Public
Offering (IPO) and Secondary Public Offering (SPO), its stock
price dropped on three separate occasions in response to the
Company's announcements of higher-than-expected claims resulting
in higher insurance costs and lower revenues.
Plaintiff argues that the allegations in the SAC remedy the
previously identified deficiencies. In particular, Plaintiff
focuses on Category 3 statements (statements that TriNet assesses
all claims on an individual basis), which the Court indicated
might be adequately pled with respect to falsity. The SAC also
adds to Plaintiff's allegations with respect to Category 5
statements (statements that TriNet's insurance plans were fully
insured, because such statements implied that the plans were
fully insured for TriNet, when in reality the plans were fully
insured for the client and actually increased TriNet's risk
exposure.
The SAC also includes a chart contrasting Defendants'
representations with their later admissions, in an attempt to
demonstrate that all of the categories of statements were
materially false or misleading when made. Moreover, Plaintiff
argues that the additional allegations that TriNet removed the
alleged false statements from its SEC filings for FY15, and the
fact that it dismissed its auditor in 2016, support an inference
that the challenged statements were false.
The Company, Officer Defendants,
and Director Defendants' Motion to Dismiss
Category 1: Statements Concerning Risk Management
First, Plaintiff alleges that Defendants made false statements
regarding TriNet's risk management capabilities during the Class
Period that analysts and investors relied upon to differentiate
TriNet from its competitors. Plaintiff's theory of falsity is
essentially that TriNet boasted risk management as a core
competency when in reality risk management was actually a
material weakness.
The Court briefly addresses Plaintiff's new allegation in the SAC
that TriNet has since removed a number of representations,
including statements regarding risk management as a core
competency, from its SEC filings beginning with TriNet's FY15
Form 10-K. Without citing to a single case in support of his
position, Plaintiff argues that the removal of these statements
from TriNet's filings is admissible evidence of prior falsity
rather than a subsequent remedial measure that Courts have
rejected. The Court is not persuaded, and finds that this
allegation fails to support an inference of falsity with respect
to any of the five categories of allegedly false statements.
Rather, as Defendants point out, if the law viewed a company's
editing or removal of language from an SEC filing as a tacit
admission that the language was false when made, no public
company would ever remove disclosures from its filings.
With respect to Category 1 statements, the SAC fails for the same
reasons previously identified by the Court, permitting falsity to
be inferred only by hindsight rather than with allegations that
the statements were false when made. Plaintiff alleges nothing to
indicate what TriNet's risk management capabilities actually were
at the time the allegedly false statements were made, leaving the
Court unable to infer that such statements were false.
Categories 2 and 3: Statements Concerning TriNet's Access to
Claims Data and Whether TriNet Assesses All Claims on an
Individual Basis.
The only new allegations in the SAC that Plaintiff points to are
post-class period reports by analysts that Plaintiff argues
confirm the falsity of TriNet's statements such as its access to
breakthrough data. The fact that TriNet's business model had
failed" because TriNet was forced to reprice its entire medical
insurance book is not sufficient to allege falsity.
As the Court explained at the hearing, this theory of falsity
suggests that every General who has lost a battle was making
false statements saying that they were going to win the battle.
These post-class period allegations regarding changes to TriNet's
business model do not indicate that TriNet's statements regarding
the strength of its business in comparison to its competitors and
access to breakthrough claims data were false when they were
made.
Category 4: Statements that TriNet had Predictability and
Visibility into Future Financial Performance
Even if the Court were to follow Plaintiff's argument that this
situation is particularly unique in light of the context of
TriNet's statements, Plaintiff has failed to demonstrate with
specificity why and how statements that TriNet had some measure
of predictability and visibility" into its financial performance
were false. The SAC, like the FAC, alleges nothing about TriNet's
actual practices for forecasting claims or what kind of
visibility it had to track claims at the time the Officer
Defendants' challenged statements were made. Thus, even if the
Category 4 statements were actionable, the factual allegations
are insufficient to raise an inference that these statements were
false.
Category 5: Statements Regarding TriNet's use of Fully Insured
Plans and Aggregate Stop Loss Provisions
The fifth and final category of allegedly false statements
involves TriNet's use of the term fully insured plans, and its
representations that its insurance contracts included stop loss
provisions. The Court addresses each in turn.
Fully Insured
Similar to the Category 3 statements, falsity is not adequately
alleged with respect to the fully insured statements because the
existence and disclosure of TriNet's tens of millions of dollars
in liability reserves prevents the Court from drawing the
inference that Plaintiff suggests: that TriNet's statements
somehow meant that all of its plans were fully insured for TriNet
in the sense that TriNet bore zero risk.
Plaintiff's argument that Defendants somehow created ambiguity in
their public statements, despite clear disclosures throughout the
Class Period that TriNet took on a deductible layer of risk and
specifically reserved in order to reimburse carriers if such risk
materialized, is not sufficient to satisfy Rule 9(b) or the
PSLRA's requirement that a plaintiff plead contemporaneous and
specific facts indicating why the challenged statements were
false.
Stop Loss
The Court finds that Plaintiff's allegations in the SAC regarding
stop loss, which remain entirely unchanged from the FAC, do not
sufficiently allege that TriNet had no stop loss of any kind in
its agreements with its carriers, which would render its
representations in the IPO and SPO Registration Statements false.
Other than Porter's confusing statement and Morgan Stanley's
summary that TriNet could in theory establish an aggregate stop
loss, there are no factual allegations in the SAC regarding the
content of TriNet's insurance carrier contracts during the Class
Period that would permit the Court to infer that TriNet never
used stop losses to limit its exposure with respect to any of its
policies or clients.
Without contemporaneous allegations of the content of TriNet's
policies during the Class Period, the plausible inference from
the Officer Defendants' statements regarding aggregate stop loss
is that TriNet may have used stop loss to cap claim costs in a
specific policy in a given year, but perhaps did not utilize stop
loss to cap losses to specific carriers or regions which TriNet
concluded was too expensive to justify the cost.
Without any new allegations in the SAC to consider, the Court
does not disturb its prior conclusion that falsity has not been
pled with respect to TriNet's stop loss representation in its
Registration Statements.
Scienter
The second element of a securities fraud claim requires the
plaintiff to plead scienter with particularity.
The Court considers Plaintiff's allegations of scienter, but
observes that Plaintiff has merely repackaged its falsity
allegations, previously dismissed in the FAC and found to be
inadequate above, in an attempt to invoke a cogent inference of
scienter. Thus, the Court focuses on the areas where Plaintiff
has tried to bolster his allegations, but finds that the new
facts cannot save the SAC on scienter grounds and do not
adequately address the Court's prior guidance. The Court then
considers the SAC holistically and determines that it is
deficient with respect to scienter, which provides an independent
basis to grant Defendants' motion to dismiss Count I for a
violation of Section 10 and Rule 10b-5 against TriNet and the
Officer Defendants.
Insider Trading and SOX Certifications
Plaintiff has also failed to cure the deficiencies identified in
the Prior Order regarding allegedly false Sarbanes-Oxley (SOX)
certifications by the Officer Defendants. The Court previously
explained that although certifications made pursuant to SOX can
raise an inference of scienter, boilerplate language in a
corporation's 10-K form, or required certifications under
Sarbanes-Oxley section 302(a) add nothing substantial to the
scienter calculus. There remains no allegation that the Officer
Defendants who signed the certification were severely reckless in
certifying the accuracy of the financial statements, or support
an inference that the Officer Defendants were even aware of any
errors contained therein. With no new allegations and the same
conclusory arguments, the allegedly false SOX certifications do
not raise an inference of scienter.
Core Operations Inference
Plaintiff argued at the hearing that when a high-level executive
is tasked with investigating a problem and reporting to
investors, there is an inference that they know the truth" or
should have known the true state of affairs at that point. But
Plaintiff's reassurance that that the SAC now explicitly invokes
this inference ignores the Court's Prior Order rejecting
Plaintiff's invitation for the Court to infer, based upon
statements made after three quarters of unanticipated, high
insurance claims that the Officer Defendants must have known all
of these alleged falsities.
That inference, by itself, is insufficiently cogent to satisfy
the PSLRA's exacting pleading requirements. Even in light of the
new allegations in the SAC, this is not the exceedingly rare case
in which a securities fraud plaintiff may rely solely on the core
operations inference without particularized allegations about
each defendant's access to the relevant information. The Court
therefore finds once again that the core operations theory,
standing alone, does not satisfy the PSLRA under these
circumstances.
General Atlantic's Motion to Dismiss
General Atlantic moves to dismiss these claims on the independent
ground that the SAC does not adequately allege that General
Atlantic is a control person over TriNet. Because these claims
are dismissed for failure to plead a primary violation, the Court
need not reach the issue of whether Plaintiff has adequately
alleged control person liability against General Atlantic.
However, the Court takes this opportunity to reconsider its Prior
Order regarding control person liability to the extent that it
may have been too strict when it required Plaintiff to allege day
to day operations in order to adequately allege control persons
liability against General Atlantic. In his brief and at oral
argument, Plaintiff persuasively argued that his allegations
might be sufficient to meet the pleading standards.
The SAC alleges that General Atlantic owned 72% of TriNet's
common stock at the time of the Company's IPO, which was only
reduced to 56% after the offering. Plaintiff points out that
TriNet's 2014 IPO Registration Statement and Form 10-K disclosed
that the Company was controlled by General Atlantic, the majority
shareholder, who was able to determine substantially all matters
requiring stockholder approval, including the election of
directors and approval of significant corporate transactions,
such as [the] sale of company assets. The SAC also adds a
significant new allegation that General Atlantic "had the ability
to select and did select four of the seven directors on TriNet's
Board of Directors and the Company's CEO. Due to General
Atlantic's control of a majority of the board seats and its
majority share ownership, General Atlantic had the power to hire
and fire TriNet's executive officers.
Again, the Court need not resolve this issue because it has
dismissed Plaintiff's Section 20(a) and Section 15 claims without
leave to amend for failure to allege a primary violation of
federal securities laws. However, TriNet's allegations regarding
General Atlantic's control over TriNet now bolstered by the
additional allegation that General Atlantic actually exercised
its control by selecting a majority of Board Members as well as
TriNet's CEO the Court now finds it likely that had the primary
violations of securities laws been adequately pled, General
Atlantic would face liability as a control person. However, the
Court need not rule on General Atlantic's motion to dismiss
Plaintiff's Section 20(a) or Section 15 claims for failure to
plead control person liability, as they are deficient for failure
to plead a primary violation.
The Underwriter Defendants' Motion to Dismiss
The Court has also considered the Underwriter Defendants' motion
to dismiss, which primarily urges the Court to dismiss the
Section 11 and Section 12(a)(2) claims against the Underwriter
Defendants on the independent grounds that these claims remain
time barred, and further argue that Plaintiff does not allege
that the Underwriter Defendants were statutory sellers for
purposes of Section 12(a)(2).
Plaintiff has once again failed to plead direct solicitation by
the Underwriter Defendants. When it comes to underwriters
specifically, courts have found that they are generally not
considered sellers within the meaning of Section 12 unless they
actively participate in the negotiations with the
plaintiff/purchaser.
Plaintiff's repeated allegations that the underwriter defendants
helped draft and disseminate the Registration Statements,
solicited plaintiff's and potential class members' purchases and
were paid nearly $30 million for doing so, are conclusory and
insufficient to allege solicitation such that the Underwriter
Defendants are statutory sellers subject to Section 12(a)(2)
liability. As made clear in the Court's Prior Order, allegations
that the Underwriter Defendants merely did their job and rendered
professional services to TriNet in connection with a transaction
for securities do not amount to allegations that the underwriters
are sellers under Section 12(a)(2).
Therefore, Plaintiff's Section 12(a)(2) claim against the
Underwriter Defendants fails to allege that they are sellers or
that they directly solicited Plaintiff's purchase of TriNet
stock, providing yet another ground for dismissal of this claim
against the Underwriter Defendants.
Leave to Amend
The Court does not deny leave to amend lightly. The Court
recognizes that leave to amend is to be granted with extreme
liberality in securities fraud cases, because the heightened
pleading requirements imposed by the PSLRA are so difficult to
meet.
Each group of Defendants also faces unique harm. For example,
Individual Officers and Directors of TriNet are named in the
Complaint in connection with allegations casting doubt on the
propriety of their business decisions and even their trading
activities during the Class Period, yet they have now (twice)
successfully dismissed these claims for failure to allege falsity
and scienter under the securities laws. The Company TriNet itself
also suffers prejudice from allowing continued amendment of
uncorrected deficiencies, as this litigation came on the heels of
its IPO.
Moreover, the Underwriter Defendants have now filed two nearly
identical motions to dismiss addressing the statute of
limitations issue and Plaintiff's failure to plead that they are
a statutory seller. However, the SAC's allegations remained
entirely unchanged from the FAC in this respect. Requiring all of
these Defendants to continue to defend this lawsuit when
Plaintiff has not demonstrated or represented that he can
successfully amend, constitutes undue prejudice. Foman makes
clear that undue prejudice to the opposing party by virtue of
allowance of the amendment can weigh against Rule 15's liberal
standard.
The Court declines to permit Plaintiff leave to amend his
complaint.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/ycbkd3nl from Leagle.com.
Howard Welgus, Plaintiff, represented by Brian O. O'Mara --
BrianO@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Howard Welgus, Plaintiff, represented by Daniel Jacob Pfefferbaum
-- dpfefferbaum@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Kenneth Joseph Black -- kennyb@rgrdlaw.com -- Robbins Geller
Rudman and Dowd LLP & Shawn A. Williams -- shawnw@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP.
Trinet Group, Inc., Defendant, represented by Richard L.
Gallagher -- richard.gallagher@ropesgray.com -- Ropes & Gray LLP,
Anne Johnson Palmer -- anne.johnsonpalmer@ropesgray.com -- Ropes
Gray LLP & Matthew Austen Tolve -- Matthew.Tolve@ropesgray.com --
Ropes & Gray LLP.
Burton M. Goldfield, Defendant, represented by Richard L.
Gallagher, Ropes & Gray LLP, Anne Johnson Palmer, Ropes Gray LLP
& Matthew Austen Tolve, Ropes & Gray LLP.
William Porter, Defendant, represented by Richard L. Gallagher,
Ropes & Gray LLP, Anne Johnson Palmer, Ropes Gray LLP & Matthew
Austen Tolve, Ropes & Gray LLP.
Martin Babinec, Defendant, represented by Anne Johnson Palmer,
Ropes Gray LLP, Matthew Austen Tolve, Ropes & Gray LLP & Richard
L. Gallagher, Ropes & Gray LLP.
H. Raymond Bingham, Defendant, represented by Anne Johnson
Palmer, Ropes Gray LLP, Matthew Austen Tolve, Ropes & Gray LLP &
Richard L. Gallagher, Ropes & Gray LLP.
David C. Hodgson, Defendant, represented by Anne Johnson Palmer,
Ropes Gray LLP, Matthew Austen Tolve, Ropes & Gray LLP & Richard
L. Gallagher, Ropes & Gray LLP.
UBIQUITI NETWORKS: Court Grants Final OK of $6.8MM Class Deal
-------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Final Approval of the Class
Settlement Agreement in the case captioned In re UBIQUITI
NETWORKS, INC. SECURITIES LITIGATION. This Document Relates To:
ALL ACTIONS, Master No. 12-cv-04677-YGR (N.D. Cal.).
Lead Plaintiffs Inter-Local Pension Fund GCC/IBT (Inter-Local)
and Bristol County Retirement System (Bristol County) and,
together with Inter-Local, Lead Plaintiffs), on behalf of
themselves, and the Settlement Class, on the one hand, and
Ubiquiti Networks, Inc. (Ubiquiti), and Robert J. Pera, John
Ritchie, Peter Y. Chung, Christopher J. Crespi, Charles J.
Fitzgerald, John L. Ocampo and Robert M. Van Buskirk (Individual
Defendants), and UBS Securities LLC, Deutsche Bank Securities
Inc., Raymond James & Associates, Inc. and KeyBanc Capital
Markets Inc. (formerly known as Pacific Crest Securities LLC)
(Underwriter Defendants and with Ubiquiti and the Individual
Defendants (Defendants), on the other hand, entered into a
Stipulation and Agreement of Settlement (Stipulation) in the
Action.
Settlement Class or Settlement Class Member means all Persons
that purchased or acquired the publicly traded common stock of
Ubiquiti Networks, Inc. pursuant and/or traceable to Ubiquiti
Networks, Inc.'s initial public offering on or about October 14,
2011.
Excluded from the Settlement Class are: (i) the Defendants; (ii)
members of the immediate families of the Individual Defendants;
(iii) Ubiquiti's and the Underwriter Defendants' subsidiaries and
affiliates; (iv) the officers and directors of Ubiquiti; (v) any
entity in which any Defendant has a controlling interest (but in
the case of the Underwriter Defendants, only such entities that
they have a majority ownership interest in); (vi) the legal
representatives, heirs, successors and assigns of any such
excluded person or entity. Also excluded from the Settlement
Class will be any Person who timely and validly seeks exclusion
from the Settlement Class.
Settlement Amount means the total principal amount of six
million, eight hundred thousand U.S. dollars ($6,800,000) in
cash.
Lead Counsel means Labaton Sucharow LLP and Robbins Geller Rudman
& Dowd LLP.
Lead Plaintiffs means Inter-Local Pension Fund GCC/IBT and
Bristol County Retirement System.
Mediator means Robert A. Meyer.
A full-text copy of the District Court's December 20, 2017
Judgment is available at https://tinyurl.com/ydxlqsgv from
Leagle.com.
Steven N. Bell, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Christopher Paul
Seefer, Robbins Geller Rudman & Dowd LLP.
Steven N. Bell, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Shawn A. Williams,
Robbins Geller Rudman & Dowd LLP, Catherine J. Kowalewski,
Robbins Geller Rudman & Dowd LLP, Danielle Suzanne Myers, Robbins
Geller Rudman & Dowd LLP, Darren Jay Robbins, Robbins Geller
Rudman & Dowd LLP & David Conrad Walton, Robbins Geller Rudman &
Dowd LLP.
Bristol County Retirement System, Lead Plaintiff, Plaintiff,
represented by Ashley Price, Robbins Geller Rudman and Dowd LLP,
Christopher Paul Seefer, Robbins Geller Rudman & Dowd LLP,
Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, Iona M.
Evans, Labaton Sucharow LLP, pro hac vice, Jonathan Gardner,
Labaton Sucharow LLP, pro hac vice, Michael P. Canty, Labaton
Sucharow LLP, Michael Walter Stocker, Labaton Sucharow LLP, Roger
W. Yamada, Labaton Sucharow LLP, Carol C. Villegas, Labaton
Sucharow LLP, pro hac vice, Christopher T. Heffelfinger, Berman
Tabacco, Daniel Jacob Pfefferbaum, Robbins Geller Rudman & Dowd
LLP & Nicole M. Zeiss, Labaton Sucharow & Rudoff LLP.
Brian Goecker, individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by Lionel Z. Glancy, Glancy
Prongay & Murray LLP, Michael M. Goldberg, Goldberg Law PC,
Jeremy A. Lieberman, Pomerantz LLP, pro hac vice & Robert Vincent
Prongay, Glancy Prongay & Murray LLP.
Ubiquiti Networks, Inc., Defendant, represented by Gavin Masuda,
Latham & Watkins LLP &Peter Allen Wald, Latham & Watkins LLP.
Robert J. Pera, Defendant, represented by Gavin Masuda, Latham &
Watkins LLP & Peter Allen Wald, Latham & Watkins LLP.
Peter Y. Chung, Defendant, represented by Gavin Masuda, Latham &
Watkins LLP & Peter Allen Wald, Latham & Watkins LLP.
Christopher J. Crespi, Defendant, represented by Gavin Masuda,
Latham & Watkins LLP & Peter Allen Wald, Latham & Watkins LLP.
Charles J. Fitzgerald, Defendant, represented by Gavin Masuda,
Latham & Watkins LLP & Peter Allen Wald, Latham & Watkins LLP.
John L. Ocampo, Defendant, represented by Gavin Masuda, Latham &
Watkins LLP & Peter Allen Wald, Latham & Watkins LLP.
Robert M. Van Buskirk, Defendant, represented by Gavin Masuda,
Latham & Watkins LLP &Peter Allen Wald, Latham & Watkins LLP.
UBS Securities, LLC, Defendant, represented by Ethan D. Dettmer,
Gibson, Dunn & Crutcher LLP & Noah F. Stern, Gibson Dunn.
Deutsche Bank Securities Inc., Defendant, represented by Ethan D.
Dettmer, Gibson, Dunn & Crutcher LLP & Noah F. Stern, Gibson
Dunn.
Raymond James & Associates, Inc., Defendant, represented by Ethan
D. Dettmer, Gibson, Dunn & Crutcher LLP & Noah F. Stern, Gibson
Dunn.
Pacific Crest Securities LLC, Defendant, represented by Ethan D.
Dettmer, Gibson, Dunn & Crutcher LLP & Noah F. Stern, Gibson
Dunn.
UNITED STATES: Seeks 9th Cir. Review of Ruling in Wash. EO-2 Suit
-----------------------------------------------------------------
Defendants Donald Trump, U.S. Department Of State, Rex W.
Tillerson, U.S. Department of Homeland Security, U.S. Customs and
Border Protection, Kevin K. Mcaleenan, Michele James, Office of
the Director Of National Intelligence, Elaine C. Duke and Daniel
Coats filed an appeal from a court ruling in the lawsuit entitled
Jane Doe, et al. v. Donald Trump, et al., Case No. 2:17-cv-00178-
JLR, in the U.S. District Court for the Western District of
Washington, Seattle.
As previously reported in the Class Action Reporter, the District
Court issued an Order to Lift Stay of Proceedings and Permit
Plaintiffs to File Third Amended Complaint in the case.
The Plaintiffs seek to lift the stay of the proceedings in this
case to amend their complaint to add allegations regarding the
September 24, 2017, Presidential Proclamation titled "Enhancing
Vetting Capabilities and Processes for Detecting Attempted Entry
into the United States by Terrorists or Other Public-Safety
Threats;" the October 23, 2017, Memorandum to the President
titled "Resuming the United States Refugee Admissions Program
with Enhanced Vetting Capabilities" issued by the Secretary of
State, Acting Secretary of Homeland Security, and Director of
National Intelligence; and the October 24, 2017, Executive Order
13,815, titled "Resuming the United States Refugee Admissions
Program with Enhanced Vetting Capabilities" issued by the
President.
The appellate case is captioned as Jane Doe, et al. v. Donald
Trump, et al., Case No. 18-35015, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- opening brief and excerpts of record are due not later than
February 1, 2018;
-- answering brief is due on March 1, 2018, or 28 days after
service of the opening brief, whichever is earlier; and
-- optional reply brief is due within 21 days after service of
the answering brief.[BN]
Plaintiffs-Appellees JOHN DOE, individually and on behalf of all
other similarly situated, and EPISCOPAL DIOCESE OF OLYMPIA are
represented by:
Laurie Ashton, Esq.
KELLER ROHRBACK LLP
3101 North Central Avenue
Phoenix, AZ 85012
Telephone: (602) 248-0088
E-mail: lashton@kellerrohrback.com
- and -
Alison Elizabeth Chase, Esq.
KELLER ROHRBACK LLP
1129 State Street, Suite 8
Santa Barbara, CA 93101
Telephone: (805) 456-1496
E-mail: achase@kellerrohrback.com
- and -
Alison S. Gaffney, Esq.
Tana Lin, Esq.
Derek W. Loeser, Esq.
Lynn Lincoln Sarko, Esq.
Amy Williams-Derry, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: agaffney@kellerrohrback.com
tlin@kellerrohrback.com
dloeser@kellerrohrback.com
lsarko@kellerrohrback.com
awilliams-derry@kellerrohrback.com
- and -
Emily Chiang, Esq.
ACLU OF WASHINGTON
901 Fifth Avenue
Seattle, WA 98164
Telephone: (206) 624-2184
E-mail: echiang@aclu-wa.org
Plaintiffs-Appellees JOSEPH DOE, JAMES DOE, COUNCIL ON AMERICAN
ISLAMIC RELATIONS - WASHINGTON, JACK DOE, JASON DOE and JEFFREY
DOE are represented by:
Alison S. Gaffney, Esq.
Tana Lin, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: agaffney@kellerrohrback.com
tlin@kellerrohrback.com
Plaintiffs-Appellees AFKAB MOHAMED HUSSEIN, JEWISH FAMILY SERVICE
OF SEATTLE, JEWISH FAMILY SERVICES OF SILICON VALLEY, JANE DOE 6,
ALLEN VAUGHT, JANE DOE 5, JANE DOE 4, JOHN DOE 7, JOHN DOE 2,
JOHN DOE 1 and JOHN DOE 3 are represented by:
Deepa Alagesan, Esq.
Mariko Hirose, Esq.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT
40 Rector Street, 9th Floor
New York, NY 10006
Telephone: (646) 602-5639
E-mail: dalagesan@refugeerights.org
mhirose@refugeerights.org
- and -
David J. Burman, Esq.
PERKINS COIE LLP
1201 Third Avenue
Seattle, WA 98101
Telephone: (206) 359-8426
E-mail: dburman@perkinscoie.com
- and -
Justin Cox, Esq.
ACLU - AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC.
230 Peachtree Street, N.W.
Atlanta, GA 30303
Telephone: (404) 523-2721
Facsimile: (404) 653-0331
E-mail: jcox@aclu.org
- and -
Melissa S. Keaney, Esq.
Esther Sung, Esq.
NATIONAL IMMIGRATION LAW CENTER
3435 Wilshire Boulevard
Los Angeles, CA 90010
Telephone: (213) 639-3900
Facsimile: (213) 639-3911
E-mail: keaney@nilc.org
sung@nilc.org
- and -
Elizabeth Sweet, Esq.
HIAS
1300 Spring Street, Suite 500
Silver Spring, MD 20910
Telephone: (301) 844-7254
E-mail: liz.sweet@hias.org
Plaintiffs-Appellees AFKAB MOHAMED HUSSEIN and JEWISH FAMILY
SERVICE OF SEATTLE are represented by:
Karen Cassandra Tumlin, Esq.
NATIONAL IMMIGRATION LAW CENTER
3435 Wilshire Boulevard
Los Angeles, CA 90010
Telephone: (213) 639-3900
Facsimile: (213) 639-3911
E-mail: tumlin@nilc.org
Defendants-Appellants DONALD TRUMP, President of the United
States; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, Secretary of
State; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND
BORDER PROTECTION; KEVIN K. MCALEENAN, Acting Commissioner of
U.S. Customs and Border Protection; MICHELE JAMES, Field Director
of the Seattle Field Office of U.S. Customs and Border
Protection; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE;
ELAINE C. DUKE, Acting Secretary of Homeland Security; and DANIEL
COATS, Director of the Office of the Director of National
Intelligence, are represented by:
Helen J. Brunner, Esq.
DOJ -- OFFICE OF THE U.S. ATTORNEY
700 Stewart Street
Seattle, WA 98101
Telephone: (206) 553-7970
Facsimile: (206) 553-4073
E-mail: Micki.Brunner@usdoj.gov
- and -
August E. Flentje, Esq.
DOJ - U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave., N.W.
Washington, DC 20530
Telephone: (202) 514-1278
E-mail: august.flentje@usdoj.gov
UNITED STATES: Class Certification Sought in Inland Empire Suit
---------------------------------------------------------------
The Plaintiffs in the lawsuit entitled INLAND EMPIRE - IMMIGRANT
YOUTH COLLECTIVE, et al., on behalf of themselves and others
similarly situated v. KIRSTJEN NIELSEN, Secretary, U.S.
Department of Homeland Security, et al., Case No. 5:17-cv-02048-
PSG-SHK (C.D. Cal.), ask the Court to certify a nationwide Notice
Class of:
All recipients of Deferred Action for Childhood Arrivals
("DACA") who, after January 19, 2017, have had or will have
their DACA grant and employment authorization revoked
without notice or an opportunity to respond, even though
they have not been convicted of a disqualifying criminal
offense.
The Plaintiffs further move to be appointed Class Representatives
and their counsel to be appointed Class Counsel.
The Court will commence a hearing on February 26, 2018, at 1:30
p.m., to consider the Motion.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=o8O05cWA
The Plaintiffs are represented by:
Jennifer Chang Newell, Esq.
Katrina L. Eiland, Esq.
ACLU FOUNDATION
IMMIGRANTS' RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0770
Facsimile: (415) 395-0950
E-mail: jnewell@aclu.org
keiland@aclu.org
- and -
Michael K. T. Tan, Esq.
David Hausman, Esq.
ACLU FOUNDATION
IMMIGRANTS' RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2660
Facsimile: (212) 549-2654
E-mail: mtan@aclu.org
dhausman@aclu.org
- and -
Ahilan T. Arulanantham, Esq.
Michael Kaufman, Esq.
Dae Keun Kwon, Esq.
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-5232
Facsimile: (213) 977-5297
E-mail: aarulanantham@aclusocal.org
mkaufman@aclusocal.org
akwon@aclusocal.org
UNITED STATES: John Anderson Farms Appeal Rulings in "Baley" Suit
-----------------------------------------------------------------
Plaintiffs John Anderson Farms, Inc., et al., filed an appeal
from certain court rulings entered in the lawsuit titled Lonny E.
Baley, et al., and John Anderson Farms, Inc., et al., for
themselves and as representatives of a class of similarly
situated people v. United States, Defendant, and Pacific Coast
Federation of Fishermen's Associations, Defendant-Intervenor,
Case No. 1:07-cv-00194-MBH, in the United States Court of Federal
Claims.
The Appellants are John Anderson Farms, Inc., Buckingham Family
Trust, Hill Land And Cattle Co., Inc., McVay Farms, Inc., Shasta
View Produce, Inc., Barbara McVay, Constance Frank, Edwin
Stastny, Eileen Buckingham, Henry O'Keeffe, Jeff Hunter, John
Frank, Keith Buckingham, Matthew K. McVay, Michael McVay,
Patricia O'Keeffe, Ronald McVay, Sandra Hunter, Shelly
Buckingham, Suzan McVay, and Tatiana V. McVay.
The Plaintiffs in the consolidated actions, individually and as
representatives of a class of similarly situated people, appeal
to the United States Court of Appeals for the Federal Circuit
from the final judgment in these consolidated actions entered on
October 24, 2017, and the opinion of the Court of Federal Claims
entered in these consolidated actions on September 29, 2017,
dismissing the Plaintiffs' taking claims.
As previously reported in the Class Action Reporter, the case
stems from the shutoff of irrigation water to Klamath Project
property owners or lessees by the Bureau of Reclamation in 2001.
The trial's closing arguments adjourned May 9, 2017 -- roughly
three months following a trial that lasted more than a week at
the Federal Court of Claims in Washington, D.C.
"That we had a lot of people coming into the office, asking for
help or wanting to make sure they had it (Notice of Appearance
form) filled out right," said local water attorney Bill Ganong,
special counsel to the case.
"The turnout demonstrates that a lot of people were hurt and that
a lot of land did not get irrigated. If we prevail and if the
United States has to pay on a per acre basis, it's going to be a
significant amount of money."
Ganong said while technically the claims submitted represent some
178,958 acres of land, that number represents some duplicated
claims. For example, duplication could be that of two individuals
-- a land owner and a new lessee -- claiming the same parcel of
land.
The appellate case is captioned as John Anderson Farms, Inc. v.
U.S.A., Case No. 18-1325, in the United States Court of Appeals
for the Federal Circuit.[BN]
The Plaintiffs-Appellants are represented by:
Nancie G. Marzulla, Esq.
Roger J. Marzulla, Esq.
MARZULLA LAW, LLC
1150 Connecticut Avenue NW, Suite 1050
Washington, DC 20036
Telephone: (202) 822-6760
Facsimile: (202) 822-6774
E-mail: nancie@marzulla.com
roger@marzulla.com
Defendant-Appellee USA is represented by:
Kristine Sears Tardiff, Esq.
U. S. DEPARTMENT OF JUSTICE, ENRD DIVISION
NATURAL RESOURCES SECTION
53 Pleasant Street, 4th Floor
Concord, NH 03301
Telephone: (603) 230-2583
Facsimile: (603) 225-1577
E-mail: kristine.tardiff@usdoj.gov
UNITED STATES: Asylum Seekers Can File Suit Under Pseudonyms
------------------------------------------------------------
The United States District Court for the Southern District of
California issued an order granting Individual Plaintiffs' Motion
to Proceed Pseudonymously in the case captioned AL OTRO LADO,
INC., et al., Plaintiffs, v. KIRSTJEN NIELSEN, Acting Secretary,
U.S. Department of Homeland Security, in her official capacity,
et al., Defendants, Case No. 17-cv-02366-BAS-KSC (S.D. Cal.).
They filed the Complaint using pseudonyms and move the Court for
an order expressly permitting them to proceed pseudonymously.
The case concerns whether the Defendants denied the six
Individual Plaintiffs, as well as similarly situated individuals,
access to the U.S. asylum system through unlawful policies and
practices.
The Individual Plaintiffs seek asylum in the United States due to
their fears of physical injury and death in their home countries,
Mexico and Honduras, which they attribute to drug cartels, gang
violence, and, for some, severe domestic violence.
All Individual Plaintiffs allege that they remain in fear for
their lives and that of their families. They allege that they
cannot remain in Mexico and that the United States is the only
place where they can seek safety.
When a party asserts a fear of retaliation, a court must assess a
party's need for anonymity by evaluating: (1) the severity of the
threatened harm, (2) the reasonableness of the party's fears, and
(3) the party's vulnerability to retaliation. In addition to
these considerations, a court must always consider the precise
prejudice to the opposing party of permitting a party to proceed
pseudonymously at the particular stage of the proceedings, and
whether the public interest is best served by requiring the
litigants seeking anonymity to reveal their true identities or
permitting non-disclosure.
In addition to the physical harm faced by all Individual
Plaintiffs, the Court believes that Plaintiffs D.D. and I.D.
warrant anonymity on the ground that their allegations of harm
also concern sexual assault. Fictitious names are allowed when
necessary to protect the privacy of rape victims.
Accordingly, the Court finds that these particular Individual
Plaintiffs have set forth factual allegations that establish
another ground for their need for anonymity.
Reports from the United States State Department reinforce this
Court's view that Plaintiffs' fears of harm from gang and drug
cartel-related violence are objectively reasonable. The country
reports for Mexico and Honduras describe violence stemming from
drug cartels and gangs, including the specific forms of harm the
Individual Plaintiffs raise here.
For the limited purposes of the instant motion, the Court finds
that these reports confirm the objective reasonableness of the
Individual Plaintiffs' fear of further harm if their names are
publicly revealed in this litigation. Accordingly, the Court
finds that the Individual Plaintiffs' fears are objectively
reasonable in light of the circumstances.
This Court is persuaded that the Individual Plaintiffs are
particularly vulnerable, as asylum seekers, to the retaliation
they fear if their true names are revealed. The authorities
provided by the Individual Plaintiffs inform this determination.
Privacy and its confidentiality requirements are especially
important for an asylum-seeker, whose claim inherently supposes a
fear of persecution by the authorities of the country of origin
and whose situation can be jeopardized if protection of
information is not ensured. Although the Individual Plaintiffs
have disclosed certain details about their personal histories,
they have never publicly disclosed their true identities in
filings accessible to the public.
The federal asylum regulations counsel that the Individual
Plaintiffs have a right to maintain the confidentiality of that
information to prevent retaliation they face by virtue of being
asylum seekers. Accordingly, the Court concludes that the
Individual Plaintiffs are vulnerable because they are
particularly dependent on anonymity to avoid retaliatory harm.
The Court finds no prejudice here because Defendants know the
true identities of the Individual Plaintiffs. Whatever knowledge
defendants have of plaintiffs' identities . . . lessens their
claims to be prejudiced by the use of pseudonyms. Before the case
was transferred to this Court, the parties stipulated to an order
that the Individual Plaintiffs would provide Defendants with
their true names and A-numbers, permitting the Defendants to
match their identities with the pseudonyms in the Complaint.
Pursuant to the stipulation, Defendants further agreed to protect
the confidentiality of this information, including by utilizing
the pseudonyms assigned to the named.
Because the Defendants know the Individual Plaintiffs' names,
they have the information they need to defend against the claims
of the Individual Plaintiffs. Accordingly, the Court finds that
there is no prejudice to the Defendants that would countervail
the need the Individual Plaintiffs have established for
proceeding pseudonymously at this stage of the proceedings.
The Court considers whether the public's interest is best served
by requiring the Plaintiffs to proceed using their true names.
The Individual Plaintiffs assert that whereas the issues raised
in this case are a matter of significant public concern,
revealing their true identities will not add to the public's
understanding of those issues. The Court concludes that the
public interest is best served by permitting the Individual
Plaintiffs to proceed pseudonymously.
The Individual Plaintiffs raise claims of a systematic, illegal
practice by CPB of denying certain asylum seekers access to the
U.S. asylum system. The identity of the Individual Plaintiffs is
irrelevant to the legal merits of these claims, the resolution of
which will be in full view of the public. Accordingly, the Court
concludes that the public interest is best served by permitting
the Individual Plaintiffs to proceed pseudonymously.
A full-text copy of the District Court's December 20, 2017 Order
is available at https://tinyurl.com/y858polc from Leagle.com.
Al Otro Lado, Inc., a California corporation, Abigail Doe,
individually and on behalf of all others similarly situated,
Beatrice Doe, individually and on behalf of all others similarly
situated, Carolina Doe, individually and on behalf of all others
similarly situated, Dinora Doe, individually and on behalf of all
others similarly situated, Ingrid Doe, individually and on behalf
of all others similarly situated & Jose Doe, individually and on
behalf of all others similarly situated, Plaintiffs, represented
by Robin Kelley -- robin.kelley@lw.com -- Latham & Watkins LLP,
Angelo R. Guisado -- aguisado@ccrjustice.org -- Center for
Constitution Rights, pro hac vice, Baher Azmy --
bazmy@ccrjustice.org -- Center for Constitution Rights, pro hac
vice, Faraz R. Mohammadi, Latham & Watkins LLP, Ghita R. Schwarz
-- gschwarz@ccrjustice.org -- Center for Constitution Rights, pro
hac vice, James H. Moon -- james.moon@lw.com -- Latham & Watkins
LLP, Karolina J. Walters -- kwalters@immcouncil.org -- American
Immigration Council, pro hac vice, Kathryn E. Shepherd --
kshepherd@immcouncil.org -- American Immigration Council, pro hac
vice, Melissa E. Crow -- mcrow@immcouncil.org -- American
Immigration Council, pro hac vice, Wayne S. Flick --
wayne.s.flick@lw.com -- Latham and Watkins LLP & Manuel A.
Abascal -- manny.abascal@lw.com -- Latham & Watkins LLP.
Kevin K. McAleenan, Acting Commissioner, United States Customs
and Border Protection, in his official capacity & Todd C. Owen,
Executive Assistant Commissioner, Office of Field Operations,
United States Customs and Border Protection, in his official
capacity, Defendants, represented by Alexander James Halaska,
U.S. Department of Justice Office of Immigration Litigation,
Gisela Ann Westwater, US Department of Justice, Danielle K.
Schuessler, Civil Division -- Office of Immigration Litigation,
Genevieve Kelly, Genevieve M. Kelly, US Department of Justice
Office of Immigration Litigation -- Civil Division, Sairah G.
Saeed, Civil Division -- Office of Immigration Litigation Civil &
Yamileth G. Davila, United States Department of Justice.
Kirstjen Nielsen, Acting Secretary, U.S. Department of Homeland
Security, Defendant, represented by Alexander James Halaska, U.S.
Department of Justice Office of Immigration Litigation, Gisela
Ann Westwater, US Department of Justice, Danielle K. Schuessler,
Civil Division -- Office of Immigration Litigation, Genevieve M.
Kelly, US Department of Justice Office of Immigration Litigation
-- Civil Division, Sairah G. Saeed, Civil Division -- Office of
Immigration Litigation Civil & Yamileth G. Davila, United States
Department of Justice.
UNITED STATES: Court Won't Conditionally Certify "Dominick" Class
-----------------------------------------------------------------
In the case, STAN DOMINICK, GENE RACANO, KRISTIAN RIVERA, ANEWRYS
ROSARIO, and JONATHAN ARENCIBIA, on behalf of themselves and all
others similarly situated, Plaintiffs, v. THE UNITED STATES,
Defendant, Case No. 17-113 (Fed. Cl.), Judge Susan G. Braden of
the U.S. Court of Federal Claims, denied without prejudice the
Plaintiffs' Motion For Conditional Certification Of A Collective
Action Pursuant To 29 U.S.C. Section 216(b).
The Plaintiffs are residents of Florida who are currently
employed as police officers at the Homestead Air Reserve Base in
Homestead, Florida ("HARB"). They are paid different hourly
wages for all hours worked up to forty hours per week, and
receive a locality adjustment of 21.05%. Allegedly, for the
duration of their employment at HARB, the United States
Department of the Air Force required police officers to arrive at
their post 15 minutes prior to scheduled shifts, ready to work
But, it is alleged that the Plaintiffs were not paid for these
additional 15-minute periods. Consequently, because they were
scheduled to work a minimum of 40 hours per week, the Plaintiffs
allege that they are entitled to overtime pay for this additional
time. It is also alleged that a number of the Plaintiffs worked
overtime hours on Sundays and evenings that entitle them to
weekend and/or night differential pay that they did not receive.
On Jan. 25, 2017, the Plaintiffs filed a Complaint in the U.S.
Court of Federal Claims, with two causes of action: (i) the Air
Force failed to pay overtime pay in violation of the Fair Labor
Standards Act of 1938; and (ii) the Air Force violated the Back
Pay Act of 1966. On May 26, 2017, the Government filed an Answer
to the Plaintiff's Jan. 25, 2017 Complaint. On July 31, 2017,
the parties filed a Joint Preliminary Status Report.
On Sept. 15, 2017, the Plaintiffs filed a Motion For Conditional
Certification Of A Collective Action Pursuant To 29 U.S.C.
Section 216(b). They seek to conditionally certify a collective
action, so that notices may be sent to all civilian police
officers who were employed by the Air Force at HARB between Jan.
25, 2014 and Aug. 24, 2017.
The Motion stated that the Government agreed to consent to the
conditional certification, without prejudice to its right to ask
the Court in the future to de-certify the collective action, or
to its defenses to the claims asserted in the Plaintiffs'
complaint. The Plaintiffs understand that the Government's
consent is contingent upon the Court's wholesale approval of the
proposed Notice And Consent Form, and/or distribution plan.
On Dec. 19, 2017, the Court convened a telephone status
conference to discuss the Sept. 15, 2017 Motion For Conditional
Certification.
Judge Braden holds that although the Plaintiffs need only make a
modest factual showing of common circumstance, the allegations in
the Jan. 25, 2017 Complaint do not satisfy this minimal
evidentiary burden, as required by the Court. The court has
generally required plaintiffs to support the allegations with
affidavits and other available evidence. Because the Plaintiffs
have not met their evidentiary burden, the Sept. 15, 2017 Motion
For Conditional Certification is denied, without prejudice, so
that they may re-file a motion for conditional certification when
additional evidence is available.
The Judge also cautioned the Plaintiffs that any proposed notice
delivery plan must comply with the Court's Aug. 10, 2017
Scheduling Order, which requires that additional Plaintiffs
provide to the Court proof of their consent to join the case
within 60 days of the Court's entry of an order approving the
proposed notice.
A full-text copy of the Court's Dec. 19, 2017 Memorandum Opinion
and Order is available at https://is.gd/7UZIls from Leagle.com.
STAN DOMINICK, Plaintiff, represented by Brian A. Bodansky, Bell
Law Group, PLLC..
GENE RACANO, Plaintiff, represented by Brian A. Bodansky, Bell
Law Group, PLLC..
KRISTIAN RIVERA, Plaintiff, represented by Brian A. Bodansky,
Bell Law Group, PLLC..
ANEWRYS ROSARIO, and, Plaintiff, represented by Brian A.
Bodansky, Bell Law Group, PLLC..
JONATHAN ARENCIBIA, on behalf of themselves and all others
similarly situated, Plaintiff, represented by Brian A. Bodansky,
Bell Law Group, PLLC..
USA, Defendant, represented by Isaac Benjamin Rosenberg, U.S.
Department of Justice - Civil Division.
UNITED STATES: Stay of Removal Bid in "Ibrahim" Partly Granted
--------------------------------------------------------------
In the case, Farah IBRAHIM, Ibrahim MUSA, Khalid Abdallah MOHMED,
Ismail JIMCALE ABDULLAH, Abdiwali Ahmed SIYAD, Ismael Abdirashed
MOHAMED, and Khadar Abdi IBRAHIM on behalf of themselves and all
those similarly situated, Plaintiffs, v. Juan ACOSTA, Assistant
Field Officer Director, Miami Field Office, Immigration and
Customs Enforcement; David HARDIN, Sheriff of Glades County; Marc
J. MOORE, Field Office Director, Miami Field Office, Immigration
and Customs Enforcement; Thomas HOMAN, Acting Director,
Immigration and Customs Enforcement; Kirstjen NIELSEN, Secretary
of Homeland Security, Defendants, Case No. 17-cv-24574-(S.D.
Fla.), Judge Darrin P. Gayles of the U.S. District Court for the
Southern District of Florida granted in part the Plaintiffs'
Emergency Motion for Temporary Restraining Order and/or Stay of
Removal.
In their Class Action Complaint, the Plaintiffs assert that their
immigration circumstances have changed based on the U.S.
government's failed attempt to repatriate them to Somalia and the
resulting international news attention, which now makes their
return to Somalia unsafe. Based on the changed circumstances,
the Plaintiffs seek an opportunity to avail themselves of the
administrative remedies afforded to them under U.S. immigration
law. They also allege that they were physically abused by
Immigration and Customs Enforcement ("ICE") agents during the
failed repatriation, which resulted in injuries to members of the
putative class. The Defendants argue that the Court lacks
subject matter jurisdiction.
Given the complex jurisdictional questions and based on the
special circumstances discussed by the parties in their pleadings
and at the hearing on the Motion, including the imminent removal
of all the Plaintiffs to Somalia, Judge Gayles finds that a short
stay of removal is warranted pending the Court's jurisdictional
determination.
Accordingly, the Judge granted in part the Plaintiffs' Motion
only as to the 92 individuals with removal orders who were
present on the Dec. 7, 2017, attempted flight to Somalia. The
Defendants and all of their respective officers, agents,
servants, employees, attorneys, and persons acting in concert or
participation with them are immediately enjoined from deporting
the Plaintiffs until the Court determines if it has jurisdiction
over the matter.
Judge Gayles further ordered that the Defendants will provide the
Plaintiffs with adequate medical treatment for any injuries they
have sustained. They will keep the Plaintiffs within the
Southern District of Florida until further order of the Court and
will provide them with reasonable access to their attorneys. The
Plaintiffs will not be required to post a bond.
The Order is effective immediately and will remain in effect
through 11:59 p.m. on Jan. 2, 2018. The Judge directed the
parties to submit jurisdictional briefs by Dec. 22, 2017. The
parties will submit responses by Dec. 29, 2017.
The parties will appear before the Court on Jan. 2, 2018, at
10:00 a.m. (ET), in Courtroom 11-1 of the Wilkie D. Ferguson
United States Courthouse in Miami, Florida, to address the
jurisdictional issues raised in the briefs. The Court will
consider extending the Order and rescheduling the hearing upon a
showing of good cause.
A full-text copy of the Court's Dec. 19, 2017 Order is available
at https://is.gd/I2eegT from Leagle.com.
Farah Ibrahim, Plaintiff, represented by Andrea Montavon-
McKillip, Legal Aid Service of Broward County, Inc..
Farah Ibrahim, Plaintiff, represented by Lisa M. Berlow-Lehner,
Americans for Immigrant Justice & Rebecca Ann Sharpless,
University of Miami School of Law.
Ibrahim Musa, Plaintiff, represented by Andrea Montavon-McKillip,
Legal Aid Service of Broward County, Inc., Lisa M. Berlow-Lehner,
Americans for Immigrant Justice & Rebecca Ann Sharpless,
University of Miami School of Law.
Khalid Abdallah Mohmed, Plaintiff, represented by Andrea
Montavon-McKillip, Legal Aid Service of Broward County, Inc.,
Lisa M. Berlow-Lehner, Americans for Immigrant Justice & Rebecca
Ann Sharpless, University of Miami School of Law.
Ismail Jimcale Abdullah, Plaintiff, represented by Andrea
Montavon-McKillip, Legal Aid Service of Broward County, Inc.,
Lisa M. Berlow-Lehner, Americans for Immigrant Justice & Rebecca
Ann Sharpless, University of Miami School of Law.
Abdiwali Ahmed Siyad, Plaintiff, represented by Andrea Montavon-
McKillip, Legal Aid Service of Broward County, Inc., Lisa M.
Berlow-Lehner, Americans for Immigrant Justice & Rebecca Ann
Sharpless, University of Miami School of Law.
Ismael Abdirashed Mohamed, Plaintiff, represented by Andrea
Montavon-McKillip, Legal Aid Service of Broward County, Inc.,
Lisa M. Berlow-Lehner, Americans for Immigrant Justice & Rebecca
Ann Sharpless, University of Miami School of Law.
Khadar Abdi Ibrahim, on behalf of themselves and all those
similarly situated, Plaintiff, represented by Andrea Montavon-
McKillip, Legal Aid Service of Broward County, Inc., Lisa M.
Berlow-Lehner, Americans for Immigrant Justice & Rebecca Ann
Sharpless, University of Miami School of Law.
Assistant Field Office Director, U.S. Immigration and Customs
Enforcement, Juan Acosta, Defendant, represented by Dexter Lee,
United States Attorney's Office.
Sheriff of Glades County, David Hardin, Defendant, represented by
Dexter Lee, United States Attorney's Office.
Field Office Director, U.S. Immigration and Customs Enforcement,
Miami Office, Marc J. Moore, Defendant, represented by Dexter
Lee, United States Attorney's Office.
Acting Director, U.S. Immigration and Customs Enforcement, Thomas
Homan, Defendant, represented by Dexter Lee, United States
Attorney's Office.
Secretary of Homeland Security, Kirstjen Nielsen, Defendant,
represented by Dexter Lee, United States Attorney's Office.
VEE PAK INC: Court Grants Prelim Certification to ASI Class
-----------------------------------------------------------
Five African American laborers, on behalf of themselves and all
other similarly situated laborers, filed the putative class
action lawsuit styled BRIAN LUCAS, JOSEPH EAGLE, MICHAEL KEYS,
ANTWOIN HUNT, and JAMES ZOLLICOFFER, on behalf of themselves and
other similarly situated individuals, Plaintiffs, v. VEE PAK,
INC., PERSONNEL STAFFING GROUP d/b/a MVP, STAFFING NETWORK
HOLDINGS, LLC, and ALTERNATIVE STAFFING, INC., Defendants, No.
12-CV-09672 (N.D. Ill.), against four companies for employment
discrimination.
The plaintiffs, Brian Lucas, Joseph Eagle, Michael Keys, Antwoin
Hunt, and James Zollicoffer, allege that defendants Vee Pak,
Inc., Staffing Network Holdings LLC, Personnel Staffing Group,
LLC d/b/a MVP, and Alternative Staffing, Inc. d/b/a ASI,
discriminated against them and other African American laborers on
the basis of their race and in violation of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000e, et seq. ("Title VII"), and 42
U.S.C. Section 1981.
The plaintiffs have reached a settlement agreement with ASI only
and they now move for preliminary approval of their proposed
partial class action settlement and for certification of the
proposed ASI class. The United States District Court for the
Northern District Illinois, Eastern Division, Court amends the
proposed class definition and grants preliminary certification to
the ASI class, as amended. Because the plaintiffs have not
provided sufficient information about the Settlement Agreement's
proposed plan of allocation, however, the Court is unable to rule
on the motion for preliminary approval and directs the plaintiffs
to supplement their motion.
A full-text copy of the District Court's December 20, 2017
Memorandum Opinion and Order is available at
https://tinyurl.com/ybr62fkm from Leagle.com.
Brian Lucas, Plaintiff, represented by Christopher J. Williams,
Workers' Law Office, PC, 53 W. Jackson Blvd, Suite 701. Chicago,
IL 60604.
Brian Lucas, Plaintiff, represented by Alvar Ayala, Workers' Law
Office, P.C., Joseph M. Sellers, Cohen, Milstein, Sellers & Toll,
Miriam Rose Nemeth, Cohen Milstein Sellers & Toll, Pllc &Shaylyn
Capri Cochran, Cohen Milstein Sellers & Toll, Pllc.
Joe Eagle, Plaintiff, represented by Christopher J. Williams,
Workers' Law Office, PC, Alvar Ayala, Workers' Law Office, P.C.,
53 W. Jackson Blvd, Suite 701. Chicago, IL 60604, Joseph M.
Sellers -- jsellers@cohenmilstein.com -- Cohen, Milstein, Sellers
& Toll, Miriam Rose Nemeth -- mnemeth@cohenmilstein.com -- Cohen
Milstein Sellers & Toll, Pllc & Shaylyn Capri Cochran --
scochran@cohenmilstein.com -- Cohen Milstein Sellers & Toll,
Pllc.
Michael Keys, on behalf of themselves and similarly situated job
applicants, Plaintiff, represented by Christopher J. Williams,
Workers' Law Office, PC, Alvar Ayala, Workers' Law Office, P.C.,
Joseph M. Sellers, Cohen, Milstein, Sellers & Toll, Miriam Rose
Nemeth, Cohen Milstein Sellers & Toll, Pllc & Shaylyn Capri
Cochran, Cohen Milstein Sellers & Toll, Pllc.
Antwoin Hunt, Plaintiff, represented by Christopher J. Williams,
Workers' Law Office, PC.
James Zollicoffer, Plaintiff, represented by Christopher J.
Williams, Workers' Law Office, PC.
Vee-Pak, Inc., Defendant, represented by Donald S. Rothschild,
Goldstine, Skrodzki, Russian, Nemec & Hoff, Ltd., 835 McClintock
Dr 2nd Fl Burr Ridge, IL 60527, Edward C. Jepson, Jr., Vedder
Price P.C., Thomas G. Abram, Vedder Price P.C., 222 North LaSalle
Street Chicago, Illinois 60601 & Brian Michael Dougherty,
Golstine, Skrodzki, Russian, Nemec and Hoff. 835 McClintock Dr
2nd Fl Burr Ridge, IL 60527.
Personnel Staffing Group, LLC, doing business as Most Valuable
Personnel doing business as MVP, Defendant, represented by Carter
A. Korey -- ckorey@koreyrichardsonlaw.com -- Korey Richardson
LLC, Elliot S. Richardson -- erichardson@koreyrichardsonlaw.com -
- Korey Richardson LLC, Alison Marjorie Field -- afield@sbh-
law.com -- Smith Blake Hill LLC, Ashley M. Vanpool, Korey
Richardson Llc, Britney Zilz, JPMorgan Chase & Co., Michele
Denise Dougherty -- mdougherty@koreyrichardsonlaw.com -- Korey
Richardson LLC, Nicholas Joseph Tatro, Korey Law, Llc & Ryan D.
Gibson, Korey Cotter Heather & Richardson, Llc, 20 S Clark St Ste
500, Chicago, IL 60603.
Staffing Network Holdings, L.L.C., Defendant, represented by
Carter A. Korey, Korey Richardson LLC, Elliot S. Richardson,
Korey Richardson LLC, Alison Marjorie Field, Smith Blake Hill
LLC, Ashley M. Vanpool, Korey Richardson Llc, Britney Zilz,
JPMorgan Chase & Co., Michele Denise Dougherty, Korey Richardson
LLC & Ryan D. Gibson, Korey Cotter Heather & Richardson, Llc.
Alternative Staffing, Inc., doing business as ASI, Defendant,
represented by Kerryann Marie Haase -- khminton@michaelbest.com -
- Michael Best & Friedrich LLP, Brian P. Paul --
bppaul@michaelbest.com -- Michael Best & Friedrich, Katherine Lee
Goyert -- klgoyert@michaelbest.com -- Michael Best & Friedrich
Llp & Sarah E. Flotte -- seflotte@michaelbest.com -- Michael Best
& Friedrich LLP.
Leone Bicchieri, Respondent, Pro Se.
Dan Giloth, Respondent, Pro Se.
Elce Redmond, Respondent, Pro Se.
WASHINGTON UNIVERSITY: Ninth Cir. Appeal Filed in Jane Doe Suit
---------------------------------------------------------------
Plaintiffs Jane Does 1-10 and John Does 1-10 filed an appeal from
a court ruling entered in their lawsuit titled Jane Does 1-10, et
al. v. University of Washington, et al., Case No. 2:16-cv-01212-
JLR, in the U.S. District Court for the Western District of
Washington, Seattle.
The appellate case is captioned as Jane Does 1-10, et al. v.
University of Washington, et al., Case No. 18-35003, in the
United States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, Defendant
David Daleiden filed an appeal from a court ruling in the
lawsuit. That appellate case is entitled as Jane Does 1-10, et
al. v. David Daleiden, et al., Case No. 16-36038.
Eight employees of the University of Washington, Planned
Parenthood and three hospitals sued the University in August
2016, objecting to the disclosure of their identities in a public
records request from anti-abortion activist David Daleiden.
The briefing schedule in the Appellate Case is set as follows:
-- Opening brief and excerpts of record are due not later than
January 30, 2018;
-- Transcript must be ordered by February 1, 2018;
-- Answering brief is due February 27, 2018, or 28 days after
service of the opening brief, whichever is earlier; and the
optional reply brief is due within 21 days after service of
the answering brief;
-- Transcript is due on March 5, 2018;
-- Appellants Jane Does 1-10 and John Does 1-10's opening
brief is due on April 12, 2018;
-- Appellees David Daleiden and University of Washington's
answering brief is due on May 14, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants JANE DOES 1-10, individually and on behalf
of others similarly situated, and JOHN DOES 1-10, individually
and on behalf of others similarly situated, are represented by:
Jill D. Bowman, Esq.
KC Lynne Harding, Esq.
Vanessa Soriano Power, Esq.
Lauren D. Wigginton, Esq.
STOEL RIVES LLP
600 University Street
Seattle, WA 98101
Telephone: (206) 624-0900
Facsimile: (206) 386-7500
E-mail: jill.bowman@stoel.com
kc.harding@stoel.com
vanessa.power@stoel.com
lauren.wigginton@stoel.com
- and -
David Benjamin Edwards, Esq.
Steven Walter Fogg, Esq.
Mallory Lynn Bouchee Satre, Esq.
CORR CRONIN MICHELSON BAUMGARDNER & PREECE LLP
1001 Fourth Avenue
Seattle, WA 98154
Telephone: (206) 625-8600
E-mail: dedwards@corrcronin.com
sfogg@corrcronin.com
msatre@corrcronin.com
Defendant-Appellee UNIVERSITY OF WASHINGTON, a Washington public
corporation, is represented by:
Nancy Sagor Garland, Esq.
AGWA OFFICE OF THE WASHINGTON ATTORNEY GENERAL
(SEATTLE)
UW Box 359475
Seattle, WA 98195-9475
Telephone: (206) 685-7452
E-mail: nancysg@uw.edu
Defendant-Appellee DAVID DALEIDEN, an individual, is represented
by:
Peter Breen, Esq.
Thomas Brejcha, Esq.
THOMAS MORE SOCIETY
19 S. LaSalle Street
Chicago, IL 60603
Telephone: (312) 782-1680
E-mail: pbreen@thomasmoresociety.org
tbrejcha@thomasmoresociety.org
- and -
William John Crittenden, Esq.
GROFF MURPHY, PLLC
12345 Lake City Way NE 306
Seattle, WA 98125
Telephone: (206) 361-5972
E-mail: wjcrittenden@groffmurphy.com
- and -
Jeffrey M. Trissell, Esq.
FREEDOM OF CONSCIENCE DEFENSE FUND
P.O. Box 9520
Rancho Santa Fe, CA 92067
Telephone: (858) 759-9948
E-mail: jtrissell@limandri.com
WATERSTONE MORTGAGE: Appeals Order in "Herrington" to 7th Circuit
-----------------------------------------------------------------
Defendant Waterstone Mortgage Corporation filed an appeal from a
court ruling in the lawsuit styled Pamela Herrington v.
Waterstone Mortgage Corporation, Case No. 3:11-cv-00779-bbc, in
the U.S. District Court for the Western District of Wisconsin.
The appellate case is captioned as Pamela Herrington v.
Waterstone Mortgage Corporation, Case No. 17-3609, in the U.S.
Court of Appeals for the Seventh Circuit.
As reported in the Class Action Reporter on Dec. 28, 2017, the
District Court granted in part and denied in part the Defendant's
Motion to Vacate Award or Modify Award in the case. The District
Court also denied the Defendant's motion to stay and the
Plaintiff's motion for sanctions.
Those motions relate to the arbitrator's final award. The
Plaintiff has moved for confirmation of the award under 9 U.S.C.
Section 9, while the Defendant has moved to vacate or modify the
award. The Plaintiff has moved for sanctions against the
Defendant, arguing that the Defendant's objections to
confirmation of the award are frivolous. Finally, the Defendant
has moved to stay any action relating to the award until the
United States Supreme Court reaches a decision in the
consolidated cases of Ernst & Young, LLP v. Morris, 137 S.Ct. 809
(2017).
Plaintiff Pamela Herrington filed this proposed class action
under the Fair Labor Standards Act and state law, alleging that
defendant Waterstone Mortgage Corporation failed to pay its loan
officers for overtime work.
The Plaintiff commenced arbitration and the arbitrator issued a
final decision, holding that the Defendant was liable under the
Fair Labor Standards Act for unpaid minimum wages and overtime
and attorney fees and costs, but not liable under Wisconsin
statutory or contract law. Arbitrator Pratt ordered that the
Defendant owed $7,267,919 in damages, $3,318,851 in attorney fees
and costs and an incentive fee in the sum of $20,000 to be paid
to Herrington.
The briefing schedule in the Appellate Case states that the
Appellant's brief is due on or before January 31, 2018, for
Waterstone Mortgage Corporation.[BN]
Plaintiff-Appellee PAMELA HERRINGTON, individually and behalf of
all others similarly situated, is represented by:
Dan Getman, Esq.
GETMAN & SWEENEY, PLLC
Nine Paradies Lane
New Paltz, NY 12561
Telephone: (845) 255-9370
Facsimile: (845) 255-8649
E-mail: dgetman@getmansweeney.com
Defendant-Appellant WATERSTONE MORTGAGE CORPORATION is
represented by:
Spencer Skeen, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
4370 La Jolla Village Drive
San Diego, CA 92122
Telephone: (858) 652-3100
E-mail: spencer.skeen@ogletree.com
WAUPACA FOUNDRY: Court Narrows Claims in "Adams" FLSA Suit
----------------------------------------------------------
Judge William C. Griesbach of the U.S. District Court for the
Southern District of Indiana, Evansville Division, granted in
part and denied in part the Defendant's motion to dismiss the
case, CHRISTOPHER ADAMS, et al., Plaintiffs, v. WAUPACA FOUNDRY,
Defendant, Case No. 3:17-CV-00140-WCG (S.D. Id.).
While the lawsuit is relatively new, its history began in the
Eastern District of Wisconsin in DeKeyser v. ThyssenKrupp Waupaca
Inc., No. 08-CV-488 (E.D. Wis.). The case was brought by current
and former employees of the Defendant, seeking relief relating to
time spent changing into and out of work clothes and protective
gear as well as for time spent showering after their shifts at
the Defendant's Wisconsin, Indiana, and Tennessee facilities.
On July 16, 2008, the Defendant filed a motion to dismiss,
arguing (i) the FLSA preempted the Plaintiffs' Wisconsin state
and common law claims; (ii) there was no private right of action
to enforce record keeping violations; (iii) the complaint failed
to state plausible causes of action for unpaid wages under
Wisconsin statutes; and (iv) the complaint failed to state a
plausible cause of action for breach of contract. The motion was
granted as to the record keeping claim but denied in all other
respects.
The case was conditionally certified in December 2008, and in
July 2012, the Court granted the Defendant's motion for summary
judgment, finding that the Plaintiffs' time spent engaging in on-
site decontamination activities was not compensable work under
the FLSA. The Plaintiffs appealed the decision to the Seventh
Circuit. In October 2013, the Seventh Circuit reversed and
remanded for further proceedings. On Nov. 25, 2014, the Court
issued a decision defining the legal standard it would apply to
determine whether donning and doffing clothing and showering at
the Defendant's plants are activities required by the nature of
the work.
The Defendant filed a motion for reconsideration of the Court's
Nov. 25, 2014 order, arguing that the court's legal standard was
inconsistent with the Supreme Court's recent decision in
Integrity Staffing Solutions, Inc. v. Busk. While the Court
recognized that the principles discussed in Integrity Staffing
applied to the case, it found that the decision did not affect
the legal standard created by the court and denied the motion.
The Defendant subsequently moved to certify an interlocutory
appeal from the Court's decision denying reconsideration, which
the Court denied on April 10, 2015.
On March 31, 2016, the Court granted the Plaintiffs' motion to
certify the Wisconsin law claims as a class action and granted-
in-part and denied-in-part the Defendant's motion to decertify
the previously conditionally certified FLSA collective action.
It divided the FLSA class into three sub-classes -- Wisconsin
workers, Indiana workers, and Tennessee workers -- and
transferred the non-Wisconsin cases to the appropriate districts.
The Defendant appealed the Court's certification decision to the
Seventh Circuit pursuant to Rule 23(f) of the Federal Rules of
Civil Procedure. The Seventh Circuit affirmed.
On Sept. 7, 2017, the Plaintiffs filed an amended complaint on
behalf of the Wisconsin Plaintiffs in that case and separate
complaints in the U.S. District Court for the Southern District
of Indiana on behalf of the Indiana Plaintiffs as well as in the
U.S. District Court for the Eastern District of Tennessee on
behalf of the Tennessee Plaintiffs. The Indiana Plaintiffs'
complaint asserts four causes of action: violation of the Fair
Labor Standards Act of 1938, failure to pay wages in accordance
with the Indiana Wage Payment Statute, common law fraud, and
common law unjust enrichment. Judge Griesbach was assigned to
this case under a borrowing and lending partnership entered into
between the Southern District of Indiana and the Eastern District
of Wisconsin.
The case is before the Court on the Defendant's motion to dismiss
the Plaintiffs' complaint for failure to state a claim.
Specifically, it contends (i) the Plaintiffs' changing and
showering claims are noncompensable preliminary and postliminary
activities under the FLSA in light of the Supreme Court's
decision in Integrity Staffing; (ii) the FLSA preempts the
Plaintiffs' fraud and unjust enrichment claims; (iii) the IWPS
preempts the Plaintiffs' unjust enrichment claim; and (iv) the
Plaintiffs' fraud claim fails as a matter of law.
Judge Briesbach finds that at this stage, he cannot simply reject
the Plaintiffs' allegations just because the Defendant denies
them. Nor is he inclined to limit the Plaintiffs' claim by
holding that only end-of-shift activities are compensable. The
Plaintiffs have stated a claim under the FLSA, and that is enough
to deny the Defendants' motion. As a result, their FLSA claims
will not be dismissed. And because their FLSA claims survive,
the Defendant's Integrity Staffing challenge to the Plaintiffs'
state law claims fail as well.
The Judge also finds that if the Defendant's policies violate the
FLSA as well as Indiana wage and hour laws and constitute unjust
enrichment and fraud, as the Plaintiffs allege, nothing in the
language or purpose of the FLSA precludes the Plaintiffs from
proceeding on those claims in the action. And although the
Plaintiffs may not obtain double recovery, they are free to
pursue relief under the IWPS as well as through an unjust
enrichment claim. In short, their state law claims are not
preempted.
Lastly, Judge Briesbach finds that the Plaintiffs failed to
allege with sufficient particularity the circumstances
constituting the Defendant's fraudulent conduct. The Plaintiffs
allege that during the pendency of the litigation and through at
least April 2017, Waupaca's Indiana foremen, at the direction of
plant management, would periodically alter time records and
unilaterally clock out workers early while continuing to make
them work. Yet, the amended complaint does not allege whose time
cards were altered, which foremen performed the fraudulent
conduct, and when it occurred in the last 10 years. In other
words, the Judge finds that the amended complaint fails to
provide the Defendant with notice of who participated in the
scheme and who was injured as a result. Under these
circumstances, the Plaintiffs have not sufficiently pled their
fraud claim and it will be dismissed.
For these reasons, the Judge granted in part and denied in part
the Defendant's motion to dismiss. He dismissed the Plaintiffs'
fraud claim. The Clerk is directed to set the matter on the
Court's calendar for scheduling.
A full-text copy of the Court's Dec. 19, 2017 Decision Order is
available at https://is.gd/jK9mn5 from Leagle.com.
CHRISTOPHER ADAMS, Plaintiff, represented by J. Gordon Rudd, Jr.
-- gordon.rudd@zimmreed.com -- ZIMMERMAN REED LLP.
CHRISTOPHER ADAMS, Plaintiff, represented by Kyle Frederick
Biesecker, BIESECKER DUTKANYCH & MACER, LLC & Thomas Joseph
Snodgrass -- jsnodgrass@larsonking.com -- LARSON KING LLP.
JARED AHL, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
ERIC ALDERSON, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
CHRISTOPHER APPLEGATE, Plaintiff, represented by J. Gordon Rudd,
Jr., ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER
DUTKANYCH & MACER, LLC & Thomas Joseph Snodgrass, LARSON KING
LLP.
JOHN AULL, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
GARY AUSTIN, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
KENNETH AUSTIN, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
SCOTT AUSTIN, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
WESLEY BALL, Plaintiff, represented by J. Gordon Rudd, Jr.,
ZIMMERMAN REED LLP, Kyle Frederick Biesecker, BIESECKER DUTKANYCH
& MACER, LLC & Thomas Joseph Snodgrass, LARSON KING LLP.
WAUPACA FOUNDRY, Defendant, represented by Benjamin A. Kaplan --
bakaplan@michaelbest.com -- MICHAEL BEST & FRIEDRICH LLP, pro hac
vice, Joseph Louis Olson -- jlolson@michaelbest.com -- MICHAEL
BEST & FRIEDRICH LLP, Mitchell W. Quick --
mwquick@michaelbest.com -- MICHAEL BEST & FRIEDRICH, Patrick A.
Shoulders -- PShoulders@zsws.com -- ZIEMER STAYMAN WEITZEL &
SHOULDERS, Paul E. Benson -- pebenson@michaelbest.com -- MICHAEL
BEST & FRIEDRICH LLP, pro hac vice & Wm Michael Schiff --
MSchiff@zsws.com -- ZIEMER STAYMAN WEITZEL & SHOULDERS.
WAWA INC: Pfeifer Renews Motion to Certify Class of Participants
----------------------------------------------------------------
The Plaintiffs in the lawsuit captioned GREG PFEIFER and ANDREW
DORLEY v. WAWA, INC., RETIREMENT PLANS COMMITTEE OF WAWA, INC.,
JARED G. CULOTTA, MICHAEL J. ECKHARDT, JAMES MOREY, CATHERINE
PULOS, HOWARD B. STOECKEL, DOROTHY SWARTZ, RICHARD D. WOOD, JR.
and KEVIN WIGGINS, Defendants, and WAWA, INC. EMPLOYEE STOCK
OWNERSHIP PLAN, Nominal Defendant, Case No. 2:16-cv-00497-PD
(E.D. Pa.), file with the Court their unopposed renewed motion
for class certification.
The Class consists of:
All persons who were Terminated Employee Participants in the
Wawa, Inc. Employee Stock Ownership Plan ("Wawa ESOP") as of
January 1, 2015 with account balances greater than $5,000.00
and the beneficiaries of such participants and any Alternate
Payees whose stock in the Wawa ESOP was liquidated pursuant
to 2015 Plan Amendment (i.e. Plan Amendment No. 4).
Excluded from the Class are the Defendants and their
immediate families; the officers and directors of Defendant
Wawa and their immediate families; and legal
representatives, successors, heirs, and assigns of any such
excluded persons.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
Plaintiffs Greg Pfeifer and Andrew Dorley, and additional Class
Representative Michael DiLoreto, move the Court for an order that
all the Claims in their amended complaint be certified and
maintained as a class action pursuant to Rule 23(a) and Rule
23(b)(1) and/or Rule (b)(2), or, alternatively, if the Court
determines that a claim cannot be certified under Rule 23(b)(1)
or Rule (b)(2), then under Rule 23(b)(3).
The Renewed Motion is made in conjunction with a Motion for
Preliminary Approval of the proposed Settlement, the Plaintiffs
tell the Court.
The putative class action lawsuit is brought under the Employee
Retirement Income Security Act of 1974. The complaint alleges
that the ESOP Committee Defendants and the Trustee Defendants
breached their fiduciary duties in the September 2015 liquidation
of Wawa stock. The Plaintiffs also allege, among other things,
that Wawa and the Trustee Defendants engaged in a prohibited
transaction because Wawa paid less than fair market value for
Wawa shares in the liquidation and failed to conduct an adequate
investigation as to the fair market value of Wawa stock, and that
Defendants Wood and Stoeckel engaged in a prohibited transaction
because they received a personal benefit from the 2015
liquidation.
The Plaintiffs also ask the Court to appoint Greg Pfeifer, Andrew
Dorley and Michael DiLoreto as Class Representatives pursuant to
Rule 23(a)(4), and to appoint Block & Leviton, LLP, Feinberg
Jackson Worthman & Wasow LLP and Donahoo & Associates, P.C., as
Co-Lead Class Counsel, and Cohen Milstein Sellers & Toll PLLC as
Liaison Class Counsel pursuant to Rule 23(a)(4) and 23(g).
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=LvVjMhLd
The Plaintiffs are represented by:
R. Joseph Barton, Esq.
BLOCK & LEVITON LLP
1735 20th Street, N.W.
Washington, DC 20005-3964
Telephone: (202) 734-5458
Facsimile: (202) 408-4699
E-mail: joe@blockesq.com
- and -
Daniel Feinberg, Esq.
FEINBERG, JACKSON, WORTHMAN & WASOW LLP
383 4th Street, Suite 201
Oakland, CA 94607
Telephone: (510) 269-7998
Facsimile: (510) 269-7994
E-mail: dan@feinbergjackson.com
- and -
Richard E. Donahoo, Esq.
DONAHOO & ASSOCIATES, P.C.
440 W. First Street, Suite 101
Tustin, CA 92780
Telephone: (714) 953-1010
Facsimile: (714) 953-1777
E-mail: rdonahoo@donahoo.com
- and -
Raymond M. Sarola, Esq.
Gary L. Azorsky, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
3 Logan Square, 1717 Arch Street
Philadelphia, PA 19103
Telephone: (267) 479 5700
Facsimile: (267) 479-5701
E-mail: rsarola@cohenmilstein.com
gazorsky@cohenmilstein.com
The Defendants are represented by:
Brian T. Ortelere, Esq.
MORGAN LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
Telephone: (215) 963-5150
E-mail: brian.ortelere@morganlewis.com
- and -
David I. Monteiro, Esq.
MORGAN LEWIS & BOCKIUS LLP
1717 Main Street, Suite 3200
Dallas, TX 75201
Telephone: (214) 466-4000
E-mail: dmonteiro@morganlewis.com
- and -
Jeremy P. Blumenfeld, Esq.
MORGAN LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
Telephone: (215) 963-5258
E-mail: jeremy.blumenfeld@morganlewis.com
WELPAK CORP: Seeks Second Circuit Review of Ruling in "Bond" Suit
-----------------------------------------------------------------
Defendants Christopher Fox, Thomas Ryan and Welpak Corporation
filed an appeal from a District Court judgment on jury verdict
entered on November 22, 2017, in the lawsuit styled Bond, et al.
v. Welpak Corporation, et al., Case No. 15-cv-2403, in the U.S.
District Court for the Eastern District of New York (Brooklyn).
The lawsuit arises from alleged violations of the Fair Labor
Standards Act.
The appellate case is captioned as Bond, et al. v. Welpak
Corporation, et al., Case No. 17-4136, in the United States Court
of Appeals for the Second Circuit.[BN]
Plaintiffs-Appellees Julio Rodriguez, Nakia Bond, Christoper
Jaszczak, Jason Singh and William Torres, on behalf of themselves
and others similarly situated, are represented by:
David C. Wims, Esq.
LAW OFFICE OF DAVID WIMS
1430 Pitkin Avenue
Brooklyn, NY 11233
Telephone: (646) 393-9550
E-mail: dwims@wimslaw.com
Defendants-Appellants Welpak Corporation, Christopher Fox,
Officially and Individually, and Thomas Ryan, Officially and
Individually, are represented by:
Adam C. Weiss, Esq.
ELLENOFF GROSSMAN & SCHOLE LLP
1345 Avenue of the Americas
New York, NY 10105
Telephone: (516) 723-2611
E-mail: aweiss@egsllp.com
WESTWIND ENTERPRISES: Bid to Dismiss "Fancher" Complaint Underway
-----------------------------------------------------------------
Defendants' Motion to Dismiss Collective Action Complaint or, in
the alternative, Motion to Compel Arbitration and Stay the
Proceedings filed in the case titled, Joseph Fancher,
individually and on behalf of all others similarly situated, the
Plaintiff, v. Westwind Enterprises, Ltd. and West Management,
Inc., the Defendants, Case No. 5:17-cv-01211-HE, (W.D. Okla.,
November 9, 2017), remains pending.
On Jan. 19, 2018, Westwind filed its Reply, urging the Court to
grant the Motion.
Plaintiff on Jan. 12 filed his Response in Opposition to the
Motion.
The Plaintiff has worked for the Defendants as a Maintenance
Supervisor since September 2014. The Plaintiff and other
similarly situated employees were paid a salary but did not
receive overtime compensation at the required rate of time-and-
one-half for all hours worked over 40 each workweek, the
complaint says. The Defendants knowingly, willfully and in
reckless disregard carried out its illegal pattern of failing to
pay Plaintiff and other similarly situated employees overtime
compensation, the complaint asserts.[BN]
Plaintiff is represented by:
Noble K. McIntyre, Esq.
MCINTYRE LAW PC
8601 S. Western Avenue
Oklahoma City, OK 73139
Telephone: (405) 917-5250
Facsimile: (405) 917-5405
Email: noble@mcintyrelaw.com
- and -
Clif Alexander, Esq.
Lauren E. Braddy, Esq.
ANDERSON2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
Email: clif@a2xlaw.com
Email: lauren@a2xlaw.com
Defendants are represented by:
Kristen P Evans, Esq.
Steven Anthony Broussard, Esq.
John T Richer, Esq.
HALL ESTILL
320 South Boston Avenue, Suite 200
Tulsa, OK 74103
Telephone: 918-594-0596
Facsimile: 918-594-0505
E-mail: kevans@hallestill.com
sbroussard@hallestill.com
jricher@hallestill.Com
WHIRLPOOL CORP: Court Narrows Class in "Dzielak" Suit
-----------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting in part and denying in part
Plaintiff's Motion for Class Certification in the case captioned
CHARLENE DZIELAK, SHELLEY BAKER, FRANCIS ANGELONE, BRIAN MAXWELL,
JEFFERY REID, KARl PARSONS, CHARLES BEYER, JONATHAN COHEN,
JENNIFER SCHRAMM, and ASPASIA CHRISTY on behalf of themselves and
all others similarly situated, OPINION Plaintiffs, v. WHIRLPOOL
CORPORATION, SEARS HOLDINGS CORPORATION, THE HOME DEPOT, INC.,
FRY'S ELECTRONICS, INC., APPLIANCE RECYCLING CENTERS OF AMERICA,
INC., and LOWE'S HOME CENTER, LLC, Defendants, Civ. No. 2:12-89
(KM)(JBC) (D.N.J.).
The named plaintiffs are purchasers of Maytag washing machines.
Each Maytag washing machine at issue in this case bore an Energy
Star label at the time of purchase. Energy Star machines must
use approximately 37% less energy and 50% less water than
standard models. Thereafter, however, the Department of Energy
determined that the washers at issue did not comply with Energy
Star requirements, and the EPA then disqualified them from the
program.
The putative class comprises seven subclasses of purchasers in
all states where named plaintiffs bought washers, New Jersey,
California, Florida, Ohio, Indiana, Texas, and Virginia.
Plaintiffs allege two harms: (1) a price premium they attribute
to the Energy Star label and (2) higher water and energy costs
than they would have paid had the washers actually met the Energy
Star standards.
The claims that remain at this stage are as follows, inter alia:
Count II: Breach of Express Warranty; Count III: Breach of
Implied Warranty of Merchantability (for NJ, IN, TX, and VA
plaintiffs only); Count IV: Unjust Enrichment (asserted against
retailers only; not against Whirlpool; and Count V: New Jersey
Consumer Fraud Act, N.J. Stat. Ann. Section 56:8-1, et seq.
(NJCFA).
In this action, plaintiffs seek to certify the class under Rule
23(b)(3), which permits certification when (1) the questions of
law or fact common to class members predominate over any
questions affecting only individual members, and (2) a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.
Numerosity
Plaintiff has satisfied the numerosity requirement by providing
documentation that approximately 174,974 units of allegedly
mislabeled washers were sold in the seven states during the class
period.
Commonality
Rule 23(a)(2) requires a showing of questions of law or fact
common to the class. Commonality requires the plaintiff to
demonstrate that the class members have suffered the same injury.
In this case, there are common questions whose resolution would
drive the resolution of this litigation. Such common questions
include whether the Energy Star mark and advertising material
were material to class members' decisions to purchase the
machines; whether the class members paid a price premium because
of the Energy Star label; and whether class members paid more in
energy and water bills because the washers were mislabeled.
Therefore, this putative class satisfies Rule 23(a)'s commonality
requirement.
Typicality
In this case, the claims of the representative plaintiffs all
arise from the same allegedly wrongful conduct the alleged
misrepresentation that the washers were Energy Star qualified.6
The claims arise under the same general legal theories. Overall,
while there are some factual differences between the named
plaintiffs' claims and those of other class members, the named
plaintiffs have claims that are sufficiently typical of the
putative class. Therefore, the Court finds that the putative
class satisfies Rule 23(a)(3) typicality.
Adequacy of Representation
Rule 23(a)(4) requires that the representative parties will
fairly and adequately protect the interests of the class.
First, the putative class counsel includes qualified and
experienced class action attorneys who have been involved in
similar litigation around the country. Putative class counsel
have pursued this litigation vigorously for several years.
Second, there are no apparent conflicts of interest between the
named plaintiffs and the classes they seek to represent. The
named plaintiffs bought the same washer models as the other class
members, and they claim the same relief that the putative class
would receive.
As a result, the Court finds that the class counsel and named
plaintiffs will fairly and adequately represent the interests of
the class.
Predominance
To be certified as a Rule 23(b)(3) class action, a putative class
must demonstrate that "the questions of law or fact common to
class members predominate over any questions affecting only
individual members."
The first two relate to all claims, but especially the central
claims against Whirlpool. The third and fourth, however,
prominently implicate the claims against retailers in the several
states, and suggest that such claims against retailers are not
sustainable on a class basis.
Cognizable Theory of Injury
Defendants argue that neither of the plaintiffs' theories of
injury is cognizable. In particular, they contend that (a)
plaintiffs' price-premium theory is not cognizable under the laws
of several states, and (b) plaintiffs' energy expense theory of
injury is not susceptible of proof with common, class-wide
evidence.
Price-Premium Theory
Defendants' attack on plaintiffs' price-premium theory centers on
a comparison of this case with Harnish v. Widener University
School of Law, 833 F.3d 298 (3d Cir. 2016), and Dugan v. TGI
Fridays, Inc., WL 4399352 (N.J. Oct. 4, 2017). Harnish and Dugan,
applying New Jersey law, both denied class certification on
price-inflation theories.
In Harnish, the Third Circuit affirmed the district court's
denial of class certification because a price-inflation suit
pursuing out-of-pocket damages is not a cognizable theory under
New Jersey or Delaware law. Harnish does not, however, wholly
foreclose class actions based on price-premium damages theories.
In Smajlaj, a putative class action survived a motion to dismiss
on a benefit-of-the-bargain theory under the NJCFA. 782 F.Supp.2d
84, 97-103 (D.N.J. 2011). In that case, plaintiffs alleged that
they were misled into thinking that more expensive less-sodium
soups contained significantly less sodium than the cheaper
regular tomato soup. As a result, consumers allegedly were
willing to pay more for the less-sodium" soups. In fact, however,
Campbell's 25% Less Sodium Tomato Soup allegedly contained the
same amount of sodium per serving as its regular tomato soup.
There is a distinction to be drawn between the fraud-on-the-
market theory rejected by Hamish and the benefit-of-the-bargain
theory endorsed by Smajlaj. The Smajlaj plaintiffs contended that
they paid more for 25% Less Sodium Tomato Soup but received soup
that did not in fact have reduced levels of sodium. By analogy,
the plaintiffs in this action contend that they paid more for a
washing machine that met the Energy Star criteria (i.e., used at
least 37% less energy and 50% less water than standard models),
but received a machine that did not meet those Energy Star
criteria. That is not a Harnish fraud-on-the-market theory, but a
Smajlaj benefit-of-the-bargain theory. Therefore, the plaintiffs
can pursue their claims on such a theory, which is not foreclosed
by Hamish.
Plaintiffs may, without running afoul of that case law, pursue
benefit-of-the-bargain claims for the alleged price premium.
Energy-Expense Theory
Defendants also argue that plaintiffs' energy-expense theory is
not susceptible of proof with common, class-wide evidence, and
therefore is not a cognizable theory.
Defendants make three arguments here: (1) DOE tests do not
reflect real-world conditions and so do not establish that any
Washer will use more waste or energy than the Energy Star logo
implied under real-world conditions; (2) a determination of
energy and water usage requires evidence of individual usage
habits such as loads washed per week, temperature and cycle
settings, and local utility rates, all of which are not common to
the class; and (3) permitting both price-premium and energy
expense theories would result in double counting of damages.
The energy-expense theory thus should be analyzed separately for
two time periods: First, for the initial 3.4 years of ownership,
the Energy-Star purchaser is recovering or amortizing the price
premium. Second, from 3.4 years to 11 years of ownership, the
Energy Star purchaser is continuing to save money. There is clear
double counting in the first time period. Plaintiffs cannot
receive damages for the price premium and the difference in
energy expense that offsets the price premium. The second time
period, however, does not involve double counting. From
plaintiffs' perspective, Energy Star customers are supposed to
continue saving money (compared to non-Energy Star customers)
until the end of the machine's lifetime. Of course, the
calculations for that second time period are complicated by the
fact that individual usage habits vary widely and class members
do not keep their machines for uniform periods of time.
It is likely, then, that many class members, like the named
plaintiffs discussed above, will not exhaust their price premium
and therefore will not incur supplemental energy-expense damages.
Furthermore, since proving individual usage appears impossible,
there is no way to tell which plaintiffs are which. The energy-
expense damages thus present significant individual issues that
do not predominate over common questions. As the Supreme Court
held in Dukes, a court cannot just aggregate plaintiffs who
suffered damages with plaintiffs who did not suffer damages and
then disburse average damages.
The Court finds that plaintiffs' energy-expense theory is not a
cognizable one, and that it does not lend itself to class
treatment. As to this theory, then, the class will not be
certified.
Damages Models
Defendants argue that under Comcast Corp. v. Behrend, 569 U.S. 27
(2013), the putative class has not provided damages models that
are adequately tied to their theory of liability. Defendants
interpret Comcast to require that plaintiffs must proffer a sound
class damages model that measures only those damages attributable
to one of their two theories.
Plaintiffs have presented two damages models one for the price-
premium theory of liability, and another for the energy-expense
theory. For the reasons expressed above, the first liability
theory is appropriate for class treatment, but the second is not.
Unlike the damages models in Comcast, however, the damages models
here do not combine or conflate the valid and invalid theories.
Rather, the plaintiffs have presented separate damages models
corresponding to the price-premium and energy-expense theories. A
class action can therefore segregate the damages that correspond
to the valid, price-premium theory. No Comcast issue arises.
Differences in State Law
Defendants claim that differences in state law make class
treatment of state law claims unworkable, even as to Whirlpool
alone.
Take New Jersey as an example. The named New Jersey plaintiffs
bought their washers from Lowe's and Home Depot. The New Jersey
subclass, then, consists of all who purchased the relevant
Whirlpool-manufactured washers in the relevant period. The two
New Jersey sub-subclasses, however, consist of those who
purchased their washers from Lowe's and Home Depot. Thus, in
practice, the New Jersey subclass would have three subclasses:
(1) New Jersey purchasers who sue only Whirlpool; (2) New Jersey
purchasers who sue Whirlpool and Lowe's; and (3) New Jersey
purchasers who sue Whirlpool and Home Depot. New Jerseyans who
purchased their washers from retailers other than Lowe's and Home
Depot--from Sears, say--would not be represented as against any
retailer.
Take California as a second example. The California subclass
would have four sub-subclasses: (1) California purchasers who sue
only Whirlpool; (2) California purchasers who sue Whirlpool and
Sears; (3) California purchasers who sue Whirlpool and Fry's; and
(4) California purchasers who sue Whirlpool and Home Depot.
Californians who purchased their washers from retailers other
than those just named--from Lowes, say--would not be represented
as against any retailer at all.
The Ohio, Indiana, Texas, and Virginia classes would all have
analogous subclasses and sub-subclasses. (The Florida subclass
sues only Whirlpool, not any retailers.) So multiply this
tripartite or quadripartite scheme by six and imagine a jury's
being called upon to deal with all of those overlapping
categories. Two charts are attached to this opinion to
demonstrate the complexity of the subclass proposal.
The manageability problems are obvious. Consider the claims
against Home Depot. The jury would have to determine Home Depot's
liability under the laws of New Jersey, California, and Texas;
consider Home Depot's liability separately from the liability of
other retailers (Sears, ARCA, Lowe's, and Fry's); and consider
Home Depot's liability separately from that of Whirlpool. Home
Depot alone is subject to three separate sub-subclasses applying
the laws of three different states. The situation of the other
retailers is analogous.
Individualized Facts
Defendants suggest that individualized facts predominate over
common facts for four reasons: (1) whether a warranty was
breached or a fact misrepresented will raise individualized
questions; (2) several claims require individual proof of
reliance or state of mind; (3) plaintiffs' warranty claims
require individual proof of pre-suit notice; and (4) plaintiffs'
unjust enrichment claims are inappropriate for class
certification.
First, as to defendant Whirlpool, whether a warranty was breached
or a fact was misrepresented does not raise predominant,
individualized questions of fact.
Reasons (2) and (3) both concern differences in state law.
Defendants assert (2) that state laws differ in terms of reliance
or scienter and (3) that the state warranty claims have different
pre-suit notice requirements. Those concerns have been largely
addressed in subsection V.A.iii, which discusses differences in
state law. I accept that dividing this multi-state action into
seven subclasses, one for each state, would tend to minimize the
choice of law problem as to Whirlpool.
Reason (4) asserts that plaintiffs' unjust enrichment claims are
inappropriate for class certification. Defendants argue that
courts regularly choose not to certify unjust enrichment class
actions. That is not, however, an ironclad rule; courts may
certify unjust enrichment class actions where variations among
some states' laws do not significantly alter the central issue or
the manner of proof. In this case, the Court has already
evaluated the various states' unjust enrichment laws and found
that New Jersey law is typical and can be applied.
Superiority
The Court easily concludes, therefore, that class treatment of
the claims against Whirlpool is superior to other methods of
adjudication.
Not so, however, as to the plaintiffs' bloated and unmanageable
claims against the retailers. Much of this discussion, of course,
was presaged by the court's prior predominance analysis, supra.
The Court will, however, briefly discuss in particular how the
certification of a class against the retailers would violate Rule
23(b)(3)'s superiority requirement.
First, certifying the class against the retailers would involve
fracturing the seven subclasses into many sub-subclasses. For
example, the California class would be subdivided into four
separate classes: (1) California purchasers who sue only
Whirlpool; (2) California purchasers who sue Whirlpool and Sears;
(3) California purchasers who sue Whirlpool and Fry's; and (4)
California purchasers who sue Whirlpool and Home Depot. See supra
subsection V.A.iii.
Second, there is no proof, or even really a factual allegation,
that the retailers engaged in any uniform, common course of
action. The differences between the retailers' actions mean that
their liability is not "susceptible to generalized, class-wide
proof.
Third, a class action against Whirlpool and the retailers
together would not be a superior method of litigating these
claims. Retailer-by-retailer suits, if viable, would be a
superior, much more manageable process.
The solution is to certify the class action against Whirlpool,
but to deny certification as to the retailers. It is well within
the court's discretion to certify part of a class action and
eliminate certain subclasses to solve manageability problems.
This limitation will ameliorate the manageability problems and
encourage the efficient adjudication of the plaintiffs' claims.
Ascertainability
This class is defined with reference to objective criteria. Each
subclass is defined by two: (a) purchase of a Maytag Centennial
MVWC6ESWW0, MVWC6ESWW1, or MVWC7ESWW0 clothes washer and (b) the
State in which the purchase took place. Second, it is probably
easy to ascertain whether class members fall within this class
definition based on ordinary business records.
Thus the class is ascertainable.
The Court certifies the plaintiffs' class on the price-premium
theory of injury as against defendant Whirlpool. The Court does
not certify the class on the energy-expense theory and it does
not certify the class against defendant retailers Lowe's, Sears,
Home Depot, Fry's, and ARCA.
A full-text copy of the District Court's December 20, 2017
Opinion is available at https://tinyurl.com/yahv8o49 from
Leagle.com.
CHARLENE DZIELAK, Plaintiff, represented by INNESSA MELAMED HUOT,
FAUUQI & FARUQI LLP.
CHARLENE DZIELAK, Plaintiff, represented by JAMES R. BANKO --
banko@faruqilaw.com -- Faruqi and Farqui, LLP, ANTONIO VOZZOLO --
avozzolo@vozzolo.com -- VOZZOLO LLC, AUDRA ELIZABETH PETROLLE --
apetrolle@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY
& AGNELLO, CAROLINE F. BARTLETT, CARELLA BYRNE, JAMES E. CECCHI,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., LINDSEY H.
TAYLOR, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, 777
Township Line Road. Suite 120. Yardley, PA 19067& YITZCHAK KOPEL
-- ykopel@bursor.com -- BURSOR & FISHER PA.
SHELLEY BAKER, on behalf of themselves and all others similarly
situated, Plaintiff, represented by INNESSA MELAMED HUOT, FAUUQI
& FARUQI LLP, JAMES R. BANKO, Faruqi and Farqui, LLP, ANTONIO
VOZZOLO, VOZZOLO LLC, AUDRA ELIZABETH PETROLLE, CARELLA BYRNE
CECCHI OLSTEIN BRODY & AGNELLO, CAROLINE F. BARTLETT, CARELLA
BYRNE,JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY &
AGNELLO, P.C., LINDSEY H. TAYLOR, CARELLA, BYRNE, CECCHI,
OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR & FISHER PA.
FRANCIS ANGELONE, Plaintiff, represented by JAMES E. CECCHI,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA
ELIZABETH PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO,
CAROLINE F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA,
BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR
& FISHER PA.
BRIAN MAXWELL, Plaintiff, represented by JAMES E. CECCHI, CARELLA
BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA ELIZABETH
PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, CAROLINE
F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA, BYRNE,
CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR &
FISHER PA.
JEFFERY REID, Plaintiff, represented by JAMES E. CECCHI, CARELLA
BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA ELIZABETH
PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, CAROLINE
F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA, BYRNE,
CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR &
FISHER PA.
KARI PARSONS, Plaintiff, represented by JAMES E. CECCHI, CARELLA
BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA ELIZABETH
PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, CAROLINE
F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA, BYRNE,
CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR &
FISHER PA.
CHARLES BEYER, Plaintiff, represented by JAMES E. CECCHI, CARELLA
BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA ELIZABETH
PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, CAROLINE
F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA, BYRNE,
CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR &
FISHER PA.
JONATHAN COHEN, Plaintiff, represented by JAMES E. CECCHI,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA
ELIZABETH PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO,
CAROLINE F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA,
BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR
& FISHER PA.
JENNIFER SCHRAMM, Plaintiff, represented by JAMES E. CECCHI,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., AUDRA
ELIZABETH PETROLLE, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO,
CAROLINE F. BARTLETT, CARELLA BYRNE, LINDSEY H. TAYLOR, CARELLA,
BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO & YITZCHAK KOPEL, BURSOR
& FISHER PA.
ASPASIA CHRISTY, Plaintiff, represented by YITZCHAK KOPEL, BURSOR
& FISHER PA & JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY
& AGNELLO, P.C..
WHIRLPOOL CORPORATION, Defendant, represented by DAVID R. KOTT -
dkott@mccarter.com -- MCCARTER & ENGLISH, LLP.
SEARS HOLDINGS CORPORATION, Defendant, represented by DAVID R.
KOTT, MCCARTER & ENGLISH, LLP.
THE HOME DEPOT,INC., Defendant, represented by NICHOLAS STEVENS -
- nstevens@starrgern.com -- STARR, GERN, DAVISON & RUBIN, PC.
FRY'S ELECTRONICS, INC., Defendant, represented by DAVID R. KOTT,
MCCARTER & ENGLISH, LLP.
LOWE'S HOME CENTER, LLC, Defendant, represented by DAVID R. KOTT,
MCCARTER & ENGLISH, LLP.
WILMINGTON TRUST: Brundle Appeals Decision in "Halldorson" Suit
---------------------------------------------------------------
Tim P. Brundle, a Plaintiff in the lawsuit titled Andrew
Halldorson v. Wilmington Trust Retirement and Institutional
Services Company, Case No. 1:15-cv-01494-LMB-IDD, in the U.S.
District Court for the Eastern District of Virginia at
Alexandria, filed an appeal from a court ruling entered in the
case.
The other plaintiff is Andrew Halldorson, who filed the lawsuit
on behalf of the Constellis Employee Stock Ownership Plan, and on
behalf of a class of all other persons similarly situated.
As previously reported in the Class Action Reporter, Mr.
Halldorson filed the lawsuit alleging that the Defendant had
engaged in a prohibited transaction under the Employee Retirement
Income Security Act, specifically by permitting the Employee
Stock Ownership Plan to purchase Constellis Group, Inc.'s stock.
Other appeals have also been filed in the lawsuit.
The appellate case is captioned as Tim Brundle v. Wilmington
Trust, N.A., Case No. 18-1029, in the United States Court of
Appeals for the Fourth Circuit.
The briefing schedule in the Appellate Case states that initial
forms are due within 14 days.[BN]
Plaintiff-Appellant TIM P. BRUNDLE, on behalf of the Constellis
Employee Stock Ownership Plan, is represented by:
Tillman J. Breckenridge, Esq.
Ryan T. Jenny, Esq.
Gregory Y. Porter, Esq.
BAILEY & GLASSER LLP
1054 31st Street, NW
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: tbreckenridge@baileyglasser.com
rjenny@baileyglasser.com
gporter@baileyglasser.com
Defendant-Appellee WILMINGTON TRUST, N.A., as successor to
Wilmington Trust Retirement and Institutional Services Company,
is represented by:
James Patrick McElligott, Jr., Esq.
Summer Speight, Esq.
MCGUIREWOODS, LLP
800 East Canal Street
P. O. Box 3916
Richmond, VA 23219
Telephone: (804) 775-4329
Facsimile: (804) 698-2111
E-mail: jmcelligott@mcguirewoods.com
sspeight@mcguirewoods.com
- and -
Stephen William Robinson, Esq.
MCGUIREWOODS, LLP
1750 Tysons Boulevard
Tysons Corner, VA 22102-3915
Telephone: (703) 712-5469
E-mail: srobinson@mcguirewoods.com
Party-in-Interest CONSTELLIS GROUP, INC., is represented by:
Edward Lee Isler, Esq.
Micah Ephram Ticatch, Esq.
ISLER DARE, PC
1945 Old Gallows Road
Vienna, VA 22182
Telephone: (703) 748-2690
Facsimile: (703) 748-2695
E-mail: eisler@islerdare.com
mticatch@islerdare.com
WORLD ACCEPTANCE: Court OKs $16MM Class Settlement in "Epstein"
---------------------------------------------------------------
The United States District Court for the District of South
Carolina issued an Order and Judgment for preliminary approval of
the Class Action Settlement in the case captioned EDNA SELAN
EPSTEIN, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. WORLD ACCEPTANCE CORPORATION, et al.,
Defendants, Civil Action No. 6:14-cv-01606-MGL (D.S.C.).
A hearing having been held before the Court pursuant to the
Second Amended Order Preliminarily Approving Settlement and
Providing for Notice dated August 31, 2017, to determine, inter
alia: (1) whether the terms and conditions of the Stipulation of
Settlement dated August 24, 2017, are fair, reasonable and
adequate for the settlement of all claims asserted by the
Settlement Class against the Defendants in the operative
complaint now pending in this Court under the Litigation,
including the release of the Released Persons, and should be
approved; (2) whether judgment should be entered dismissing the
Litigation on the merits and with prejudice in favor of the
Defendants herein and as against all persons or entities who are
Members of the Settlement Class herein who have not timely and
validly requested exclusion therefrom.
The Court affirms its determinations in the Preliminary Approval
Order certifying Lead Plaintiff as the class representative for
the Settlement Class and appointing Lead Counsel as class counsel
for the Settlement Class. Lead Plaintiff and Lead Counsel have
fairly and adequately represented the Settlement Class both in
terms of litigating the action and for purposes of entering into
and implementing the Settlement and have satisfied the
requirements of Federal Rules of Civil Procedure 23(a)(4) and
23(g), respectively.
The Court finds that Defendants have satisfied their financial
obligations under the Stipulation by paying or causing to be paid
$16,000,000 to the Settlement Fund.
The Court finds and concludes that the Lead Plaintiff, Lead
Plaintiff's Counsel, Defendants, and Defendants' Counsel have
complied with each requirement of Rule 11(b) of the Federal Rules
of Civil Procedure in connection with institution, prosecution,
defense, and/or settlement of this Litigation.
Any Plan of Allocation submitted by Lead Counsel or any order
entered regarding any attorneys' fee and expense application
shall in no way disturb or affect this Judgment and shall be
considered separate from this Judgment. Separate orders shall be
entered regarding approval of a plan of allocation and Lead
Counsel's application for an award of attorneys' fees and
expenses.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y8frp7j2 from Leagle.com.
Edna Selan Epstein, Individually and on behalf of all others
similarly situated, Plaintiff, represented by William Douglas
Smith, Johnson Smith Hibbard and Wildman, 220 North Church St.,
Suite 4 -- P.O. Box 5587 -- Spartanburg, S.C. 29306
Operating Engineers Construction Industry and Miscellaneous
Pension Fund, Plaintiff, represented by Bailie L. Heikkinen --
bheikkinen@rgrdlaw.com -- Robbins Geller Rudmand and Dowd, pro
hac vice, Ellen Gusikoff Stewart -- elleng@rgrdlaw.com -- Robbins
Geller Rudman and Dowd LLP, pro hac vice, Janine D. Arno --
jarno@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac
vice, Marlon E. Kimpson -- mkimpson@motleyrice.com -- Motley
Rice, William Paul Tinkler -- wtinkler@motleyrice.com -- Motley
Rice, Elizabeth A. Shonson -- eshonson@rgrdlaw.com -- Robbins
Geller Rudmand and Dowd, pro hac vice, Jack Reise --
Jreise@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac
vice, Stephen R. Astley -- Sastley@rgrdlaw.com -- Robbins Geller
Rudmand and Dowd, pro hac vice & William H. Narwold --
bnarwold@motleyrice.com -Motley Rice.
World Acceptance Corporation, Defendant, represented by Benjamin
A. Johnson -- bjohnson@robinsonbradshaw.com -- Robinson Bradshaw
and Hinson, Bethany M. Rezek -- brezek@kslaw.com -- King and
Spalding, pro hac vice, Benjamin Warren Pope -- wpope@kslaw.com -
- King and Spalding, pro hac vice, David C. Wright, III --
dwright@robinsonbradshaw.com -- Robinson Bradshaw and Hinson, pro
hac vice, Emily Shoemaker Newton -- enewton@kslaw.com -- King and
Spalding, pro hac vice & Michael R. Smith -- mrsmith@kslaw.com --
King and Spalding, pro hac vice.
A Alexander Mclean, III, Defendant, represented by Benjamin A.
Johnson, Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
John L Calmes, Jr, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
Kelly M Malson, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
Mark Roland, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
WORLD ACCEPTANCE: Court Awards $4.8MM Atty's Fees in "Epstein"
--------------------------------------------------------------
The United States District Court for the District of South
Carolina issued an Order awarding Attorney's Fees and Award to
Lead Plaintiff in the case captioned EDNA SELAN EPSTEIN,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. WORLD ACCEPTANCE CORPORATION, et al., Defendants,
Civil Action No. 6:14-cv-01606-MGL (D.S.C.).
The Court awards Lead Counsel attorneys' fees of 30% of the
Settlement Fund (or $4,800,000), plus expenses in the amount of
$472,044.02, together with the interest earned on both amounts
for the same time period and at the same rate as that earned on
the Settlement Fund until paid. The Court finds that the amount
of fees awarded is appropriate and that the amount of fees
awarded is fair and reasonable under the percentage-of-recovery
method.
A full-text copy of the District Court's December 18, 2017 Order
is available at https://tinyurl.com/y985j8ou from Leagle.com.
Edna Selan Epstein, Individually and on behalf of all others
similarly situated, Plaintiff, represented by William Douglas
Smith, Johnson Smith Hibbard and Wildman, 220 North Church St.,
Suite 4 -- P.O. Box 5587 -- Spartanburg, S.C. 29306
Operating Engineers Construction Industry and Miscellaneous
Pension Fund, Plaintiff, represented by Bailie L. Heikkinen --
bheikkinen@rgrdlaw.com -- Robbins Geller Rudmand and Dowd, pro
hac vice, Ellen Gusikoff Stewart -- elleng@rgrdlaw.com -- Robbins
Geller Rudman and Dowd LLP, pro hac vice, Janine D. Arno --
jarno@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac
vice, Marlon E. Kimpson -- mkimpson@motleyrice.com -- Motley
Rice, William Paul Tinkler -- wtinkler@motleyrice.com -- Motley
Rice, Elizabeth A. Shonson -- eshonson@rgrdlaw.com -- Robbins
Geller Rudmand and Dowd, pro hac vice, Jack Reise --
Jreise@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac
vice, Stephen R. Astley -- Sastley@rgrdlaw.com -- Robbins Geller
Rudmand and Dowd, pro hac vice & William H. Narwold --
bnarwold@motleyrice.com -Motley Rice.
World Acceptance Corporation, Defendant, represented by Benjamin
A. Johnson -- bjohnson@robinsonbradshaw.com -- Robinson Bradshaw
and Hinson, Bethany M. Rezek -- brezek@kslaw.com -- King and
Spalding, pro hac vice, Benjamin Warren Pope -- wpope@kslaw.com -
- King and Spalding, pro hac vice, David C. Wright, III --
dwright@robinsonbradshaw.com -- Robinson Bradshaw and Hinson, pro
hac vice, Emily Shoemaker Newton -- enewton@kslaw.com -- King and
Spalding, pro hac vice & Michael R. Smith -- mrsmith@kslaw.com --
King and Spalding, pro hac vice.
A Alexander Mclean, III, Defendant, represented by Benjamin A.
Johnson, Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
John L Calmes, Jr, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
Kelly M Malson, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
Mark Roland, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
WOODLAKE CC: Fails to Respond to Class Action Lawsuit
-----------------------------------------------------
Jaymie Baxley, writing for The Pilot, reports that the plaintiffs
in a class action lawsuit against the owners of the troubled
Woodlake Resort and Country Club have filed a motion requesting a
default judgment against the company.
The motion comes after Woodlake CC Corp., the company that owns
the Woodlake subdivision, failed to respond to the allegations
listed in the class action complaint before the Dec. 28 deadline.
The deadline was originally set for November, but was
automatically extended to December after Norman Post Jr., an
attorney with Post, Foushee and Patton, notified the court of his
intention to represent Woodlake CC Corp. in the class action
litigation.
The plaintiffs in the lawsuit are Woodlake homeowners who blame
the company for causing property values to plummet in the
subdivision, which is located off N.C. 690 east of Vass. They
also claim the company's continued collection of membership dues
is part of "a scheme to coerce members to continue paying fees
even though (Woodlake CC Corp.) was not providing the promised
amenities," according to the class action complaint filed Oct. 23
in Moore County Superior Court.
Property values in Woodlake fell sharply after the state ordered
the controlled draining of Lake Surf, the subdivision's 1,200-
acre centerpiece, in October 2016. The lake was drained amid
concerns about the stability of its dam in the wake of Hurricane
Matthew.
Woodlake CC Corp. was later sued by the state Attorney General's
Office for repeatedly failing to follow through on promises to
repair the dam's deteriorated spillway.
An agreement to dismantle the spillway was reached in court
between the state and Julie Watson, vice president of Woodlake CC
Corp., but the state was forced to perform the breach itself
after the company failed to meet the court-ordered construction
deadlines.
In a recent interview with The Pilot, Attorney General Josh
Stein. Esq. said he will lead the effort to recoup the costs
associated with the project, which are now projected to exceed
$1.5 million, after all the work has been completed and an
invoice is sent to Woodlake CC Corp.
"The costs have not yet been finalized since groundcover at the
site still needs to come in for stabilization purposes," Carolyn
McLain, assistant attorney general, said in an email to Woodlake
residents. "That may not occur until spring or summer. Pending
receipt of finalized cost, the state will initiate a collection
action against Woodlake CC Corp. in Superior Court, seeking
payment in full. To the extent there are terms of payment, those
terms will be subject to the Judge's approval and the full
authority and powers of the court."
Two groups are being represented in the class action lawsuit. The
first class consists of Woodlake residents whose property values
have been adversely affected by the loss of the lake, while the
second class consists of residents who have paid membership dues
to use the lake, golf courses and other amenities at the resort
since May 29, 2015.
In the civil summons, the plaintiffs claim Woodlake CC Corp.
"offered memberships to property owners living within the
Woodlake subdivision at levels ranging from $1,944.21 to
$2,955.48, depending on the level of amenity access desired." The
company allegedly "did not allow members to reduce their level of
membership, even when the amenities for which they were paying
were unavailable," according to the summons. "Members were unable
to simply stop paying due to the threat that Woodlake CC Corp.
would terminate their club membership entirely, thus requiring an
additional $25,000 new member fee in the future should they ever
wish to rejoin."
Hope Carmichael, Esq. the Raleigh attorney representing the
plaintiffs, says a default judgment against Woodlake could allow
homeowners to take control of the dam and lake through a
foreclosure auction. The plaintiffs hope to eventually refill the
lake, which should restore value to their properties and bring
back the amenity they say attracted them to the subdivision in
the first place.
With the motion for default judgement submitted, the plaintiffs
must now present evidence of damages at a preliminary hearing.
The classes represented in the lawsuit will then need to be
certified before an evidentiary hearing can be held, which is
when the judgment could be awarded.
Charlie Jones, a lead plaintiff and member of the Restore
Woodlake Committee, warns it could be some time before a
resolution is reached.
"This is a serial process and not a particularly quick one,"
Jones writes in a message on the Restore Woodlake Committee's
website. "So don't expect a final resolution in the near future."
[GN]
XBIOTECH INC: Securities Class Action Civil Suit Dismissed
----------------------------------------------------------
XBiotech (NASDAQ: XBIT) disclosed in an SEC filing on January 5,
2018, that the United States District Court for the Western
District of Texas Austin Division (the "Court") has filed an
order of dismissal granting in all respects a Notice of Voluntary
Dismissal filed by the sole plaintiff in the putative class
action complaint brought against certain officers of the Company
on October 26, 2017 (Case 1:17-cv-01023-SS). The lawsuit has
therefore officially been dismissed without prejudice by the
Court. [GN]
XPO LAST: Court Approves $13.9MM "Ruiz" Class Settlement
--------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting Plaintiffs' Motion For Final
Approval of Class Action Settlement and Plaintiffs' Motion for
Attorney Fees, Costs and Class Representative Service Award in
the case captioned FERNANDO RUIZ, individually and on behalf of
all others similarly situated, Plaintiffs, v. XPO LAST MILE,
INC., formerly AFFINITY LOGISTICS CORPORATION, Defendant, Case
No. 5-CV-2125 JLS (KSC).
Plaintiff Fernando Ruiz filed a putative class action complaint
in the Northern District of California. Plaintiff asserted that
Defendant (then known as Affinity Logistics Corporation) had
improperly classified him and other delivery drivers as
independent contractors rather than employees. Plaintiff further
alleged that this misclassification caused damages under several
provisions of both federal and state law, including damages both
for unlawful wage deductions and stemming from failures to pay
overtime wages, reimburse driver expenses, and provide meal and
rest periods.
The Settlement Agreement provides for a $13.9 million Settlement
Fund and after deducting estimated attorneys' fees and costs, the
costs of settlement administration, and the proposed service
award, an estimated $8.5 million will be available for
distribution to Plaintiffs. Class Members will each recover an
average payment of approximately $32,000.
Additionally, Plaintiffs noted their intent to move the Court for
a Service Award in an amount not to exceed $100,000 for named
Plaintiff Fernando Ruiz, and for an award of Class Counsel Fees
and Expenses not to exceed $4,865,000 and $350,000 for Costs and
Expenses. Finally, Plaintiffs note claim administration fees
shall be payable to Epiq Systems, Inc. in an amount not to exceed
$50,000. Defendants do not oppose these requests.
Plaintiffs have a strong case regarding Defendant's liability.
Once the delivery drivers were adjudged to have been employees
rather than independent contractors, the fundamental way in which
Defendant had formulated their contracts and treated the
incidences of their employment became largely legally
noncompliant.
Accordingly, the juxtaposition between the liability and damages
issues here weighs strongly in favor of the Court's approval of
the settlement. The Parties have acknowledged the inherent
strengths and potential weaknesses of Plaintiffs' case, and have
reached an amicable settlement that will afford all Class Members
significant recovery.
The trial outcome whatever it might be would not conclude this
case. Both parties have been extremely zealous advocates,
arguing, appealing, and petitioning for relief at nearly every
turn. And Defendant has already indicated that if the case were
to continue Defendant would, on appeal, challenge several rulings
made by this Court, including, but not limited to: the propriety
of class certification. Either issue could result in even greater
delays, including via the issuance of a certified question to the
California Supreme Court or a second petition for writ of
certiorari.
Defendant has already indicated that if this case proceeded
through trial then Defendant would ultimately appeal the
propriety of the Court's class certification order. This is
particularly true in the present case, where damages are the only
remaining issue and individual calculations (rather than
employer-wide policies creating liability) are more prevalent and
thus generally less amenable to class treatment.
Accordingly, the settlement here obviates the potential for class
decertification motions at trial or further litigation on appeal,
and thus this factor favors the Court's approval of the
settlement.
Defendant has agreed to pay $13.9 million into a non-reversionary
Settlement Fund, and Class Counsel attests the average recovery
per class member will be approximately $32,000. This is
substantial recovery, especially in light of the fact that "many
of [the plaintiffs] are low-wage workers who, as a practical
matter, lack the resources to bring individual suits to assert
their rights." Furthermore, Plaintiffs' Expert calculated the
potential damages (which calculations Defendant vigorously
attacked at trial) flowing from missed meal periods and rest
breaks to be $5,891,360.
This has been a twelve-year-long, incredibly hard-fought case.
There have been two trips to the Ninth Circuit, a petition for a
writ of certiorari, a request to certify a question to a state
Supreme Court, and countless motions briefed, argued, and
decided. Both sides are operating with full knowledge of the
strengths and weaknesses of their cases, and there is little (if
any) discovery that could further aid in resolving this matter.
This factor weighs strongly in favor of the Court's approval of
the settlement.
Class Counsel has vigorously litigated this case and pursued the
best possible resolution for the class members. Furthermore,
Class Counsel has extensive experience litigating complex class
action and mass tort actions, and Class Counsel is intimately
equated with the facts, strengths, and weakness of this
particular case. Given the foregoing, and according the
appropriate weight to the judgment of these experienced counsel,
this factor weighs strongly in favor of the Court's approval of
the settlement.
Plaintiffs assert no class member has objected to the settlement.
The absence of a large number of objections to a proposed class
action settlement raises a strong presumption that the terms of a
proposed class settlement action are favorable to the class
members. Given that almost every class member was served with
notice of the proposed settlement, and no class member has
objected to date.
Class Counsel moves for an Order approving the payment of
attorneys' fees in the amount of $4,685,000 (35% of the Gross
Settlement Amount), and costs of $246,889.98.
The Court finds these costs reasonable. First, postage,
telephone, fax, and notice expenses are generally recoverable.
Further, legal research is an essential tool of a modern
efficient law office and filing fees and photocopies are also a
necessary expense of litigation. The Court also finds Class
Counsel's travel costs reasonable, as Counsel has been required
to travel to multiple hearings and mediations.
Class Counsel also requests $50,000 for the Settlement
Administrator, Epiq Systems, Inc. The Court previously approved
Plaintiffs' proposal to use Epiq as the Settlement Administrator.
The Court finds the Settlement Administrator expenses are
recoverable. As agreed to, should Epiq charge less than $50,000,
the balance shall be contributed to the settlement fund.
The Court concludes that all of these costs are validly
recoverable and therefore GRANTS Class Counsel's Fee Motion in
this regard.
Plaintiffs request the Court grant a service award to the Class
Representative, Mr. Fernando Ruiz, in the amount of $100,000. The
Settlement Agreement provides an incentive award of up to
$100,000 to Mr. Ruiz. The Settlement Agreement states that this
award is intended to compensate the Plaintiff, who greatly helped
this case by starting the lawsuit, investing substantial time to
assist with the case, and providing testimony and documents.
This evidences the substantial time and effort Mr. Ruiz has put
into this case over its lifespan. Class Counsel also note Mr.
Ruiz obtained no personal benefit from the case other than the
settlement funds he expects to receive. In fact, Mr. Ruiz
believes he was unable to obtain employment as a delivery driver
for a few years as a result of his name being associated with
this case. Given the foregoing, the Court GRANTS the Class
Counsel's Fee Motion regarding Class Representative Service Award
and awards $100,000 to Mr. Ruiz.
A full-text copy of the District Court's December 20, 2017 Order
is available at https://tinyurl.com/yc8qz6xy from Leagle.com.
Fernando Ruiz, Plaintiff, represented by Daniel A. Osborn -
dosborn@osbornlawpc.com -- Osborn Law PC.
Fernando Ruiz, Plaintiff, represented by Elic Eliahu Anbar --
elicanbar@anbarlaw.com -- Law Offices of Elic E. Anbar & Lindsay
M. Trust, Osborn Law P.C., pro hac vice.
XPO Last Mile, Inc., Defendant, represented by Elizabeth Ashley
Paynter -- APAYNTER@SCOPELITIS.COM -- Scopelitis Garvin Light
Hanson & Feary, P.C., pro hac vice, Fraser Angus McAlpine --
Fraser.McAlpine@jacksonlewis.com -- Jackson Lewis P.C., James H.
Hanson -- JHANSON@SCOPELITIS.COM -- Scopelitis Garvin Light
Hanson & Feary, pro hac vice, Jeffrey H. Newhouse --
Jeffrey.Newhouse@jacksonlewis.com -- Jackson Lewis P.C., pro hac
vice, Kathleen C. Jeffries -- KJEFFRIES@SCOPELITIS.COM --
Scopelitis Garvin Light Hanson & Feary, Nicole Elizabeth Forde --
Nicole.Forde@jacksonlewis.com -- Jackson Lewis PC, Allyson
Suzanne Ascher -- Allyson.Ascher@jacksonlewis.com -- Jackson
Lewis P.C. & Antonio Carlos Raimundo --
Antonio.Raimundo@jacksonlewis.com -- Jackson Lewis P.C..
Asbestos Litigation
ASBESTOS UPDATE: Court Needs Evidence for Settlement Construction
-----------------------------------------------------------------
In the case styled AIU Insurance Company, American Home Assurance
Company, Birmingham Fire Insurance Company of Pennsylvania,
Granite State Insurance Company, Lexington Insurance Company, and
National Union Fire Insurance Company of Pittsburgh, PA,
Plaintiffs, v. Philips Electronics North America Corporation, T H
Agriculture & Nutrition, L.L.C. and the T H Agriculture &
Nutrition L.L.C. Asbestos Personal Injury Trust, Defendants, C.A.
No. 9852-VCS, (Del. Ch.), the Court of Chancery of Delaware ruled
that parties are bound together in a contractual relationship
that involves the administration of an asbestos trust, The T H
Agriculture & Nutrition, L.L.C. Asbestos Personal Injury Trust
("Trust"), created to fund settlement payments to victims of
asbestos exposure.
The Trust was initially funded by Defendants, Philips Electronics
North America Corporation ("PENAC") and T H Agriculture &
Nutrition, L.L.C. ("THAN"), pursuant to THAN's plan of
reorganization under Chapter 11 of the Bankruptcy Code.
The parties' current dispute centers on the scope of the AIG
Insurers' right under the Settlement Agreement to conduct a
yearly "audit [of] payments and distributions made by the Trust."
Specifically, the parties dispute "what an audit must include to
satisfy [Plaintiffs' audit] right."
As of THAN's Chapter 11 filing, THAN and its then-parent, PENAC,
faced significant asbestos-related liability and were engaged in
insurance coverage litigation with several of their insurers
(Plaintiffs in this action). While THAN's Chapter 11 case was
pending, the AIG Insurers, PENAC and THAN entered into a
settlement agreement to resolve the coverage litigation. The
Bankruptcy Court approved the Settlement Agreement on May 6,
2009, and confirmed THAN's "First Amended Prepackaged Plan of
Reorganization" soon thereafter.
The Plan provides for the Trust's assumption of THAN'S pre-
petition asbestos-related liabilities, and directs to the Trust
(via injunction) all asbestos-related personal injury claims on
which THAN might otherwise be liable. To recover on an injury
claim, the claimant (or his/her representative) must submit the
claim to the Trust, which then determines the amount, if any, the
claimant is entitled to receive. The AIG Insurers are required
(per the Settlement Agreement) to make incremental reimbursement
payments to PENAC based on the total amount paid by the Trust on
asbestos-related cancer claims.
In an earlier decision of AIU I, the Court of Chancery of
Delaware held, inter alia, that Section 2.3 of the Settlement
Agreement "provides [Plaintiffs] with a broad audit right that is
not limited to only verifying that the Trust's stated payments
and distributions were actually made." The Court cautioned,
however, that its decision "should [not] be construed as
directing what an audit must include to satisfy [Plaintiffs'
audit] right."
Following AIU I, Plaintiffs moved to compel the Trust's
production of "preliminary information" to facilitate their audit
of the Trust's payments and distributions. On February 8, 2016,
the Court ordered the Trust to produce certain "initial
information for each cancer claimant whose cancer claim ha[d]
been paid by the Trust" as of that date. Thereafter, on March 7,
2016, the Trust "produced a spreadsheet to Plaintiffs containing
[the specified] information regarding 7,538 cancer claims paid by
the [Trust] since its inception." After reaching agreement with
the Trust on an audit protocol (the "2016 Audit Protocol"),
Plaintiffs selected 584 of those claims "to be the subject of
[their] initial annual audit," and then conducted that audit on
June 21-24 and July 25, 2016.
Plaintiffs allege that "the materials reviewed during the initial
audit raised questions [regarding] possible payment
miscalculations... and whether certain claims paid by the [Trust]
were based on fraudulent information." According to Plaintiffs,
the 2016 Audit Protocol does not capture the full scope of their
audit right under the Settlement Agreement, and their agreement
to that protocol in no way limits their audit right. Moreover,
Plaintiffs maintain that their initial audit remains incomplete
"because [their] questions [as to] fraud and payment
miscalculations remain unanswered."
The dispositive issues raised by the parties' motions turns on
the proper construction of the following clause in Section 2.3 of
the Settlement Agreement: "[Plaintiffs] shall have the right to
audit payments and distributions made by the Trust." The parties
have offered competing reasonable constructions of that language,
and the present procedural posture does not allow the Court to
choose between those constructions.
Because the clause is ambiguous, the Court needs extrinsic
evidence regarding the intended meaning of the term "audit" in
Section 2.3 to aid in its construction of that provision. While
the parties have attempted to address the scope of the audit
through the negotiation of an audit protocol, that process, as
evidenced by this litigation, has failed. As such, the Court
concludes that a definitive construction of the Settlement
Agreement as relates to audit rights is necessary to guide the
parties as they continue to work through the processing of
asbestos claims in the years to come.
The Court also concludes that Count VI -- relating to a purported
right to offset for miscalculated payments made by the Trust --
must be dismissed because it fails to state a claim upon which
relief can be granted. The Court points out that the Trust is not
a party to the Settlement Agreement, and Plaintiffs have failed
to identify any basis other than the Settlement Agreement upon
which Plaintiffs may be entitled to offset their payment
obligations to PENAC under that agreement.
Moreover, the Court determines that the Plaintiffs have failed to
plead the existence of conditions precedent to any set-off right
they may have under Section 2.4 of the Settlement Agreement.
Under Section 2.4, Plaintiffs' offset rights are subject to
several conditions precedent, including:
(1) Plaintiffs must inform the Trust's trustees of
Plaintiffs' belief that the Trust (i) miscalculated certain claim
payments due to accounting error; or (ii) paid one or more
fraudulent claims; and
(2) The trustees must agree that the Trust has (i)
miscalculated the specified claim payments due to accounting
error; or (ii) been defrauded with respect to the claim (or
claims) specified.
A full-text copy of the Memorandum Opinion dated January 11,
2018, is available at https://is.gd/hYCNYz from Leagle.com.
Attorneys for Plaintiffs:
Marc S. Casarino Esq.
White and Williams LLP,
Courthouse Square
600 N. King Street, Suite 800
Wilmington, DE 19801-3722
Tel: 302.654.0424
Fax: 302.654.0245
Email: casarinom@whiteandwilliams.com
-- and --
John S. Favate, Esq.
Hardin Kundla McKeon & Poletto, P.A.
673 Morris Avenue
Springfield, New Jersey 07081
Phone: 973-912-5222
Fax: 973-912-9212
Attorneys for Defendants Philips Electronics North America
Corporation and T H Agriculture & Nutrition L.L.C.:
David J. Baldwin, Esq.
Jennifer C. Wasson Esq.
Andrew H. Sauder Esq.
Potter Anderson & Corroon LLP
Hercules Plaza
1313 North Market Street, 6th Floor
P.O. Box 951
Wilmington, Delaware 19801
Tel: 302.984.6000
Fax: 302.658.1192
Email: dbaldwin@potteranderson.com
jwasson@potteranderson.com
asauder@potteranderson.com
-- and --
Kenneth H. Frenchman Esq.
McKool Smith, P.C.
One Bryant Park, 47th Floor
New York, NY 10036
Tel: 212.402.9400
Fax: 212.402.9444
Email: kfrenchman@mckoolsmith.com
Attorneys for Defendant T H Agriculture & Nutrition, L.L.C.
Asbestos Personal Injury Trust:
Daniel K. Hogan Esq.
Garvan F. McDaniel Esq.
Hogan McDaniel
1311 Delaware Avenue
Wilmington, Delaware 19806
Phone: 302-656-7540
Fax: 302-656-7599
Email: dkhogan@dkhogan.com
gmcdaniel@dkhogan.com
-- and --
Sander L. Esserman, Esq.
Steven A. Felsenthal Esq.
David A. Klinger Esq.
Stutzman, Bromberg, Esserman & Plifka
2323 Bryan Street, Suite 2200
Dallas, Texas 75201-2689
Telephone: (214) 969-4900
Facsimile: (214) 969-4999
Email: esserman@sbep-law.com
felsenthal@sbep-law.com
klingler@sbep-law.com
ASBESTOS UPDATE: 5th Cir. Vacates Remand of PI Suit to State Ct.
----------------------------------------------------------------
Defendants Huntington Ingalls, Incorporated, J. Melton Garrett,
Albert Bossier, Lamorak Insurance Company, and Murphy Oil USA,
Incorporated, appeal an order of remand in which the district
court found removal untimely under 28 U.S.C. Section 1446(b)(3).
Defendants contend that removal was timely instituted within
thirty days of receipt of a deposition transcript indicating the
case might be removable under 28 U.S.C. Section 1442(a)(1).
Morgan was deposed during eight days from March 9 to April 13,
2017. Avondale specifically questioned him on two days (March 10
and 20). Morgan stated that he worked at Avondale's main yard and
on one vessel, a Lykes vessel. He did not remember working on any
other vessel.
On March 20, Avondale's lawyer questioned Morgan about working on
the USS Huntsville, but Morgan could not remember the ship.
Avondale showed Morgan medical records indicating he had
allegedly worked and been injured on the USS Huntsville during
his employment. Morgan reiterated that he could not remember the
ship. "But if the records indicate that he had those injuries
aboard the HUNTSVILLE, he would agree that he worked on the
HUNTSVILLE."
On March 28, 2017, Avondale received a link to the deposition
transcript. It removed the case on April 27, 2017, which was 30
days after receipt of the transcript but 38 days after the
relevant testimony. The basis for the removal was the federal
officer removal statute, 28 U.S.C. Section 1442 which allows
removal of state cases commenced against "the United States or
any agency thereof or any officer... of the United States or of
any agency thereof, in an official or individual capacity, for or
relating to any act under color of such office or on account of
any right, title or authority claimed under any Act of Congress
for the apprehension or punishment of criminals or the collection
of the revenue."
Morgan contested removal as untimely under Section 1446(b)(3) and
claimed that the court "lacked federal subject matter
jurisdiction under [the federal officer removal statute]." The
district court agreed removal was untimely. It determined that
section 1446's removal clock began running on the date of the
relevant oral testimony. Because removal was untimely, the court
remanded and did "not decide whether the substantive requirements
of Section 1442 had been met."
Avondale and Murphy Oil appeal. Morgan moved to dismiss Murphy
Oil's appeal, contending that it lacks standing to appeal. But
Morgan died on September 14, 2017.
Section 1446(b)(1) permits removal "30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief." "If the
case stated by the initial pleading is not removable," a
defendant can also remove "within 30 days after receipt... of a
copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is
or has become removable." Section 1446(b)(3).
Avondale removed under the latter provision, claiming that the
transcript of Morgan's deposition is "other paper" from which it
was able to ascertain that the case was removable under the
federal officer statute. Avondale contends that depositions often
last months. Requiring counsel to file on the date of the oral
testimony may involve filing before a deposition is complete and
all the relevant information is obtained. The length and
complexity of a deposition may thereby compel defendants to file
more protective removals.
Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth
Circuit finds that the removal clock began on receipt of the
deposition transcript. As such, the Fifth Circuit vacates the
order and remands to the district court for consideration of
whether Huntington Ingalls meets the substantive requirements for
federal officer jurisdiction.
Plaintiff Curtis Morgan challenges Murphy Oil's standing to
appeal.
The Fifth Circuit finds that Murphy Oil points to no sufficient
"injury in fact." The Fifth Circuit says that Murphy Oil "cannot
satisfy the demands of Article III by alleging a bare procedural
violation." Only Avondale, its co-defendant, can invoke the
federal officer removal statute. The Fifth Circuit notes that had
Avondale not chosen to remove, Murphy Oil could not have asserted
federal officer jurisdiction on Avondale's behalf. Congress
granted the right to remove under Section 1442 to only certain
classes of defendants, none of which includes Murphy Oil.
The Fifth Circuit explains that the generalized desire to
litigate in federal court, without holding a corresponding right
to be in federal court in the first place, is insufficient to
satisfy the injury-in-fact prong of Article III. Murphy Oil
experienced no concrete and particularized injury sufficient to
satisfy the injury-in-fact prong of Article III, the Fifth
Circuit dismisses its appeal for lack of jurisdiction.
The appealed case is Curtis D. Morgan, Plaintiff-Appellee, v.
Huntington Ingalls, Incorporated, Formerly Known as Northrup
Grumman Ship Systems, Incorporated; J. Melton Garrett; Albert
Bossier; Lamorak Insurance Co.; Murphy Oil Usa, Incorporated,
Defendants-Appellants, No. 17-30523, (5th Cir.).
A full-text copy of the Order dated January 11, 2018, is
available at https://is.gd/AhETiL from Leagle.com.
Attorney for Defendant-Appellant:
John Maurice Futrell, Esq.
Gary Allen Lee, Esq.
Lee, Futrell & Perles, LLP
201 St. Charles Avenue, Suite 4120
New Orleans, LA 70170
Phone: 504.569.1725
Fax: 504.569.1726
Email: jfutrell@leefutrell.com
glee@leefutrell.com
Attorney for Defendant-Appellant:
Samuel M. Rosamond, III, Esq.
1515 Poydras Street, Suite 1900
New Orleans, LA 70112
Attorney for Defendant-Appellant
James M. Garner, Esq.
Christopher T. Chocheles, Esq.
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
909 Poydras Street, Suite 2800
New Orleans, LA 70112
Attorney for Defendant-Appellant
Eric James Blevins, Esq.
Norton Hare, L.L.C.
Corporate Woods, Building No. 9
9200 Indian Creek Parkway, Suite 450
Overland Park, Kansas 66210
Phone: 913-906-9633
Fax: 913-906-9985
Email: Lawyers@NortonHare.com
Attorneys for Plaintiff-Appellee:
Jules Burton LeBlanc, IV, Esq.
Jeremiah S. Boling, Esq.
Baron & Budd, P.C.
2600 Citiplace Dr
Baton Rouge, LA 70808
Phone: (225) 927-5441
Email: info@baronbudd.com
-- and --
Allison Christine Reppond, Esq.
Renee Melancon, Esq.
Baron & Budd, P.C.
3102 Oak Lawn Avenue #1100
Dallas, TX 75219
Phone: (866) 723-1890
Email: info@baronbudd.com
ASBESTOS UPDATE: NY App. Dismissed Leave to Appeal "Warren" Suit
----------------------------------------------------------------
The Court of Appeals of New York has dismissed J-M Manufacturing
Company, Inc.'s leave to appeal the case styled In The Matter Of
New York City Asbestos Litigation. Theresa Warren, ETC.,
Respondent, v. AmChem Products, Inc., ET AL., Defendants, J-M
Manufacturing Company, Inc., Appellant, Motion No. 2017-1090,
(N.Y. App. Div.) upon the ground that the order sought to be
appealed from does not finally determine the action within the
meaning of the Constitution.
A full-text copy of the Order dated January 11, 2018, is
available at https://is.gd/WIs46C from Leagle.com.
ASBESTOS UPDATE: NY App. Denies Appeal of "Miller" Suit
-------------------------------------------------------
The Court of Appeals of New York has denied Hennessy Industries'
motion to appeal the case styled In The Matter Of New York City
Asbestos Litigation. Walter Miller, Respondent, V. BMW of North
America, LLC, et al., Defendants, Hennessy Industries, Appellant,
Motion No. 2017-1076, (N.Y. App. Div.), with one hundred dollars
costs and necessary reproduction disbursements.
A full-text copy of the Order dated January 11, 2018, is
available at https://is.gd/QUqCoQ from Leagle.com.
ASBESTOS UPDATE: Crane Co. Wins Summary Ruling in "Davis"
---------------------------------------------------------
In the case captioned Bobby Len Davis and Becky Davis,
Plaintiffs, v. Air & Liquid Systems Corporation, et al.,
Defendants, Case No. CV 14-2288-TUC-CKJ (LCK), (D. Ariz.),
Magistrate Judge Lynette C. Kimmins issued, on November 9, 2017,
a Report and Recommendation in which she recommended Defendant
Crane Co.'s Motion for Summary Judgment and Defendant Warren
Pumps, LLC's Motion for Summary Judgment be granted. The Report
and Recommendation notified the parties that they had 14 days
from the date of the Report and Recommendation to file any
objections. No objections have been filed.
The standard of review that is applied to a magistrate judge's
report and recommendation is dependent upon whether a party files
objections -- the Court need not review portions of a report to
which a party does not object. Accordingly, after an independent
review, Judge Cindy K. Jorgenson of the U.S. District Court for
the District of Arizona adopts the November 9, 2017 Report and
Recommendation, and awards summary judgment in favor of Crane Co.
and Warren Pumps, LLC and against the Plaintiffs Bobby Len Davis
and Becky Davis.
A full-text copy of the Order dated January 10, 2018, is
available at https://is.gd/U0Fmeb from Leagle.com.
Bobby Len Davis & Becky Davis, Plaintiffs, represented by:
Dev Kumar Sethi, Esq.
Peter Akmajian, Esq.
Schmidt & Sethi PC
1790 East River Road
Suite #300
Tucson, AZ 85718
Phone: (520) 790-5600
-- and --
Jennifer Lynn Bartlett, Esq.
Jordan Blumenfeld-James, Esq.
Nectaria Belantis, Esq.
Simon Greenstone Panatier Bartlett PC
3780 Kilroy Airport Way Suite 540
Long Beach, California
Tel: 562.590.3400
Fax: 562.590.3412
Email: jbartlett@sgpblaw.com
jbj@sgpblaw.com
nbelantis@sgpblaw.com
Carrier Corporation, Defendant, represented by:
John Charles Hendricks, Esq.
Kathleen L. Beiermeister, Esq.
Meagher & Geer PLLP
8800 N. Gainey Center Drive
Suite 261
Scottsdale, AZ 85258 US
T 480.607.9719
F 480.607.9780
Email: jhendricks@meagher.com
kbeiermeister@meagher.com
ASBESTOS UPDATE: District Court Refuses to Remand "Sawyer"
----------------------------------------------------------
The Hon. Catherine C. Blake of the U.S. District Court for the
District Maryland will deny the Plaintiffs' motion to remand the
case styled Jayna Sawyer, et al., v. Union Carbide Corporation,
et al. Civil No. CCB-16-118, (D. Md.).
The estate of Joseph Morris, his surviving spouse, and his
surviving children sued Foster Wheeler, LLC in the Circuit Court
for Baltimore City, alleging theories of strict liability, breach
of warranty, negligence, fraud, conspiracy, market share
liability, loss of consortium, and wrongful death. The Plaintiffs
claim that Foster Wheeler was responsible for exposing him to the
asbestos that caused his disease.
The Plaintiffs claim that Morris was diagnosed with asbestos-
related mesothelioma on December 1, 2014, and died as a result of
this disease on March 1, 2015. Allegedly he was exposed to
asbestos at Bethlehem Steel Sparrows Point Shipyard, where he
worked as a "riveter heater and boiler maker in the boiler shop"
from 1948 through the 1970s.
Foster Wheeler filed its notice of removal on January 11, 2016.
Foster Wheeler claims it "manufactured marine boilers and
auxiliary equipment for use on Navy ships pursuant to contracts
and specifications executed by the Navy." Foster Wheeler's basis
for removal is that Foster Wheeler was acting under an officer or
agency of the United States within the meaning of 28 U.S.C.
Section 1442(a)(1) in the manufacture and sale of boilers for the
Navy.
The Plaintiffs moved to remand to state court on February 9,
2016. The Court initially remanded the case to state court on the
ground that Foster Wheeler had not established a colorable
federal defense, nor a causal nexus between the Plaintiffs'
claims and actions taken by Foster Wheeler under color of federal
law. But on appeal, the Fourth Circuit reversed that order and
remanded the case for further consideration regarding the
timeliness of removal. Now pending again is the Plaintiffs'
renewed motion to remand the case to state court.
The Fourth Circuit has cautioned against inquiring into the
Defendant's subjective knowledge. To remove a case, the Defendant
ordinarily must file a notice of removal in the district court
within 30 days after receiving the initial pleading. However, if
the complaint does not provide sufficient details of the
Plaintiffs' claims to demonstrate that the claims are removable,
the Defendant may remove within 30 days of receiving "an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable." Removal is proper only once "the triangular nexus
between Decedent, [the defendant], and the U.S. Navy Vessel
allegedly a part of the asbestos exposure" is identified through
identification of the specific Navy ships upon which the decedent
allegedly worked and was exposed to the defendant's product.
Foster Wheeler argues that its January 11, 2016, notice of
removal was timely because it was filed within 30 days of David
Williams's deposition on December 11, 2015. In his deposition,
Williams said he worked in the boiler shop of the shipyard, and
Morris was "the helper most of the time" when Williams worked
there. Foster Wheeler claims it was first ascertainable that the
case was removable when Williams responded to the question, "Do
you know the names of any of the ships that you were building
boilers for?" Williams testified, "No. When I went there, I knew
Vietnam War and we were building Navy ships for that, but as far
as the names and things like that, no."
The Plaintiffs claim that Foster Wheeler was aware of the
information contained in Williams' testimony no later than
November 30, 2015, when the Plaintiffs filed interrogatories and
document requests directed to Foster Wheeler, which provided
Foster Wheeler with a list of ships constructed at the shipyard
from 1948 through 1979 -- some of those ships were designated as
"USS," or "United States Ship." The Plaintiffs also had
previously provided an answer to an interrogatory indicating that
Morris was exposed to asbestos from Foster Wheeler boilers in his
work as a boilermaker at the shipyard from 1948 through the
1970s. The Plaintiffs claim that together, these two pieces of
information alerted Foster Wheeler that some Navy ships were
built at the shipyard during the time period that Morris was
allegedly exposed to asbestos while constructing Foster Wheeler
boilers.
The Court points out that it is not apparent within the four
corners of the combined discovery materials provided by the
Plaintiffs, whether Morris actually worked on any of the Naval
ships mentioned in the list of ships constructed from 1948 to
1979. Although some of the ships constructed in the shipyard
while Morris was employed there were Naval, the Court determines,
however, that this falls short of the standard of specificity.
Therefore, Williams' testimony is the first "paper" that
establishes within its four corners the "triangular nexus"
between Morris, Foster Wheeler, and work undertaken for the U.S.
Navy. Even though the testimony does not identify the specific
U.S. Naval ships involved, Williams did clearly state that he
worked with Morris while constructing U.S. Navy ships for the
Vietnam War. As such, the required nexus was first identified by
Williams' testimony on December 11, 2015 and the removal on
January 11, 2016, was within 30 days of that testimony and was
timely.
A full-text copy of the Memorandum dated January 10, 2018, is
available at https://is.gd/8FILdR from Leagle.com.
Janya Sawyer, Representative of the Estate of Joseph W. Morris,
Garnette Morris, Individually and as Surviving Spouse of Joseph
W. Morris, Nancy Pike, Surviving Child of Joseph W. Morris,
Edward Morris, Surviving Child of Joseph W. Morris, Wayne Morris,
Surviving Child of Joseph W. Morris & Joanne Traynor, Surviving
Child of Joseph W. Morris, Plaintiffs, represented by:
William G. Minkin, Esq.
Law Offices of Peter G. Angelos
100 North Charles Street
Baltimore, MD 21201
Phone: 410-649-2000
Toll Free: 800-556-5522
Fax: 410-649-2101
Email: WMinkin@lawpga.com
-- and --
James Steven Zavakos, Esq.
Law Offices of Peter G. Angelos
Court Towers Bldg.
210 W. Pennsylvania Ave., Suite 700
Towson, MD 21204-5324
Toll-Free: 800-556-5522
Email: JZavakos@lawpga.com
John Crane-Houdaille, Inc., formerly known as Crane Packing
Company & Selby, Battersby & Company, Defendants, represented by:
Laura A. Cellucci, Esq.
Scott Jeffrey Richman, Esq.
Timothy McDevitt Hurley, Esq.
Miles and Stockbridge PC
100 Light Street
Baltimore, MD 21202
Phone: 410.727.6464
Fax: 410.385.3700
Email: lcellucci@milesstockbridge.com
Owens-Illinois Glass Co., formerly known as Owens-Illinois, Inc.,
Defendant, represented by:
Randolph L. Burns, Esq.
The Burns Law Firm PC
53 West Jackson Blvd.
Suite 724
Chicago, IL 60604
Foster Wheeler Corporation, Cooper Industries, Inc., Individually
and as Successors in Interest to other Crouse Hinds Co. & Pfizer,
Inc., Defendants, represented by:
John C. Ruff, Esq.
Patrick C. Smith, Esq.
Dehay and Elliston LLP
36 South Charles Street, Suite 1400,
Baltimore , Maryland 21201
Phone: 410-783-7041
Fax: 410-783-7221
Email: jruff@dehay.com
psmith@dehay.com
Hopeman Brothers, Inc., Wayne Manufacturing Corporation & Lofton
Corporation, as Successor-in-Interest to other Wayne
Manufacturing Corporation other Hopeman Manufacturing
Corporation, Defendants, represented by:
David W. Allen, Esq.
Malcolm Sean Brisker, Esq.
Terri Lynn Goldberg, Esq.
Goodell DeVries Leech and Dann LLP
One South Street, 20th Floor
Baltimore, MD 21202
Tel: 410-783-4000
Toll Free: 888-229-4354
Fax: 410-783-4040
Email: dwa@gdldlaw.com
msb@gdldlaw.com
tgoldberg@gdldlaw.com
Universal Refractories Company & Koppers Company, Inc.,
Defendants, represented by:
Jason Sean Garber, Esq.
Moore & Jackson LLC
305 Washington Avenue
Suite 401,
Towson, Maryland 21204
Phone: 410.583.7519
Fax: 410.583.2207, Ext. 104
Email: garber@moorejackson.com
CBS Corporation, a Delaware Corporation formerly known as Viacom,
Inc. other CBS Corporation, a Pennsylvania Corp. formerly known
as Westinghouse Electric Corp. & International Paper Company,
Individually and as Successor in Interest to other Champion
International Corporation other U.S. Plywood Corp., Defendants,
represented by:
Philip A. Kulinski, Esq.
Clare Marie Maisano, Esq.
Evert Weathersby Houff
Suntrust Bank Building
120 E. Baltimore Street
Suite 1300
Baltimore, MD 21202
Direct: 443.573.8506
Phone: 443.573.8500
Fax: 443.573.8501
Email: pakulinski@ewhlaw.com
cmmaisano@ewhlaw.com
J.H. France Refractories Co. & Paramount Packing & Rubber, Inc.,
Defendants, represented by:
Geoffrey S. Gavett, Esq.
Laura D. Abenes, Esq.
Gavett, Datt Barish PC
Metro Executive Park I
15850 Crabbs Branch Way, Suite 330
Rockville, Maryland 20855-2675
Phone: 301-948-1177
Fax: 301-948-4334
The Goodyear Tire & Rubber Co, Wallace & Gale Asbestos Settlement
Trust, Successor to the other Wallace & Gale Company & Crown,
Cork & Seal Co., Inc., Defendants, represented by:
Theodore F. Roberts, Esq.
Scott Mason Richmond, Esq.
Venable LLP
210 West Pennsylvania Avenue
Suite 500
Towson, MD 21204
Tel: 410.494.6200
Fax: 410.821.0147
Email: tfroberts@Venable.com
srichmond@Venable.com
MCIC, Inc., and its Remaining Director of Trustees, Robert I.
McCormick, Elizabeth McCormick and Patricia Shunk, Defendant,
represented by:
Louis E. Grenzer, Jr., Esq.
Bodie, Dolina, Hobbs, Friddell & Grenzer, PC
305 Washington Avenue, Suite 300
Towson, MD 21204
Phone:410-823-1250
Email: lgrenzer@bodie-law.com
Metropolitan Life Insurance Co., Defendant, represented by:
Cheri V. Koerner, Esq.
Stephen Anthony Fennell, Esq.
Jamie Michelle Hertz, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington DC 20036
Tel: 202 457 8339
Fax: 202 429 3902
Email: ckoerner@steptoe.com
sfennell@steptoe.com
jhertz@steptoe.com
General Electric Company, Defendant, represented by:
Donald S. Meringer, Esq.
Meringer Zois and Quigg LLC
320 North Charles Street,
Baltimore, MD 21201
Phone: 443-524-7978
Email: dmeringer@meringerlaw.com
Ferro Engineering Division of On Marine Services Company,
Defendant, represented by:
Jennifer M. Alexander, Esq.
Jon W. Brassel, Esq.
Brassel Alexander & Rice LLC
888 Bestgate Rd #200
Annapolis, Maryland 21401
Phone: 443-837-9800
Fax: 443-837-9801
Email: jalexander@barlawfirm.com
jbrassel@barlawfirm.com
Foseco, Inc. & Georgia-Pacific, LLC, Ind/Successor to other
BestWall Gypsum Co., Defendants, represented by:
Laura A. Cellucci, Esq.
Scott Jeffrey Richman, Esq.
Timothy McDevitt Hurley, Esq.
Miles and Stockbridge PC
100 Light Street
Baltimore, MD 21202
Phone: 410.727.6464
Fax: 410.385.3700
Email: lcellucci@milesstockbridge.com
srichman@milesstockbridge.com
Schneider Electric USA, Inc., formerly known as Square D Company,
Defendant, represented by:
Neil Joseph MacDonald, Esq.
Rachelle A. Schofield, Esq.
MacDonald Law Group, LLC
11720 Beltsville Drive, Suite 1050
Beltsville, Maryland 20705
Telephone: (301) 572-0741
Facsimile: (877) 654-2658
Email: nmacdonald@macdonaldlawgroup.com
rschofield@macdonaldlawgroup.com
Greene, Tweed & Co., Individually and as Successor in Interest to
other Palmetto, Inc., Defendant, represented by:
Andrew William Gaudreau, Esq.
Leder & Hale, PC
401 Washington Ave
Suite 600
Baltimore, MD 21204
Phone: 443-279-7900
Fax: 410-832-8883
Email: gaudreau@lederhale.com
-- and --
Thomas Peter Bernier, Esq.
Goldberg Segalla
Direct: 443.615.7502
Fax: 443.615.7599
One North Charles Street
Suite 2500
Baltimore, Maryland 21201-3739
Phone: 443.615.7500
Fax: 443.615.7599
Email: tbernier@goldbergsegalla.com
Phelps Packing & Rubber Co., other Phelps Industrial, Defendant,
represented by:
William Carlos Parler, Jr., Esq.
Parler and Wobber LLP
Lloyd E. Mitchell, Inc., Defendant, represented by:
Helyna M. Haussler, Esq.
Jason Richard Waters, Esq.
Wilson Elser Moskowitz Edelman and Dicker LLP
500 East Pratt Street, Suite 600
Baltimore, MD 21202
Phone: 410.539.1800
Fax: 410.962.8758
Email: helyna.haussler@wilsonelser.com
jason.waters@wilsonelser.com
Pecora Corporation, Individually and as Successor in Interest to
other Pecora, Inc. other New Pecora Corp., Defendant, represented
by:
Michael Thomas Hamilton, Esq.
Sebastian Goldstein, Esq.
Marks, O'Neill, O Brien, Doherty & Kelly, P.C.
600 Baltimore Avenue, Suite 305
Towson, MD 21204
Phone: 410-339-6880
Email: mhamilton@moodklaw.com
sgoldstein@moodklaw.com
MCIC, Inc., ThirdParty Plaintiff, represented by:
Louis E. Grenzer, Jr., Esq.
Bodie, Dolina, Hobbs, Friddell & Grenzer, PC
305 Washington Avenue, Suite 300
Towson, MD 21204
Phone:410-823-1250
Email: lgrenzer@bodie-law.com
A.W. Chesterton Company, ThirdParty Defendant, represented by:
Benjamin D. Whetzel, Esq.
Thomas Peter Bernier, Esq.
Goldberg Segalla
Direct: 443.615.7502
Fax: 443.615.7599
One North Charles Street
Suite 2500
Baltimore, Maryland 21201-3739
Phone: 443.615.7500
Fax: 443.615.7599
Email: bwhetzel@goldbergsegalla.com
tbernier@goldbergsegalla.com
SB Decking Inc., formerly known as Selby, Battersby & Co., Inc.,
ThirdParty Defendant, represented by:
Joshua Franklin Kahn, Esq.
Miles and Stockbridge PC
100 Light Street
Baltimore, MD 21202
Phone: 410.727.6464
Fax: 410.385.3700
Email: jkahn@milesstockbridge.com
John Crane-Houdaille, Inc., Cross Claimant, represented by:
Laura A. Cellucci, Esq.
Scott Jeffrey Richman, Esq.
Timothy McDevitt Hurley, Esq.
Miles and Stockbridge PC
100 Light Street
Baltimore, MD 21202
Phone: 410.727.6464
Fax: 410.385.3700
Email: lcellucci@milesstockbridge.com
srichman@milesstockbridge.com
thurley@milesstockbridge.com
Bayer Cropscience, Inc., Individually and as Successor In
Interest to & Union Carbide Corporation, Cross Defendants,
represented by:
Danielle Grilli Marcus, Esq.
Peter Woodward Sheehan, Esq.
Thurman W. Zollicoffer, Jr., Esq.
Whiteford Taylor and Preston LLP
7 Saint Paul Street
Baltimore, MD 21202-1636
Phone: 410.347.8723
Fax: 410.234.2324
Email: dmarcus@wtplaw.com
psheehan@wtplaw.com
tzollicoffer@wtplaw.com
CBS Corporation, a Delaware Corporation & International Paper
Company, Individually and as Successor in Interest to, Cross
Defendants, represented by:
Clare Marie Maisano, Esq.
Evert Weathersby Houff
Suntrust Bank Building
120 E. Baltimore Street
Suite 1300
Baltimore, MD 21202
Direct: 443.573.8506
Phone: 443.573.8500
Fax: 443.573.8501
Email: pakulinski@ewhlaw.com
cmmaisano@ewhlaw.com
Cooper Industries, Inc., Individually and as Successors in
Interest to, Foster Wheeler Corporation & Pfizer, Inc., Cross
Defendants, represented by:
John C. Ruff, Esq.
Patrick C. Smith, Esq.
Dehay and Elliston LLP
36 South Charles Street, Suite 1400,
Baltimore , Maryland 21201
Phone: 410-783-7041
Fax: 410-783-7221
Email: jruff@dehay.com
psmith@dehay.com
Crown, Cork & Seal Co., Inc., The Goodyear Tire & Rubber Co &
Wallace & Gale Asbestos Settlement Trust, Successor to the, Cross
Defendants, represented by:
Theodore F. Roberts, Esq.
Venable LLP
210 West Pennsylvania Avenue
Suite 500
Towson, MD 21204
Tel: 410.494.6200
Fax: 410.821.0147
Email: tfroberts@Venable.com
ASBESTOS UPDATE: Sedgwick Withdraws as Counsel for GE, et al.
-------------------------------------------------------------
Judge Robert S. Lasnik of the U.S. District Court for the Western
District Washington has granted Chris S. Marks, Erin P. Fraser
and Sedgwick LLP leave to withdraw as counsel of record for
General Electric Company, CBS Corporation and Foster Wheeler
Energy Corporation.
The case is Alice Mikelsen, Surviving Spouse, and Susan Page, as
Personal Representative for Arthur Melvin Mikelsen, Deceased,
Plaintiffs, v. Air & Liquid Systems Corporation, et al.,
Defendants, Case No. 17-cv-00700-RSL, (W.D. Wash.).
A full-text copy of the Order dated January 9, 2018, is available
at https://is.gd/7hoWkF from Leagle.com.
Alice Mikelsen, surviving spouse & Susan Page, as personal
representative for Arthur Melvin Mikelsen, deceased, Plaintiffs,
represented by:
Kristin M. Houser, Esq.
Lucas W.H. Garrett, Esq.
Thomas J. Breen, Esq.
Elizabeth Jean McLafferty, Esq.
William Joel Rutzick, Esq.
Schroeter Goldmark & Bender
810 Third Avenue, Suite 500
Seattle, Washington 98104
Phone: 206-622-8000 or 1-800-809-2234
Fax: 206-682-2305
Email: houser@sgb-law.com
garrett@sgb-law.com
breen@sgb-law.com
mclafferty@sgb-law.com
Air & Liquid Systems Corporation, sued individually and as
successor by merger to Buffalo Pumps, Inc., Defendant,
represented by:
Alice Coles Serko, Esq.
Barry Neal Mesher, Esq.
Sedgwick LLP
Phone: 816.423.2275
Email: bnm@bnmesherlaw.com
-- and --
Rachel Tallon Reynolds, Esq.
Bullivant Houser Bailey
1700 Seventh Avenue
Suite 1810
Seattle, WA 98101-1397
Phone: 206.292.8930
Fax: 206.386.5130
Direct Dial: 206.521.6415
Email: rachel.reynolds@bullivant.com
-- and --
Mark B. Tuvim, Esq.
Gordon Rees Scully Mansukhani LLP
701 Fifth Avenue, Suite 2100
Seattle,WA 98104
Voice: (206) 695-5144
Fax: (877) 304-9894
Email: mtuvim@grsm.com
Asbestos Corp., Ltd & Ingersoll-Rand Company, Defendants,
represented by:
Kevin J. Craig, Esq.
Mark B. Tuvim, Esq.
Gordon Rees Scully Mansukhani LLP
701 Fifth Avenue, Suite 2100
Seattle,WA 98104
Voice: (206) 695-5144
Fax: (877) 304-9894
Email: mtuvim@grsm.com
kcraig@grsm.com
CBS Corporation, fka Viacom, Inc., successor by merger with CBS
Corporation fka Westinghouse Electric Corporation & Foster
Wheeler Energy Corporation, Defendants, represented by:
Christopher S. Marks, Esq.
Erin P. Fraser, Esq.
Tanenbaum Keale LLP
601 Union Street
Two Union Square
Suite 4253
Seattle, WA 98101
Email: cmarks@tktrial.com
efraser@tktrial.com
Crane Co, Defendant, represented by:
G. William Shaw, Esq.
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, Washington 98104-1158
Tel:206.370.7955
Fax:(206) 370-6169
Email: bill.shaw@klgates.com
General Electric Company, Defendant, represented by:
Christopher S. Marks, Esq.
Erin P. Fraser, Esq.
Tanenbaum Keale LLP
601 Union Street
Two Union Square
Suite 4253
Seattle, WA 98101
Email: cmarks@tktrial.com
efraser@tktrial.com
-- and --
John Heller,
Sidley Austin LLP, pro hac vice
One South Dearborn
Chicago, Illinois 60603
Phone: 312 853 7000
Fax: 312 853 7036
Email: jheller@sidley.com
Goulds Pumps (IPG), Inc., Defendant, represented by:
Ronald C. Gardner, Esq.
Gardner Trabolsi & Assoc. PLLC
2200 Sixth Avenue, Suite 600
Seattle, Washington 98121
Phone: (206) 256-6309
Fax: (206) 256-6318
Email: rgardner@gandtlawfirm.com
IMO Industries Inc, sued individually and as successor-in-
interest to DeLaval Turbine, Inc., IMO DeLaval and C.H. Wheeler,
Defendant, represented by:
James Edward Horne, Esq.
Michael Edward Ricketts, Esq.
Gordon Thomas Honeywell
One Union Square
600 University St, #2100
Seattle, WA 98101
Telephone: 206.676.7500
Fax: 206.676.7575
Email: jhorne@gth-law.com
mricketts@gth-law.com
Metropolitan Life Insurance Company, Defendant, represented by:
Richard G. Gawlowski, Esq.
Wilson Smith Cochran & Dickerson
901 Fifth Avenue, Suite 1700
Seattle, Washington 98164-2050
Phone: 206-623-4100
Fax: 206-623-9273
Email: gawlowski@wscd.com
Warren Pumps LLC, sued individually and as successor-in-interest
to Quimby Pump Company, Defendant, represented by:
Allen Eraut, Esq.
Rizzo Mattingly Bosworth PC
900 Washington Street, Suite 1020
Vancouver, WA 98660
Phone: (360) 448-4284
Fax (503) 229-0630
Email: aeraut@rizzopc.com
ASBESTOS UPDATE: Claims vs. Garlock, Fairbanks Junked in "Corley"
-----------------------------------------------------------------
Judge Virginia Emerson Hopkins of the U.S. District Court for the
Northern District of Alabama adopts the report and accepts the
recommendations of the magistrate judge that the court grant the
Plaintiffs' Motion for Voluntary Dismissal of Bankrupt Defendants
Garlock Sealing Technologies, LLC, and Fairbanks Morse Pump
Corporation and enter final judgment in this action as to all
claims asserted in this action.
On December 7, 2017, the magistrate judge entered a report and
recommendation and allowed the parties to file objections to the
magistrate judge's recommendations. To date, no party has filed
objections to the magistrate judge's report and recommendation.
The case is Charles Corley, et al., Plaintiffs. v. Fairbanks
Morse Pump Corporation, et al., Defendants, Case No. 2:09-cv-
01812-HNJ, (N.D. Ala.).
A full-text copy of the Memorandum Opinion dated January 9, 2018,
is available at https://is.gd/Y8PdDR from Leagle.com.
Charles Corley & Myra Corley, Plaintiffs, are represented by:
G. Patterson Keahey, Jr., Esq.
Law Offices of G Patterson Keahey PC
1 Independence Plz, Ste 612
Birmingham, AL 35209
Phone: (205) 871-0707
Honeywell International, Inc., individually and as successors in
interest to Allied Chemical, Inc. f/k/a Bendix Corporation,
Defendant, represented by:
Frank E. Lankford, Jr., Esq.
Stewart W. McCloud, Esq.
Huie Fernambucq & Stewart LLP
2801 Highway 280 S, Suite 200
Birmingham, AL 35223
Tel: 205.251.1193
Fax: 205.251.1256
Email: flankford@huielaw.com
Email: smccloud@huielaw.com
ASBESTOS UPDATE: Claims vs. Foster Wheeler Dismissed in "Everett"
-----------------------------------------------------------------
Judge Henry Edward Autrey of the U.S. District Court for the
Eastern District Missouri has issued his opinion, memorandum and
order dismissing Defendants Foster Wheeler Energy Corporation,
John Crane, Inc., Warren Pumps, LLC, Honeywell International
Inc., General Electric Company, Carrier Corporation, Greene Tweed
& Co Inc., CBS Corporation, Georgia Pacific, LLC, Ingersoll-Rand
Company, Flowserve Corporation, Trane U.S., Inc., Gardner Denver,
Inc., and Eaton Corporation from the case styled Willie Everett,
et al., Plaintiffs, v. Aurora Pump Company, et al., Defendants,
Case No. 4:17CV230 HEA. (E.D. Mo.).
The Defendants removed this matter to federal court from the
Circuit Court of the City of St. Louis, Missouri, on January 19,
2017. According to the Petition, Defendants maintain registered
agents in the state of Missouri, and are engaged in business in
Missouri. Plaintiff Willie Everett is a resident of Missouri who
was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers and/or asbestiform fibers emanating from certain
products he was working with and around which were manufactured,
sold, distributed or installed by Defendants. Defendant moves to
dismiss the action under Rule 12(b)(2) of the Federal Rules of
Civil Procedure for lack of personal jurisdiction. For the
reasons set forth in the Court's June 27, 2017 Opinion,
Memorandum and Order, Defendant's Motion to Dismiss for Lack of
Personal Jurisdiction, motion is well taken and will be granted.
Defendants Foster Wheeler Energy Corporation, John Crane, Inc.,
Warren Pumps, LLC, Honeywell International Inc., General Electric
Company, Carrier Corporation, Greene Tweed & Co. Inc., CBS
Corporation, Georgia Pacific, LLC, Ingersoll-Rand Company,
Flowserve Corporation, Trane USA, Gardner Denver, Inc., and Eaton
Corporation are dismissed.
On June 27, 2017, the Court granted several defendants' Motions
to Dismiss for Lack of Personal Jurisdiction. Plaintiffs now ask
the Court to reconsider those dismissals by virtue of "an
intervening change in the law since the parties briefed personal
jurisdiction issues for the Court." Plaintiffs rely on the June
19, 2017 United States Supreme Court decision of Bristol-Myers
Squibb Co. v. Superior Court of California, 137 S.Ct. 1773
(2017).
As Defendants point out, the Bristol-Myers decision was rendered
before the Court's Opinion. Plaintiff argues that it was decided
after the parties had briefed the personal jurisdiction issues
for the Court. This explanation is clearly an attempt to avoid
Rule 59(e)'s prohibition against raising arguments that could
have been raised prior to the decision. Indeed, Plaintiffs have
not been shy when it comes to seeking leave to supplement,
present new authority on pending issues and obtaining extensions
before the Court. Plaintiffs' valiant attempt, however fails to
overcome the obvious Rule 59(e) obstacle prohibiting raising
argument that could have been raised prior to the decision.
In Bristol-Myers, the Supreme Court, in dicta did not decide left
open the question of whether a federal court might, under some
circumstances, exercise broader personal jurisdiction under the
Fifth Amendment than is available to state courts under the
Fourteenth Amendment by basing a decision on nationwide contacts
rather than the contacts within the forum state.
More significantly, Bristol-Myers Court reiterated the need to
maintain a "straightforward application" of the "settled
principles of personal jurisdiction." The Court focused on the
need for an "affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that
takes place in the forum State." The Court reiterated that it is
not enough for a defendant to have general connections with the
forum -- there must be a connection between the forum and the
specific claims at issue.
Plaintiff sought to amend her Complaint because Plaintiff Willie
Everett has died and Plaintiff sought to add a wrongful death
claim and substitute Flora Everett as the Executrix of the Estate
of Willie Everett. The Court allowed the Motion for that purpose
alone. However, the Court warned that the Amended Complaint
cannot revive the action with respect to dismissed defendants.
A full-text copy of the Opinion, Memorandum and Order dated
January 11, 2018, is available at https://is.gd/fM2Wd9 from
Leagle.com.
Plaintiffs Willie Everett & Flora Everett are represented by:
Carson C. Menges, Esq.
MENGES LAW
6400 West Main Street Suite 1G
Belleville, IL 62223
Phone: (618) 277-6646
-- and --
David W. Henderson, Esq.
Lisa W. Shirley, Esq.
Charles William Branham, III, Esq.
DEAN AND OMAR, LLP
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: (214) 722-5990
Email: dhenderson@dobllp.com
lshirley@dobllp.com
tbranham@dobllp.com
-- and --
Michael B. Patronella, Esq.
LUBEL VOYLES, LLP
5020 Montrose Boulevard, Suite 800
Houston, TX 77006
Phone: 713-284-5200
Fax: 713-284-5250
Air & Liquid Systems Corporation, also known as Buffalo Pumps,
Inc. & Viking Pump, Inc., Defendants are represented by:
Gregory C. Flatt, Esq.
Patrick D. Cloud, Esq.
HEYL AND ROYSTER
105 West Vandalia Street
Mark Twain Plaza III, Suite 100
PO Box 467
Edwardsville, IL 62025
Telephone: 618.656.4646
Fax: 618.656.7940
Email: gflatt@heylroyster.com
pcloud@heylroyster.com
ALFA Laval, Inc., Defendant is represented by:
Marcie J. Vantine, Esq.
Paul W. Lore, Esq.
SWANSON AND MARTIN, LLP &.
800 Market Street, Suite 2100
St. Louis, Missouri 63101
Phone: 314-241-7100
Fax: 314-241-7106
Email: mvantine@smbtrials.com
Aurora Pump Company, Defendant, represented by:
Melanie E. Riley, Esq.
Michael P. McGinley, Esq.
SANDBERG PHOENIX, P.C.
600 Washington Avenue, 15th Floor
St Louis, MO 63101
Phone: 314.231.3332
Email: mriley@sandbergphoenix.com
mmcginley@sandbergphoenix.com
Crane Co., individually Successor In Interest Cochrane, Inc. also
known as Jenkins Valves, Inc., Defendant is represented by:
Benjamin John Wilson, Esq.
Carl J. Geraci, Esq.
HEPLER BROOM
130 North Main Street
Edwardsville, IL
Phone: 618.656.0184
Fax: 618.656.1364
Email: bwilson@heplerbroom.com
cgeraci@heplerbroom.com
Crown, Cork & Seal Company, Inc., Defendant, represented by:
Stephen J. Maassen, Esq.
RYNEARSON AND SUESS LLC
107 Southpointe Dr.
Edwardsville, IL 62025
Phone: 618.659.0588
Email: smaassen@rssclaw.com
FMC Corporation, as successor of Northern Pumps and Peerless
Pumps, Defendant is represented by:
Marcie J. Vantine, Esq.
Robert W. Stephens, Esq.
Swanson, Martin & Bell, LLP
330 N. Wabash, Suite 3300
Chicago, Illinois 60611
Phone: 312-321-9100
Fax: 312-321-0990
Email: mvantine@smbtrials.com
rstephens@smbtrials.com
General Gasket Corporation, Defendant is represented by:
Agota Peterfy, Esq.
Albert J. Bronsky, Esq.
BROWN AND JAMES, P.C.
800 Market Street, Suite 1100
St. Louis, MO 63101
Tel: (314) 242-5304
Fax: (314) 242-5504
Email: apeterfy@bjpc.com
ajbronsky@bjpc.com
Grinnell, LLC, ITT Corporation, formerly known as ITT Industries,
Inc. & J.R. Clarkson Company, successor to The Kunkle Valve
Company and successor to J.E. Lonergan Company, Defendants are
represented by:
Julia Yasmin Tayyab, Esq.
Morgan Lewis
77 West Wacker Dr.
Chicago, IL 60601-5094
Phone: 312.324.1136
Fax: 312.324.1000
Email: yasmin.tayyab@morganlewis.com
JP Bushnell Packing Supply Company, Inc., Defendant, represented
by:
Douglas Michael Sinars, Esq.
Sinars and Rollins, LLC
55 W. Monroe St., Suite 4000
Chicago, IL 60603
Phone: (312) 767-9790
Email: dsinars@sinarsrollins.com
Lamons Gasket Company, Defendant, represented by:
Leo W. Nelsen, Jr., Esq.
Paul B. Lee, Esq.
Nelsen & Lee, P.C.
1010 Market Street, Suite 500
St. Louis, Missouri 63101
Phone: (314) 584-4569
Fax: 314.621.9802
Email: lnelsen@nlpc-law.com
plee@nlpc-law.com
Metropolitan Life Insurance Company, Defendant, represented by:
Charles L. Joley, Esq.
Georgiann Oliver, Esq.
Joley, Oliver & Beasley, P.C.
8 East Washington
Belleville, Il 62220
Phone: (618)235-2020
Fax: (855)235-6632
Email: cjoley@ilmoattorneys.com
goliver@ilmoattorneys.com
Pnuemo Abex Corporation, Defendant, represented by:
Thomas L. Orris, Esq.
Ross S. Titzer, Esq.
Cosmich, Simmons and Brown PLLC
10 South Broadway, Suite 1100
St. Louis, MO 63102
Phone: 314.735.2560
Fax: 314.552.7019
Email: tom.orris@cs-law.com
ross.titzer@cs-law.com
Taco, Inc., Defendant, represented by:
Benjamin Daniel Woodard, Esq.
Jon A. Santangelo, Esq.
Stinson and Leonard LLP
7700 Forsyth Blvd., Suite 1100
St. Louis, MO 63105
Phone: 314.863.0800
Email: benjamin.woodard@stinson.com
jon.santangelo@stinson.com
Crane Co., individually, Cross Claimant, represented by:
Benjamin John Wilson, Esq.
Hepler Broom, LLC
211 North Broadway Suite 2700
Phone: 314.241.6160
Fax: 314.241.6116
Email: bwilson@heplerbroom.com
Crane Co., individually, Cross Defendant, represented by:
Benjamin John Wilson, Esq.
Carl J. Geraci, Esq.
Hepler Broom, LLC
211 North Broadway Suite 2700
Phone: 314.241.6160
Fax: 314.241.6116
Email: bwilson@heplerbroom.com
cgeraci@heplerbroom.com
ALFA Laval, Inc., Cross Defendant, represented by:
Paul W. Lore, Esq.
Marcie J. Vantine, Esq.
Swanson Martin & Bell, LLP
800 Market Street, Suite 2100
St. Louis, Missouri 63101
Tel: 314-241-7100
Fax: 314-241-7106
Air & Liquid Systems Corporation, Cross Defendant, represented
by:
Gregory C. Flatt, Esq.
Patrick D. Cloud, Esq.
Heyl and Royster
105 West Vandalia Street
Mark Twain Plaza III, Suite 100
PO Box 467
Edwardsville, IL 62025
Telephone: 618.656.4646
Email: gflatt@heylroyster.com
pcloud@heylroyster.com
-- and --
Brady Lee Green, Esq.
Wilbraham and Lawler PC
1818 Market Street, Suite 3100
Philadelphia, PA, 19103
Phone Number: 215-564-4141
Fax Number: 215-564-4385
Aurora Pump Company, Cross Defendant, represented by:
Melanie E. Riley, Esq.
Michael P. McGinley, Esq.
Sandberg Phoenix, P.C.
600 Washington Avenue, 15th Floor
St Louis, MO 63101
Phone: 314.231.3332
Email: mmcginley@sandbergphoenix.com
mriley@sandbergphoenix.com
Crown, Cork & Seal Company, Inc., Cross Defendant, represented
by:
Stephen J. Maassen, Esq.
RYNEARSON AND SUESS LLC
107 Southpointe Dr.
Edwardsville, IL 62025
Phone: 618.659.0588
Email: smaassen@rssclaw.com
FMC Corporation, as successor of Northern Pumps and Peerless
Pumps, Cross Defendant, represented by:
Marcie J. Vantine, Esq.
Robert W. Stephens, Esq.
Swanson and Martin, LLP
800 Market Street, Suite 2100
St. Louis, Missouri 63101
Phone: 314-241-7100
Fax: 314-241-7106
Email: mvantine@smbtrials.com
rstephens@smbtrials.com
General Gasket Corporation, Cross Defendant, represented by:
Agota Peterfy, Esq.
Albert J. Bronsky, Esq.
BROWN AND JAMES, P.C.
800 Market Street, Suite 1100
St. Louis, MO 63101
Tel: (314) 242-5304
Fax: (314) 242-5504
Email: apeterfy@bjpc.com
ajbronsky@bjpc.com
Grinnell, LLC, ITT Corporation & J.R. Clarkson Company, successor
to The Kunkle Valve Company and successor to J.E. Lonergan
Company, Cross Defendants, represented by:
Julia Yasmin Tayyab, Esq.
Morgan Lewis
77 West Wacker Dr.
Chicago, IL 60601-5094
Phone: 312.324.1136
Fax: 312.324.1000
Email: yasmin.tayyab@morganlewis.com
Lamons Gasket Company, Cross Defendant, represented by:
Leo W. Nelsen, Jr., Esq.
Paul B. Lee, Esq.
Nelsen & Lee, P.C.
1010 Market Street, Suite 500
St. Louis, Missouri 63101
Phone: (314) 584-4569
Fax: 314.621.9802
Email: lnelsen@nlpc-law.com
plee@nlpc-law.com
Metropolitan Life Insurance Company, Defendant, represented by:
Richard G. Gawlowski, Esq.
Wilson Smith Cochran & Dickerson
901 Fifth Avenue, Suite 1700
Seattle, Washington 98164-2050
Phone: 206-623-4100
Fax: 206-623-9273
Email: gawlowski@wscd.com
Pnuemo Abex Corporation, Cross Defendant, represented by:
Thomas L. Orris, Esq.
Ross S. Titzer, Esq.
Cosmich, Simmons and Brown PLLC
10 South Broadway, Suite 1100
St. Louis, MO 63102
Phone: 314.735.2560
Fax: 314.552.7019
Email: tom.orris@cs-law.com
ross.titzer@cs-law.com
Taco, Inc., Cross Defendant, represented by:
Benjamin Daniel Woodard, Esq.
Jon A. Santangelo, Esq.
Stinson and Leonard LLP
7700 Forsyth Blvd., Suite 1100
St. Louis, MO 63105
Phone: 314.863.0800
Email: benjamin.woodard@stinson.com
jon.santangelo@stinson.com
Viking Pump, Inc., Cross Defendant, represented by:
Gregory C. Flatt, Esq.
Patrick D. Cloud, Esq.
Heyl and Royster
105 West Vandalia Street
Mark Twain Plaza III, Suite 100
PO Box 467
Edwardsville, IL 62025
Telephone: 618.656.4646
Email: gflatt@heylroyster.com
pcloud@heylroyster.com
Air & Liquid Systems Corporation & Viking Pump, Inc., Cross
Claimants, represented by:
Gregory C. Flatt, Esq.
Patrick D. Cloud, Esq.
Heyl and Royster
105 West Vandalia Street
Mark Twain Plaza III, Suite 100
PO Box 467
Edwardsville, IL 62025
Telephone: 618.656.4646
Email: gflatt@heylroyster.com
pcloud@heylroyster.com
Pnuemo Abex Corporation, Cross Claimant, represented by:
Thomas L. Orris, Esq.
Ross S. Titzer, Esq.
Cosmich, Simmons and Brown PLLC
10 South Broadway, Suite 1100
St. Louis, MO 63102
Phone: 314.735.2560
Fax: 314.552.7019
Email: tom.orris@cs-law.com
ross.titzer@cs-law.com
Taco, Inc., Cross Claimant, represented by:
Benjamin Daniel Woodard, Esq.
Jon A. Santangelo, Esq.
Stinson and Leonard LLP
7700 Forsyth Blvd., Suite 1100
St. Louis, MO 63105
Phone: 314.863.0800
Email: benjamin.woodard@stinson.com
jon.santangelo@stinson.com
Lamons Gasket Company, Cross Claimant, represented by:
Leo W. Nelsen, Jr., Esq.
Paul B. Lee, Esq.
Nelsen & Lee, P.C.
1010 Market Street, Suite 500
St. Louis, Missouri 63101
Phone: (314) 584-4569
Fax: 314.621.9802
Email: lnelsen@nlpc-law.com
plee@nlpc-law.com
Flora Everett & Willie Everett, Cross Defendants, represented by:
Carson C. Menges, Esq.
MENGES LAW
6400 West Main Street Suite 1G
Belleville, IL 62223
Phone: (618) 277-6646
-- and --
David W. Henderson, Esq.
Lisa W. Shirley, Esq.
Charles William Branham, III, Esq.
DEAN AND OMAR, LLP
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: (214) 722-5990
Email: dhenderson@dobllp.com
lshirley@dobllp.com
tbranham@dobllp.com
-- and --
Michael B. Patronella, Esq.
LUBEL VOYLES, LLP
5020 Montrose Boulevard, Suite 800
Houston, TX 77006
Phone: 713-284-5200
Fax: 713-284-5250
Aurora Pump Company, Cross Claimant, represented by:
Melanie E. Riley, Esq.
Michael P. McGinley, Esq.
SANDBERG PHOENIX, P.C.
600 Washington Avenue, 15th Floor
St Louis, MO 63101
Phone: 314.231.3332
Email: mriley@sandbergphoenix.com
mmcginley@sandbergphoenix.com
Draco Mechanical Supply, Inc., Cross Defendant, represented by:
Jennifer M. Valentino, Esq.
Lindsay A. Dibler, Esq.
Kurowski Schultz, LLC
1405 Green Mount Road, Suite 400
O'Fallon, IL 62269
Direct: 618.277.5500
Fax: 618.277.6334
Email: ldibler@kurowskishultz.com
JP Bushnell Packing Supply Company, Inc., Cross Defendant,
represented by:
Douglas Michael Sinars, Esq.
Sinars and Rollins, LLC
55 W. Monroe St., Suite 4000
Chicago, IL 60603
Phone: (312) 767-9790
Email: dsinars@sinarsrollins.com
Borg-Warner Morse TEC LLC, as successor by merger Borg Warner
Corporation, Cross Defendant, represented by:
Andrew M. Voss, Esq.
Lizabeth M. Conran, Esq.
Michael C. Pagan, Esq.
Greensfelder and Hemker, PC
10 South Broadway, Suite 2000
St. Louis, MO 63102
Phone: 314.241.9090
Fax: 314.241.8624
Email: amv@greensfelder.com
lmc@greensfelder.com
mpagan@greensfelder.com
Lufkin Industries, Inc., Cross Defendant, represented by:
John P. Cunningham, Esq.
Melvin Tucker Blaser, Esq.
BROWN AND JAMES, P.C.
800 Market Street, Suite 1100
St. Louis, MO 63101
Tel: (314) 242-5304
Fax: (314) 242-5504
Email: jcunningham@bjpc.com
Union Carbide Corporation, Cross Defendant, represented by:
Charles S. Anderson, Esq.
Jeffrey T. Bash, Esq.
Justin S. Zimmerman, Esq.
Lewis and Brisbois, LLP
103 W. Vandalia St., Suite 300
Edwardsville, IL 62025
Tel: 618.307.7290
Fax: 618.692.6099
Email Charles.Anderson@lewisbrisbois.com
Jeff.Bash@lewisbrisbois.com
Justin.Zimmerman@lewisbrisbois.com
General Gasket Corporation, Cross Claimant, represented by:
Agota Peterfy, Esq.
Albert J. Bronsky, Esq.
BROWN AND JAMES, P.C.
800 Market Street, Suite 1100
St. Louis, MO 63101
Tel: (314) 242-5304
Fax: (314) 242-5504
Email: apeterfy@bjpc.com
ajbronsky@bjpc.com
ASBESTOS UPDATE: WRG Asbestos Trust May File Amicus Curiae Brief
----------------------------------------------------------------
The Court of Appeals of New York granted WRG Asbestos PI Trust's
motion for leave to file a brief amicus curiae on the appeal and
accepted the proposed brief in the appealed case Keyspan Gas East
Corporation, Appellant, v. Munich Reinsurance America, Inc., et
al., Defendants, Century Indemnity Company, Respondent, Motion
No. 2018-44, (N.Y.).
A full-text copy of the Order dated January 11, 2018, is
available at https://is.gd/xu7651 from Leagle.com.
ASBESTOS UPDATE: Ampco-Pittsburgh Has 6,745 Claims at Sept. 30
--------------------------------------------------------------
Ampco-Pittsburgh Corporation has 6,745 asbestos-related claims
pending at September 30, 2017, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended September 30, 2017.
The Company states, "Claims have been asserted alleging personal
injury from exposure to asbestos-containing components
historically used in some products of predecessors of Air &
Liquid Systems Corporation ("Asbestos Liability"). Those
subsidiaries, and in some cases the Corporation, are defendants
(among a number of defendants) in cases filed in various state
and federal courts.
"Included as "open claims" are approximately 480 and 415 claims
as of September 30, 2017, and 2016, respectively, classified in
various jurisdictions as "inactive" or transferred to a state or
federal judicial panel on multi-district litigation, commonly
referred to as the MDL.
"A substantial majority of the settlement and defense costs was
reported and paid by insurers. Because claims are often filed
and can be settled or dismissed in large groups, the amount and
timing of settlements, as well as the number of open claims, can
fluctuate significantly from period to period."
A full-text copy of the Form 10-Q is available at
https://is.gd/cjorDc
ASBESTOS UPDATE: Ampco-Pittsburgh Has $154.7MM Liability Reserve
----------------------------------------------------------------
Ampco-Pittsburgh Corporation has US$154,663,000 reserve at
September 30, 2017, for the total costs, including defense costs,
for Asbestos Liability claims pending or projected to be asserted
through 2026, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2017.
The Company states, "In 2006, the Corporation retained Hamilton,
Rabinovitz & Associates, Inc. ("HR&A"), a nationally recognized
expert in the valuation of asbestos liabilities, to assist the
Corporation in estimating the potential liability for pending and
unasserted future claims for Asbestos Liability. Based on this
analysis, the Corporation recorded a reserve for Asbestos
Liability claims pending or projected to be asserted through 2013
as of December 31, 2006. HR&A's analysis has been periodically
updated since that time. Most recently, the HR&A analysis was
updated in 2016, and additional reserves were established by the
Corporation as of December 31, 2016, for Asbestos Liability
claims pending or projected to be asserted through 2026. The
methodology used by HR&A in its projection in 2016 of the
operating subsidiaries' liability for pending and unasserted
potential future claims for Asbestos Liability, which is
substantially the same as the methodology employed by HR&A in
prior estimates, relied upon and included the following factors:
* HR&A's interpretation of a widely accepted forecast of the
population likely to have been exposed to asbestos;
* epidemiological studies estimating the number of people
likely to develop asbestos-related diseases;
* HR&A's analysis of the number of people likely to file an
asbestos-related injury claim against the subsidiaries and the
Corporation based on such epidemiological data and relevant
claims history from January 1, 2014, to September 9, 2016;
* an analysis of pending cases, by type of injury claimed and
jurisdiction where the claim is filed;
* an analysis of claims resolution history from January 1,
2014, to September 9, 2016, to determine the average settlement
value of claims, by type of injury claimed and jurisdiction of
filing; and
* an adjustment for inflation in the future average settlement
value of claims, at an annual inflation rate based on the
Congressional Budget Office's ten year forecast of inflation.
"Using this information, HR&A estimated in 2016 the number of
future claims for Asbestos Liability that would be filed through
the year 2026, as well as the settlement or indemnity costs that
would be incurred to resolve both pending and future unasserted
claims through 2026. This methodology has been accepted by
numerous courts.
"In conjunction with developing the aggregate liability estimate,
the Corporation also developed an estimate of probable insurance
recoveries for its Asbestos Liabilities. In developing the
estimate, the Corporation considered HR&A's projection for
settlement or indemnity costs for Asbestos Liability and
management's projection of associated defense costs (based on the
current defense to indemnity cost ratio), as well as a number of
additional factors. These additional factors included the
Settlement Agreements then in effect, policy exclusions, policy
limits, policy provisions regarding coverage for defense costs,
attachment points, prior impairment of policies and gaps in the
coverage, policy exhaustions, insolvencies among certain of the
insurance carriers, and the nature of the underlying claims for
Asbestos Liability asserted against the subsidiaries and the
Corporation as reflected in the Corporation's asbestos claims
database, as well as estimated erosion of insurance limits on
account of claims against Howden arising out of the Products. In
addition to consulting with the Corporation's outside legal
counsel on these insurance matters, the Corporation consulted
with a nationally-recognized insurance consulting firm it
retained to assist the Corporation with certain policy allocation
matters that also are among the several factors considered by the
Corporation when analyzing potential recoveries from relevant
historical insurance for Asbestos Liabilities. Based upon all of
the factors considered by the Corporation, and taking into
account the Corporation's analysis of publicly available
information regarding the credit-worthiness of various insurers,
the Corporation estimated the probable insurance recoveries for
Asbestos Liability and defense costs through 2026. Although the
Corporation believes that the assumptions employed in the
insurance valuation were reasonable and previously consulted with
its outside legal counsel and insurance consultant regarding
those assumptions, there are other assumptions that could have
been employed that would have resulted in materially lower
insurance recovery projections.
"Based on the analyses, the Corporation's reserve at December 31,
2016, for the total costs, including defense costs, for Asbestos
Liability claims pending or projected to be asserted through 2026
was US$171,181,000, of which approximately 70% was attributable
to settlement costs for unasserted claims projected to be filed
through 2026 and future defense costs. The reserve at September
30, 2017, was US$154,663,000. While it is reasonably possible
that the Corporation will incur additional charges for Asbestos
Liability and defense costs in excess of the amounts currently
reserved, the Corporation believes that there is too much
uncertainty to provide for reasonable estimation of the number of
future claims, the nature of such claims and the cost to resolve
them beyond 2026. Accordingly, no reserve has been recorded for
any costs that may be incurred after 2026.
"The Corporation's receivable at December 31, 2016, for insurance
recoveries attributable to the claims for which the Corporation's
Asbestos Liability reserve has been established, including the
portion of incurred defense costs covered by the Settlement
Agreements in effect through December 31, 2016, and the probable
payments and reimbursements relating to the estimated indemnity
and defense costs for pending and unasserted future Asbestos
Liability claims, was US$115,945,000 (US$103,891,000 at September
30, 2017)."
A full-text copy of the Form 10-Q is available at
https://is.gd/cjorDc
ASBESTOS UPDATE: 56,500 Claims Pending vs. AO at Oct. 1
-------------------------------------------------------
Pfizer Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
October 1, 2017, that about 56,500 claims naming American Optical
and numerous other defendants were pending as of October 1, 2017,
in various federal and state courts seeking damages for alleged
personal injury from exposure to asbestos and other allegedly
hazardous materials.
The Company states, "Between 1967 and 1982, Warner-Lambert owned
American Optical Corporation, which manufactured and sold
respiratory protective devices and asbestos safety clothing. In
connection with the sale of American Optical in 1982, Warner-
Lambert agreed to indemnify the purchaser for certain
liabilities, including certain asbestos-related and other claims.
As of October 1, 2017, approximately 56,500 claims naming
American Optical and numerous other defendants were pending in
various federal and state courts seeking damages for alleged
personal injury from exposure to asbestos and other allegedly
hazardous materials.
"Warner-Lambert was acquired by Pfizer in 2000 and is a wholly-
owned subsidiary of Pfizer. Warner-Lambert is actively engaged
in the defense of, and will continue to explore various means of
resolving, these claims."
A full-text copy of the Form 10-Q is available at
https://is.gd/CbKohV
ASBESTOS UPDATE: Pfizer Still Defends Various Suits at Oct. 1
-------------------------------------------------------------
Pfizer Inc. still defends itself against a number of asbestos-
related lawsuits, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended October 1, 2017.
The Company states, "Numerous lawsuits are pending against Pfizer
in various federal and state courts seeking damages for alleged
personal injury from exposure to products allegedly containing
asbestos and other allegedly hazardous materials sold by Pfizer
and certain of its previously owned subsidiaries.
"There also are a small number of lawsuits pending in various
federal and state courts seeking damages for alleged exposure to
asbestos in facilities owned or formerly owned by Pfizer or its
subsidiaries."
A full-text copy of the Form 10-Q is available at
https://is.gd/CbKohV
ASBESTOS UPDATE: OfficeMax Still Responsible for Cases at Sep.30
----------------------------------------------------------------
OfficeMax still retains responsibility for all pending and future
asbestos-related proceedings related to a former operation,
according to Office Depot, Inc.'s Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2017.
On November 5, 2013, Office Depot completed its merger with
OfficeMax Incorporated in an all-stock transaction.
Office Depot states, "OfficeMax is named a defendant in a number
of lawsuits, claims, and proceedings arising out of the operation
of certain paper and forest products assets prior to those assets
being sold in 2004, for which OfficeMax agreed to retain
responsibility. Also, as part of that sale, OfficeMax agreed to
retain responsibility for all pending or threatened proceedings
and future proceedings alleging asbestos-related injuries arising
out of the operation of the paper and forest products assets
prior to the closing of the sale. The Company has made provision
for losses with respect to the pending proceedings.
Additionally, as of September 30, 2017, the Company has provided
for environmental liabilities with respect to certain sites where
hazardous substances or other contaminants are or may be located.
For these environmental and toxic tort liabilities, our estimated
range of reasonably possible losses was approximately US$10
million to US$25 million. The Company regularly monitors its
estimated exposure to these liabilities. As additional
information becomes known, these estimates may change, however,
the Company does not believe any of these OfficeMax retained
proceedings are material to the Company's financial position,
results of operations or cash flows."
A full-text copy of the Form 10-Q is available at
https://is.gd/GIl8UE
ASBESTOS UPDATE: Tyson Foods to Appeal $13MM Judgment vs. Unit
--------------------------------------------------------------
Tyson Foods, Inc., said in its Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2017, that it intends to appeal the jury's US$13
million verdict in favor of the plaintiffs in an asbestos
exposure case filed against its subsidiary in California.
The Company states, "The Hillshire Brands Company was named as a
defendant in an asbestos exposure case filed by Mark Lopez in May
2014 in the Superior Court of Alameda County, California. Mr.
Lopez was diagnosed with mesothelioma in January 2014 and is now
deceased. Mr. Lopez's family members asserted negligence,
premises liability and strict liability claims related to Mr.
Lopez's alleged asbestos exposure from 1954-1986 from the Union
Sugar plant in Betteravia, California. The plant, which was sold
in 1986, was owned by entities that were predecessors-in-interest
to The Hillshire Brands Company. In August 2017, the jury
returned a verdict of approximately US$13 million in favor of the
plaintiffs, and a judgment was entered. We intend to appeal the
judgment."
A full-text copy of the Form 10-K is available at
https://is.gd/UO3cNR
ASBESTOS UPDATE: Park-Ohio Industries Faces 89 Suits at Sept. 30
----------------------------------------------------------------
Park-Ohio Industries, Inc., remains a co-defendant in around 89
asbestos-related personal injury cases, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2017.
The Company states, "We were a co-defendant in approximately 89
cases asserting claims on behalf of approximately 143 plaintiffs
alleging personal injury as a result of exposure to asbestos.
These asbestos cases generally relate to production and sale of
asbestos-containing products and allege various theories of
liability, including negligence, gross negligence and strict
liability, and seek compensatory and, in some cases, punitive
damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a
minimum amount sufficient to establish jurisdiction of the court
in which the case was filed (jurisdictional minimums generally
range from US$25,000 to US$75,000), or do not specify the
monetary damages sought. To the extent that any specific amount
of damages is sought, the amount applies to claims against all
named defendants.
"There are four asbestos cases, involving 21 plaintiffs, that
plead specified damages against named defendants. In each of the
four cases, the plaintiff is seeking compensatory and punitive
damages based on a variety of potentially alternative causes of
action. In three cases, the plaintiff has alleged three counts
at US$3.0 million compensatory and punitive damages each; one
count at US$3 million compensatory and US$1 million punitive
damages; one count at US$1.0 million. In the fourth case, the
plaintiff has alleged compensatory and punitive damages, each in
the amount of US$20.0 million, for three separate causes of
action, and US$5.0 million compensatory damages for the fourth
cause of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-
containing product manufactured or sold by us or our
subsidiaries. We intend to vigorously defend these asbestos
cases, and believe we will continue to be successful in being
dismissed from such cases. However, it is not possible to
predict the ultimate outcome of asbestos-related lawsuits, claims
and proceedings due to the unpredictable nature of personal
injury litigation. Despite this uncertainty, and although our
results of operations and cash flows for a particular period
could be adversely affected by asbestos-related lawsuits, claims
and proceedings, management believes that the ultimate resolution
of these matters will not have a material adverse effect on our
financial condition, liquidity or results of operations. Among
the factors management considered in reaching this conclusion
were: (a) our historical success in being dismissed from these
types of lawsuits on the bases mentioned; (b) many cases have
been improperly filed against one of our subsidiaries; (c) in
many cases the plaintiffs have been unable to establish any
causal relationship to us or our products or premises; (d) in
many cases, the plaintiffs have been unable to demonstrate that
they have suffered any identifiable injury or compensable loss at
all or that any injuries that they have incurred did in fact
result from alleged exposure to asbestos; and (e) the complaints
assert claims against multiple defendants and, in most cases, the
damages alleged are not attributed to individual defendants.
Additionally, we do not believe that the amounts claimed in any
of the asbestos cases are meaningful indicators of our potential
exposure because the amounts claimed typically bear no relation
to the extent of the plaintiff's injury, if any.
"Our cost of defending these lawsuits has not been material to
date and, based upon available information, our management does
not expect its future costs for asbestos-related lawsuits to have
a material adverse effect on our results of operations, liquidity
or financial position."
A full-text copy of the Form 10-Q is available at
https://is.gd/EdYgTK
ASBESTOS UPDATE: Kaanapali Land Still Defends Suits at Sept. 30
---------------------------------------------------------------
Kaanapali Land, LLC, still defends in personal injury suits
related to asbestos exposure, according to the Company's Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended September 30, 2017.
The Company states, "Kaanapali Land, as successor by merger to
other entities, and D/C have been named as defendants in personal
injury actions allegedly based on exposure to asbestos. While
there are relatively few cases that name Kaanapali Land, there
were a substantial number of cases that were pending against D/C
on the U.S. mainland (primarily in California).
"Cases against Kaanapali Land (hereafter, "Kaanapali Land
asbestos cases") are allegedly based on its prior business
operations in Hawaii and cases against D/C are allegedly based on
sale of asbestos-containing products by D/C's prior distribution
business operations primarily in California. Each entity
defending these cases believes that it has meritorious defenses
against these actions, but can give no assurances as to the
ultimate outcome of these cases. The defense of these cases has
had a material adverse effect on the financial condition of D/C
as it has been forced to file a voluntary petition for
liquidation.
"Kaanapali Land does not believe that it has liability, directly
or indirectly, for D/C's obligations in those cases. Kaanapali
Land does not presently believe that the cases in which it is
named will result in any material liability to Kaanapali Land;
however, there can be no assurance in that regard."
A full-text copy of the Form 10-Q is available at
https://is.gd/XxqcoA
ASBESTOS UPDATE: Kaanapali Insurance Talks Ongoing at Sept. 30
--------------------------------------------------------------
Kaanapali Land, LLC, disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that its discussion with Fireman's Fund
Insurance Corporation remain ongoing related to insurance
coverage on the asbestos lawsuits that the Company is facing.
The Company states, "On February 12, 2014, counsel for Fireman's
Fund, the carrier that has been paying defense costs and
settlements for the Kaanapali Land asbestos cases, stated that it
would no longer advance fund settlements or judgments in the
Kaanapali Land asbestos cases due to the pendency of the D/C and
Oahu Sugar bankruptcies.
"In its communications with Kaanapali Land, Fireman's fund
expressed its view that the automatic stay in effect in the D/C
bankruptcy case bars Fireman's Fund from making any payments to
resolve the Kaanapali Land asbestos claims because D/C
Distribution is also alleging a right to coverage under those
policies for asbestos claims against it. However, in the
interim, Fireman's Fund advised that it presently intends to
continue to pay defense costs for those cases, subject to
whatever reservations of rights may be in effect and subject
further to the policy terms.
"Fireman's Fund has also indicated that to the extent that
Kaanapali Land cooperates with Fireman's Fund in addressing
settlement of the Kaanapali Land asbestos cases through
coordination with its adjusters, it is Fireman's Fund's present
intention to reimburse any such payments by Kaanapali Land,
subject, among other things, to the terms of any lift-stay order,
the limits and other terms and conditions of the policies, and
prior approval of the settlements.
"Kaanapali Land continues to pursue discussions with Fireman's
Fund in an attempt to resolve the issues, however, Kaanapali Land
is unable to determine what portion, if any, of settlements or
judgments in the Kaanapali Land asbestos cases will be covered by
insurance."
A full-text copy of the Form 10-Q is available at
https://is.gd/XxqcoA
ASBESTOS UPDATE: D/C Still Defends A&F Lawsuit at Sept. 30
----------------------------------------------------------
Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation,
still defends itself against the insurance coverage lawsuit filed
by American & Foreign Insurance Company, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2017.
The Company states, "On February 15, 2005, D/C was served with a
lawsuit entitled American & Foreign Insurance Company v. D/C
Distribution and Amfac Corporation, Case No. 04433669 filed in
the Superior Court of the State of California for the County of
San Francisco, Central Justice Center. No other purported party
was served. In the eight-count complaint for declaratory relief,
reimbursement and recoupment of unspecified amounts, costs and
for such other relief as the court might grant, plaintiff alleged
that it is an insurance company to whom D/C tendered for defense
and indemnity various personal injury lawsuits allegedly based on
exposure to asbestos containing products. Plaintiff alleged that
because none of the parties have been able to produce a copy of
the policy or policies in question, a judicial determination of
the material terms of the missing policy or policies is needed.
Plaintiff sought, among other things, a declaration: of the
material terms, rights, and obligations of the parties under the
terms of the policy or policies; that the policies were
exhausted; that plaintiff is not obligated to reimburse D/C for
its attorneys' fees in that the amounts of attorneys' fees
incurred by D/C have been incurred unreasonably; that plaintiff
was entitled to recoupment and reimbursement of some or all of
the amounts it has paid for defense and/or indemnity; and that
D/C breached its obligation of cooperation with plaintiff. D/C
filed an answer and an amended cross-claim. D/C believed that it
had meritorious defenses and positions, and intended to
vigorously defend. In addition, D/C believed that it was
entitled to amounts from plaintiffs for reimbursement and
recoupment of amounts expended by D/C on the lawsuits previously
tendered. In order to fund such action and its other ongoing
obligations while such lawsuit continued, D/C entered into a Loan
Agreement and Security Agreement with Kaanapali Land, in August
2006, whereby Kaanapali Land provided certain advances against a
promissory note delivered by D/C in return for a security
interest in any D/C insurance policy at issue in this lawsuit.
In June 2007, the parties settled this lawsuit with payment by
plaintiffs in the amount of US$1,618. Such settlement amount was
paid to Kaanapali Land in partial satisfaction of the secured
indebtedness noted.
Because D/C was substantially without assets and was unable to
obtain additional sources of capital to satisfy its liabilities,
D/C filed with the United States Bankruptcy Court, Northern
District of Illinois, its voluntary petition for liquidation
under Chapter 7 of Title 11, United States Bankruptcy Code during
July 2007, Case No. 07-12776. Such filing is not expected to
have a material adverse effect on the Company as D/C was
substantially without assets at the time of the filing.
Kaanapali Land filed claims in the D/C bankruptcy that aggregated
approximately US$26,800, relating to both secured and unsecured
intercompany debts owed by D/C to Kaanapali Land. In addition, a
personal injury law firm based in San Francisco that represents
clients with asbestos-related claims, filed proofs of claim on
behalf of approximately two thousand claimants. While it is not
likely that a significant number of these claimants have a claim
against D/C that could withstand a vigorous defense, it is
unknown how the trustee will deal with these claims. It is not
expected, however, that the Company will receive any material
additional amounts in the liquidation of D/C.
A full-text copy of the Form 10-Q is available at
https://is.gd/XxqcoA
ASBESTOS UPDATE: D/C Lift Stay Issue Still Pending at Sept. 30
--------------------------------------------------------------
A motion to lift stay remains pending in the bankruptcy cases of
Kaanapali Land, LLC's subsidiary, /C Distribution Corporation,
according to Kaanapali's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2017. The bankruptcy court has previously lifted
the stay in
2015, but the decision was reversed by the district court in
2016.
The Company states, "On or about April 28, 2015, eight litigants
who filed asbestos claims in California state court (hereinafter,
"Petitioners") filed a motion for relief from the automatic stay
in the D/C bankruptcy (hereinafter "life stay motion"). Under
relevant provisions of the bankruptcy rules and on the filing of
the D/C bankruptcy action, all pending litigation claims against
D/C were stayed pending resolution of the bankruptcy action. In
their motion, Petitioners asked the bankruptcy court to lift the
stay in the bankruptcy court to name D/C and/or its alternate
entities as defendants in their respective California state court
asbestos actions and to satisfy their claims against insurance
policies that defend and indemnify D/C and/or their alternate
entities. The Petitioner's motion to lift stay thus in part has
as an objective ultimate recovery, if any, from, among other
things, insurance policy proceeds that were allegedly assets of
both the D/C and Oahu Sugar bankruptcy estates.
"Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar
bankruptcy and the Fireman's Fund policies are allegedly among
the assets of the Oahu Sugar bankruptcy estate as well. For this
and other reasons, Kaanapali, the EPA and the Navy opposed the
motion to lift stay.
"After briefing and argument, on May 14, 2015, the United States
Bankruptcy Court, for the Northern District of Illinois, Eastern
Division, in In Re D/C Distribution, LLC, Bankruptcy Case No. 07-
12776, issued an order lifting the stay. In the order, the court
permitted the Petitioners to "proceed in the applicable
nonbankruptcy forum to final judgment (including any appeals) in
accordance with applicable nonbankruptcy law. Claimants are
entitled to settle or enforce their claims only by collecting
upon any available insurance Debtor's liability to them in
accordance with applicable nonbankruptcy law. No recovery may be
made directly against the property of Debtor, or property of the
bankruptcy estate." Kaanapali, Firemen's Fund and the United
States appealed the bankruptcy court order lifting the stay.
"In March 2016, the district court reversed the bankruptcy court
order finding that the bankruptcy court did not apply relevant
law to the facts in the case to arrive at a reasoned decision.
On appeal the district court noted that the law requires
consideration of a number of factors when lifting a stay to
permit certain claims to proceed, including consideration of the
adequacy of remaining insurance to meet claims still subject to
the stay. Among other things, the court noted that the
bankruptcy court failed to explain why it was appropriate for the
petitioners to liquidate their claims before the other claimants
whose claims remained subject to the stay. The district court
remanded the case for further proceedings. It is uncertain
whether such further proceedings on the lift stay will take
place.
"The parties in the D/C and Oahu Sugar bankruptcies have reached
out to each other to determine if there is any interest in
pursuing a global settlement of the claims in the Oahu Sugar and
D/C bankruptcies insofar as the Fireman's Fund insurance policies
are concerned. If such discussions take place, they may take the
form of a mediation or other format and involve some form of
resolution of Kaanapali's interest in various of the Fireman's
Fund insurance policies for Kaanapali's various and future
insurance claims. Kaanapali may consider entering into such
discussions, but there is no assurance that such discussions will
take place or prove successful in resolving any of the claims in
whole or in part."
A full-text copy of the Form 10-Q is available at
https://is.gd/XxqcoA
ASBESTOS UPDATE: Gardner Denver Had $102.8MM Litigation Reserve
---------------------------------------------------------------
Gardner Denver Holdings, Inc. had total litigation reserve of
US$102.8 million as of September 30, 2017, with respect to
potential liability arising from asbestos-related litigation,
according to the Company's Form S-1 filed with the U.S.
Securities and Exchange Commission on November 13, 2017.
The Company states, "We have been named as a defendant in many
asbestos-related and silica-related personal injury lawsuits.
The plaintiffs in these suits allege exposure to asbestos or
silica from multiple sources and typically we are one of
approximately 25 or more named defendants.
"Our predecessors sometimes manufactured, distributed and/or sold
products allegedly at issue in these pending asbestos and silica-
related lawsuits (the "Products"). However, neither we nor our
predecessors ever mined, manufactured, mixed, produced or
distributed asbestos fiber or silica sand, the materials that
allegedly caused the injury underlying the lawsuits. Moreover,
the asbestos-containing components of the Products, if any, were
enclosed within the subject Products.
"Although we have never mined, manufactured, mixed, produced or
distributed asbestos fiber or silica, many of the companies that
did engage in such activities or produced such products are no
longer in operation. This has led to law firms seeking potential
alternative companies to name in lawsuits where there has been an
asbestos or silica related injury. However, in our opinion,
based on our experience to date, the substantial majority of the
plaintiffs have not suffered an injury for which we bear
responsibility.
"We believe that the pending and future asbestos and silica-
related lawsuits are not likely to, in the aggregate, have a
material adverse effect on its consolidated financial position,
results of operations or liquidity, based on: our anticipated
insurance and indemnification rights to address the risks of such
matters; the limited potential asbestos exposure from the
Products described; our opinion, based on our experience to date,
that the vast majority of plaintiffs are not impaired with a
disease attributable to alleged exposure to asbestos or silica
from or relating to the Products or for which we otherwise bear
responsibility; various potential defenses available to us with
respect to such matters; and our prior disposition of comparable
matters. However, inherent uncertainties of litigation and
future developments, including, without limitation, potential
insolvencies of insurance companies or other defendants, an
adverse determination in the Adams County Case, or other
inability to collect from our historical insurers or indemnitors,
could cause a different outcome. While the outcome of legal
proceedings is inherently uncertain, based on presently known
facts, experience and circumstances, we believe that the amounts
accrued on the Company's balance sheet are adequate and that the
liabilities arising from the asbestos and silica-related personal
injury lawsuits will not have a material adverse effect on the
Company's consolidated financial position, results of operations
or liquidity.
"We have accrued liabilities and other liabilities on our
consolidated balance sheet to include a total litigation reserve
of US$102.8 million and US$108.5 million as of September 30, 2017
and December 31, 2016 respectively, with respect to potential
liability arising from our asbestos-related litigation (with an
increase in reserve from December 31, 2015 resulting from a
change in certain actuarial assumptions used in our projection of
potential liability, without which we believe the reserve as of
December 31, 2016 would have been less than the December 31, 2015
reserve of US$94.1 million). Asbestos-related defense costs are
excluded from the asbestos claims liability and are recorded
separately as an operating expense as services are incurred. We
currently expect to continue to incur significant asbestos-
related defense costs. In the event of unexpected future
developments, it is possible that the ultimate resolution of
these matters may be material to the Company's consolidated
financial position, results of operation or liquidity, and
defense costs may be material. However, at this time, based on
presently available information, we view this possibility as
remote.
"We have entered into a series of agreements with certain of the
Company's or the Company's predecessors' legacy insurers and
certain potential indemnitors to secure insurance coverage and/or
reimbursement for the costs associated with the asbestos and
silica-related lawsuits filed against us. We have also pursued
litigation against certain insurers or indemnitors where
necessary. We have an insurance recovery receivable for probable
asbestos related recoveries of approximately US$97.3 million,
which is included on our consolidated balance sheet as of
September 30, 2017 and December 31, 2016.
"The largest such recent action, Gardner Denver, Inc. v. Certain
Underwriters at Lloyd's, London, et al., was filed on July 9,
2010, in the Eighth Judicial Circuit, Adams County, Illinois, as
case number 10-L-48 (the "Adams County Case"). In the lawsuit,
we seek, among other things, to require certain excess insurer
defendants to honor their insurance policy obligations to us,
including payment in whole or in part of the costs associated
with the asbestos-related lawsuits filed against us. In October
2011, we reached a settlement with one of the insurer defendants,
which had issued both primary and excess policies, for
approximately the amount of such defendant's policies which were
subject to the lawsuit. Since then, the case has been proceeding
through the discovery and motions process with the remaining
insurer defendants. On January 29, 2016, we prevailed on the
first phase of that discovery and motions process ("Phase I").
Specifically, the Court in the Adams County Case ruled that we
have rights under all of the policies in the case, subject to
their terms and conditions, even though the policies were sold to
our former owners rather than to the Company itself. On June 9,
2016, the Court denied a motion by several of the insurers who
sought permission to appeal the Phase I ruling now rather than
waiting until the end of the whole case as is normally required.
The case has now begun proceeding through the discovery and
motions process regarding the remaining issues in dispute.
"A majority of our expected future recoveries of the costs
associated with the asbestos-related lawsuits are the subject of
the Adams County Case.
"The amounts we recorded for asbestos-related liabilities and
insurance recoveries are based on currently available information
and assumptions that we believe are reasonable based on our
evaluation of relevant factors with input from a third party
actuarial expert. Our actual liabilities or insurance recoveries
could be higher or lower than those recorded if actual results
vary significantly from the assumptions. There are a number of
key variables and assumptions including the number and type of
new claims to be filed each year, the resolution or outcome of
these claims, the average cost of resolution of each new claim,
the amount of insurance available, allocation methodologies, the
contractual terms with each insurer with whom we have reached
settlements, the resolution of coverage issues with other excess
insurance carriers with whom we have not yet achieved settlements
and the solvency risk with respect to our insurance carriers.
Other factors that may affect our future liability include
uncertainties surrounding the litigation process from
jurisdiction to jurisdiction and from case to case, legal rulings
that may be made by state and federal courts and the passage of
state or federal legislation. We make the necessary adjustments
for our asbestos liability and corresponding insurance recoveries
on an annual basis unless facts or circumstances warrant
assessment as of an interim date."
A full-text copy of the Form S-1 is available at
https://is.gd/OerJvA
ASBESTOS UPDATE: "Edwards" Suit v. Andrea Electronics Pending
-------------------------------------------------------------
Andrea Electronics Corporation remains a defendant, among more
than 90 defendants, in the asbestos-related lawsuit file by
Audrey Edwards, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2017.
The Company states, "In December 2010, Audrey Edwards, Executrix
of the Estate of Leon Leroy Edwards, filed a lawsuit in the
Superior Court of Providence County, Rhode Island, against 3M
Company and over 90 other defendants, including the Company,
alleging that the Company processed, manufactured, designed,
tested, packaged, distributed, marketed or sold asbestos
containing products that contributed to the death of Leon Leroy
Edwards. The Company received service of process in April 2011.
The Company has retained legal counsel and has filed a response
to the compliant. The Company believes the lawsuit is without
merit and has filed a Motion for Summary Judgment to that affect.
Accordingly, the Company does not believe the lawsuit will have a
material adverse effect on the Company's financial position or
results of operations.
A full-text copy of the Form 10-Q is available at
https://is.gd/caQZLv
ASBESTOS UPDATE: Claire's Rebuts Asbestos-Contaminated Products
---------------------------------------------------------------
Lauren Hirsch, retail reporter for CNBC.com, reported that
jewelry store Claire's said that lab results certified its
products as asbestos-free, following allegations of the toxic
substance in its products.
"We are pleased to report that test results received to date from
two certified independent labs confirm that the products in
question are asbestos free, completely safe and meet all
government requirements," the retailer said.
"We also confirmed that the talc ingredient that is used in the
cosmetics was sourced from Merck KGaA and is asbestos free. Any
report that suggests that the products are not safe is totally
false."
A report in December from WJAR-TV in Rhode Island cited Kristi
Warner, who mailed her daughter's glitter makeup kit to a lab,
which said it contained tremolite asbestos, a toxic, cancer-
causing material.
Warner works at the Deaton Law Firm, which focuses primarily on
mass tort asbestos litigation.
Warner sent the products to be tested, because her background
made her aware of the potential danger of the makeup, which was a
gift to her daughter, she told CNBC at the time.
Sean Fitzgerald, director of research and legal services at the
Scientific Analytical Institute, which conducted those tests,
frequently testifies on behalf of plaintiffs in asbestos tort
litigation. He did the initial tests for free for Warner, he told
CNBC. When the lab tested more products to see if asbestos
results proved to be widespread, the Deaton Law Firm footed the
bill, he said.
Fitzgerald told CNBC that he stands by the results. He said some
companies can use testing methods that, although approved, are
not up to today's testing standards.
Testing methods are not always black and white. Last year,
Fitzgerald's testimony in an asbestos suit against Colgate-
Palmolive was excluded, because the judge deemed that Fitzgerald
"[modified] and/or var[ied] from accepted methodologies,"
according to legal news website Law360.
Fitzgerald addressed the issue in the Colgate-Palmolive suit by
saying his testing methods have been accepted in other courts,
and each judge views testing methods differently.
Claire's also said in its statement that it has made multiple
request for detailed test data, but it has not been provided.
Fitzgerald said the detailed data is with his client, the Deaton
Law Firm. Warner said that a document has been sent over to
Claire's outlining testing methods. She also said the firm was
still in possession of the items that had produced the asbestos
positive results, so Claire's has not tested those specific
products for asbestos.
A source familiar with the situation said Claire's believes the
documents sent to its lawyers were insufficient.
John Deaton, who founded the East Providence, Rhode Island, law
firm, could not be immediately reached for comment.
ASBESTOS UPDATE: Study Shows Lake Mead Mice Sick from Asbestos
--------------------------------------------------------------
Julian Duff of Mesothelioma Cancer Alliance reported that a new
study shows that even low doses of asbestos fibers found around
the Lake Mead area make mice sick. The study was conducted to
understand whether rocks in Boulder City are toxic and cause
negative health effects.
The study was undertaken by researchers from Montana State
University and University of Nevada Las Vegas (UNLV). Some of the
fibers were extracted from Lake Mead and some from the asbestos
Superfund site in Libby, Montana.
"The mice exposed to the asbestos developed autoimmune diseases,"
said lead author and University of Montana researcher Dr. Jean
Pfau. "Autoimmune diseases connected to asbestos exposure in
humans include lupus, scleroderma, and rheumatoid arthritis."
The longer and thinner the fibers are, the more hazardous they
are to human health. The study's results go against the Nevada
Department of Health's assumption that small doses of asbestos
are so small they have no dangerous impact.
The study also revealed differences in the effects of asbestos
exposure. The commercial asbestos of Libby is associated with
cancers like mesothelioma. On the other hand, the naturally-
occurring asbestos of Boulder City and Lake Mead in Southern
Nevada are linked to scar tissue developing between the lungs and
chest wall, as well as autoimmune diseases.
"That is one of the big findings we have had over the past couple
of decades is that there is a huge difference in the health
outcomes of commercial asbestos and these needle-like fibers
we're finding in the rocks," said Dr. Pfau.
"When they're [asbestos fibers] in the rock, they're sold.
They're not going to get into air unless you do something to that
rock to pry those minerals loose," said UNLV researcher Dr.
Brenda Buck.
"You are possibly breathing them in if you are disturbing a soil
that has asbestos in it," added Dr. Buck. This could include an
activity like using off-road vehicles or digging. High winds can
also release fibers into the air.
"The thing is that these fibers are so tiny that you can't see
them when they're in the air," said Dr. Pfau. "So you don't know
if you're breathing them in or not, unless we actually measure
the air."
Much research has been done concerning mesothelioma. However,
further research needs to be conducted on how much asbestos
people are breathing in around the desert, especially concerning
which activities and areas are most likely to result in exposure.
More work also needs to be funded regarding whether Boulder City
has seen an increase in autoimmune diseases.
According to Dr. Pfau, "That's why this study I think is
important is in bringing attention to this and awareness so that
physicians start asking those questions."
ASBESTOS UPDATE: Woman Who Swallowed Asbestos Develops Cancer
-------------------------------------------------------------
Claudia Tanner for MailOnline reported that one of the youngest
people to develop a rare cancer after digesting asbestos fibres
as a child has been told she is now free of the killer disease.
Danielle Smalley has been given the all clear after being 'gutted
and virtually disembowelled' in a 10-hour operation.
The 23-year-old was last year diagnosed with mesothelioma an
aggressive illness which usually develops in the lining of the
lungs, abdomen or heart, caused by the dangerous substance.
Doctors believed the asbestos had been present in her body for
about 20 years, meaning she had swallowed some when she was
three.
Last month, the client relationship manager had groundbreaking
surgery during which she was sliced open from her chest to her
pubic line so that all traces of cancer were cut away.
Her entire stomach lining was removed and her bowel was
'rearranged' and kept in place using healthy tissue from her
diaphragm.
ASBESTOS UPDATE: Ada City OKs $44,975 Asbestos Removal Project
--------------------------------------------------------------
Eric Swanson of The Ada News reported that the Ada City Council
moved forward with plans to remove asbestos from the Irving
Center, which is slated for demolition.
The council unanimously approved an agreement with the Noble-
based company Midsouth Abatement Co. to remove materials
containing asbestos from the building at 704 N. Oak St. The city
will pay the company $44,975 for the work, which must be
completed within 22 days.
Once the work is finished and approved by city officials, the
city will pay the contractor within 45 days.
The city received six bids for the project, but one bid was
rejected because it did not include a required bid bond, said
City Manager Cody Holcomb. Everyone who submitted a bid was
required to walk through the building with staffers from Terracon
Consultants, which is providing consulting services for the
project.
Holcomb said the bidding companies attended the walk-through
meeting and were approved by Terracon. He added that city staff
recommended approving Midsouth's bid as the lowest and best
choice.
One of the councilmen asked Holcomb whether the Midsouth bid was
in line with what city officials had expected to pay for asbestos
removal at Irving.
Holcomb said, "My understanding is, we anticipated that it could
have been significantly more. And so I think my understanding is
OK, and we're happy with the results."
Scott Lowrance, director of parks and public facilities, added,
"That's very correct. We expected it to be much, much, much
higher."
The city plans to demolish the Irving Center to make way for a
new senior center, which will be financed by part of the proceeds
from the second Penny for Our City sales tax.
ASBESTOS UPDATE: Feds Charge Contractor for Removal Violation
-------------------------------------------------------------
Matt Miller of Pennsylvania Real-Time News reported that federal
prosecutors have charged a midstate asbestos removal contractor
with violating environmental protection and worker safety laws
and hiring "unauthorized" aliens.
Records show Charles R. Powers Jr. already has struck a tentative
agreement to plead guilty to the charges filed in U.S. Middle
District Court in Harrisburg. Powers is president of York-based
First Capital Insulation Inc.
The U.S. Attorney's Office accuses Powers of violating the law on
jobs in Berwick and Harrisburg.
The Berwick project involved the demolition of a former weaving
mill to make way for construction of an elementary school for
Berwick Area School District. First Capital was hired to remove
asbestos from a boiler and piping in the mill for nearly
$218,000.
Federal law requires that asbestos be wetted during removal to
prevent the hazardous particles from becoming airborne. The waste
also is required to be carefully packaged and marked with warning
labels.
Investigators, working on a tip from a union organizer, inspected
the Berwick job in February 2015 found that no wetting of the
asbestos was done during the removal process and that the waste
was simply put into unmarked bags, charging documents state.
The feds also claim Powers hired three unauthorized immigrants
from Ecuador for the Berwick job without checking to verify their
bogus Social Security numbers and faked state asbestos contractor
licenses.
ASBESTOS UPDATE: Pipe Replacement Pushed Amid Asbestos Scare
------------------------------------------------------------
Elena McPhee of Timaru Herald reported that the Timaru District
Council will be urged to replace at least 7km of water pipeline
following an asbestos scare at Temuka.
Councillors will be asked to approve the plan to replace pipes
from the area just north of Winchester through to Temuka at an
extraordinary council meeting.
Council infrastructure group manager Ashley Harper said he would
recommend replacing the original parts of the trunk line running
south from Orari Reservoir.
He would recommend councillors agree for the work to begin "with
urgency".
The council has traced asbestos in Temuka's water supply to the
pipes. Part of the pipeline, dating from 1964, was degrading and
the substance was getting into Temuka's water, but Winchester was
not affected, Harper said.
Let's say 80 per cent of the trunk pipeline from Orari to
Winchester was replaced two years ago, therefore the asbestos
issue has not shown up in Winchester at this time," Harper said.
"I'm recommending to council that the pipeline from just north of
Winchester to Temuka will be replaced."
Acting infrastructure manager Andrew Dixon said the council had
not taken samples right along the line, therefore it was possible
other parts of the line could also be breaking down.
Harper said if councillors followed his suggestion the work would
take about three months.
He was unsure exactly how many kilometres of pipe would be
replaced, but he expected it to be at least 7km.
Council staff were working on finalising the details and the
cost. The new pipes would run alongside the old ones.
"We don't intend to remove them," Harper said.
He did not believe there was any risk to the public from the
pipes remaining in the soil. The pipes were marked on council
plans and in the future people who wanted to dig in the area
would be warned there were asbestos cement pipes there.
A full report with the details of the recommendation would be put
out, but the chairman of the infrastructure committee Dave Jack
had expressed his full support for the idea, Harper said.
A $2m reservoir project for Temuka in 2018 could be delayed in
order to help fund the work. Harper said additional money could
be sourced from council reserves, though he did not know which
ones would be available to councillors yet.
Jack said he was very impressed with the way Harper's team had
dealt with the problem.
Pipes made of asbestos were an issue around the country and the
Timaru district "certainly [had] its fair share".
"I'm sure there are a lot of them," he said.
"That was the way they were made around the country."
He understood there would be minimal disruption to Temuka's water
supply.
Dixon estimated it would cost "millions" to replace the entire
7km.
Once the work was underway the council could start looking at
what it would do with the rest of its water network, Harper said.
The Temuka network alone has more than 50km of pipes, of varying
ages.
Temuka residents complained of a grey substance clogging their
water filters in late November, and while it was initially
thought to be plant material testing confirmed it was asbestos.
A filtration plant has now been in stalled in Temuka to prevent
asbestos from circulating in the water supply, causing the town's
water pressure to drop slightly and restrictions on hoses and
sprinklers being used.
ASBESTOS UPDATE: Libby Amphibole Diseases Threats Persists
----------------------------------------------------------
Tim Povtak of Asbestos.com reported that a research team led by
thoracic surgeon Dr. Raja Flores has identified Libby amphibole
asbestos disease for the first time as the puzzling killer that
continues to threaten innocent victims exposed to one variety of
asbestos.
This progressive pulmonary disease involves lamellar pleural
thickening (LPT) that has a suffocating effect on the lungs.
Diagnostic signals are unusual when compared to more common
asbestos-related diseases, making it difficult to identify early
by traditional means. The CT and pulmonary function abnormalities
look different.
"It's a process that kills people before cancer does, before lung
cancer or mesothelioma," Flores told Asbestos.com. "It's a
different disease. And it's killing more of these people than
anything else."
The Journal of Occupational and Environmental Medicine published
the research in December. The Centers for Disease Control (CDC)
provided a $4.8 million epidemiology research grant to fund it.
"This is a new disease, which is why it was important to publish
this paper. It's the first study to really describe the syndrome
of Libby amphibole disease," Flores said. "It can rapidly
progress to death, much quicker than others."
Subtle Differences Are Important
The disease stems from amphibole asbestos and its needle-shaped
fibers. Almost all of it was mined in or near Libby, Montana,
where it was mixed with vermiculite a relatively harmless
ingredient by itself and used for insulation.
The mining there, from 1919 to 1990, led to the longest-running
man-made environmental disaster in American history and an
asbestos cleanup project by the Environmental Protection Agency
(EPA) just now coming to a close.
Hundreds of people including miners and nearby residents have
died from the asbestos-related disease. Thousands more have been
sickened with various illnesses attributed to the mining.
The recent study was done by doctors and scientists from the
Mount Sinai Health System and Northwell Health in New York, the
University of Montana, Montana State University and the Center
for Asbestos Related Disease (CARD) in Libby.
The study focused on former mine workers and contractors who have
been part of a CARD program that began in 2000 and included
regular monitoring.
Researchers found 87 percent of the miners exposed to Libby
amphibole had pleural abnormalities and 68 percent had specific
LPT. Flores said Libby amphibole doesn't lead to the same kind of
asbestosis as chrysotile the more commonly used type of
asbestos.
"But it kills you quicker," he said. "Places endemic with Libby
amphibole need to know what to look for. We saw it for years, but
never picked up on the subtleties. It was always 'why did this
patient die?'"
Amphibole Asbestos Still Prevalent
The vermiculite and amphibole mix for decades was shipped
throughout America for processing and still exists in commercial
and residential construction.
"Legacy asbestos still lives throughout the country, in buildings
everywhere," Flores said. "We need to identify areas filled with
Libby amphibole and try and prevent further contamination because
this is a relentless, progressive killer."
According to the study, similar amphibole deposits have been
found in surface sites in Arizona and Nevada. Some experts
believe the increase in asbestos-related diseases among women and
younger adults in Southern Nevada may be traced to those sites.
"I wish we could say, we found this, and you can do this to
reverse it, and make people better," Flores said. "But we still
don't have anything. All you can do now is minimize potential
exposure, and that includes abatement where we know there is
amphibole asbestos."
ASBESTOS UPDATE: Asbestos-Riddled Building on Brink of Disaster
---------------------------------------------------------------
David Barer and Kylie McGivern of KXAN Investigates reported that
the downtown Municipal Court is decrepit, riddled with asbestos
and at the brink of a "disaster" that could shut the building
down on any given day, according to emails obtained by KXAN and
statements from court administrators.
One recent potential disaster, which turned out to be a false
alarm, struck in late November. City maintenance workers
dislodged ceiling tiles and sent possible asbestos-containing
debris into a work space, according to city correspondence. The
court at 700 E. 7th St. was shut down for a day on Nov. 29.
Air tests later came back negative, but the event highlighted
serious deficiencies in the aging building.
"Past city management put this on a back-burner," said Presiding
Municipal Court Judge Sherry Statman at a Dec. 8 Austin Judicial
Committee meeting. "The Titanic is sinking . . . we don't have a
lifeboat."
The American Federation of State, County and Municipal Employees
(AFSCME) representing City of Austin employees, says its heard
from numerous city employees about the incident.
"Even though the city was going in there, trying to say 'We've
tested, everything's fine' well, they're not buying it. And,
we're not buying it either. We know it's not fine. They need to
be removed from the building," said Carol Guthrie, with the
union. "They're just extremely concerned, and the way the city
has handled the asbestos in the other areas has not been very
forthcoming."
Any shutdown could delay scheduled trials, curtail court clerk
operations and lock out citizens trying to make payments. In the
day the court was closed for air testing, there were about 75
defendants set for trial, according to city emails.
Municipal Court Clerk Mary Jane Grubb says she's concerned for
the health of anyone who sets foot in the building at this point,
which is about 600 people a day.
"It could be anyone. It's from staff to the defendants who come
in and citizens and many people come in with their families,
their parents, small children," she said. "It's an irresponsible
decision to expect citizens, including defendants, to come into
contact with a building we cannot guarantee is safe."
City spokesperson David Green said the city manages the asbestos
with periodic surveys, monitoring, abatement and a work request
system that controls disturbances of building materials. The city
"errs on the side of caution and tests any building materials
before disturbing it if there is any question or ambiguity," he
added.
In a draft letter written by Statman on Dec. 4, she explains the
events preceding the November court closure.
Building Services Department workers investigated a water leak in
the first floor ceiling. The workers lifted some ceiling tiles,
which caused a "great deal of dust, dead roaches and other
materials to fall including on desks, carpet and employees."
Workers later went into the ceiling in four other places, she
said.
"Upon questioning by staff, [building services] later admitted
that they were not supposed to go up there but the file on
municipal court failed to note the prohibition," Statman wrote in
the draft letter. "When this was discovered, the potential
exposure was downplayed greatly but [Building Services] could not
definitively say that asbestos was not disturbed."
A 2012 municipal court building survey shows asbestos is present
throughout the building, with some materials containing as much
as 50 percent asbestos. The building has 7,500 square feet of
spray-applied fireproofing that contains 30 to 50 percent
asbestos. There's also 2,000 linear feet of water line and
fitting insulation with as much as 50 percent asbestos in it,
according to the survey.
Asbestos makes renovations more difficult, time consuming and
expensive. By state law, only properly licensed individuals can
work on materials that contain asbestos. The city typically
contracts with outside companies to handle such work.
Outside of municipal court, an ongoing KXAN investigation has
revealed several potential asbestos exposures in other city
department buildings over the past two years. Those exposures
could have impacted more than 150 workers.
In addition to asbestos issues, the Municipal Court's sewer line
is nearing collapse, according to emails.
A Building Services manager said a large portion of the
building's sewer line was "broken up and/or underwater,"
according to an email KXAN obtained.
"This means you will need a total sewer line replacement the
line is disintegrated," the manager wrote in November. "The
problem with this if the line collapses it could shut the courts
down for some time."
Building Services doesn't currently have funds to rebuild the
sewer line, which could cost $100,000. The renovation may have to
wait to be budgeted in fiscal year 2019, the manager said.
"This has me freaked out on many levels. So. Many. Levels. We've
got to notify the Judicial Committee and the Mayor, if not the
whole council. The report makes it sound like someone could flush
a paper towel this afternoon and we're CLOSED," Judge Statman
said in an email. "And where is that contingency plan?"
Guthrie called the lack of action "shameful."
"I feel like I'm back in the 1950s or something where you don't
have anything in place to protect workers. And, the unfortunate
part is we do have things in place," she told KXAN. "But, nobody
wants to adhere to any of those things. And, they don't want to
be held accountable for it."
Council Member Leslie Pool said she is pushing for improvements
and changes. The city could use an existing city building to
relocate the municipal court during repair and rehab.
The MetCenter is a location that's being seriously considered,
where the city housed Hurricane Harvey evacuees. The industrial
park is located off Metropolis Dr., near Austin-Bergstrom
International Airport.
"I am urging the Council to take action, and it appears the
Judicial Committee that I sit on is taking concerns seriously,"
Pool said.
Council Member Jimmy Flannigan chairs the city's Judicial
Committee and said he's "appalled" at the conditions of the
court.
"Even if you accept that the asbestos level isn't dangerous, even
if you do, it is still an unstable environment for us to have
justice in this town," he said. "We are going to address it. I've
made it very clear to staff my temperature is going to rise
exponentially if this thing isn't addressed and we don't have a
clear plan forward in February."
Green said the city is evaluating short-term relocation options
and possibly transferring the court to a new permanent location.
City staff is working to break down the cost of asbestos
abatement and relocating downtown Municipal Court operations
while that work is done within the next 6 to 8 months.
"I am straight up begging you, please don't let this can get
kicked down the road and do not let anybody minimize this,"
Statman told council members at the Judicial Committee meeting.
ASBESTOS UPDATE: PFSH Applies to Strict-Liability PI Claims
-----------------------------------------------------------
Robert L. Byer, Esq., and Andrew R. Sperl, Esq., of Duane Morris
LLP, wrote that in Roverano v. John Crane, Inc., 2017 PA Super
415 (Dec. 28, 2017), the Pennsylvania Superior Court confirmed
that Pennsylvania's Fair Share Act, which prescribes how
liability is allocated among multiple defendants, applies to
strict-liability personal injury claims arising from asbestos
exposure. [Note: Duane Morris represented one of the defendants
in this case.] This is an important result for defendants in
asbestos and products liability litigation throughout
Pennsylvania.
The Fair Share Act
The Fair Share Act, 42 Pa.C.S. Section 7102(a.1)-(a.2), was
enacted in 2011 as an amendment to Pennsylvania's rules on
comparative negligence. It applies to claims that accrued after
June 28, 2011. Among other things, it provides that:
In multiple defendant cases, each defendant is liable only for
its share of the total liability;
Except for certain types of cases, or where a defendant has been
held liable for at least 60 percent of the total liability,
defendants are subject to several instead of joint liability; and
In apportioning liability, the finder of fact shall receive
evidence of the liability of a defendant or nonparty who has
settled with the plaintiff.
The Trial Court's Refusal to Apply the Fair Share Act
The plaintiff in Roverano claimed to have been exposed to a
variety of asbestos products at his workplace from 1971 to 1981.
He was also a long-time smoker. In 2013, he was diagnosed with
lung cancer. He asserted strict-liability personal injury claims
against 30 defendants, claiming that their asbestos-containing
products caused his cancer. The case proceeded to trial, and by
the time the jury reached a verdict, only two defendants
remained.
The jury was asked to determine whether those two defendants, as
well as several other entities that had been identified as
potential suppliers or manufacturers of asbestos to which the
plaintiff was exposed, were factual causes of the plaintiff's
disease. The trial court refused to have the jury apportion
liability among the parties. Despite the requirements of the Fair
Share Act, the trial court denied defendants' request because
"all of the testimony I've ever heard in asbestos, no one
quantifies [the defendants' relative liability]. They say that
you can't quantify it. If you can't quantify it, how can the Fair
Share Act apply?" The trial court also refused to include on the
verdict sheet several bankrupt entities that had settled with the
plaintiff.
The jury returned a verdict for the plaintiff, and the trial
court entered judgment against the two remaining defendants based
on their per capita share of liability, i.e., because the jury
found that six of the eight entities on the verdict sheet had
caused plaintiff's injury, the trial judge entered judgment
against each remaining defendant for one-sixth of the total
verdict.
The Superior Court Decision
Roverano is the first time a Pennsylvania appellate court has
considered whether the Fair Share Act applies to strict-liability
claims arising from alleged asbestos exposure. On appeal, the
Superior Court held that there is no exception to the Fair Share
Act for asbestos or other strict-liability cases and remanded for
a new trial on allocation of liability.
The Superior Court observed that "[n]othing in the [Fair Share
Act] makes an exception for strict liability cases involving
asbestos." It also rejected the plaintiff's argument that the
only effect of the Fair Share Act was to impose several, rather
than joint, liability and not to change how liability is
apportioned. Accordingly, the trial court erred in not having the
jury apportion liability among the defendants.
The Superior Court also interpreted the Fair Share Act to require
that "the jury on remand must be permitted to consider evidence
of any settlements... with bankrupt entities in connection with
the apportionment of liability," noting that the Fair Share Act
"contains no exception for settling persons who are bankrupt."
Effect on Future Cases
Pennsylvania trial courts have been inconsistent in applying the
Fair Share Act in asbestos and other strict-liability cases.
Roverano makes clear that trial courts must apply the law as
written, even in asbestos cases. Following the reasoning in
Roverano, defendants in multiple-defendant asbestos and other
products-liability cases are entitled to have the fact-finder
determine each tortfeasor's relative liability, and in so doing
to have the fact-finder consider the liability of entities that
the plaintiff settled with, regardless of their bankrupt status.
ASBESTOS UPDATE: Justices Urged to Turn Tables in Litigation
------------------------------------------------------------
Sara Corcoran Warner of The Huffington Post as 2018 gains full
speed, it's time for my annual look at trends in the nation's
longest-running personal injury litigation-asbestos. You may have
peripheral awareness of it due to those "if you or a loved one
has been diagnosed with mesothelioma" ads, but its reach is
beyond those sound bites playing on loop.
Actually, asbestos lawsuits are the nation's longest-running
personal injury litigation and have driven nearly 100 companies
into a special form of banktruptcy, where trust funds are set up
to pay future liabilities. Those funds have become controversial
and, in 2017, more than a dozen state attorneys general launched
an investigation into whether asbestos trusts were skipping
required payments to Medicaid or other agencies providing health
care to asbestos victims. (When victims receive compensation for
asbestos injuries, some of the money may be owed to repay
agencies that provided health care, like Medicaid and veteran's
hospitals.)
Likely even more ominous for the plaintiff's bar in 2018, the
state AGs are asking President Trump's Justice Department to join
their investigations of the repayment issue. The letter making
that ask was even noted during a U.S. Senate committee hearing.
I should note the AG political affiliation: They are Republicans,
perhaps because the victims' attorneys as a group are generally a
major funder of Democrats.
If any shred of evidence arises that the trust funds or victims'
attorneys somehow violated federal False Claims Act provisions,
then some major national law firms might face federal queries.
The milestone investigations are tied, in large part, to a 2014
North Carolina case known as "Garlock," where a gasket maker
sought bankruptcy protection over its asbestos liability. The
judge in the case allowed unprecedented discovery into cases and
found a pattern where victims recalled one history of asbestos
exposure in civil litigation and another when applying to the
trust funds. The subsequent release of the Garlock research has
brought civil racketeering cases and was specifically noted in
the aforementioned AG investigation.
More Garlock fallout also hit my inbox toward the end of 2017,
with the prominent right-leaning Washington Legal Foundation, or
WLF, issuing one of its "legal letters." Like white papers and
other documents, the letters often build a policy case for
Washington insiders.
Authored by an attorney and former counsel to the U.S. House of
Representatives Judiciary Committee, the WLF letter effectively
puts trust funds on notice. Of course, the trust funds must
technically be approved by the federal bankruptcy court, but have
come under fire for a lack of oversight.
For example, the WLF letter asserts that that ". . . the
Director of the U.S. Trustee program, Clifford J. White has
stated '[t]here is a general lack of transparency in the
operation and oversight of post-confirmation trusts, especially
asbestos trusts. Among other things, there is a lack of reporting
on the operations of such trusts and no clear recourse for
stakeholders to challenge the claims review process or the
administration of trust operations."
In that same testimony, Director White also said that it was very
clear for asbestos trusts that "there is no independent
policeman, there is no watchdog ... neither the court nor the
U.S. Trustee program have [sic] significant jurisdiction post-
confirmation. . . "
However, the WLF letter also contends that there can be post-
confirmation oversight and, more assertively, that law allows
notification to ". . . the appropriate United States attorney of
matters which relate to the occurrence of any action which may
constitute a crime under the laws of the United States. . .
Indeed, 20 state attorneys general recently wrote to U.S.
Attorney General Jeff Sessions asking the Department of Justice
to investigate and prosecute potential fraud in the asbestos
bankruptcy trust system." This all played out at a Senate
Judiciary Committee hearing in November where Senator Tom Tillis
(R-NC) submitted the State AG request to the Justice Department
into the congressional record.
Ready to plot some points on a curve?
Reuters news service reported last fall that ". . . an affiliate
of Georgia-Pacific LLC, which makes Brawny paper towels, has
filed for U.S. Chapter 11 bankruptcy amid soaring litigation
costs to defend against claims that its products caused
asbestos-related diseases."
The affiliate, Bestwall LLC, is part of Georgia-Pacific which is
owned by Koch Industries, and Bestwall said its joint compound in
total never amounted to more than 1.5 percent of asbestos-
containing products sold in the U.S., yet the company is now
named in from 70 to 80 percent of all lawsuits over mesothelioma.
Reuters also noted that ". . . allegations of fraudulent
asbestos claims were a central part of the bankruptcy of Garlock
Sealing Technologies LLC, which filed in 2010 the same court in
Charlotte as Bestwall."
Another point: "Garlock" is context in a Texas open-records case,
where a Dallas-based journalist is trying to unseal a decades-old
deposition about a controversial "client coaching" memo. The
Garlock judge cited the memo, devised by the famous Baron & Budd
law firm, and now Christine Biederman, who covered the memo as a
reporter for the Dallas Observer newspaper nearly 20 years ago,
is asking the court to make public some testimony about the
document.
An Austin court said it lacked jurisdiction. However, Biederman
is appealing with the help of prominent first amendment attorney
Paul Watler.
Verbal argument could come in the first quarter of 2018.
So, to review: We began 2017 wondering what the new Trump
administration might do in the asbestos arena. We begin 2018 with
the same question, yet now fueled with Koch Industries in the
mix, an effort to unearth decades-old documents in Texas, a WLF
research letter and state attorneys general formally seeking DOJ
involvement.
That is a lot of activity, and the Trump administration will very
likely take notice. Given the midterm election tensions and
Democrat-Republican funding implications from victims' lawyers,
that could move asbestos issues well beyond mere "peripheral
awareness" to become the most unlikely political issue of 2018.
ASBESTOS UPDATE: Asbestos Abatement on Former Mill Resumes
----------------------------------------------------------
Ann Bryant of Sun Journal reported that asbestos abatement work
at the former Forster mill on Depot Street is expected to resume,
Town Manager Rhonda Irish told selectpersons.
EnviroVantage began the abatement work Dec. 19 and worked that
week. They planned to break over the holidays and resume in the
first week of January, David Massaro, on-site manager for
EnviroVantage, previously told the board. The abatement work was
expected to take a couple of weeks, he said in December.
The company conducts annual safety meetings during the holiday
week, Irish said, and the abatement work needs to be finished
this month, according to the contract negotiated with the
environmental and remedial contractor.
In other business, the board discussed meeting schedules. Town
Meeting has been scheduled for June 18 at Academy Hill School.
Elections of a selectperson and a school board director will take
place June 12, Irish said.
Although it is still early, Irish said nomination papers for the
selectperson's seat held by Jeffrey Adams and the school director
seat held by Angie LeClair will be available March 2 and must be
returned by April 13.
Irish also announced the Jan. 1 opening of the newest Main Street
business, Western Maine Bait and Tackle, owned by Alan Paradis,
of Wilton. Paradis opened early to provide ice fisherman with
bait and supplies. Ice shacks are already on Wilson Lake, she
said.
ASBESTOS UPDATE: Canadian Gov't Takes New Steps on Asbestos Ban
---------------------------------------------------------------
The Canadian Press reported that the federal government has laid
out a tough set of proposed new regulations to prohibit the use,
sale, import and export of asbestos and products that contain it,
as well as the manufacture of products containing the cancer-
causing mineral.
The rules fulfil a Liberal promise made more than a year ago and
complement proposals the government issued last spring.
Asbestos is a carcinogen that has been condemned by the World
Health Organization and is banned in about 50 countries around
the world.
The government says that with some minor exceptions, the proposed
regulations and related amendments -- published in the latest
edition of the Canada Gazette -- would ensure there is no market
for asbestos and related products in Canada, and that it isn't
being brought into the country.
The government is asking the public and industry for feedback
during a comment period, which ends March 22.
Asbestos was mined in Canada until 2011 and was used mainly for
insulating buildings and homes, as well as for fireproofing.
Many uses have been phased out, but asbestos may still be found
in a variety of products, including cement pipes, industrial
furnaces and heating systems, building insulation, automotive
brake pads and clutches.
The use or sale of any asbestos-containing products that exist in
inventories but that have not yet been installed would be
prohibited under the new regulations. Any stockpiled asbestos-
related materials would need to be disposed of or destroyed.
Asbestos is also used in the chlor-alkali industry as part of
cell diaphragms used as filters in the manufacture of chlorine
and caustic soda. That application will be exempted from the ban
until 2025, giving the industry time to phase out the existing
systems.
The clean-up of millions of tonnes of asbestos residue around
former mine sites will also be exempt from the regulations, to
allow for the use of the material in redevelopment of the areas.
Scientists would still be allowed to study asbestos under another
exemption and asbestos or objects containing asbestos could still
be imported for display in a museum.
The government said it initially considered a complete
prohibition on asbestos. However, after decades of use, many
buildings and homes still contain asbestos, the health risks of
which are low if the products, such as insulation, remain
undisturbed.
Removing all asbestos would be "extremely costly" and might
actually lead to greater health risks, the government said. For
those reasons, the total prohibition option was rejected.
Environment Minister Catherine McKenna said many Canadians have
suffered from exposure to asbestos over the years, but that will
end.
"By launching these new, tougher rules to stop the manufacture,
import, use, and sale of asbestos, we are following through on
our promise to protect all Canadians from exposure to this toxic
substance," McKenna said in a statement.
ASBESTOS UPDATE: Feb. 25 Libby Claims Deadline
----------------------------------------------
Lynnette Hintze of The Western News reported that people who were
diagnosed with Libby asbestos-related disease prior to Feb. 25,
2015, have until Feb. 25 this year to file a claim against W.R.
Grace & Co. as part of the company's bankruptcy proceedings.
A personal injury trust was set up with a three-year time frame
as part of the Grace bankruptcy proceedings to handle personal
injury claims, according to Roger Sullivan, an attorney with the
Kalispell law firm McGarvey, Heberling, Sullivan & Lacey, which
represents a majority of Libby claimants whose asbestos-related
disease is linked to exposure from the defunct vermiculite mine
Grace operated for decades near Libby.
In Montana, the statute of limitations to file a claim is three
years from the date of diagnosis of an injury. In this case the
injury is asbestos-related disease.
"Because of the bankruptcy proceedings, many folks who have been
diagnosed with asbestos-related disease more than three years ago
have had the statute of limitations tolled as to claims against
Grace," Sullivan said. "However, once the trust began accepting
claims, the statute began to run."
As an example, if a person was diagnosed with asbestos-related
disease in 2008, but hasn't hired an attorney and therefore has
had no claims filed, his statute of limitations on claims other
than Grace probably ran in 2011, Sullivan said, noting there are
exceptions.
Because of the bankruptcy tolling, the claims against the Grace
trust won't expire until Feb. 25, 2018.
If a claimant does not file a claim before Feb. 25, "he will not
have a single entity to recover against for his asbestos-related
disease," Sullivan explained.
"The reason why we're doing our best to put out the word is
because some people who have been diagnosed do not have any
significant pulmonary impairment," Sullivan said. "This is
primarily because of CARD's (Center for Asbestos Related Disease)
early detection of disease. They may have a small spot on their
lungs and meet the diagnostic criteria for asbestos-related
disease, but it isn't impacting their life in any significant
way.
"Additionally, for some younger folks there may be an element of
avoidance," Sullivan continued. "They have seen their
grandparents and parents go through the disease and simply don't
want to admit they have they have a disease. This is an
understandable human response...but the consequence is that if
someone does end up progressing in the future, and they have been
diagnosed with a disease more than three years ago, they will
probably have no recompense against any entity, including the
primary culprit. Because of delay in consulting with an attorney,
we're already seeing that some of our new clients only have a
claim against Grace because the statute has run on other
potential defendants."
Sullivan said if a person with Libby asbestos-related disease is
a client of the McGarvey, Heberling, Sullivan & Lacey law firm, a
claim already has been filed on those clients' behalf. The firm
has filed 2,200 claims to date that relate to Libby asbestos
exposure.
Lung screenings have been ongoing for years at the CARD clinic in
Libby, with about 8,300 people screened to date.
ASBESTOS UPDATE: Later Added Asbestos Materials Caused Injuries
---------------------------------------------------------------
JDSupra reported that the United States Court of Appeals for the
Third Circuit held in a case of first impression that a
manufacturer of a "bare metal" product may be liable for a
plaintiff's injuries caused by later added asbestos-containing
materials.
Roberta G. Devries and Shirley McAfee were widows of husbands who
served in the United States Navy. Each filed a Complaint against
a group of manufacturers alleging that their husband contracted
cancer as a result of asbestos exposure. Devries alleged that her
husband worked aboard the U.S.S. Turner from 1957-60. During that
time, he allegedly was exposed to asbestos-containing insulation
and components that were added to the manufacturers' products
aboard the ship. McAfee made similar allegations about her
husband's experience and subsequent illness after stints aboard
two ships and a naval shipyard.
The manufacturers moved for summary judgment, asserting that the
"bare metal" defense absolved them from liability. The bare metal
defense is an affirmative defense, usually applied in the context
of maritime law, and dictates that manufacturers do not have to
warn of potential dangers associated with exposure to a part of
their product if they did not make or distribute that part. The
District Court found that the defense applied, and granted
summary judgment to the manufacturers. Devries and McAfee
appealed.
Prior to Devries and McAfee's appeal, the Third Circuit had yet
to address the applicability of the bare metal defense. Some
courts from other jurisdictions applied a bright line rule,
holding that a manufacturer cannot be liable for injuries caused
by asbestos-containing parts added later to their products. For
example, in Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 496
(6th Cir. 2005), the Sixth Circuit held that a manufacturer could
not "be held responsible for the asbestos contained in another
product" such as replacement asbestos-containing gaskets and
packing later added to the manufacturer's products. Other courts
have applied a more fact-specific standard, holding that a
manufacturer could be liable if they knew or had reason to know
that asbestos-containing parts would be used with their product.
In other words, a manufacturer could only be liable if it was
foreseeable that an asbestos-containing part would be added later
(and, possible, whether it was foreseeable that those additions
would cause injury).
The Third Circuit balanced both approaches in its analysis of
Devries and McAfee's appeal, and found that the bright-line rule
was, put simply, too harsh. According to the court, "maritime
law's special solicitude for the safety and protection of sailors
counsel[ed it] to adopt a standard-based approach to the bare-
metal defense that permits a plaintiff to recover, at least in
negligence, from a manufacturer of a bare-metal product when the
facts show the plaintiff's injuries were a reasonably foreseeable
result of the manufacturer's conduct." In re: Asbestos Prod.
Liab. Litig. (No. VI), 873 F.3d 232, 241 (3d Cir. 2017).
The Third Circuit set out a number of factors that would be
relevant to the foreseeability analysis when assessing the
viability of the bare metal defense. These factors include first
a determination of whether the manufacturer could have known at
the time its product was placed into the stream of commerce that
asbestos was hazardous. Second, it must be determined whether the
manufacturer could have known at the time its product was placed
into the stream of commerce that "its product will be used with
an asbestos-containing part" under any number of reasons, such as
that (a) "the product was originally equipped with an asbestos
containing part that could reasonably be expected to be replaced
over the product's lifetime;" (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." The court held that that the application
of its newly adopted standard could drive different analyses and
outcomes with regard to the bare metal defense. As a result, the
court reversed the District Court's grant of summary judgment so
that standard could be applied.
This case is the latest in a string of cases from different
jurisdictions where courts have applied different standards with
regard to the bare metal defense. The Third Circuit is the latest
to decide what limits, if any, are placed on assertion of the
defense. If and until the Supreme Court takes up the issue, it is
likely that the jurisdictional divide regarding the defense's
applicability will continue. Litigators representing
manufacturers of products that may have had asbestos-containing
parts later added to the products should be aware of how the
defense has been applied in courts across the country, both state
and federal.
ASBESTOS UPDATE: Abandoned School Fire Caused Asbestos Risk
-----------------------------------------------------------
Clare Armstrong of The Courier-Mail reported that a fire in an
abandoned school in Brisbane's south prompted police to warn
residents to stay indoors due to a risk of asbestos exposure.
Police officers door knocked the area around the old Oxley State
High School site on Seventeen Mile Rocks Rd, Oxley after a fire
broke out just before 3.30pm.
Residents were warned to close windows and stay inside as the old
buildings likely contained asbestos which could have been
transferred to the air during the fire.
Fire crews contained the blaze and no one was injured.
Local mother-of-two Cerae Mitchell said she decided to evacuate
her children from the area after smelling the smoke.
"There was a real burning plastic smell and a big dark black
cloud of smoke.
"I don't have any airconditioning so we couldn't shut ourselves
indoors so I decide to take the kids and leave for the
afternoon," she said.
Ms Mitchell said there had been concern that the grounds of a
nearby kindergarten would be contaminated but luckily it was
located upwind from the fire.
"The lady who runs the kindy has been advised it will be okay,"
she said.
Ms Mitchell said video of a group of young people allegedly
starting a small fire near the buildings had been posted to a
local Oxley community page and handed over to police.
"There's a video of some people apparently lighting a small fire
and putting a chair on the flames," she said.
Oxley high school was closed in 2000 and sold to the Department
of Natural Resources and Mines in 2002.
There has been ongoing debate about what the site should now be
used for, with the buildings now derelict.
"They're only really used by graffiti artists," Ms Mitchell said.
"I think everyone in the area would like to see something done to
the space. I would love it to be a park," she said.
Police have declared the building a crime scene and are treating
the fire as suspicious.
ASBESTOS UPDATE: Fla. Justices to Hear Asbestos Dispute in March
----------------------------------------------------------------
The News Service of Florida reported that in a dispute that has
drawn attention from business and trial-lawyer groups, the
Florida Supreme Court will hear arguments March 6 in a
multimillion-dollar lawsuit filed by a man who said he suffered
mesothelioma because of exposure to asbestos in cigarette filters
and other products.
The Supreme Court split 4-3 in July on whether to take up the
case and issued an order setting the date for oral arguments.
Plaintiff Richard DeLisle went to the Supreme Court after the 4th
District Court of Appeal ruled in favor of R.J. Reynolds Tobacco
Co. and Crane Co., a manufacturer accused of exposing DeLisle to
asbestos in gaskets.
The appeals court ruling came after DeLisle had won an $8 million
verdict in the Broward County case. Along with exposure in the
gaskets, DeLisle alleged exposure in filters of Kent cigarettes
he smoked in the 1950s.
R.J. Reynolds is a successor company to the manufacturer of Kent
cigarettes. The appeals court ruled that testimony of three of
DeLisle's expert witnesses should not have been admitted in
circuit court.
ASBESTOS UPDATE: 2,000 Asbestos Tonnes Released in 9/11 Attacks
---------------------------------------------------------------
Sushi Sharma of The Fiji Time Online reported that the New York
World Trade Center terrorist attack on September 11, 2001
released more than 2000 tonnes of asbestos in the surrounding
area, when the Twin Towers collapsed to the ground in the
aftermath of both towers having aircrafts flown into them. A
massive cloud of smoke, dust and debris released hazardous
asbestos fibres and other toxic substances into the air.
According to reports from the US Environmental Protection Agency
(EPA), the implosion of the towers "pulverised asbestos to ultra-
fine particles" and scattered the debris over Lower Manhattan.
Builders constructed the World Trade Center using many hundreds
of tonnes of asbestos in the structure's insulation, drywall,
fireproofing materials and steel because of the mineral's heat
resistance and affordability.
About 410,000 people were exposed to a host of toxins including
asbestos. Tests at Ground Zero showed the building having 112,000
times above the legal limit of asbestos toxicity. Unlike many
toxins, which the human body can cleanse out, asbestos fibres
remain in the system once they are inhaled or ingested.
The "needle-like" asbestos fibers are so small that most can only
be seen under a microscope. Billions can be inhaled in a single
day with no immediate effect, but longer-term the consequences
can be deadly. Since they are microscopic, the fibres can slip
through the lungs' natural filtration system and become lodged in
the lining of organs such as the lungs, causing damage that
interrupts the normal cell cycle. This leads to uncontrollable
cell division and tumor growth.
Regardless of how the fibres get to the mesothelium, the membrane
which covers the lungs and lines the chest cavity or to the
peritoneal (stomach) cavity through swallowing and/or the
lymphatic system, the fact remains that the fine needle-like
fibres stay there.
No amount of coughing or cleansing diet can remove the asbestos
fibres, in part because of their sharp needle-like nature. These
fibres can penetrate the tissues, and over time they can change
them on a cellular level, leading to disease.
Research established that 10 years after 9/11, a 19 per cent (19
in 100) increase in cancer was noted in the firefighters who
served during this tragedy. Some first responders were diagnosed
with mesothelioma and died from the disease within five years;
which in other cases normally takes decades to develop after
exposure.
The main reason being the very high toxicity of the asbestos at
more than 112,000 times that of the legal limit around and near
Ground Zero.
According to a report from a Hopkins University study, even
workers who joined the clean-up process one year after the
"tragic incident" also developed "significant respiratory health
problems". About eight years later, 817 people had died from
cancer; 20,000 were "sick and under treatment" and 40,000 were
enrolled in medical monitoring. Hurricane Katrina is another case
of environmental exposure, to asbestos. The costly hurricane
damaged thousands of older, contaminated homes and raised
concerns about exposure during hurricane clean-up efforts.
The World Health Organization (WHO) says that 125 million people
encounter white asbestos in the workplace, and the International
Labour Organization (ILO) estimates that 100,000 workers die each
year from all asbestos-related diseases.
Apart from construction workers, more teachers die from asbestos
related sickness than other workers even compared in high risk
exposure occupational workers like industrial chemicals,
railroads, electric light and power.
More recent data from the UK reveals a sharp increase in
mesothelioma deaths among schoolteachers from 1980 to 2012.
While an average of three teachers died in the 1980s; this death
rate has increased to about 19 per year in 2012 -- which is more
than a six-fold increase.
Asbestos was used as a building material for many years; all
buildings built prior to the 1980s have some quantity of asbestos
in them. Those who lived, worked or went to school in buildings
with asbestos content may have been exposed to it.
According to the EPA, asbestos-containing materials reside in as
many as 132,000 US primary and secondary schools. These schools
serve more than 55 million children, and are the worksites for
more than 7 million teachers, administrators and support staff.
Asbestos had been in the news in Fiji last year in relation to
the removal of the product from the Suva Civic Auditorium.
For many Fijians, the term asbestos was a new term until then.
The populace knew little about it, which is quite sad given the
amount of it around the nation, especially in older buildings.
A survey recently in the Pacific region, showed that six in 10
(60 per cent) of the population under 30 years of age admitted to
having little or no knowledge about asbestos and its health
risks.
More recently asbestos has been found at the Nausori Municipal
Market, and the President's State House. Earlier during the
renovations of the Nadi International Airport, significant
amounts of asbestos were found in the arrivals area, which was
one of the oldest parts of the building.
Because of the lack of any database in Fiji on the quantity and
distribution of this harmful substance in both commercial and
residential buildings in Fiji, especially all those built prior
to 1985; it is suggested that a database be compiled as part of
the National Occupational Health and Safety Service (NOHSS)
efforts.
Wherever asbestos have been found, a properly formulated asbestos
management plan should accompany the building plans, NOHSS
regulations and other fire safety and evacuation plans for the
building.
No building older than that built around 1985 should be
demolished without permission from the "asbestos team", which
should be a fully trained and qualified professional group based
in our central NOHSS office preferably.
Asbestos is a naturally occurring, metamorphic mineral which can
be found in the ground all over the world.
Chrysotile, the fibrous form of the mineral serpentine, is the
best-known type and accounts for about 95 per cent of all
asbestos in commercial use. It is a hydrous magnesium silicate
with the chemical composition of Mg 3Si2 O5 (OH)5.
There are six types of asbestos. They are all composed of long,
thin fibrous crystals, and many can be mined and manufactured
into an astounding array of construction materials and commercial
products.
Asbestos can be woven into cloth or spun into yarn. It can also
be added to cement, plastics and other substances.
It is extremely resistant to heat, flame, and electrical and
chemical damage. It can absorb sound. It also has a high tensile
strength and is very flexible and lightweight. In addition to all
of these valuable qualities, asbestos has traditionally been
plentiful and therefore inexpensive.
In 2006, the last year for which figures are available, more than
two million tonnes of asbestos were mined worldwide.
Asbestos is mined in many geographical locations, including
Quebec, British Colombia, Russia, Italy, Greece, Cyprus, South
America, China, Kazakhstan, and India.
Dozens of products may still legally contain asbestos in certain
amounts. These products are mostly used in the building and
construction industry, and may exist in new structures.
A partial list of these products includes vinyl sheet flooring;
vinyl floor tiles; asphalt floor tiles; flooring backing; roofing
shingles; cement wallboard; acoustical plaster; decorative
plaster; boiler insulation; electrical wiring insulation;
electrical panel partitions; caulking; speckling; adhesives;
chalkboards; cement siding; cement pipes; heating and electrical
ducts; fire blankets; fire doors; high temperature gaskets;
elevator brake shoes; elevator equipment panels; ceiling tiles;
electrical cloth; and thermal paper products.
It takes at times as long as 30-50 years for people to see the
effects of asbestosis -- but definitely it is a killer dust and
will keep on killing, even long after the world has fully
eradicated its use.
ASBESTOS UPDATE: $1MM Needed to Remove Asbestos from Infirmary
--------------------------------------------------------------
Tim Fenster of Lockport Union-Sun Journal reported that the Town
of Lockport is applying for $882,000 through the Restore New York
Communities Initiative to remove asbestos and mold from the
county-owned Switzer Building.
The Switzer building, part of the Davison Road complex that
previously served as the county infirmary, has sat vacant for
years, partly as a result of structural issues and the building
being split between the city and town of Lockport.
Supervisor Mark Crocker said the town applied for the Restore NY
funds because the city already has two pending applications, for
properties at 13 and 17 West Main St., giving the town a better
chance at being awarded funding.
Crocker added it's in both communities' interest to restore the
25,000 square-foot, two-story building (excluding basement space)
on Davison Road.
"We don't want it to fall into total disrepair where it will need
a demolition. ... The building appears to be in solid condition
despite mold and asbestos," Crocker said.
Asbestos and mold remediation would cost close to $1 million. If
awarded the grant, the county would be required to contribute 10
percent, bringing the total investment to $980,000.
But the cost of developing the building may be much higher.
In March 2015, when the county was considering buying the
building, Assistant County Attorney R. Thomas Burgasser said it
would cost $5.7 million to renovate and make the building viable.
"I would estimate that $4 to $5 million would need to be invested
in that," Crocker said.
Another issue is that the building is split between the town and
city, which have different zoning and building requirements and
different tax rates.
Legislators and town and city officials have met several times
over the years to discuss annexation -- having either the town of
city cede a parcel, so the complex is fully in one municipality -
- but to no avail.
Crocker said that about a year and a half ago, a developer
expressed interest in the property, but wanted it to be entirely
in one municipality, preferably the town due to its lower tax
rate. He and Mayor Anne McCaffrey discussed annexation, but
nothing came of it.
"I'm sure the city is not keen on the idea of losing property
that can generate revenue," Crocker said.
McCaffrey declined to comment.
Asked if annexation talks might resume, potentially after
asbestos and mold remediation is complete, Crocker said: "It's
something we'll consider if and when the time comes."
ASBESTOS UPDATE: Old Homes Demolition Unleashes Asbestos
--------------------------------------------------------
Jeremy Borden, Tucker Kelly and Maay Ramois of WBEZ.org reported
that Robert Beedle can still remember the frustration he felt one
day last spring, when he watched two houses, located across from
the daycare near his home, get pulverized to the ground. The dust
flew everywhere, and the leftover debris sat there for days.
Robert is not an expert on demolitions -- but he knows a lot
about the old homes in his McKinley Park neighborhood. When he
was thinking about renovating his 19th-century house, he learned
there were harmful materials like asbestos and lead in the walls
and floors. And there are many old homes like his in the
neighborhood.
Which is why the demolition he witnessed that day seemed almost
absurd: How was it that these two old homes could be torn down
with potentially dangerous dust and debris scattered everywhere?
He says he called 311 because he was so concerned. Then he
reached out to his alderman. He didn't get any response, so he
turned to Curious City. Maybe we could find out what the deal
was. He asked:
What are the laws around the demolition of residential buildings
in Chicago, and what implications does this have for health and
the environment?
The effects of hazardous building materials has been well-
documented. Dust from asbestos can cause serious long-term
problems, such as the fatal lung cancer mesothelioma, and lead
that is ingested can cause severe developmental delays in
children. Health and environmental experts don't agree on exactly
how much exposure to these poisonous contaminants is safe, which
is why they want to minimize exposure as much as possible.
The city of Chicago has numerous laws on the books to protect the
public's health, but public health experts, contractors, and some
city officials told Curious City that they are rarely enforced
for residential demolition sites. It's also unclear if city
officials are even aware of the potential health risks posed by
these kinds of demolitions.
What the law requires
Robert says the demolition site he saw in McKinley Park looked
like a "cutaway dollhouse," with its half-exposed inner rooms and
potentially poisonous dust exposed to the elements for hours.
The city's permit process -- required for all residential
demolitions -- is supposed to ensure that developers and
contractors adhere to best practices for how to handle hazardous
materials.
To obtain a wrecking permit for a residential demolition, a
contractor must:
* Have a license.
* Inform adjacent neighbors within a 75-foot radius about the
demolition via certified mail.
* Inform the alderman in the ward where the demolition is
taking place. In a written letter to the alderman, contractors
are required to detail that demolition crews are adhering to best
practices for environmental contamination and other issues.
* Obtain approvals from various city departments, including
plans to deal with water line issues, public street closures,
rodents, flammable liquids, and sewers and demolition plans.
As for how materials like asbestos are supposed to be managed on
demolition sites, the law is clear. Chapter 11 of the city
municipal code outlines the procedures that need to be followed:
contractors should wet down a site to prevent dust from
spreading, wet down and bag potentially hazardous asbestos or
other materials and remove debris quickly in covered containers.
These steps mirror best practices requiredby the Environmental
Protection Agency for asbestos.
While most larger-scale demolition projects require approval from
the city's Department of Public Health, smaller projects -- like
tearing down single family homes -- do not. The city's Department
of Public Health "strongly recommends" contractors hire an expert
to handle contaminants for smaller residential demolitions -- but
doesn't require it.
ASBESTOS UPDATE: Janitor Felt Retaliation After Asbestos Suit
-------------------------------------------------------------
Bethany Freudenthal of The Garden Island reported that when
Charles Rapozo wakes up in the morning, he gets ready for
janitorial work and makes his commute to the Kauai War Memorial
Convention Hall.
But he doesn't do much in the way of cleaning.
Instead, he spends his day sitting in his truck.
That's where The Garden Island found the County of Kauai
employee, before the facility closed down for six months to start
the new year -- sitting, waiting, ready to work, but with no
assigned tasks, although he says he arrives early every day to
clean the bathrooms.
It has gone on like this for nearly a year.
He is still getting paid. He is still getting satisfactory grades
on his work evaluations.
His days are mostly boring, he said, but every now and then
people will visit him. A local pastor has visited, thanking him
for warning the public about the asbestos issue at the convention
hall. A softball coach who practices in the park behind the
parking lot where Rapozo spends his days visits him several times
a week.
His son or daughter may stop by. A homeless man who hangs out at
the convention hall sometimes keeps him company. Sometimes his
co-workers say hi.
The lack of assigned work at the convention hall, Rapozo says, is
because he's being retaliated against for complaining about being
exposed to asbestos for years while on the job and being denied
safety gear and training on how to properly handle the deadly
dust.
"The county administration gave me a death sentence," Rapozo
said. "Now I have to worry about mesothelioma for the rest of my
life."
Rapozo filed a lawsuit against the county last month.
He declined to go into detail about his experience as a janitor
at the convention hall, but he did say he filed the lawsuit not
only for himself, but also on behalf of his family.
"If I hugged my wife, or hugged my daughter after work, they
could have been exposed," Rapozo said.
Rapozo said he is also concerned for the health of many members
of the community who have used the hall throughout the years.
Lawsuit outlines history.
Initially hired by the Department of Public Works in 1994 as a
janitor, Rapozo was eventually offered a full-time position in
1999 and placed at the convention hall.
The lawsuit says Rapozo asked for training on how to handle
hazardous materials such as pesticides. He also asked for safety
equipment, but never received it.
Beginning in 2005, the lawsuit says, Rapozo began using a high-
speed propane buffer to clean the floors of the convention hall.
Again, he did not receive any training on how to use the
equipment, the lawsuit says.
"When in normal use, the high-speed propane buffer caused clouds
of fine dust particles to waft into the air. These dust particles
would stay suspended, while Rapozo was using the machine. He
routinely inhaled the dust," the lawsuit says.
After about a year of using the propane buffer without any safety
equipment, the lawsuit says Rapozo's boss, convention hall
Manager Edward Sarita, gave him a respirator, but the respirator
did not fit him properly.
"Sarita refused to replace it or provide Rapozo with a properly
fitting mask," the lawsuit says.
In 2010, some members of the community asked Rapozo if there was
asbestos in the tiles, according to the lawsuit. He asked Sarita,
who allegedly told him not to worry about it, that the tiles were
fine.
On Sept. 17, 2015, the lawsuit says, an inspector from the
federal Occupational Safety and Health Administration performed a
surprise inspection at the convention hall in which several
violations, including Rapozo's ill-fitting mask, were noted.
On Nov. 2, 2016, the lawsuit says, Rapozo met with the mayor in
reference to several issues, including asbestos in the convention
hall. A week later, Rapozo met with the fire chief, who
instructed him to contact the state Department of Health.
On Nov. 15, 2016, the state DOH came out and inspected the
convention hall tiles and told the county not to use any
mechanical equipment to clean the tiles until the tiles were
tested, and to only use wet mopping to clean the tiles.
Use of the mechanical buffer was not discontinued until Nov. 23,
2016, the lawsuit says. That same day, Rapozo took samples of
some of the broken tiles and sent them to a state lab for
testing.
On Dec. 2, 2016, the lawsuit says, Rapozo received results from
the sample he sent to the lab indicating that some of the tiles
in the sample did contain asbestos.
In November 2016, the lawsuit says, Rapozo was asked to take a
drug and breathalyzer test. He had never been asked to do either
during his tenure with the county.
By January 2017, the lawsuit says, Sarita began to avoid and
ignore Rapozo, failing to assign him any work.
"From approximately April 2017 to the present, Rapozo comes to
work and spends the entire day sitting in the parking lot. Sarita
refuses to work with him and or assign him work. He has been
totally isolated; nevertheless, on his 2016-2017 evaluation dated
June 30, 2017, Rapozo received a satisfactory grade," the lawsuit
says.
Asbestos cleanup
County spokeswoman Sarah Blane said "asbestos was detected in the
flooring materials and associated mastic (the adhesive material
used to lay the tiles) within certain areas of the lobby and
exhibition areas of the facility."
The tiles in question, she said, are the original flooring
materials of the facility, which was built in 1964.
Asbestos abatement at the convention hall, said Blane, is
scheduled to take place Jan. 1 through June 30, with Pacific
Concrete Coring and Consulting Inc. and Creative Partition
Systems completing the cleanup.
The cost of the project is estimated at $181,000, which is lower
than the original estimate of $400,000.
Blane said the initial figure of $400,000 was a rough estimate
based on past asbestos- abatement work and to ensure that the
Parks and Recreation Department had adequate funding to complete
the process.
Anna Koethe, state DOH spokeswoman, said there's a lot to
consider when deciding to replace tiles that contain asbestos.
"It depends on factors such as the condition of the tiles, future
use of the area and building life expectancy," she said. "If the
tiles are old and show some wear and the goal is to update the
appearance and extend the life of the hall, full and proper
removal is reasonable."
If the tiles are kept in place, Koethe said, a management and
maintenance program may be necessary to monitor their condition
in order to ensure the safety and health of the patrons.
Until the asbestos abatement is completed at the convention hall,
the Department of Parks and Recreation has scheduled an OSHA-
approved asbestos awareness training for its employees.
Additionally, cleaning activities for the hall will be conducted
in accordance with OSHA regulations.
As an employee of the county, Rapozo is represented by the United
Public Workers union. The Garden Island reached out to the union
for comment, but calls were not returned.
In the meantime, Rapozo waits to be transferred to another
location within the county.
It's been hard on his family, he said.
His daughter has told him she just wants her dad.
ASBESTOS UPDATE: Old Runway Sub-Base Has Hazardous Asbestos Level
-----------------------------------------------------------------
Marinij.com reported that completion of the half-finished runway
improvements at Gnoss Field, the county-run airport in Novato,
should be a priority.
So should a review of more than $1 million in unexpected overruns
that is forcing the Marin Board of Supervisors to approve loaning
the airfield improvement fund money to finish the work.
The job is supposed to be paid for out of revenue generated by
rentals and private operations at Gnoss, but the cost of the
project, during construction, rose dramatically.
The project, which started in June, has already taken two months
longer than planned, sidelining and hurting the businesses at
Gnoss.
Supervisors approved $57,000 in rent relief for those businesses,
but those firms want a return of a fully functioning airport.
Providing the loan and finishing the project is the correct
course.
After all, the county was able to come up with $1.4 million of
general fund cash as part of the public purchase and closure and
"rewilding" of the San Geronimo Golf Course, hardly as high a
priority as the local public safety asset that Gnoss affords to
the county.
But supervisors need to look into how the cost skyrocketed.
The project was started after an runway inspection in 2016 showed
there was serious deterioration of the runway, caused by ground
settlement at the bayside field.
In October, construction crews found the old runway's sub-base
material contained hazardous levels of asbestos. That required
the costs for air monitoring of asbestos levels. In addition, the
new base compacted for the runway failed to meet Federal Aviation
Administration standards.
A project that was supposed to cost $2.2 million, is now costing
taxpayers $3.3 million.
So much for estimates.
County supervisors should be able to rely on estimates on which
they set the county's budget. When those estimates go haywire, it
is professionally reasonable to take time and remedy possible
mistakes in the process so that the same costly mistakes are not
repeated.
Instead of just writing a loan to finish the project, it would be
even more assuring that going forward the county process has a
more reliable foundation.
More than 200 planes and helicopters make their home at Gnoss,
according to a 2015 FAA count. That includes commercial and
recreational aircraft. The airfield also serves law enforcement
and firefighting plans and helicopters and could provide vital
access for emergency supplies and help in the case of a disaster.
As a taxpayer asset, the county has an important responsibility
to keep its public airport as safe as possible. And in terms of
investing public dollars on needed maintenance, supervisors
should be able to rely on estimates that diligently consider
possible costly surprises.
*********
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