/raid1/www/Hosts/bankrupt/CAR_Public/180209.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 9, 2018, Vol. 20, No. 30
Headlines
ADVOCATES FOR JUVENILE: Court Denies Class Cert Bid in "York"
AEROHIVE NETWORKS: Wolf Haldenstein Files Securities Class Action
ALLSCRIPTS HEALTHCARE: Faces Class Suit After Ransomware Attack
AMC ENTERTAINMENT: Levi & Korsinsky Files Securities Class Action
AMERICAN BOTTLING: Fails to Pay Overtime, "Moore" Suit Alleges
AMERIFIRST AUTO: Sims Alleges Deceptive Business Practices
ARADIGM CORP: Vincent Wong Files Securities Class Suit
AZZ INC: Klein Law Firm Files Securities Class Action
AZZ INC: Vincent Wong Files Securities Class Action
BALLARD POWER: Rosen Law Firm Files Securities Class Action
BLUECROSS BLUESHIELD: Bid to Remand "Speights" Denied
BRIGHTON TOWNSHIP: Proposed Settlement Reached in Sewer Lawsuit
CALIFORNIA SERVICE: Court Denies Bid to Stay "West" TCPA Suit
CANADA: Construction Noise Class Action Settled for $3.5MM
CANADA: Government-Run "Indian Hospitals" Face Class Action
CAPITAL MANAGEMENT: Faces "Padmore" Suit in E.D. of New York
CHARLES FIERGOLA: Faces "Kitchner" Suit in E.D. Wisconsin
CHASE RECEIVABLES: Poplin Sues over Debt Collection Practices
COMCAST CABLE: Parties Must File More Briefs on Diaz Factors
CONNECTICUT: Fails to Transition Patients From Facilities
COUNTRY BANK: Faces "Duncan" Suit in Eastern District of NY
COUNTRY LIFE: Court Dismisses "Anderson" Suit
CREDIT CONTROL: Faces "Richards" Suit in S.D. New York
CYNOSURE INC: Partial Bid Dismiss 2nd Amended "LDGP" Suit OK'd
DDR CORP: Bid to Stay "Gellatly" Pending Mielo Ruling Granted
DIGNITY HEALTH: Faces "Ruiz" Suit in California Superior Court
DOLLAR TREE: Bid to Certify Calif. Suit as Statewide Ongoing
DOLLAR TREE: Has Favorable Ruling in Store Manager's Suit
DOLLAR TREE: Continues to Defend Florida Class Action
DOLLAR TREE: Settlement of Family Dollar Suit Still Pending
DOLLAR TREE: Calif. Suit by Former Employees Underway
DOLLAR TREE: Suit by 43 Employees Pending in Calif. State Court
DOLLAR TREE: Former Store Manager's Suit Now Resolved
DOLLAR TREE: Consumer Class Suit Underway in Illinois
DOLLAR TREE: California Class Suit vs. Family Dollar Concluded
DOLLAR TREE: 2d. Cir. Affirms Dismissal of ERISA Suit
DOLLAR TREE: Class Suit by Calif. Store Associates Underway
DOLLAR TREE: Representative Suit by Current Employee Pending
DOLLAR TREE: Still No Arbitration in Sales Staff Suit
DOLLAR TREE: Former Store Manager's Suit in Arbitration
DOLLAR TREE: Former Employee's Suit Stayed Pending Arbitration
DOLLAR TREE: Calif. Store Worker's Suit Still Pending
DREAM HOTEL: Faces "Fischler" Suit in S.D. of New York
EAST WEST BANCORP: Faces "Duncan" Suit in E.D. of New York
ENDO INT'L: 3rd Amended "Friedman" Suit Dismissed
ENHANCED RECOVERY: Faces "Korchagina" Suit in E.D. New York
ENZYMATIC THERAPY: Faces "Jocelyn" Suit in E.D. New York
FACEBOOK INC: Privacy Deal 'Worthless' to Users, Critic Argues
FIRST AMERICAN: Faces "Duncan" Suit in E.D. New York
FIRST REPUBLIC: Faces "Duncan" Suit in Eastern District New York
FORT COLLINS, AZ: Rent Payment Firm Shorted Landlords
FORT WORTHINGTON, MD: HRA Wins in Class Action Lawsuit
GENERAL MOTORS: Claims in "Vazquez" Over Z06 Defects Narrowed
GERMANY: Finally Appoints Counsel in Genocide Class Action
GERMANY: Asks US Court to Drop Namibian Genocide Suit
HYUNDAI MOTORS: Obtains Favorable Ruling in Mileage Class Action
INTEL CORP: CEO Sold Shares on Same Day OEMs Warned of Bugs
ITC FINANCIAL: Court Affirms Demurrer Ruling in "Schuldner" Suit
J.E. KRUEGER: Faces "Decker" Suit in Southern District of Ind.
JANSSEN PHARMA: "T.R." Suit Remanded to Missouri State Court
JANSSEN PHARMA: "Clayton" Remanded to Missouri State Court
JUNO THERAPEUTICS: Court OKs Program, Notice in Securities Suit
KROENKE ARENA: Pepsi Center Settles Class Action Lawsuit
KUSHNER COS: Sued by Tenants Ordered to Reveal Who Partners Are
MICHAELS COMPANIES: Feb. 18 Trial of Store Manager's Claim
MICHAELS COMPANIES: "Bercut" Suit Proceeding in State Court
MICHAELS COMPANIES: Says "Whalen" Suit Concluded
MICHIGAN: ACLU Demands Justice for Flint Students Exposed to Lead
MIDLAND CREDIT: Faces "Trichell" Suit in N. Dist. Alabama
MISONIX INC: $500,000 Settlement in "Scalfani" Suit Okayed
MITSUBISHI UFJ: Faces "Duncan" Suit in Eastern District New York
MONSANTO CO: Court Won't Stay "Claasen" Pending Dismissal Bid
MONTAGE HOTELS: Faces "Campos" Suit in C.D. California
MULTICHOICE: Pomerantz Mull Class Action Mulled Over Kickbacks
NATIONWIDE TRUCKERS' INSURANCE: Missouri Issues Mixed Ruling
NEIMAN MARCUS: Suit by Roces & Ahmed Removed to N.D. Cal.
NEVADA: High Ct. Denies Request for Extraordinary Writ Relief
NEW YORK: Injunction Blocking Free Air Gas Station Law Issued
NEW YORK: Overcrowding Class Action Against LIRR Pending
NIKE RETAIL: Objection to Bill of Costs in "Rodriguez" Overruled
NORTH CAROLINA: Court Won't Certify Inmates Class in "Johnson"
PARTSSOURCE: "Gembarski" Suit Brought Before Ohio Supreme Court
PERFORMANCE FOOD: $1.9MM Accord in "Wilder" Has Final Approval
PHO DELUXE: Fails to Pay Proper Overtime, "Chicas" Suit Alleges
PINNACLE RECOVERY: Faces "Nogid" Suit in E. Dist. New York
PK MANAGEMENT: Tenants Look to Organize Class-Action Lawsuit
PLS FINANCIAL: Summary Judgment Bid in "Vine" Partly Granted
PREMIER HEALTHCARE: Final Judgment in "Criddell" Suit Entered
PROFESSIONAL PLACEMENT: Kowaleski Sues over Debt Collection
QUEENSLAND: Gov't Faces Class Action Over Stolen Wages
RETAIL FOOD: Bannister Law Proposes Franchise Class Action
RL REPPERT: 3rd Cir. Affirms Partial Summary Judgment in "Askew"
ROSEVILLE, MI: $150K Settlement in "Garner" Has Final Approval
RT MOORE: Court Compels Arbitration in "Hackler" FLSA Suit
SAN DIEGO GAS: Class Action Mulled Over Unplanned Power Outages
SANDERSON FARMS: Broiler Chicken Suits Proceed into Discovery
SANDERSON FARMS: Bid to Dismiss NY Securities Suit Underway
SANDERSON FARMS: Oklahoma Class Action Suit Ongoing
SEVCON INC: "Scarantino" Stockholder Class Action Dropped
SINGING RIVER: Judge Approves Pension Class Action Settlement
SLT GROUP: Faces "Conner" Suit in S.D. New York
SPEEDYPC SOFTWARE: Loses Bid to Bar Expert Report in "Beaton"
STAPLES INC: Four Class Suits over Merger Dismissed
STATE FARM: Court Discharges Show Cause Order in "Ayers" Suit
STERLING JEWELER: Class Determination Award in "Jock" Vacated
STONELEIGH RECOVERY: Loses Bid to Dismiss "Cadillo" FDCPA Suit
SUR LA TABLE: Faces "Conner" Suit in Southern District of NY
SWIFT TRANSPORTATION: "Sciabacucchi" Merger Suit Dropped
SYSCO SAN FRANCISCO: "Moreno" Remanded to Calif. State Court
TD BANK: Bid to Vacate "Purisima" Dismissal Denied
TELENAV INC: March 5 Deadline to File Settlement Approval Bid
TICKETMASTER: Accused of Deceptive Marketing
TICKETMASTER: Merchant Law Group Launches Class Action in Canada
UDELL JEWELERS: Faces "Olsen" Suit in E.D. of New York
UNITED STATES: Court Awards $5,255 Atty Fees in FOIA Suit
WELLS FARGO: RMBS Investors' New York Class Suit Ongoing
WINGS OVER: Ct. Dismisses Counterclaims vs. FLSA Suit Plaintiff
* Data Breaches Prompt Class Action Securities Fraud Complaints
* Ohio Mulls Class Action Against Fracking Companies
* SEC Aims to Ban Frivolous Shareholder Litigation
Asbestos Litigation
ASBESTOS UPDATE: PI Claims vs. Rockwell Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. OCC Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims v General Cable Junked in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Sears Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Durez Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Pfizer Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Vanderbilt Junked in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Schneider Junked in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Eaton Dismissed in "Lineberger"
ASBESTOS UPDATE: PI Claims vs. Vanderbilt Dismissed in "Mullinax"
ASBESTOS UPDATE: Boeing's Witness Can Proceed After Discovery
ASBESTOS ALERT: Abatement in Rockland Place's Facility Ongoing
ASBESTOS UPDATE: Asbestos Exposure Summary Key Elements of Claim
ASBESTOS UPDATE: Seattle Hotel Owner Fined for Asbestos Hazard
ASBESTOS UPDATE: Roof Leak Leads to Asbestos Problem in School
ASBESTOS UPDATE: Demolition of Asbestos House Face Challenges
ASBESTOS UPDATE: Sparta Woman Blames Asbestos for Mesothelioma
ASBESTOS UPDATE: Man Seeks Damages From Armstromg for Exposure
ASBESTOS UPDATE: Developers Appeal $1.47MM Court Ruling
ASBESTOS UPDATE: Church Urges Gov't to Replace Asbestos Roof
ASBESTOS UPDATE: Buckhannon Bars Asbestos Dumping at Station
ASBESTOS UPDATE: SOLAs Urges Asbestos Removal, Ban on Ships
ASBESTOS UPDATE: Canada Asbestos Ban to Take Effect by 2019
ASBESTOS UPDATE: Electrician Not Warned of Asbestos Hazard
ASBESTOS UPDATE: Firms Fined for Exposing Workers to Asbestos
ASBESTOS UPDATE: Asbestos Confirmed at Former Rubbish Dump
ASBESTOS UPDATE: Asbestos to be Removed from Maryborough Building
ASBESTOS UPDATE: $3.3MM Work to Replace Asbestos Pipe Begins
ASBESTOS UPDATE: Learners Protest Against Asbestos Exposure
ASBESTOS UPDATE: Pullium Couple Sue Pumps Maker for Exposure
ASBESTOS UPDATE: Hempstead School Closed After Asbestos Find
ASBESTOS UPDATE: House Owner Fined $4.5K for Exposing Workers
ASBESTOS UPDATE: Perry County School Floors Have Asbestos
ASBESTOS UPDATE: Asbestos Slows Down Woodville Mall Demolition
ASBESTOS UPDATE: Asbestos Found in Long Island High School
ASBESTOS UPDATE: Heavy Machinery May Disturb Asbestos
ASBESTOS UPDATE: Former Employer Pays Woman's Cancer Treatment
ASBESTOS UPDATE: Risk of Exposure in Demolition Low
ASBESTOS UPDATE: Asbestos Removal in Auburn Schine Theater Done
ASBESTOS UPDATE: Asbestos Found in Sewage Pond
ASBESTOS UPDATE: Hartland Landfill Has New Rules for Asbestos
ASBESTOS UPDATE: Inhalation of Asbestos Poses Public Danger
ASBESTOS UPDATE: Activist Wants Asbestos Report Released
ASBESTOS UPDATE: Macau College Suspends Class After Asbestos Find
ASBESTOS UPDATE: Asbestos Removal From Pilgrim's Pride Site
ASBESTOS UPDATE: Asbestos Holdup High School Demolition
ASBESTOS UPDATE: Attys Paint Alternate Theories in Asbestos Talc
ASBESTOS UPDATE: Asbestos Identified at Fiji Police Quarters
ASBESTOS UPDATE: Removal of Asbestos in Albury Sites Begins
ASBESTOS UPDATE: Faculty Seek Transparency on Asbestos Exposure
ASBESTOS UPDATE: Library Opens After Shutdown Due to Asbestos
ASBESTOS UPDATE: No Asbestos in J&J Talc, Jury Told
ASBESTOS UPDATE: $88K Sent to Homeowners Affected by Asbestos
ASBESTOS UPDATE: Ex-Manager Sues Company for Asbestos Lung Cancer
*********
ADVOCATES FOR JUVENILE: Court Denies Class Cert Bid in "York"
-------------------------------------------------------------
In the case, YORK, ET AL, v. ADVOCATES FOR JUVENILE AND ADULT
RIGHTS, Section "L"(3), Civil Action No. 16-12487 (E.D. La.),
Judge Eldon E. Fallon of the U.S. District Court for the Eastern
District of Louisiana (i) granted the Plaintiffs' motion for
summary judgement, (ii) denied the Defendant's motion to dismiss,
(iii) denied the Defendant's motion in limine, and denied the
Plaintiffs' motion to certify the class.
The case involves a claim for unpaid wages and interest under the
Fair Labor Standards Act ("FLSA"). Plaintiffs York and Linda
Wilson were employed by the Defendant as personal care aides
(later re-titled Direct Service Workers). They claim they were
required to work overtime, were not compensated for wait time
between job assignments, were not reimbursed for travel costs,
and were charged for equipment, uniforms, and required
certification and licensing. The Plaintiffs also allege the
Defendants did not comply with the record-keeping provisions of
the FLSA and wrongfully deducted or failed to pay wages as
required by Louisiana law.
The Plaintiffs are seeking unpaid wages, liquidated damages,
prejudgment interest, and attorney's fees. They, in their
complaint, seek recovery under both federal and state law. They
urge their federal claims by filing a collective action under the
FLSA and their state claims by a class action under Federal Rule
23.
The Defendant timely answered the complaint and admitted that
certain employees including the Plaintiffs had been underpaid and
were currently receiving restitution. Furthermore, the Defendant
avers that the Plaintiffs' claims are time barred, fail to state
a cause of action, and fail to meet the necessary requirements
for class certification.
The Plaintiffs filed a Motion to certify a class to proceed as a
collective action under 29 U.S.C. Section 216(b) in November
2016. The Court denied the Motion but the Plaintiffs were given
leave to submit additional information.
On April 27, 2017, the Court granted the Motion for conditional
class certification, and ordered that the Defendants produce a
complete list of all persons employed by AJAR as DSW personnel
who worked at AJAR between April 22, 2012 and present, including
their legal name, job title, address, telephone number, dates of
employment, location of employment, date of birth, and Social DSW
number.
The Plaintiffs did not file a motion for certification of a class
under Rule 23 for the Louisiana state law claims until Jan. 11,
2018.
Before the Court are the Plaintiffs' motion for summary judgment,
the Defendant's motion to dismiss, the Defendant's motion in
limine, and the Plaintiffs' motion to certify the class.
The Plaintiffs move for summary judgment on both their FLSA and
LWPA claims for back pay, unpaid overtime, liquidated damages,
and attorneys' fees and costs. They argue that there are no
genuine issues as to any material fact because the Defendant has
admitted culpability.
The Defendant moves to dismiss the Louisiana Wage Payment Act
("LWPA") claims of several Plaintiffs on the basis of
prescription. The Defendant alleges that the prescriptive period
for recovery of unpaid wages is three years and Plaintiffs
Carolyn Cloud, Gieselle Davis, Diane Effron, Sheryl Green, Corey
King, Angela Morgan, LeShanta Ratliff, and Reney Rumley Alexander
opted into the action after this prescriptive period had passed.
The Defendant moves to exclude (1) overtime wages outside the
statute of limitations and (2) alleged hearsay portions of
Jacquelyn Hughes' affidavit. It argues that overtime wages
accrued more than two years before each of the Plaintiff's opt-in
date should be excluded from evidence. It wishes to exclude this
portion of Hughes' affidavit on the grounds that it is hearsay,
not offered as material fact, and not the most probative evidence
for the purpose for which it is offered.
The Plaintiffs move for the Court to certify a class under Rule
23 for their LWPA claims. They acknowledge that this motion was
not timely filed. They argue that, because the Defendants will
not be prejudiced and judicial economy will be met by
certification of the class, the Court should entertain this
motion. They assert that the class meets the requirements of
Rule 23. R. Doc. 53-1.
As to motion to dismiss, Judge Fallon finds that the Plaintiffs
have satisfied their burden of showing that the Defendant
willfully violated the FLSA by failing to pay overtime. He finds
ample evidence to demonstrate that the Defendant knew the
Plaintiffs were employed by the Defendant, knew that the
Plaintiffs were working overtime, and knew that the Defendant was
not paying the Plaintiffs overtime. Furthermore, the Defendant
made no attempt to comply with relevant portions of the FLSA.
Therefore, the Plaintiffs are entitled to liquidated damages.
The Judge further finds that the prescriptive period on the
Plaintiffs' LWPA claims has been tolled by filing of a class
action complaint. However, the Plaintiffs have failed to move
for certification of such a class within the period required by
the local rules and have not sought any extensions. They filed
for certification of the class on Jan. 11, 2018, approximately
one and a half years after the initial complaint. Because the
motion to certify the class was not timely filed, it is denied.
Therefore, the only LWPA claims before the Court are those of the
named Plaintiffs, York and Wilson. These claims were filed
within the three year prescriptive period. It is clear that
Defendant AJAR has failed to pay the Plaintiffs York and Wilson
wages earned between January 2014 and April 2014. While the
Defendant has paid back some of these wages, a portion remains
outstanding. Therefore, the Judge granted summary judgment to
named Plaintiffs, York and Wilson, as to their LWPA claims for
back pay, penalties, attorney's fees and costs.
As to the Defendant's motion in limine, the Judge finds that
Hughes was present for the meeting between the Defendant and the
representative of the Department of Labor. Therefore, she has
personal knowledge of what was discussed during the meeting.
Further, the facts stated in the affidavit would be admissible in
evidence because the alleged hearsay statements are admitted not
for their truth but to show that they were heard. For these
reasons, the Judge Defendant's motion in limine is denied.
A full-text copy of the Court's Jan. 16, 2018 Order and Reasons
is available at https://is.gd/0ctNhS from Leagle.com.
Linda Wilson, on behalf of herself and other persons similarly
situated & Beverly York, on behalf of herself and other persons
similarly situated, Plaintiffs, represented by Derek Mikel Mercer
-- derek@mercerlawfirm.net -- Mercer Law Firm, LLC & Alexandra
Erna Mora -- amora@alexmora.Com -- Law Office of Alexandra Mora.
Advocates for Juvenile and Adult Rights, Inc., Defendant,
represented by Matthew S. Smith, Matt Smith Law, LLC.
AEROHIVE NETWORKS: Wolf Haldenstein Files Securities Class Action
-----------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP disclosed that a
federal securities class action lawsuit has been filed in the
United States District Court for the Northern District of
California against Aerohive Networks, Inc. and certain of its
officers with a class period of between November 1, 2017, and
January 16, 2018, inclusive.
Investors who have incurred losses in Aerohive Networks, Inc. are
urged to contact the firm immediately at classmember@whafh.com or
(800) 575-0735 or (212) 545-4774. You may obtain additional
information concerning the action on our website, www.whafh.com.
If you have incurred losses in the shares of Aerohive Networks,
Inc. and would like to assist with the litigation process as a
lead plaintiff, you may, no later than March 20, 2018, request
that the Court appoint you lead plaintiff of the proposed class.
Please contact Wolf Haldenstein to learn more about your rights
as an investor in Aerohive Networks, Inc.
Aerohive supplies wireless infrastructure equipment. The Company
designs cooperative control wireless architecture, cloud-enabled
network management, routing, and virtual private network
solutions. Aerohive serves the healthcare, education,
manufacturing, distribution, and retail industries throughout the
United States.
The Complaint alleges that throughout the Class Period,
Defendants made materially false and misleading statements
regarding the Company's business, operational and compliance
policies. Specifically, Defendants made false and/or misleading
statements and/or failed to disclose that:
Aerohive had uncovered sales execution issues at the Company at
the end of the third quarter of 2017;
consequently, Aerohive's revenue guidance for the fourth quarter
of 2017 was overstated; and
as a result, Aerohive's public statements were materially false
and misleading at all relevant times.
On January 16, 2018 after the close of trading, Aerohive issued a
press release entitled "Aerohive Networks Announces Preliminary
Fourth Quarter 2017 Financial Results," revealing that it
"expects net revenue for the fourth quarter to be approximately
$37 million, which is below the Company's previously stated
guidance of $40 million to $42 million." Aerohive attributed
the reduced guidance to "underlying sales execution issues"
uncovered at the end of the third quarter.
On this news, Aerohive's share price fell $1.63, or 28.6%, to
close at $4.07 on January 17, 2018, damaging investors.
Wolf Haldenstein Adler Freeman & Herz LLP has extensive
experience in the prosecution of securities class actions and
derivative litigation in state and federal trial and appellate
courts across the country. The firm has attorneys in various
practice areas; and offices in New York, Chicago and San Diego.
The reputation and expertise of this firm in shareholder and
other class litigation has been repeatedly recognized by the
courts, which have appointed it to major positions in complex
securities multi-district and consolidated litigation.
If you wish to discuss this action or have any questions
regarding your rights and interests in this case, please
immediately contact Wolf Haldenstein by telephone at (800) 575-
0735, via e-mail at classmember@whafh.com, or visit our website
at www.whafh.com.
Kevin Cooper, Esq.
Gregory Stone
Wolf Haldenstein Adler Freeman & Herz LLP
Tel: (800) 575-0735
(212) 545-4774
Email: gstone@whafh.com
kcooper@whafh.com [GN]
ALLSCRIPTS HEALTHCARE: Faces Class Suit After Ransomware Attack
---------------------------------------------------------------
Rajiv Leventhal, writing for Healthcare Informatics, reports that
it was just when electronic health record (EHR) vendor Allscripts
suffered a ransomware attack that impacted some of its services.
Now, the company is being hit with a class-action complaint from
one of the providers that was affected.
The ransomware attack, which struck in the very early morning on
Jan. 18, impacted some applications that were hosted at the
vendor's data centers in Raleigh and Charlotte, North Carolina.
The company said that the outages affected roughly 1,500 clients
across the country; Allscripts' systems in total are said to
serve some 180,000 physicians and 2,500 hospitals.
Media reports noted that the company's Professional EHR platform
and its e-prescribing systems were hit the hardest by the attack.
The type of ransomware used in the attack -- SamSam ransomware --
was the same one used in an attack on Hancock Health, a health
system based in Greenfield, Indiana, as well as in the infamous
attack on the 10-hospital, Columbia, Md.-based MedStar Health
integrated health system in March 2016.
In an emailed statement on Jan. 26, an Allscripts spokesperson
confirmed that "service to all affected clients has been
restored."
Nonetheless, several providers took to Twitter and elsewhere,
making it known that the impact on their organizations might have
been worse than what Allscripts described in its original company
statement on the incident.
One provider, Boynton, Beach, Fla.-based Surfside Non-Surgical
Orthopedics, which specializes in sports medicine and pain, has
filed a class-action complaint against the EHR vendor, which
stated that due to the attack, the practice "could not access its
patients' records or electronically prescribe medications,
forcing [it] to cancel appointments, thereby causing significant
business interruption and disruption, and lost revenues." What's
more, the practice said that it has "expended significant time
and effort resolving these issues resulting from the breach,
including communicating with patients to reschedule
appointments."
The complaint, which was filed in a Northern Illinois District
Court, and which was first obtained by Fierce Healthcare, noted
that Chicago-based Allscripts stated in a recent 10-K filing that
"If our security is breached, we could be subject to liability,
and clients could be deterred from using our products and
services."
In the "damages" section of the complaint, Surfside alleged that
as "a direct and proximate result of Allscripts' wrongful acts
and omissions," it "suffered, and continue to suffer, economic
damage and other actual harm." It went on to allege that
"Allscripts failed to implement appropriate processes that could
have prevented or minimized the effects of the SamSam ransomware
attack."
The practice said it would not have purchased Allscripts'
products and/or software had it known that the company "did not
take all necessary precautions to protect itself from
cyberattack, including ransomware attacks."
With a health IT-generated revenue of $1.3 billion in 2016,
Allscripts ranked 13th in the 2017 Healthcare Informatics 100, a
list of the 100 vendors with the highest revenues derived from
healthcare IT products and services earned in the U.S. [GN]
AMC ENTERTAINMENT: Levi & Korsinsky Files Securities Class Action
-----------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of AMC Entertainment Holdings, Inc. ("AMC") (NYSE:AMC)
between December 20, 2016 and August 1, 2017. You are hereby
notified that a securities class action lawsuit has been
commenced in the United States District Court for the Southern
District of New York. To get more information go to:
http://www.zlk.com/pslra-cm/amc-entertainment-holdings-inc?wire=3
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 failed to disclose that (1) Carmike's operations had
been experiencing a prolonged period of financial
underperformance due to a protracted period of underinvestment in
its theaters; (2) Carmike had experienced a significant loss in
market share when its loyal patrons migrated to competitors that
had renovated and upgraded their theaters; (3) AMC was able to
retain only a small number of Carmike's loyalty program members
after the Carmike acquisition; and (4) these issues were having a
material adverse effect on Carmike's operations and theater
attendance.
If you suffered a loss in AMC you have until March 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.
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. [GN]
AMERICAN BOTTLING: Fails to Pay Overtime, "Moore" Suit Alleges
--------------------------------------------------------------
SHAWBEL MOORE, on behalf of himself, and those similarly situated
v. THE AMERICAN BOTTLING COMPANY, DR. PEPPER/SEVEN UP, INC., AND
DR PEPPER SNAPPLE GROUP, INC, Case No. 5:18-cv-21-JSM-PRL (M.D.
Fla., January 10, 2018), seeks to recover unpaid overtime wages,
declaratory relief, and other relief under the Fair Labor
Standards Act.
In September 2014, Plaintiff worked as a merchandiser, assisting
Defendants with their stocking needs. Plaintiff allege that
Defendants failed to pay a complete time and one-half of their
hourly rates for each hour worked in excess of 40 per work in a
weeks.
The American Bottling Company manufactures, markets, and
distributes beverages across the United States, Canada, Mexico,
and the Caribbean. The company produces and distributes Dr
Pepper, Snapple, and 7UP.
Dr Pepper Snapple Group, Inc. is an American soft drink company,
based in Plano, Texas.
The Dr Pepper/Seven Up Bottling Group (DPSUBG) was formed in 1999
by the merger of the American Bottling Company and the Dr Pepper
Bottling Company.[BN]
The Plaintiff is represented by:
C. Ryan Morgan, Esq.
Kimberley De Arcangelis Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 16th Floor
Orlando, FL 32802-4979
Telephone: (407) 420-1414
Facsimile: (407) 245-3401
E-mail: RMorgan@forthepeople.com
Kimd@forthepeople.com
AMERIFIRST AUTO: Sims Alleges Deceptive Business Practices
----------------------------------------------------------
The case, Andraia Sims, on behalf of herself and all others
similarly situated v. AMERIFIRST AUTO CENTER INC, Case No. ___
(Fla Cir., 11th Judicial, Miami-Dade Cty., January 10, 2018),
arises from Plaintiff's purchase on October 18, 2017, of a 2014
Nissan Maxima. In connection with the vehicle purchase, the
Plaintiff entered into a Retail Installment Sales Contract. The
next day, Sims contacted the Dealership to notify it that she no
longer wanted the vehicle and requested her down payment back.
The Dealership, still in possession of the Vehicle, told Ms. Sims
that it would not provide her with a refund of her down payment,
but would cancel the sale. Ms. Sims never took possession of the
Vehicle and again requested her down payment back, but again
refused to provide Ms. Sims with her down payment. The
Dealership also refused to sign the Finance Agreement.
Amerifirst Auto Center Inc., is a Florida corporation organized
pursuant to the laws of the State of Florida and is authorized to
do business in the State of Florida. [BN]
The Plaintiff represented by:
Roger D. Mason, Esq.
Joseph V. Nemeh, Esq.
John S. Valenti, Esq.
ROGER D. MASON, II, P.A.
5135 West Cypress Street, Suite 105
Tampa, FL 33607
Telephone: (813) 304-2131
Email: rmason@flautolawyer.com
jnemeh@flautolawyer.com
jvalenti@flautolawyer.com
admin@flautolawyer.com
ARADIGM CORP: Vincent Wong Files Securities Class Suit
------------------------------------------------------
The Law Offices of Vincent Wong announce that a class action
lawsuit has been commenced in the USDC for the Northern District
of California on behalf of investors who purchased Aradigm
Corporation securities between July 27, 2017 and January 8, 2018.
Click here to learn about the case: http://www.wongesq.com/pslra-
sb/aradigm-corporation?wire=2. There is no cost or obligation to
you.
According to the complaint, throughout the Class Period, the
Company issued materially false and misleading statements and/or
failed to disclose that: (i) the methodology underlying Aradigm's
Linhaliq Phase III clinical trials was not well tailored to yield
consistent efficacy findings or to provide data sufficient to
account for discordant efficacy findings; (ii) the endpoint of
the Phase III trials was unlikely to demonstrate a clinically
meaningful benefit with respect to a patient population that
would likely be taking the drug for a longer duration; (iii)
accordingly, these studies were unlikely to support FDA approval
of the Linhaliq NDA; and (iv) as a result, Aradigm's public
statements were materially false and misleading at all relevant
times.
On January 9, 2018, the FDA released its briefing document for
the January 11, 2018 meeting of the Antimicrobial Drugs Advisory
Committee to discuss the NDA for Linhaliq for the proposed
indication of treatment of non-cystic fibrosis bronchiectasis.
The FDA stated recommended Aradigm conduct "two independent
trials" to provide evidence supporting the drug's "overall
demonstration of efficacy and safety."
If you suffered a loss in Aradigm you have until March 12, 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. To obtain additional information, contact
Vincent Wong, Esq. either via email vw@wongesq.com, by telephone
at 212.425.1140, or visit http://www.wongesq.com/pslra-
sb/aradigm-corporation?wire=2.
Vincent Wong, Esq. is an experienced attorney that has
represented investors in securities litigations involving
financial fraud and violations of shareholder rights.
Vincent Wong, Esq.
The Law Offices of Vincent Wong
Tel: 212-425-1140
Fax. 866-699-3880
E-Mail: vw@wongesq.com [GN]
AZZ INC: 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 AZZ Inc. (NYSE:AZZ) who
purchased shares between April 22, 2015 and January 8, 2018. The
action, which was filed in the United States District Court for
the Northern District of Texas, alleges that the Company violated
federal securities laws.
In particular, the complaint alleges that throughout the Class
Period, defendants made materially false and/or misleading
statements and/or failed to disclose that (i) the Company
misstated revenues for its Energy Segment for the duration of the
Class Period; (ii) the Company failed to report revenues in
compliance with FASB Accounting Standards; (iii) the Company
lacked adequate internal controls over financial reporting; (iv)
its purported efforts to evaluate revenue recognition standards
had been an apparent failure; and that (v) as a result of the
foregoing, AZZ's financial statements were materially false and
misleading. On January 9, 2018, AZZ disclosed the determination
that the Company "historically should have accounted differently
for certain contracts within its Energy Segment. As a result, AZZ
is reviewing the impact of this determination on its historical
accounting and financial results from 2015 through 2017 and
announced it is delaying the release of its Form 10-Q for the
quarter ended November 30, 2017.
Shareholders have until March 12, 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-sb/azz-inc?wire=3.
Joseph Klein, Esq. represents investors and participates in
securities litigations involving financial fraud throughout the
nation.
Joseph Klein, Esq.
Tel: (212) 616-4899
Fax: (347) 558-9665
Website: www.kleinstocklaw.com [GN]
AZZ INC: Vincent Wong Files Securities Class Action
---------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action
lawsuit has been commenced in the United States District Court
for the Northern District of Texas on behalf of investors who
purchased AZZ Inc. securities between April 22, 2015 and January
8, 2018.
Click here to learn about the case: http://www.wongesq.com/pslra-
sb/azz-inc?wire=2. There is no cost or obligation to you.
According to the complaint, throughout the Class Period, the
Company issued materially false and misleading statements and/or
failed to disclose that: (i) the Company misstated revenues for
its Energy Segment for the duration of the Class Period; (ii) the
Company failed to report revenues in compliance with FASB
Accounting Standards; (iii) the Company lacked adequate internal
controls over financial reporting; (iv) its purported efforts to
evaluate revenue recognition standards had been an apparent
failure; and that (v) as a result of the foregoing, AZZ's
financial statements were materially false and misleading.
On January 9, 2018, AZZ disclosed the determination that the
Company "historically should have accounted differently for
certain contracts within its Energy Segment." As a result, AZZ is
reviewing the impact of this determination on its historical
accounting and financial results from 2015 through 2017 and
announced it is delaying the release of its Form 10-Q for the
quarter ended November 30, 2017.
If you suffered a loss in AZZ you have until March 12, 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. To obtain additional information, contact
Vincent Wong, Esq. either via email vw@wongesq.com, by telephone
at 212.425.1140, or visit http://www.wongesq.com/pslra-sb/azz-
inc?wire=2.
Vincent Wong, Esq. is an experienced attorney that has
represented investors in securities litigations involving
financial fraud and violations of shareholder rights.
Vincent Wong, Esq.
The Law Offices of Vincent Wong
Tel: 212-425-1140
Fax. 866-699-3880
Email: vw@wongesq.com [GN]
BALLARD POWER: Rosen Law Firm Files Securities Class Action
-----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, has filed a
class action lawsuit on behalf of purchasers of the securities of
Ballard Power Systems Inc. between September 30, 2016 and January
25, 2018, both dates inclusive. The lawsuit seeks to recover
damages for Ballard investors under the federal securities laws.
To join the Ballard class action, go to
http://www.rosenlegal.com/cases-1277.htmlor call Phillip Kim,
Esq. or Daniel Sadeh, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or dsadeh@rosenlegal.com for information on
the class action.
According to the lawsuit, Defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) Ballard overstated the operations of its China-based
partners Broad Ocean and Synergy; (2) there are no demonstration
lines operating in Guangdong and no bus lines are in service in
Sanshui or Yunfu; (3) Foshan has produced far fewer buses than
Ballard has indicated, and only 11 are licensed; and (4) as a
result, Defendants' public statements were materially false and
misleading at all relevant times. When the true details entered
the market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
March 28, 2018. A lead plaintiff is a representative party acting
on behalf of other class members in directing the litigation. If
you wish to join the litigation, go to
http://www.rosenlegal.com/cases-1277.htmlor to discuss your
rights or interests regarding this class action, please contact
Phillip Kim or Daniel Sadeh of Rosen Law Firm toll free at 866-
767-3653 or via email at pkim@rosenlegal.com or
dsadeh@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Since 2014, Rosen Law Firm has
been ranked #2 in the nation by Institutional Shareholder
Services for the number of securities class action settlements
annually obtained for investors.
Laurence Rosen, Esq.
Phillip Kim, Esq.
Daniel Sadeh, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
Website: www.rosenlegal.com
Email: lrosen@rosenlegal.com
pkim@rosenlegal.com,
dsadeh@rosenlegal.com [GN]
BLUECROSS BLUESHIELD: Bid to Remand "Speights" Denied
-----------------------------------------------------
Judge David C. Norton of the U.S. District Court for the District
of South Carolina, Beaufort Division, denied without prejudice
Speights's motion to remand the case, DANIEL E. SPEIGHTS,
individually and on behalf of others similarly situated
Plaintiff, v. BLUECROSS BLUESHIELD OF SOUTH CAROLINA Defendants,
Case No. 9:17-cv-00594 (D. S.C.).
Speights is a law partner in the Speights & Runyon Attorneys at
Law law firm, and has been insured under the group account,
Speights & Runyan Attorneys at Law, Group Number 05-43967-00
("Plan"). On Feb. 3, 2014 Speights was diagnosed with cancer
that was life threatening and referred to treatment at M.D.
Anderson Cancer Center in Houston, Texas, an approved provider
under the Plan.
Speights was at M.D. Anderson Cancer Center from early February
2014 until June 2014, and then from July 2014 until September
2014. On April 24, 2014, M.D. Anderson Cancer Center authorized
a plan of treatment that was particularly time-sensitive, given
the advanced stage of cancer that Speights was in. Speights
contacted BlueCross about coverage for the treatment plan, but
received no approval from April 24-27. On Aug. 28, 2014
BlueCross denied coverage for the treatment plan, stating that
the treatment plan involved proton radiation of the cancer that
was an experimental treatment under the Plan. Speights wired
$74,100 from his own bank account to M.D. Anderson Cancer Center
to proceed with the treatment.
Speights filed the case in the Court of Common Pleas for Hampton
County, alleging a number of claims, including claims for breach
of contract and bad faith refusal to pay health insurance
benefits against BlueCross. Namely, Speights alleges claims for:
(1) declaratory judgment that the Plan is ambiguous and BlueCross
has interpreted it in a manner that is inconsistent with the
language of the Plan and public policy considerations; (2) that
BlueCross was negligent in selling a Plan which is ambiguous and
vague and in promoting and selling health care coverage that
contradicts the "purpose of procuring a health care policy"; (3)
breach of contract because BlueCross interpreted the Plan in
contravention of South Carolina law; (4) breach of express
warranty because the Plan warrants to provide payment for health
care that is medically necessary, which BlueCross did not
provide; (5) unfair trade practices because he has been injured
by BlueCross's unfair and deceptive actions in interpreting the
Plan; (6) unjust enrichment because BlueCross used the ambiguous
contract language in the Plan to reduce the scope of the coverage
provided for in the Plan; and (7) outrage, because BlueCross's
actions against Speights arose out of a business relationship and
that BlueCross's actions were made in "callous disregard to
insureds who have contracted for insurance."
Speights files the complaint as a proposed class action,
asserting claims on behalf of a class of consumers defined as all
consumers who have purchased and/or been insured by BlueCross
insurance and BlueCross has denied requests to pay for healthcare
approved and/or requested by treating physicians.
BlueCross removed the case on March 3, 2017, alleging that all of
Speights' claims are preempted by the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") because all of the
claims arise out of the denial of health insurance benefits under
the Plan. Speights then filed the instant motion to remand on
April 3, 2017, to which BlueCross responded on April 14, 2017.
Speights replied on May 5, 2017.
Ultimately, Judge Norton holds that all of Speights' claims are
about the denial of health insurance benefits under an ERISA-
regulated plan. As the Supreme Court has stated, there is a
clear expression of congressional intent that ERISA's civil
enforcement scheme be exclusive and that ERISA's preemption
provisions are designed to establish pension plan regulation as
exclusively a federal concern. The Judge says the Court has
federal question jurisdiction over the breach of contract claim
because it is preempted by ERISA. It has pendent jurisdiction
over the remaining claims.
Judge Norton denied the motion to remand in full, but without
prejudice. The Court will first rule on the declaratory judgment
claim, which necessarily involves interpreting the Plan. Until
the Court has interpreted the Plan, discovery on the remaining
claims is stayed. After the Court interprets the Plan, Speights
may refile a motion to remand as to the remaining claims.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/DvHG46 from Leagle.com.
Daniel A. Speights, Individually and on behalf of others
similarly situated, Plaintiff, represented by Algernon Gibson
Solomons, III, Speights & Runyan.
BlueCross BlueShield of South Carolina, Defendant, represented by
Amy F. Bower -- abower@hsblawfirm.com -- Haynsworth Sinkler Boyd,
James Derrick Quattlebaum -- dquattlebaum@hsblawfirm.com --
Haynsworth Sinkler Boyd & John H. Tiller --
jtiller@hsblawfirm.com -- Haynsworth Sinkler Boyd.
BRIGHTON TOWNSHIP: Proposed Settlement Reached in Sewer Lawsuit
---------------------------------------------------------------
WHMI reports that a proposed class action settlement agreement
has been reached in a long running legal dispute between Brighton
Township and sewer system users, who are less than satisfied with
the outcome.
The township's sewer system has been under fire for many years,
with original users alleging they've been overcharged in
assessment fees. A lawsuit against the township was filed by
residents demanding a refund. The recent settlement was
negotiated by the township, the class action legal teams and a
court appointed mediator.
Terms call for the township to pay $1.5 (m) million from the
general fund to a sewer settlement fund for a payout to original
users. The township will also purchase 401 REU's, with dollars
coming from the general fund. When those REU's are sold, then the
revenue that comes in will go back to the general fund. $300,000
will come out of the township general fund to pay for litigation
costs and the township also agrees to cancel future $80.50
quarterly charges for class members forever.
Township Manager Brian Vick tells WHMI the township firmly denies
the charges have any basis and denies any wrongdoing.
He says the township denies that any of the charges were
improper, denies that it intentionally or negligently committed
any unlawful, wrongful or tortious acts or omissions. The
township further maintains the claims asserted in the lawsuit
have no substance or fact but agreed to enter into the settlement
agreement to avoid further expense, inconveniences, distraction
and risks of burdensome and protracted litigation. Vick says the
financial health of the sewer system will be tracking in the
right direction, and it has been since 2010, and this is another
step in that direction. He noted two developments have already
been approved in excess of 401 REU's. An agreement calls for the
developer of one project to purchase 222 REU's within the next 15
months.
Those who initiated the suit say they were not permitted to
participate in final decisions and have not agreed or signed off
on anything. Resident Bob Potocki tells WHMI they're going to
explore every option and try to figure out how to oppose this
settlement and continue the fight to get fair treatment for all
Brighton Township residents and sewer users. Potocki says the
settlement is hardly something he could be happy about or any of
the sewer users could be satisfied with. He says it's merely an
attempt to change how the money is charged to sewer uses but
there is still no relief for sewer uses in the settlement.
Potocki says its 103 pages of legal mumbo-jumbo that no one
should be fooled by.
A court hearing is scheduled in April, at which time the proposed
settlement will be before a judge for potential approvals. [GN]
CALIFORNIA SERVICE: Court Denies Bid to Stay "West" TCPA Suit
-------------------------------------------------------------
In the case, SANDRA WEST and HECTOR MEMBRANDO, individually and
on behalf of all others similarly situated, Plaintiffs, v.
CALIFORNIA SERVICE BUREAU, INC., Defendant, Case No. 16-cv-03124-
YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S.
District Court for the Northern District of California denied the
Defendant's ex parte application to stay the action or, in the
alternative, to continue the class notice deadline.
On Dec. 11, 2017, the Court granted the Plaintiffs' motion for
class certification. CSB petitioned the Ninth Circuit for leave
to appeal under Fed. R. Civ. P. 23(f) and Fed. R. App. P. 5 on
Dec. 28, 2017. Now before the Court is the Defendant's ex parte
application to stay the action or, in the alternative, to
continue the class notice deadline.
Having carefully considered the application and the record in the
matter, Judge Rogers denied the Defendant's application. The
Judge explains that Fed. R. Civ. P. 23(f) allows a district court
to stay proceedings pending the outcome of an appeal from an
order granting or denying class-action certification. In
evaluating whether to issue a stay, courts look to four factors,
namely (1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest
lies.
With regard to the first factor, the Judge finds that the
Defendant is not likely to succeed on the merits of its appeal
because the appeal was untimely. Turning to the second factor,
the Defendant fails to show that it will be irreparably injured
absent a stay. The third factor also weighs against granting a
stay because CSB filed its motion just nine days before the
dissemination of notice was scheduled to commence. With regard
to the fourth factor, namely the public interest, the Defendant
argues that a stay would avoid confusion among class members if
the Class Certification Order is reversed or modified, which the
Judge disagrees. He says any potential confusion among class
members could be cured through dissemination of subsequent
notice, if necessary.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/Pl1pwz from Leagle.com.
Sandra West, Plaintiff, represented by G. Thomas Martin, III --
tom@mblawapc.com -- Martin & Bontrager, APC, Lawrence Timothy
Fisher-
ltfisher@bursor.com -- Bursor & Fisher, P.A., Yitzchak Kopel --
ykopel@bursor.com -- Bursor Fisher & Nicholas J. Bontrager --
Nick@mblawapc.com -- Martin & Bontrager, APC.
Hector Membreno, Consol Plaintiff, represented by Lawrence
Timothy Fisher, Bursor & Fisher, P.A., Nicholas J. Bontrager,
Martin & Bontrager, APC, Annick Marie Persinger, Bursor & Fisher,
P.A., Thomas A. Reyda, Burosr and Fisher, P.A., Yeremey O.
Krivoshey, Bursor Fisher, P.A. &Yitzchak Kopel, Bursor Fisher.
California Service Bureau, Inc., Defendant, represented by
Charles Robert Messer -- messerc@cmtlaw.com -- Carlson & Messer
LLP, David J. Kaminski -- kaminskid@cmtlaw.com -- Carlson &
Messer LLP & Stephen Albert Watkins WatkinsS@cmtlaw.com --
Carlson and Messer LLP.
CANADA: Construction Noise Class Action Settled for $3.5MM
----------------------------------------------------------
DCN News Services reports that the Montreal-based law firm Trudel
Johnston & Lesperance has announced the settlement of a class
action lawsuit that will compensate class members who were
exposed to excessive noise during the construction of the Ville-
Marie Highway in Montreal from 1998 to 2000.
The decision by Justice Dugre of the Superior Court sets aside up
to $3.5 million for class members who resided within 350 metres
to the south and 170 metres to the north of the highway, between
Guy and De Carillon streets, during that period, a Jan. 16
statement indicates.
The amount of compensation will vary depending on the number of
claims, said the firm, which estimates that between 15 and 30 per
cent of members will ultimately claim compensation.
In one of the most affected zones, a family of two could receive
compensation of up to $5,560 if 15 per cent of members claim, or
up to $3,460 if 25 per cent claim, the statement notes.
The representative of the class action was Peter Krantz. The
statement says, "Although Mr. Peter Krantz . . . is disappointed
that the class action has not resulted in a change of behaviour
leading to a reduction of the current seriously disturbing noise
levels resulting from construction work on the Turcot
interchange, he nonetheless thinks that the settlement amount in
this class action is fair, and encourages all class members to
file a claim."
Defendants in the suit were the Attorney General of Quebec, Les
Entreprises Claude Chagnon, Les Grands Travaux Soter and
Construction DJL. All agreed to the settlement, court documents
show.
Mr. Krantz initiated the suit in 2001.
In a published report, the Westmount resident said, "They
basically brought a jet engine into my backyard, turned it on and
let it go for 24 hours a day, seven days a week. It was beyond
human endurance."
Class members can claim their compensation by filling out the
form available online at collective.ca/case-krantz. Collectiva
Class Action Services Inc. was named as the claims administrator
to implement the claim process and the deadline for claims to be
submitted is May 28, 2018. [GN]
CANADA: Government-Run "Indian Hospitals" Face Class Action
-----------------------------------------------------------
Lauren Pelley, writing for CBC News, reports that two Canadian
law firms have filed a $1.1-billion class-action lawsuit on
behalf of former patients of government-run "Indian hospitals,"
which comprised a decades-long segregated health care system now
marred by allegations of widespread mistreatment and abuse, CBC
News has learned.
The lawsuit focuses on 29 segregated hospitals operated across
the country by the federal government between 1945 and the early
1980s. Researchers say thousands of Indigenous patients may have
been admitted to the institutions during that four-decade span.
The facilities were overcrowded and inadequately staffed, alleges
the statement of claim. Indigenous patients were unable to leave
on their own accord, it continues, and were "forcibly detained,
isolated, and, at times, restrained to their beds."
The statement of claim also alleges that "systemic failures
created a toxic environment in which physical and sexual abuse
was rampant."
Ann Hardy, the representative plaintiff, alleges she is among
those Indigenous victims of sexual abuse.
Ms. Hardy was diagnosed with tuberculosis as a child while living
in Fort Smith, Northwest Territories. In January 1969, she was
admitted to the Charles Camsell Indian Hospital more than 700
kilometres south in Edmonton.
At the time, Ms. Hardy recalls being excited. She was keen to
have a break from her parents, who she described as loving but
overprotective, thanks to their experiences attending residential
schools.
"It wasn't until much later that I realized the horror of the
situation I was in," said the 59-year-old, during an interview at
her home in Edmonton.
'It was terrifying'
During monthly X-ray sessions, Ms. Hardy alleges both she and
other young patients were groped by male technicians. "It was a
regular part of getting an X-ray at the Camsell," she said. She
also alleges a male teacher at the hospital read a Playboy
magazine during class time, in front of the young students.
But one experience in particular horrified Ms. Hardy. She said
an orderly often came to visit her room, and would sometimes
bring gifts -- in one instance, a record player -- for her
roommate.
"And then he started to come up at night," Ms. Hardy said. "He
would pull the curtain closed between our two beds, but I could
hear what was going on. I could hear the fear, and I could hear
what he was doing to her."
Ms. Hardy alleges the hospital staff member repeatedly sexually
abused her roommate.
Ms. Hardy said her roommate, who was a pre-teen, believed the man
was her boyfriend. "She explained to me that it's what people do
when they love each other."
"It was terrifying," Ms. Hardy said.
Government 'respects' plaintiffs' decision
Ms. Hardy said she wanted to participate in a class-action in
hopes of sharing her story and exposing the mistakes of the past.
The lawsuit was filed on Jan. 25 in Toronto. It's calling for
both financial compensation -- including damages for negligence
and breach of fiduciary duty in the amount of $1 billion, and
punitive and exemplary damages in the amount of $100 million --
and a declaration that Canada was negligent in its operation of
"Indian hospitals."
The alleged physical and sexual abuse within their walls amounted
to "horrific treatment," said Jonathan Ptak -- jptak@kmlaw.ca --
a lawyer with Toronto-based firm Koskie Minsky LLP, which filed
the lawsuit in conjunction with Sherwood Park, Alta.-based firm
Masuch Albert LLP.
These incidents were not happening in hospitals for non-
Indigenous patients, he added.
The 29 hospitals listed in the class action are:
Tobique Indian Hospital (New Brunswick).
Manitowaning Indian Hospital (Ontario).
Lady Willington Indian Hospital (Ontario).
Squaw Bay Indian Hospital (Ontario).
Moose Factory Indian Hospital (Ontario).
Sioux Lookout Indian Hospital (Ontario).
Brandon Indian Hospital (Manitoba).
Dynevor Indian Hospital (Manitoba).
Fisher River Indian Hospital (Manitoba).
Fort Alexander Indian Hospital (Manitoba).
Clearwater Lake Indian Hospital (Manitoba).
Norway House Indian Hospital (Manitoba).
Fort Qu'Appelle Indian Hospital (Saskatchewan).
North Battleford Indian Hospital (Saskatchewan).
Peigan Indian Hospital (Alberta).
Sarcee Indian Hospital (Alberta).
Blood Indian Hospital (Alberta).
Morley/Stoney Indian Hospital (Alberta).
Hobbema Indian Hospital (Alberta).
Blackfoot Indian Hospital (Alberta).
Charles Camsell Indian Hospital (Alberta).
Coqualeetza Indian Hospital (British Columbia).
Miller Bay Indian Hospital (British Columbia).
Nanaimo Indian Hospital (British Columbia).
Fort Simpson Hospital (Northwest Territories).
Fort Norman Indian Hospital (Northwest Territories).
Frobisher Bay Hospital (Northwest Territories).
Inuvik Hospital (Northwest Territories).
Whitehorse Hospital (Yukon)
In a statement, the office of Carolyn Bennett, minister of Crown-
Indigenous Relations and Northern Affairs, said the federal
government "respects" the plaintiffs' decision, adding that
"Canada believes that the best way to address outstanding issues
and achieve reconciliation with Indigenous people is through
negotiation and dialogue rather than litigation."
"We are committed to working with all parties involved to explore
mechanisms outside the adversarial court process to deal with
these claims," the statement continues.
The class-action lawsuit has not yet been certified and the
federal government has yet to file a statement of defence,
according to Mr. Ptak.
'I'm still dealing with the aftermath'
As CBC News reported on Jan. 29, former patients have come
forward in recent years with allegations of physical abuse,
forced sterilization and possible medical experimentation at
"Indian hospitals" and other facilities that cared for Indigenous
patients throughout much of the 1900s.
Despite treating diseases, Ms. Hardy said these institutions
caused another type of illness. Like many survivors, she is
still coping with the psychological trauma of her hospital stay
decades after returning home to her family in May 1969.
"I've long since finished the medication for the tuberculosis,"
she said. "I'm still dealing with the aftermath of the Charles
Camsell." [GN]
CAPITAL MANAGEMENT: Faces "Padmore" Suit in E.D. of New York
------------------------------------------------------------
A class action lawsuit has been filed against Capital Management
Services, LP. The case is styled as Michael Padmore, on behalf of
himself and all others similarly situated, Plaintiff v. Capital
Management Services, LP, Defendant, Case No. 1:18-cv-00568 (E.D.
N.Y., January 26, 2018).
Capital Management Services L.P. is a nationally licensed and
recognized collections agency, providing the highest level of
delinquent receivables resolution.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
Joseph H. Mizrahi Law, P.C.
337 Avenue W, Suite 2f
Brooklyn, NY 11223
Tel: (917) 299-6612
Fax: (347) 665-1545
Email: jmizrahilaw@gmail.com
CHARLES FIERGOLA: Faces "Kitchner" Suit in E.D. Wisconsin
---------------------------------------------------------
A class action lawsuit has been filed against Charles Fiergola,
Esq. The case is styled as Megan G Kitchner, on behalf of herself
and all others similarly situated, Plaintiff v. Charles Fiergola,
Esq., Joseph R. Johnson, Esq., Lucas P. Bennewitz, Esq., Tyler M.
Helsel, Esq. and John Does, Esqs., Defendants, Case No. 2:18-cv-
00133 (E.D. Wis., January 25, 2018).
The Defendants are lawyers.[BN]
The Plaintiff appears PRO SE.
CHASE RECEIVABLES: Poplin Sues over Debt Collection Practices
-------------------------------------------------------------
Damian Poplin and on behalf of all others similarly situated v.
Chase Receivables, Inc., Case No. 2:18-cv-00404-MCA-CLW (D.N.J.
January 10, 2018), seeks to stop the Defendant's unfair and
unconscionable means to collect debt.
Chase Receivables, Inc. is a corporation organized pursuant to
the laws of the State of California and is doing business as a
collection agency. [BN]
The Plaintiff is represented by:
Nicholas Joseph Linker, Esq.
Daniel Zemel, Esq.
ZEMEL LAW LLC
78 John Miller Way, Suite 430
Kearny, NJ 07032
Telephone: (856) 430-0789
Email: nlinker16@gmail.com
dz@zemellawllc.com
COMCAST CABLE: Parties Must File More Briefs on Diaz Factors
------------------------------------------------------------
In the case, ANDRE SCOTT, et al., Plaintiffs, v. COMCAST CABLE
COMMUNICATIONS MANAGEMENT, LLC, Defendant, Case No. 16-cv-06869-
EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court
for the Northern District of California has entered an order
directing the parties to file supplemental briefs and/or evidence
regarding the Diaz v. Trust Territory of Pac. Islands factors.
No collective or class action has been certified in the case.
The parties have filed a stipulation indicating that the named
Plaintiffs are dismissing their individual claims with prejudice
and that they are dismissing the class claims without prejudice.
Federal Rule of Civil Procedure Rule 23(e) requires the Court to
review and approve a proposed voluntary dismissal, settlement, or
other compromise of a certified class's claims. The Ninth
Circuit has held in Diaz that Rule 23(e) also applies to
settlements before certification, but in a much lighter form that
does not entail the kind of substantive oversight required when
reviewing a settlement binding upon the class. Although there
has been some uncertainty about whether this holding applies in
the wake of the 2003 amendments to Rule 23(e), courts in the
district continue to follow Diaz to evaluate the proposed
settlement and dismissal of putative class claims.
Judge Chen ordered the parties to file supplemental briefs and/or
evidence regarding the Diaz factors. He says the briefs will
include a description of all publicity concerning the case and
its filing. There may be either cross-briefs or a joint brief,
with all briefing to be filed within a week of the date of the
Order.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/Z0Dz08 from Leagle.com.
Andre Scott, Ken Fassler & Elijah Maxwell-Wilson, Plaintiffs,
represented by Chaim Shaun Setareh -- shaun@setarehlaw.com --
Setareh Law Group & Thomas Alistair Segal --
thomas@setarehlaw.com -- Setareh Law Group.
Comcast Cable Communications Management, LLC, Defendant,
represented by Daryl Steven Landy -- daryl.landy@morganlewis.com
-- Morgan Lewis & Bockius LLP, Jennifer P. Svanfeldt --
jennifer.svanfeldt@morganlewis.com -- Morgan, Lewis & Bockius LLP
& Sarah Jane Allen -- arah.allen@morganlewis.com -- Morgan, Lewis
and Bockius LLP.
CONNECTICUT: Fails to Transition Patients From Facilities
---------------------------------------------------------
Middletown Press reported that a local nonprofit is suing the
state Department of Mental Health and Addiction Services for its
alleged failure to provide services for patients confined to
state-operated facilities across Connecticut.
The class action lawsuit filed in Superior Court in Hartford by
the Middletown-based Connecticut Legal Rights Project claims
conditions violate the state's Patients' Bill of Rights as well
as the U.S. Constitution.
The Connecticut Legal Rights Project offers legal services to
low-income people with mental health conditions.
"Individuals have been stuck in state-operated psychiatric
hospitals long after they have been clinically stabilized,
because the state has failed to develop a system of community-
based care to provide the services they need and a place to
live," a statement from CLRP reads.
Facilities named in the suit include nearly 440 inpatients at
Connecticut Valley Hospital's Whiting Forensic Division, the
Connecticut Mental Health Center in New Haven, Greater Bridgeport
Community Mental Health Center in Bridgeport and Capitol Region
Mental Health Center in Hartford.
"We will review the complaint and respond at the appropriate time
in court," said Jaclyn M. Severance, director of communications
at the Office of the Attorney General.
Gov. Dannel P. Malloy signed an executive order that separated
Whiting from CVH, creating a separate Whiting Forensic Hospital,
under a new structure that will allow DMHAS to focus on changes
needed to improve the quality of care at the facility, according
to a release.
Potential class members are civil patients only, not those under
the jurisdiction of the Psychiatric Security Review Board, said
Kathleen Flaherty, executive director of CLRP. Fifty civil
patients are being treated at Whiting Forensic Hospital: 18 are
voluntary patients and 32 are civilly committed, she added.
The suit seeks broad reform of Connecticut's mental health
system, according to the release.
"The plaintiff raised claims on behalf of herself and other class
members for the state's failure to protect their state procedural
due process rights to a probate court hearing, and their
statutory civil right to receive services in the most integrated
setting," CLRP said.
"We hope this lawsuit will address that problem and result in the
state developing a plan to establish and maintain a mental health
system that has the capacity at all levels of care, with a
priority for supportive housing, so that institutionalized
patients in state-operated psychiatric facilities may be
discharged within 90 days of discharge readiness," Flaherty said
in a statement.
At issue is a lack of community-based supports and services which
would allow committed patients to be discharged into an
integrated setting within a reasonable period of time.
The plaintiff, who is named in the complaint, was ready for
discharge last August, according to her hospital treatment team.
Five months later, she is still institutionalized "and segregated
in the hospital because there is no less restrictive community
placement available to provide services to her," CLRP wrote in
the statement.
"All have the right to discharge planning from the time of
admission, and the right not to be held in a hospital against
their will once they are no longer a danger to self or others or
gravely disabled, or able to receive supports and services in a
less restrictive community setting," according to CLRP.
Connecticut is one of very few states that provide for unlimited
civil commitments -- most others authorize commitment orders of
limited duration and place the burden of recommitment on the
state, CLRP said. [GN]
COUNTRY BANK: Faces "Duncan" Suit in Eastern District of NY
------------------------------------------------------------
A class action lawsuit has been filed against Country Bank
Holding Company, Inc. The case is styled as Eugene Duncan, on
behalf of himself and all others similarly situated, Plaintiff v.
Country Bank Holding Company, Inc., Defendant, Case No. 1:18-cv-
00540 (E.D. N.Y., January 25, 2018).
Country Bank Holding Company, Inc. provides personal and business
banking products and services to customers in the New York City
metro area, New York, New Jersey, and Connecticut.[BN]
The Plaintiff is represented by:
Daniel C Cohen, Esq.
Daniel Cohen, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Tel: (646) 645-8482
Fax: (347) 665-1545
Email: dancohenlaw@gmail.com
COUNTRY LIFE: Court Dismisses "Anderson" Suit
---------------------------------------------
In the cases, IRENE B. ANDERSON, Individually and on Behalf of
All Others Similarly Situated, Plaintiffs, v. COUNTRY LIFE
INSURANCE COMPANY, Defendant, RICK OCHOA, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs, v. STATE
FARM LIFE INSURANCE COMPANY, Defendant, Case Nos. 17 C 4270, 17 C
4274 (N.D. Ill.), Judge Robert W. Gettleman of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
granted the Defendants' motions to dismiss the Plaintiffs'
complaints in their entirety with prejudice.
The Defendants are Illinois-domiciled life insurance companies.
The Plaintiffs, residents of Illinois (Anderson) and California
(Ochoa), each own at least one "participating" life insurance
policy through each respective Defendant. As owners of those
policies, the Plaintiffs are entitled to some amount of annual
dividends, which are paid to them out of the Defendants' annual
surplus.
The Plaintiffs acknowledge that they have received, and continue
to receive, annual dividends from the Defendants, but claim that
the Defendants retain more of their surplus than the Illinois
Insurance Code allows, which reduces the dividends paid to them.
According to them, the alleged noncompliance with the Code, and
resulting underpayment, is a breach of the Plaintiffs' contracts
with the Defendants.
The Dividend Provisions sections of the Plaintiffs' insurance
policies say little regarding the payment of annual dividends,
and nothing regarding what amount will be paid, or how that
amount will be calculated. Ochoa's State Farm policy reads that
they may apportion and pay dividends each year. Any such
dividends will be paid at the end of the policy year if all
premium dues have been paid.
In asserting their breach of contract claim, the Plaintiffs rely
not on the policy provisions, but rather on Section 243 of the
Code, which they claim is incorporated into their policies as a
matter of law. The Plaintiffs acknowledge that Section 243 has
nothing to say regarding disbursement of dividends to policy
owners, but instead dictates how much life insurance companies
can retain in a "contingency reserve," which is meant to act as a
buffer in the event of unforeseen financial obligations. Thus,
Section 243 addresses the financial management of life insurance
companies, not the relationship between these companies and their
policyholders, by limiting contingency reserves to no more than
10% of their net values.
Acknowledging that Section 243 does not address disbursement of
dividends, the Plaintiffs' argument ties Section 243 to Section
224, which mandates a number of provisions that must be included
in life insurance policies that are issued or delivered in
Illinois. They implicitly acknowledge that the Dividend
Provisions sections in their policies comply with Section 224(e),
but argue that those provisions have been impermissibly
"weakened" by the Defendants' alleged noncompliance with Section
243 of the Code.
Plaintiffs Anderson and Ochoa filed nearly identical class action
complaints against Country and State Farm, alleging breach of
contract stemming from noncompliance with the Illinois Insurance
Code, 215 ILCS 5/2-1615, and seeking damages. Country and State
Farm have moved to dismiss the complaints under Fed. R. Civ. P.
12(b)(6) for failure to state a claim.
Judge Gettleman finds that the Plaintiffs have, at most, alleged
that the Defendants have failed to comply with Section 243 of the
Code. Even assuming they are correct, the Plaintiffs cannot seek
relief through a breach of contract claim, and have no private
right of action to enforce the statute. As previously stated,
Section 243 is in no way integrated into the Plaintiffs'
contracts with the Defendants. Accordingly, any noncompliance
with Section 243 has no bearing on their contracts with the
Defendants.
Additionally, even if defendants have failed to comply with
Section 243, the Plaintiffs cannot allege that they have been
damaged in any way by such noncompliance. The Plaintiffs have
not alleged, and cannot allege, that they are entitled to any
funds improperly withheld in the Defendants' contingency
reserves. Their breach of contract claim fails.
For the foregoing reasons, Judge Gettleman granted the
Defendants' motions to dismiss the Plaintiffs' complaints in
their entirety with prejudice.
A full-text copy of the Court's Jan. 16, 2018 Memorandum Opinion
and Order is available at https://is.gd/4Kjblp from Leagle.com.
Irene B. Anderson, Individually and on behalf of all persons
similarly situated, Plaintiff, represented by Marvin Alan Miller
-- mmiller@millerlawllc.com -- Miller Law LLC, Matthew E. Van
Tine -- mvantine@millerlawllc.com -- Miller Law LLC, Andrew S.
Friedman -- afriedman@bffb.com -- Bonnett, Fairbourn, Friedman &
Balint, P.C., pro hac vice, Francis J. Balint, Jr. --
fbalint@bffb.com -- Bonnett Fairbourn Friedman & Balint PC, pro
hac vice, Jason B. Adkins , Adkins, Kelston & Zavez, P.C., pro
hac vice, Joseph N. Kravec, Jr. -- JKRAVEC@FDPKLAW.COM --
Feinstein Doyle Payne & Kravec, LLC, pro hac vice, Mark A. Chavez
-- mark@chavezgertler.com -- Chavez & Gertler LLP, pro hac vice &
Nance F. Becker -- nance@chavezgertler.com -- Chavez & Gertler
LLP, pro hac vice.
Country Life Insurance Company, Defendant, represented by Gary
Zhao -- gzhao@salawus.com -- SmithAmundsen, LLC, Glen E. Amundsen
-- gamundsen@salawus.com -- SmithAmundsen LLC, Joseph P.
Carlasare -- jcarlasare@salawus.com -- Smithamundsen Llc, Michael
B. Beers -- Mike.Beers@butlersnow.com -- BUTLER SNOW LLP,
Sessions Ault Hootsell, III -- ault.hootsell@butlersnow.com --
Butler Snow, pro hac vice & William James Kelly, III --
wkelly@kellywalkerlaw.com -- Kelly & Walker LLLC.
CREDIT CONTROL: Faces "Richards" Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Credit Control,
LLC. The case is styled as Cynthia Richards, on behalf of herself
individually and all others similarly situated, Plaintiff v.
Credit Control, LLC, Defendant, Case No. 1:18-cv-00748 (S.D.
N.Y., January 27, 2018).
Defendant Credit Control operates a nationwide debt collection
business.[BN
The Plaintiff is represented by:
Novlette Rosemarie Kidd, Esq.
Fagenson & Puglisi
450 Seventh Avenue, Suite 704
New York, NY 10123
Tel: (212) 268-2128
Fax: (212) 268-2127
Email: nkidd@fagensonpuglisi.com
CYNOSURE INC: Partial Bid Dismiss 2nd Amended "LDGP" Suit OK'd
--------------------------------------------------------------
Judge Frederick J. Kapala of the U.S. District Court for the
Northern District of Illinois granted the Defendant's partial
motion to dismiss the case, LDGP, LLC, et al., Plaintiffs, v.
Cynosure, Inc., Defendant, Case No. 15 C 50148 (N.D. Ill.).
Plaintiff LDGP initially brought suit against Cynosure, advancing
claims having to do with the sale of tattoo removal machines by
Defendant to Plaintiff. Numerous other Plaintiffs were added in
the first amended complaint "FAC"). LDGP was omitted from the
second amended complaint ("SAC"), the operative case, and thus
terminated from the case, while more Plaintiffs were added.
The operative complaint contains the following Counts: (I)
Negligent Misrepresentation, (II) Fraudulent/Intentional
Misrepresentation, (III) Fraud by Omission, (IV) Breach of
Contract-Breach of Express Warranties Under the Uniform
Commercial Code, (V) Violation of the Illinois Consumer Fraud
Act, (VI) Violation of the Delaware Consumer Fraud Act, (VII)
Violation of the California False Advertising Law, (VIII)
Violation of the California Unfair Competition Law, (IX) Deceit
under California Civil Code Sec 1710, (X) Deceit under
Pennsylvania Unfair Trade Practices and Consumer Protection Law.
Before the court is defendant's partial motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of
personal jurisdiction.
The Plaintiffs purchased tattoo removal machines from the
Defendant and subsequently alleged that the Defendant had made
misrepresentations in advertising the machines. The Plaintiffs
allege that through written advertisements, flyers, brochures,
product inserts, press releases, websites, and public statements,
defendants attracted purchasers, including the Plaintiffs, all
while knowing that the Defendant's representations were false.
The first amended complaint identified the Plaintiffs as LDGP;
Ritacca Cosmetic Surgery and Med Spa, Ltd.; Black Alsatians, LLC
d/b/a Pigment Demographics and Laser Removal ("PDLR"); and Burke
Dermatology, P.A. The second amended complaint, operative,
omitted LDGP, who was consequently terminated from the case, but
added four new Plaintiffs, namely Banucci Institute, LLC; Synergy
Medical Specialists, P.C.; Dermatology Laser Center & Medispa,
LLC ("DLCM"); and The Facial Surgery Center ("FSC"). In sum, the
named Plaintiffs currently include three who were listed in both
the FAC and the SAC (Ritacca, PDLR, and Burke), and four who were
added in the SAC (Banucci, Synergy, DLCM, and FSC).
The Plaintiffs allege that Ritacca is located and licensed in
Illinois. All of the other Plaintiffs, however, are alleged to
be located or licensed in jurisdictions other than Illinois, and
there are no allegations that any of them have any presence in or
connection with Illinois of any kind. The Defendant is
incorporated in Delaware, maintains its principle place of
business in Massachusetts, and does business in Illinois.
Cynosure filed partial motion to dismiss the SAC. The Defendant
does not contest the court's jurisdiction with respect to the
claims brought by Ritacca, the only Plaintiff with alleged
connections to Illinois. It does, however, contest the Court's
jurisdiction with respect to the claims brought by the other
Plaintiffs, arguing that the Court's power to exercise
jurisdiction over claims brought by resident Plaintiffs does not
extend to the claims of nonresident Plaintiffs.
Judge Kapala finds that though the nonresidents' claims are
similar to those of resident Plaintiffs, the difference that the
Plaintiffs point out is fundamental: the events that lead to the
nonresidents' claims took place outside of Illinois. The number
of would-be nonresident Plaintiffs has no bearing on whether
those Plaintiffs' claims arise from or relate to the Defendant's
activity in the forum. The Judge says the mere fact that other
resident Plaintiffs suffered harm in Illinois, and allegedly
sustained the same injuries as did the nonresidents -- does not
allow the State to assert specific jurisdiction over the
nonresidents' claims.
Consequently, the Court does not have personal jurisdiction over
the Defendant with regard to the claims brought against it by the
nonresident Plaintiffs, namely PDLR, Burke, Banucci, Synergy,
DLCM, and FSC, and dismissal of those claims under Fed. R. Civ.
P. 12(b)(2) is warranted.
The Judge also finds that the Plaintiffs do not contest the
Defendant's motion to dismiss with regard to Count I.
Accordingly, he will dismiss Count I.
For these reasons, Judge Kapala granted the Defendant's motion.
He dismissed Count I; the claims brought exclusively by
nonresident Plaintiffs, comprising Counts VI, VII, VIII, IX, and
X; and all remaining claims with respect to the nonresident
Plaintiffs.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/pXCQ3v from Leagle.com.
All Others Similarly Situated, Plaintiff, represented by Devon C.
Bruce -- dbruce@prslaw.com -- Powers, Rogers & Smith, Joel M.L.
Huotari -- jhuotari@wilmac.com -- WilliamsMcCarthy, John James
Holevas -- jholevas@wilmac.com -- WilliamsMcCarthy, Jonathan
Matthew Thomas -- jthomas@prslaw.com -- Power Rogers & Smith,
P.c. & Marc Charles Gravino -- mgravino@wilmac.com --
WilliamsMcCarthy LLP.
Ritacca Cosmetic Surgery And Med Spa, Ltd., an Illinois LLC,
Black Alsatians, LLC, A Texas LLC doing business as Pigment
Demographics And Laser Removal & Saxon And Susan Hatchett, Burke
Dermatology P.A., Plaintiffs, represented by Devon C. Bruce,
Powers, Rogers & Smith.
Cynosure Inc, a Delaware Corporation, Defendant, represented by
Eric L. Samore -- esamore@salawus.com -- SmithAmundsen LLC,
Albert M. Bower -- abower@salawus.com -- SmithAmundsen LLC,
Daniel M. Meyers -- daniel.meyers@apks.com -- Arnold & Porter
Kaye Scholer LLP, Kathryn Victoria Long -- klong@salawus.com --
SmithAmundsen LLC, Ronald David Balfour -- rbalfour@salawus.com -
- Smithamundsen Llc & Yesha Sutaria Hoeppner --
yhoeppner@salawus.com -- Smithamundsen LLC.
DDR CORP: Bid to Stay "Gellatly" Pending Mielo Ruling Granted
-------------------------------------------------------------
In the case, EMILY GELLATLY and CEARA NARIO-REDMOND, individually
and on behalf of all others similarly situated, Plaintiffs, v.
DDR Corp., Defendant, Civil Action No. 1:17-cv-00147 (BJR) (W.D.
Pa.), Judge Barbara Jacobs Rothstein of the U.S. District Court
for the Western District of Pennsylvania stayed the matter until
such time as the Third Circuit Court of Appeals renders its
decision in Mielo v. Steak N' Shake Operations, Inc.
The matter comes before the Court on a motion by DDR for a stay
of the action pending a decision by the Third Circuit Court of
Appeals in the case of Mielo, Case No. 2:15-cv-180-RCM (W.D.
Pa.), Case No. 17-2678 (3d Cir.). The Plaintiffs oppose the
Defendant's request for a stay.
Having reviewed the briefs of the parties together with the
authorities cited therein, Judge Rothstein will grant the
Defendant's motion. The Judge is persuaded that the issue
presented in the Mielo appeal, whether section 36.211 of the ADA
requires ongoing maintenance of parking facilities, is the crux
of the Plaintiffs' claims in this case. She says there is no
question that the decision of the appellate court on the issue
goes directly to the allegations in the Plaintiffs' complaint.
Furthermore, it is clear to the Judge that the discovery the
Plaintiffs would pursue in the matter in order to establish a
basis for their class action will be extremely burdensome and
costly and should not be pursued until the legal viability of the
Plaintiffs' claims has been reviewed and determined in the
pending appeal.
In addition, in determining whether or not to exercise the
Court's inherent power to stay an action, the Court may consider
the burden on the Court and the parties in terms of time and
effort. There are presently at least two motions already filed
by the parties. Several more, including a motion for class
certification, are anticipated. Requiring the Court to rule on
these motions when there is an appeal pending that might reshape
the issues presented appears to be an inefficient use of the
efforts of the Court and the parties.
For these reasons, Judge Rothstein granted the Defendants' motion
for a stay. She stayed the matter until such time as the Third
Circuit Court of Appeals renders its decision in Mielo. The
Defendant's pending motion to transfer venue, and motion to
dismiss and to strike the Plaintiffs' class allegations are
stricken with leave to renote once the stay is lifted.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/Rqyx3O from Leagle.com.
EMILY GELLATLY & CEARA NARIO-REDMOND, Individually and on behalf
of all others similarly situated, Plaintiffs, represented by
Benjamin J. Sweet -- bsweet@carlsonlynch.com -- Carlson Lynch
Sweet & Kilpela, LLP.
DDR CORP., Defendant, represented by Brian C. Blair --
bblair@bakerlaw.com -- Baker & Hostetler, LLP, pro hac vice,
Emily B. Thomas -- ethomas@bakerlaw.com -- Baker & Hostetler LLP
& Robert D. Sowell -- rsowell@bakerlaw.com -- Baker & Hostetler
LLP, pro hac vice.
DIGNITY HEALTH: Faces "Ruiz" Suit in California Superior Court
--------------------------------------------------------------
A class action lawsuit has been filed against Dignity Health. The
case is styled as Pedro Ruiz individually and on behalf of a
similarly situated class, Plaintiff v. Dignity Health and Does 1
to 100 inclusive, Defendants, Case No. CGC18563863 (Cal. Super.
Ct., January 25, 2018).
Dignity Health is a California-based not-for-profit public-
benefit corporation that operates hospitals and ancillary care
facilities in 3 states.[BN]
The Plaintiff is represented by:
Kirk J. Wolden, Esq.
865 Howe Ave
Sacramento, CA 95825, USA
Tel: +1 916-787-4100
DOLLAR TREE: Bid to Certify Calif. Suit as Statewide Ongoing
------------------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that the court is now considering the motion to
certify the case as a state-wide class action.
In April 2015, a distribution center employee filed a class
action in California state court with allegations concerning
wages, meal and rest breaks, recovery periods, wage statements
and timely termination pay. The employee filed an amended
complaint in which he abandoned his attempt to certify a nation-
wide class of non-exempt distribution center employees for
alleged improper calculation of overtime compensation. The
Company removed this lawsuit to federal court. The court is now
considering the employee's motion to certify the case as a state-
wide class action.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Has Favorable Ruling in Store Manager's Suit
---------------------------------------------------------
Dollar Tree, Inc. won a favorable jury ruling in a class action
lawsuit by a former store manager, the Company said in a
regulatory filing.
In April 2015, a former store manager filed a class action in
California federal court alleging, among other things, that the
Company failed to make wage statements readily available to
employees who did not receive paper checks. The wage statement
class is certified and scheduled for trial in October 2017,
Dollar Tree said in its Form 10-Q Report for the quarterly period
ended July 29, 2017.
On November 7, 2017, the jury found in favor of the Company. The
time for plaintiff to appeal that verdict has not yet run, Dollar
Tree said in its Form 10-Q Report for the quarterly period ended
October 28, 2017.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Continues to Defend Florida Class Action
-----------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that the company is still defending a class
action suit in Florida state court.
In April 2016, the Company was served with a putative class
action in Florida state court brought by a former store employee
asserting the Company violated the Fair Credit Reporting Act in
the way it handled background checks. Specifically, the former
employee alleged the Company used disclosure forms that did not
meet the statute's requirements and failed to provide notices
accompanied by background reports prior to taking adverse actions
against prospective and existing employees based on information
in the background reports. The plaintiff is seeking statutory
damages of $100 to $1,000 per violation.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Settlement of Family Dollar Suit Still Pending
-----------------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that a preliminary settlement has been reached.
In 2008, a complaint was filed alleging discriminatory practices
with respect to the pay of Family Dollar's female store managers.
Among other things, the plaintiffs seek recovery of back pay,
monetary and punitive remedies, interest, attorneys' fees, and
equitable relief. In June 2016, the United States District Court
in North Carolina ordered that the case be continued for merits
discovery. The court also certified the case as a class action of
approximately 30,000 current and former female store managers
employed as far back as July 2002. A preliminary settlement has
been reached in the case and has been properly recorded by the
Company. Other aspects of the settlement agreement are still
being finalized.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Calif. Suit by Former Employees Underway
-----------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that a lawsuit filed by two of its former
employees remains pending in California federal district court.
In July 2017, two former employees filed suit in federal court in
California, seeking to represent a class of current and former
non-exempt employees alleging that the Company's dress code
required them to purchase such distinctive clothing that it
constituted a uniform and the Company's failure to reimburse them
for the clothing violated California law. The former employees
seek restitution, damages, penalties and injunctive relief.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Suit by 43 Employees Pending in Calif. State Court
---------------------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that a class suit by 43 employees remains
pending in the state court in California.
In August 2017, 43 current and former employees filed suit
against the company in state court in California alleging
improper classification as exempt employees which they allege
resulted in, among other things, their failure to receive
overtime compensation, rest and meal periods, accurate wage
statements, and final pay upon termination of employment.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Former Store Manager's Suit Now Resolved
-----------------------------------------------------
A 2016 class action lawsuit in California by a former store
manager has been resolved, Dollar Tree, Inc. said in its Form
10-Q Report filed with the Securities and Exchange Commission for
the quarterly period ended October 28, 2017.
In April 2016, a former store manager filed a lawsuit in
California state court alleging individual claims of pregnancy
and disability discrimination in addition to asserting Private
Attorney General Act ("PAGA") claims on behalf of herself and
other store managers alleging they were improperly classified as
exempt and therefore, among other things, did not receive
overtime compensation and meal and rest periods. The parties have
reached a settlement as to all claims.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Consumer Class Suit Underway in Illinois
-----------------------------------------------------
A January 2017 consumer class action lawsuit remains pending,
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017.
In January 2017, a customer filed a class action in federal court
in Illinois alleging the Company violated various state consumer
fraud laws as well as express and implied warranties by selling a
product that purported to contain aloe when it did not. The
requested class is limited to the state of Illinois.
The Company believes that it is fully indemnified by the entities
that supplied it with the product.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: California Class Suit vs. Family Dollar Concluded
--------------------------------------------------------------
A class action lawsuit in California by a former Family Dollar
worker has been dismissed, Dollar Tree, Inc. said in its Form
10-Q Report filed with the Securities and Exchange Commission for
the quarterly period ended October 28, 2017.
In 2014, a putative class action was filed in a California
Federal Court by a former employee alleging that the Company had
a policy of requiring employee bag checks while the employees
were not clocked in for work. As a result of those actions, the
employee alleged the Company violated California law by failing
to provide meal periods and rest breaks, failing to pay regular
and overtime wages for work performed off the clock, failing to
provide accurate wage statements, failing to timely pay all final
wages and by engaging in unfair competition. He also alleged PAGA
claims. In July 2017, the Court granted the Company's motion for
summary judgment as to all claims and dismissed the lawsuit with
prejudice.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: 2d. Cir. Affirms Dismissal of ERISA Suit
-----------------------------------------------------
Dollar Tree, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
October 28, 2017, that an appellate court has upheld the
dismissal of a class action lawsuit.
In 2015, former employees filed a nationwide class action in
federal court in Connecticut alleging the Company had violated
ERISA by overcharging employees who purchased supplemental life
insurance through a Company sponsored plan. In March 2016, the
district court dismissed the lawsuit. The Second Circuit Court of
Appeals has now affirmed the dismissal of the lawsuit.
Dollar Tree is an operator of more than 14,500 retail discount
stores and conducts its operations in two reporting segments. The
Dollar Tree segment is the leading operator of discount variety
stores offering merchandise at the fixed price of $1.00. The
Family Dollar segment operates general merchandise retail
discount stores providing consumers with a selection of
competitively-priced merchandise in convenient neighborhood
stores. The company is based in Chesapeake, Virginia.
DOLLAR TREE: Class Suit by Calif. Store Associates Underway
-----------------------------------------------------------
A lawsuit by a former store associate remains pending, Dollar
Tree, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission for the quarterly period ended October
28, 2017.
In August 2017, a former employee brought suit in California
state court on a Private Attorney General Act representative
basis alleging the Company failed to provide him and all other
California store associates with suitable seating when they were
performing cashier functions.
DOLLAR TREE: Representative Suit by Current Employee Pending
------------------------------------------------------------
A representative action by a current employee remains pending in
California state court, Dollar Tree, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission for the
quarterly period ended October 28, 2017.
In November 2017, a current employee filed a PAGA representative
action in California state court alleging the Company failed to
make wage statements readily available to California store
employees who do not receive paper checks.
DOLLAR TREE: Still No Arbitration in Sales Staff Suit
-----------------------------------------------------
A former non-exempt sales associate has yet to initiate
arbitration proceedings despite a court order, Dollar Tree, Inc.
said in its Form 10-Q Report filed with the Securities and
Exchange Commission for the quarterly period ended October 28,
2017.
In July 2016, a former non-exempt sales associate filed in
federal court in Arkansas a putative nationwide collective action
alleging the Company forced sales associates and assistant store
managers to work off the clock while clocked out for meal breaks
and, as a result, underpaid regular and overtime pay. In
September 2016, the court granted the Company's motion to compel
arbitration. To date, the former associate has not initiated any
arbitration proceedings.
DOLLAR TREE: Former Store Manager's Suit in Arbitration
-------------------------------------------------------
The lawsuit by a former store manager has been sent to
arbitration, Dollar Tree, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended October 28, 2017.
In March 2017, a former store manager filed suit in a state court
in Florida, seeking to represent a collective, alleging failure
to pay non-exempt employees minimum wage for all time worked and
overtime in violation of the Fair Labor Standards Act, and,
individually, alleging race discrimination and retaliation in
violation of federal and state civil rights laws. Pursuant to
Court order, the case has been sent to arbitration.
DOLLAR TREE: Former Employee's Suit Stayed Pending Arbitration
--------------------------------------------------------------
A lawsuit by a former store employee remains stayed pending an
arbitration proceeding, Dollar Tree, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission for the
quarterly period ended October 28, 2017.
In April 2017, a former store employee filed a lawsuit in
California state court alleging off the clock work primarily for
bag checks, failure to pay overtime, failure to provide rest and
meal breaks, failure to pay wages timely during and upon
termination of employment and failure to provide accurate wage
statements.
The court granted the Company's motion to compel arbitration and
stayed the case pending the outcome of the arbitration
proceedings. Subsequently, the court allowed plaintiff to amend
her complaint to include PAGA claims, on behalf of herself and
others, which are not subject to arbitration. However, those
claims remain stayed pending the outcome of the arbitration
proceeding.
DOLLAR TREE: Calif. Store Worker's Suit Still Pending
-----------------------------------------------------
A lawsuit by a former store employee remains pending in
California state court, Dollar Tree, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission for the
quarterly period ended October 28, 2017.
In June 2017, a former store employee filed suit in California
state court asserting PAGA claims on behalf of herself and other
allegedly aggrieved employees alleging the Company willfully
caused their work time to go under reported so they failed to
receive pay for time worked, rest and meal breaks, minimum wage
and overtime compensation, final pay in a timely manner, and
accurate wage statements.
DREAM HOTEL: Faces "Fischler" Suit in S.D. of New York
------------------------------------------------------
A class action lawsuit has been filed against Dream Hotel Group,
LLC. The case is styled as Brian Fischler, individually and on
behalf of all other persons similarly situated, Plaintiff v.
Dream Hotel Group, LLC, Defendant, Case No. 1:18-cv-00749 (S.D.
N.Y., January 27, 2018).
Dream Hotel Group is a hotel brand and management company with a
rich, 30-year history of managing properties in some of the
world's most highly competitive hotel environments.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
EAST WEST BANCORP: Faces "Duncan" Suit in E.D. of New York
----------------------------------------------------------
A class action lawsuit has been filed against East West Bancorp,
Inc. The case is styled as Eugene Duncan, on behalf of himself
and all others similarly situated, Plaintiff v. East West
Bancorp, Inc., Defendant, Case No. 1:18-cv-00541-RRM-RER (E.D.
N.Y., January 25, 2018).
East West Bank, the primary subsidiary of East West Bancorp,
Inc., is a bank based in Pasadena, California.[BN]
The Plaintiff is represented by:
Daniel C Cohen, Esq.
Daniel Cohen, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Tel: (646) 645-8482
Fax: (347) 665-1545
Email: dancohenlaw@gmail.com
ENDO INT'L: 3rd Amended "Friedman" Suit Dismissed
-------------------------------------------------
In the case, CRAIG FRIEDMAN, Plaintiff, v. ENDO INTERNATIONAL
PLC, et al., Defendants, Case No. 16-CV-3912 (JMF) (S.D. N.Y.),
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York granted the Defendants' motion to dismiss
the Plaintiffs' Third Amended Complaint ("TAC").
In this putative class action, the Plaintiffs bring securities
fraud claims against Endo and three of its executives, Rajiv De
Silva, Suketu Upadhyay, and Paul Campanelli. The Plaintiffs
allege two principal violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b),
78t(a), and Securities Exchange Commission Rule 10b-5, 17 C.F.R.
Section 240: first, that the Defendants engaged in an unlawful
scheme to defraud investors by inflating sales of two of its
prescription drugs and, second, that the Defendants made material
misrepresentations in public statements and securities filings.
Endo develops, manufactures, and distributes pharmaceutical
products and devices worldwide. Its business involves both
"branded" and "generic" pharmaceuticals, which Endo markets and
distributes to physicians, retail pharmacies, healthcare
professionals and wholesalers.
The Plaintiffs' claims relate predominantly to Endo's generic
pharmaceuticals business. They allege that, in November 2010,
Endo acquired Qualitest Pharmaceuticals, thereby securing a
critical mass in the generics market. According to the TAC,
however, the company took a turn after De Silva took over as CEO
in February 2013, when it began reducing research and development
expenditures and buying up other pharmaceutical companies. As a
result, the Plaintiffs claim that, by May 11, 2015, Endo owned an
amalgam of unrelated and disjointed pharmaceutical businesses,
which were failing to generate meaningful sales growth. The
Plaintiffs allege that Endo's acquisition of Par on May 18, 2015,
was a continuation of that ill-advised business plan.
Between May 11, 2015, and May 6, 2016 ("Class Period"), the
Defendants publicly commented in press releases, conference
calls, and at investor conferences that the company was making
progress toward achieving a number of its strategic priorities,
and was well positioned to support its key organic growth
drivers. It was not until May 5, 2016, that the Defendants
stated publicly that the integration of Par was not entirely
seamless and announced that the company would transition the
legacy Qualitest systems and processes to the Par business
platform. On the last day of the Class Period -- May 5, 2016 --
Endo revised its 2016 revenue expectations downward; the stock
price dropped 39%.
Separately, the Plaintiffs allege that the Defendants engaged in
illegal practices to inflate the sales of two migraine drugs:
Sumavel DosePro and Frova. Specifically, the Plaintiffs claim
that Endo sales representatives were instructed to provide "pre-
filled" reimbursement forms to physicians in order to incentivize
them to prescribe Sumavel DosePro. Citing a former employee, the
Plaintiffs contend that, in February 2015, sales representatives
were told to stop using and shred all of the pre-filled forms.
The Plaintiffs also allege that Endo offered "improper discounts
and rebates to" Pharmaceutical Benefit Managers ("PBMs") to
induce them to list Frova as one of the drugs covered by the
benefits policy. On May 6, 2016, Endo announced that, in March
2016, the company had received a civil investigative demand from
the U.S. Attorney's Office for the Southern District of New York
seeking information relating to Frova and PMBs.
The Defendants now move, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, to dismiss the Plaintiffs' claims.
Judge Furman finds that the Plaintiffs may well be right that
Endo engaged in an ill-advised "acquisition spree" by acquiring
Par and other companies. The securities laws, however, do not
provide remedies for bad business decisions; they provide
remedies only for fraud. Try as the Plaintiffs might, they
cannot muster facts plausibly suggesting that the Defendants
engaged in any such fraud. Accordingly, the Plaintiffs' claims
under Section 10(b) and Rule 10b-5 must be and are dismissed. It
follows that their claims for control person liability under
Section 20(a), which depend upon the existence of a "primary
violation" under Section 10(b), also failed.
That leaves only the question of whether the Plaintiffs should be
granted leave to amend their complaint for a fourth time, as they
perfunctorily request in a footnote at the end of their
memorandum of law in opposition to Defendants' motion. Judge
Furman declined to grant the Plaintiffs' leave to amend, for a
combination of three reasons.
First, amendment would likely be futile. Second, and related,
the Plaintiffs have not given any indication that they're in
possession of facts that would cure the problems identified in
the Opinion. Finally, in granting leave to file the third
amended complaint, the Judge expressly warned that the Plaintiffs
would not be given another opportunity to address the issues
raised in the Defendants' motion to dismiss.
The Clerk of Court is directed to terminate Docket Nos. 78 and
84, and to close the case.
A full-text copy of the Court's Jan. 16, 2018 Opinion and Order
is available at https://is.gd/sVxmuY from Leagle.com.
The Steamfitters Industry Pension Fund & The Steamfitters'
Industry Security Benefit Fund, Lead Plaintiffs, represented by
Avital Orly Malina -- AMalina@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com
-- Robbins Geller Rudman & Dowd LLP, Mark Tamerlane Millkey --
mmillkey@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Samuel
James Adams, Pomerantz Grossman Hufford Dahlstrom & Gross LLP &
Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
Craig Friedman, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Joseph Alexander
Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP.
John Blume, Movant, represented by Adam M. Apton --
aapton@zlk.com -- Levi & Korsinsky LLP.
Bucks County Employees Retirement Fund & Sheet Metal Workers'
Pension Fund of Local No. 19, Movants, represented by Gregory
Mark Nespole -- mn@whafh.com -- Wolf Haldenstein Adler Freeman &
Herz LLP.
Kavi Jaikishin Hathiramani, Movant, represented by Jeremy Alan
Lieberman, Pomerantz LLP.
Syed T. Bashir, Movant, Pro se.
Robert Rosenblatt, Movant, represented by Kim Elaine Miller --
kim.miller@ksfcounsel.com -- Kahn Swick & Foti, LLC.
Arkansas Teacher Retirement System, Movant, represented by
Geoffrey Coyle Jarvis -- gjarvis@ktmc.com -- Kessler Topaz
Meltzer & Check, LLP.
Endo International plc, Rajiv Kanishka Liyanaarchie De Silva &
Suketu P. Upadhyay, Defendants, represented by James Ellis Brandt
-- james.brandt@lw.com -- Latham & Watkins LLP, Jeff G. Hammel --
jeff.hammel@lw.com -- Latham and Watkins, Miles Norman Ruthberg -
- iles.ruthberg@lw.com -- Latham & Watkins LLP & Thomas James
Giblin -- thomas.giblin@lw.com -- Latham & Watkins LLP.
Paul Campanelli, Defendant, represented by Jeff G. Hammel --
jeff.hammel@lw.com -- Latham and Watkins.
ENHANCED RECOVERY: Faces "Korchagina" Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Enhanced Recovery
Company, LLC. The case is styled as Polina Korchagina, on behalf
of herself and all others similarly situated, Plaintiff v.
Enhanced Recovery Company, LLC, Defendant, Case No. 1:18-cv-00567
(E.D. N.Y., January 26, 2018).
Enhanced Recovery provides business process outsourcing services
that include recovery, outsourcing, and market research.[BN]
The Plaintiff is represented by:
Daniel C Cohen, Esq.
Daniel Cohen, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Tel: (646) 645-8482
Fax: (347) 665-1545
Email: dancohenlaw@gmail.com
ENZYMATIC THERAPY: Faces "Jocelyn" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Enzymatic Therapy,
LLC. The case is styled as Cindy Jocelyn, on behalf of herself
and others similarly situated, Plaintiff v. Montage Hotels and
Enzymatic Therapy, LLC, Defendant, Case No. 2:18-cv-00564 (E.D.
N.Y., January 26, 2018).
Enzymatic Therapy, Inc. manufactures and distributes dietary
supplements and natural medicines. It offers products in various
categories, including antioxidantsbone and joint, children's
health, critical cellular support, daily health, detox and
cleansing, digestion, energy, heart, immune and respiratory,
men's health, multivitamins, prostate and urinary support, sexual
health, multivitamins, weight management and fitness, and women's
health.[BN]
The Plaintiff appears PRO SE.
FACEBOOK INC: Privacy Deal 'Worthless' to Users, Critic Argues
--------------------------------------------------------------
Wendy Davis, writing for Digital News Daily, reports that a
critic of class-action settlements is asking a federal appellate
court to scrap Facebook's recent settlement of a privacy lawsuit
over allegations that it scanned users' private messages.
The settlement, which requires Facebook to add a new 22-word
sentence to its help site, is "worthless" to the company's users,
the Center for Class Action Fairness says in papers filed with
the 9th Circuit Court of Appeals.
The deal, approved by U.S. District Court Judge Phyllis Hamilton
in the Northern District of California, resolved a 2013 lawsuit
brought by Arkansas resident Matthew Campbell and Oregon resident
Michael Hurley. They alleged that Facebook violated the federal
wiretap law by intercepting users' messages to each other and
scanning them. The company reportedly did so in order to
determine whether people were sending their friends links to
outside sites.
The allegations emerged in 2012, when security researcher Ashkan
Soltani reported that Facebook counts in-message links as
"likes." Facebook said at the time that no private information is
exposed, but confirmed that the like-counter "reflects the number
of times people have clicked those buttons and also the number of
times people have shared that page's link on Facebook."
Facebook has since changed that practice. The settlement notes
that Facebook revised its prior practice, but the agreement
doesn't prohibit the company from changing it again in the
future.
The deal requires Facebook to pay up to almost $4 million to the
class-action attorneys who brought the case, and $5,000 each to
the two Facebook users who served as plaintiffs, but no monetary
awards to the company's other users. Instead, users who want to
pursue claims for monetary damages may bring new lawsuits.
The settlement also obligates Facebook to add the following
sentence to its help site: "We use tools to identify and store
links shared in messages, including a count of the number of
times links are shared."
The Center for Class Action Fairness, founded by activist Ted
Frank, argues to the 9th Circuit that the deal should be vacated
on the grounds that it doesn't benefit users. "The 22-word
disclosure regarding Facebook's collection of message content ...
is itself worthless," the organization argues. "That bare-bones
addition to one of Facebook's little-read help pages is
duplicative of a disclosure Facebook made in its Data Use Policy
well before a settlement was reached, and is unlikely to be seen
by -- much less provide a benefit to -- the overwhelming majority
of the class."
The group also notes that Facebook's users, as opposed to class
counsel, are supposed to be the main beneficiaries of a deal.
"The settlement here gives preferential treatment to class
counsel, allocating virtually the entire settlement benefit to
the lawyers rather than the class," the organization contends.
The Center for Class Action Fairness has challenged other high-
profile privacy settlements involving tech companies. The
organization asked the Supreme Court to decide whether Google
should have been allowed to settle a privacy battle by donating
more than $5 million to nonprofits. [GN]
FIRST AMERICAN: Faces "Duncan" Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against First American
International Corp. The case is styled as Eugene Duncan, on
behalf of himself and all others similarly situated, Plaintiff v.
First American International Corp., Defendant, Case No. 1:18-cv-
00542 (E.D. N.Y., January 25, 2018).
First American International Corp. operates as the bank holding
company for First American International Bank that provides
commercial and retail banking services to individuals,
corporations, and other businesses and institutions.[BN]
The Plaintiff appears PRO SE.
FIRST REPUBLIC: Faces "Duncan" Suit in Eastern District New York
----------------------------------------------------------------
A class action lawsuit has been filed against First Republic
Bank. The case is styled as Eugene Duncan, on behalf of himself
and all others similarly situated, Plaintiff v. First Republic
Bank, Defendant, Case No. 1:18-cv-00539 (E.D. N.Y., January 25,
2018).
First Republic Bank is an American bank and wealth management
company offering personal banking, business banking, trust and
wealth management services.[BN]
The Plaintiff is represented by:
Daniel C Cohen, Esq.
Daniel Cohen, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Tel: (646) 645-8482
Fax: (347) 665-1545
Email: dancohenlaw@gmail.com
FORT COLLINS, AZ: Rent Payment Firm Shorted Landlords
-----------------------------------------------------
Pat Ferrier, writing for Coloradoan, reports that four landlords
using a Fort Collins-based online rent payment processing company
filed a lawsuit in December alleging negligence and breach of
contract after their tenants' rent money went missing.
"History repeats itself. First as a tragedy, then as a farce,"
the lawsuit states on behalf of landlords in Boulder, New York,
Georgia and Arizona. "The use of advanced technology as a vehicle
for the secure and efficient transaction of business has once
again been used a Trojan Horse to effectuate theft on a massive
scale."
The suit filed in Larimer County District Court, which is seeking
class-action status, alleges hundreds, perhaps thousands of
landlords "have seen the monthly rental payments of their tenants
vanish, without a trace."
Tenants paid rent through eRentPayment's secure website, which
was processed in an automatic clearinghouse network and then
deposited in the landlords' accounts.
But eRentPayment, owned by Rick Sands of Fort Collins, emailed
customers in October, claiming that recent payments to landlords
weren't made because of issues with its payment processor,
eCheckit.
According to the lawsuit, eCheckit had contracted with another
vendor, Check Commerce, to do the payment processing. Check
Commerce froze all the unsettled funds held on behalf of eCheckit
in a reserve account, after it may have been "victim of a
hacking, data breach, fraud or other wrongful act that resulted
in the theft of potentially millions of dollars including rent
payments owed to the plaintiffs and other property owners and
landlords."
Transactions affected were submitted between Oct. 3-12, according
to the lawsuit. The four landlords lost between $1,150 and
$3,125, the suit states. The total amount that may have been lost
by all landlords is unknown.
Some tenants and landlords got their money back after filing
complaints with their banks or credit unions.
Diamond Leone and James Baker both got their money back through
their tenants' banks.
"Erentpayment.com was very helpful after a short while," said
Leone, who owns three properties in California and Virginia and
was originally owed $7,950. "Maybe the reason they didn't
initially return my emails was because they were inundated with
communications when this first happened? However, they eventually
did work with my affected tenants to get the money back from
their banks. I was very pleasantly surprised at how they helped
me."
Baker, of Charleston, South Carolina, said he finally got the
$1,600 he was owed after filing a report with the tenant's credit
union. "They were able to refund the money to the tenant and then
the tenant paid me," said Baker, who has one rental property and
is not a plaintiff.
"For me things have been settled," he said. "But I am not shocked
that people in different positions feel otherwise."
Baker and Leone have stopped using an online payment processing
company. Baker's tenant now deposits rent directly into his
account. Eventually, he might consider using another online rent
payment system "if there were a good reason." But for now, " "I'm
doing it the old-fashioned way," he said.
The lawsuit claims eRentPayment was negligent by failing to
exercise adequate control over the security processes used by
eCheckit and failed to ensure the integrity and security of its
systems.
eRentPayment.com is still active. Its Facebook page has not been
updated since November, and calls to the company are answered by
a recording indicating the company is only communicating by
email.
The BBB issued a warning in October after receiving 120
complaints.
In November, Sands wrote on BBB's website that eRentPayment was
working around the clock to repair its relationships with its
clients but recommended tenants deal directly with their banks to
get their money back.
"We've also taken steps to ensure this never happens again,"
Sands wrote at the time. Payments were being processed through a
direct bank relationship with Esquire Bank. Transactions
submitted after Oct. 12 were being processed through Esquire.
"We have let our customers down and are deeply sorry for the
frustration this has caused and the amount of time it has taken
us to try and correct the situation," he wrote. "We are working
hard to make things right and regain the trust of our clients."
Neither Sands nor eRentPayment had filed a response to the
lawsuit as of January 26. The plaintiffs' attorney, Ian Hicks,
Esq. -- ian@ithlaw.com -- of Denver, was not immediately
available for comment. [GN]
FORT WORTHINGTON, MD: HRA Wins in Class Action Lawsuit
------------------------------------------------------
Karl Evers-Hillstrom, writing for The Globe, reports that The
Worthington Housing Redevelopment Authority (HRA) expects to
receive a lump sum of $195,348 during the first quarter of 2018.
The agency, which manages 136 public housing units within the
city, has been waiting for the money for six years. It will get
it soon, thanks to a successful class-action lawsuit against the
U.S. Department of Housing and Urban Development (HUD).
In 2012, facing a budget shortfall, HUD decided to withhold all
operating subsidies from public housing agencies that had an
excess of funds in reserves. Fort Worthington HRA Director Randy
Thompson and many others, it felt like HUD was punishing agencies
for managing money properly
"For being good fiscal stewards they said 'we're going to take
money away from you,' and obviously that didn't sit well with a
lot of agencies across the United States," Thompson said.
The Worthington HRA joined in on a class-action lawsuit comprised
of nearly 350 public housing authorities. In January 2017,
Federal Claims Court awarded the plaintiffs a total of more than
$135 million.
Like all public housing authorities, the Worthington HRA needs
subsidies to operate without a loss, so HUD's decision created a
struggle for the agency.
"We rely on that subsidy to charge reduced rents and for a
majority of our tenants, we pay for utilities, so in 2012 we did
have to take money out of our reserves to meet operational
needs," Thompson said.
A second lawsuit has been launched regarding HUD's 2012 decision,
comprised of public housing authorities that didn't jump on board
the first time around.
Each having lost out on more than $100,000 in subsidies in 2012,
the Pipestone, Windom and Luverne HRAs will participate in the
lawsuit. [GN]
GENERAL MOTORS: Claims in "Vazquez" Over Z06 Defects Narrowed
-------------------------------------------------------------
Judge Darrin P. Gayles of the U.S. District Court for the
Southern District of Florida granted the Defendant's Motion to
Dismiss the case, MICHAEL VAZQUEZ, et al., Plaintiffs, v. GENERAL
MOTORS, LLC, Defendant, Case No. 17-22209-CIV-GAYLES (S.D. Fla.).
Plaintiffs Vazquez and Michael Malone, both seeking to represent
a class of Florida purchasers of the Defendant ("GM")'s Corvette
Z06, are track enthusiasts. Each purchased his Z06 for use both
on public roads and on specialized closed tracks. The Plaintiffs
allege that GM marketed and sold the Z06 for use on race tracks
and that they relied on this marketing in deciding to purchase
their vehicles.
According to the Complaint, the Z06, a car marketed and sold for
both everyday use and for the race track, has a significant flaw:
a design defect makes it unsuitable for track driving. The
Plaintiffs allege that due to a defective cooling system, the
engine will overheat if it operates on the track during a typical
track session, which causes the Z06 to go into Limp Mode to
prevent permanent damage, or causes the driver to see the
overheat gauge and pit the car before it goes into Limp Mode.
When the car enters Limp Mode, it automatically slows. The
Plaintiffs argue that it is inherently dangerous for the vehicle
to enter Limp Mode either at the track or on public roads because
sudden deceleration of a vehicle increases the risk of collision.
And the unexpected overheating can damage other components of the
car as well.
According to the Plaintiffs, GM knew of the defect but continued
to market the cars for track driving. They allege that GM had
conducted extensive track testing of the vehicle, which would
have revealed the alleged defect. Likewise, the Plaintiffs offer
examples of online consumer complaints regarding the overheating
issue and allege that GM monitors the online forums on which
these complaints were lodged.
The Plaintiffs assert that a February 2015 statement by
Corvette's chief engineer, Tadge Juechter, providing advice for
how to avoid overheating while driving on tracks, demonstrated
the company's awareness of the problem. Similarly, the
Plaintiffs allege that GM effectively admitted to the defect when
it stopped production of the Z06 in 2016 due to the overheating
issue and modified the cooling system in the 2017 model.
The Plaintiffs' vehicles are covered by GM's express limited
warranty, which in relevant part covers repairs to correct any
vehicle defect, not slight noise, vibrations, or other normal
characteristics of the vehicle due to materials or workmanship
occurring during the warranty period. Needed repairs will be
performed using new, remanufactured, or refurbished parts.
The Plaintiffs assert that this warranty covers both
manufacturing and design defects, but that GM has refused to
repair the alleged design defect in their vehicles.
In June 2017, six named plaintiffs covering five states filed the
instant Class Action Complain, seeking to represent a nationwide
class and numerous statewide classes of purchasers of the Z06.
After the Defendant filed its Motion, the Plaintiffs voluntarily
dismissed all non-Florida Plaintiffs and their claims, leaving
two named Plaintiffs and five remaining claims: (1) violation of
the Magnuson-Moss Warranty Act (15 U.S.C. Sec 2301 et seq.); (2)
violation of Florida's Unfair and Deceptive Trade Practices Act;
(3) fraudulent concealment (based on Florida law); (4) breach of
express warranty; and (5) unjust enrichment (based on Florida
law). In the instant Motion, GM seeks Rule 12(b)(6) dismissal of
all five remaining claims in the Complaint for failure to state a
claim.
Judge Gayles finds that sufficient ambiguity in the warranty
language to make dismissal of the claims at this stage premature.
While there is some support for GM's proposed interpretation, the
warranty provision is not devoid of ambiguity. Accordingly, the
Motion is denied as to Count 4.
As to Count 1, the Plaintiffs' Magnuson-Moss claim is premised on
the express written limited warranty. The parties agree that the
Magnuson-Moss claim is substantively identical to the Florida
state law warranty claim. Because the Judge has determined that
it cannot dismiss the Plaintiffs' state law claim for breach of
express warranty, he likewise declines to dismiss the Plaintiffs'
Magnuson-Moss claim. Accordingly, the Motion is denied as to
Count 1.
As to Count 3, the parties agree that the Plaintiffs' damages are
purely economic. Fraudulent concealment claims in the products
liability sphere that seek to recover only economic damages are
clearly barred by Florida's economic loss rule. Accordingly, the
Motion is granted as to Count 3.
Judge Gayles denied the Motion as to Count 2 as the Plaintiffs
have adequately pled a prima facie case under FDUTPA. Because
there is an express warranty governing the subject matter at
issue, he dismissed the Plaintiffs' unjust enrichment claims.
Based on the foregoing, Judge Gayles granted in part and denied
in part the Defendant's Motion to Dismiss. It is granted as to
Counts 3 and 5; denied to Counts 1, 2, and 4; and dismissed with
prejudice Counts 3 and 5 of the Class Action Complaint.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/5TWz1c from Leagle.com.
Michael Vazquez & Michael Malone, Plaintiffs, represented by
Shelby R. Smit -- shelbys@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -
- Hagens Berman Sobol Shapiro, LLP, pro hac vice, Stuart Z.
Grossman -- szg@grossmanroth.com -- Grossman, Roth, Yaffa, Cohen,
PA, Jason Drew Weisser -- jweisser@shw-law.com -- Schuler,
Halvorson, Weisser & Zoeller & Rachel Wagner Furst --
rwf@grossmanroth.com -- Grossman Roth Yaffa Cohen, P.A.
Jason Drew Weisser, Consol Plaintiff, represented by Jason Drew
Weisser, Schuler, Halvorson, Weisser & Zoeller.
General Motors LLC, Defendant, represented by April N. Ross --
aross@crowell.com -- Crowell & Moring, LLP, pro hac vice, Jared
A. Levine -- JaLevine@crowell.com -- Crowell & Moring LLP,
Kathleen Taylor Sooy -- ksooy@crowell.com -- Crowell & Moring,
LLP, pro hac vice & Paul Joseph Schwiep --
PSchwiep@coffeyburlington.com -- Coffey Burlington, P.L..
GERMANY: Finally Appoints Counsel in Genocide Class Action
----------------------------------------------------------
Kate Schoenbach, writing for New Era, reports that Germany
finally appointed counsel in the genocide case in which the
chiefs of Ovaherero and Nama are suing the Federal Republic of
Germany in the American courts. Counsel Jeffrey Harris appeared
on behalf of the German government in a New York court on Jan.
25.
Although the hearing was only 15 minutes, plaintiff's lawyer
Kenneth McCallion stated that it was "significant" as Germany,
which had been avoiding the case for the last year, had now
appointed counsel.
On January 12, 2018 Germany filed a motion to dismiss, claiming
the case has no jurisdiction to be heard in New York, which Judge
Laura Taylor Swain initially rejected on procedural grounds.
However, as Judge Swain stated in court on Jan. 25, she was
reinstating Germany's motion as Harris had sufficiently outlined
his efforts to engage plaintiffs.
Plaintiffs will now file an amended complaint to respond to
Germany's allegations that the case has no jurisdiction in New
York. Judge Swain has granted plaintiffs a new deadline of
February 14 to file an amendment, which will, among other things,
address Germany's jurisdictional issues. Once this is filed, it
is expected Judge Swain will again terminate Germany's motion to
dismiss.
While it is too early to tell the precise implications of the
case, Germany's acceptance of the complaint and appointment of
counsel were seen by plaintiffs as a positive step towards moving
forward. Assuming all documents are timely filed, the next court
date is set for May 3.
This was the fourth pre-trial hearing in the class action suit
lodged against Germany for colonial-era genocide in Namibia,
which was filed by plaintiffs just over a year ago.
Plaintiffs Vekuii Rukoro, Paramount Chief of the Ovaherero, and
Veraa Katuuo, founding member of the Association of the Ovaherero
Genocide in the USA, were in attendance. The third plaintiff,
Chief David Frederick, a beloved member of the Bethanie Nama
community, passed away two weeks ago. Nama Chief Johannes
Isaack, who was at court on Jan. 25, will assume the position of
third plaintiff.
Plaintiffs contend that German colonial troops were responsible
for the deaths of over 100,000 Ovaherero and Nama, as well as the
taking and expropriation of Ovaherero and Nama lands and other
property without compensation, violating international law.
"We have been able to trace to some extent the money and the
wealth of the Ovaherero and Nama, from Namibia, where it was
taken by the Germans back to Berlin . . . With the fruits of that
genocide and the taking of property they've been able to buy
significant real estate here in New York. So, we think that
Germany's presence here [in New York] is very significant and
directly relates back to the Namibian genocide," said
Mr. McCallion at a press briefing following court on Jan. 25.
Plaintiffs' legal case against Germany began on January 5, 2017,
when they filed a class action lawsuit with the U.S. federal
district court in New York under the Alien Tort Statute, a law
dating back to 1789 often invoked in human rights cases. Three
pre-trial conferences were held last year, though each was
postponed as Germany had not appointed counsel.
Plaintiffs had made several failed attempts to serve the
defendant through The Hague Service Convention, though Germany
refused acceptance on procedural grounds. The next option
available to plaintiffs was to initiate diplomatic service on
Germany by asking the U.S. State Department to send the summons
and complaint directly to the German Foreign Ministry under
diplomatic cover. After their formal review of the matter, the
U.S. State Department completed its service at the end of last
year. [GN]
GERMANY: Asks US Court to Drop Namibian Genocide Suit
-----------------------------------------------------
Business Day reports that the German government said January 26
it had asked a U.S. court to throw out a lawsuit brought by
indigenous groups from Namibia seeking reparations for the
genocide of their peoples under German colonial rule.
It was the first time Berlin has formally responded to the class-
action suit launched by the Herero and Nama people last year over
the tens of thousands killed in the 1904-1908 massacres.
Berlin's position "is that the complaint is inadmissable because
of the principle of state immunity", foreign ministry spokeswoman
Maria Adebahr told reporters, a day after a New York judge held a
10-minute hearing in the case.
"In accordance with US law it was necessary to formally convey
this to the court. We did this through a lawyer," Adebahr said.
US District Judge Laura Taylor Swain agreed to consider Germany's
request, but set no date for ruling on it. The next hearing in
the case has been set for May 3.
Germany has acknowledged that atrocities occurred at the hands of
German colonial authorities, but it has repeatedly refused to pay
direct reparations.
It has argued that its development aid worth hundreds of millions
of euros since Namibia's independence from South Africa in 1990
was "for the benefit of all Namibians".
Aside from financial compensation, the plaintiffs also want to be
included in ongoing negotiations between Germany and Namibia
aimed at reaching a joint declaration on the massacres.
The dispute harkens back to a period over a century ago when
South West Africa, now known as Namibia, was a German colony.
The suit alleges that from 1885 to 1903 about a quarter of
Ovaherero and Nama lands -- thousands of square miles -- was
taken without compensation by German settlers with the explicit
consent of German colonial authorities.
It also claims that those authorities turned a blind eye to rapes
by colonists of Ovaherero and Nama women and girls, and the use
of forced labour.
Tensions boiled over in early 1904 when the Ovaherero rose up,
followed by the Nama, in an insurrection crushed by German
imperial troops.
In the Battle of Waterberg in August 1904, around 80,000 Herero
fled including women and children.
German troops went after them across what is now known as the
Kalahari Desert. Only 15,000 Herero survived.
The smaller Nama tribe faced a similar fate. Around 10,000 of
them were killed as they sought to rebel against the Germans
during the conflict. [GN]
HYUNDAI MOTORS: Obtains Favorable Ruling in Mileage Class Action
----------------------------------------------------------------
Peter Vieth, writing for Lawyers Weekly, reports that Lynchburg
attorney James B. Feinman scored a win in an ongoing bid to force
state-by-state settlement terms in a national class action over
exaggerated Hyundai mileage claims. Feinman represents Virginia
owners of Hyundai Elantras advertised as getting 40 mpg. The
Korean-made cars achieved "about 32 mpg on the best day," Mr.
Feinman said. [GN]
INTEL CORP: CEO Sold Shares on Same Day OEMs Warned of Bugs
-----------------------------------------------------------
Sam Varghese, writing for itwire, reports that Intel reportedly
warned its OEM partners about the Meltdown and Spectre processor
flaws on 29 November, the same day that its chief executive,
Brian Krzanich, sold a tranche of stock and options and netted a
healthy profit.
The French magazine LeMagIt said it had obtained a secret
memorandum sent to Intel's OEMs under an agreement that insisted
on confidentiality and non-disclosure.
The memo outlined the disclosure plan: that OEMs would be told on
29 November and a public disclosure would be made on 9 January.
The latter date could not be adhered to, as news of the bugs
broke prior to that and forced disclosure by others on 3 January.
It said that any communications that OEMs sent to the company
should be encrypted with its public key, the location of which
was provided.
The processor manufacturer has also been accused of selectively
informing customers about the flaws.
LeMagIt said that Mr. Krzanich had given instructions on 30
October for the sale of the shares and that this transaction was
the subject of at least one class action in the US, led by the
Boston lawyers Block & Leviton, a company that has been part of
the lawsuits against Volkswagen over the emissions scandal known
as dieselgate.
A Google advisory shows that the bug was found on 1 June 2017 and
a proof-of-concept was created by 22 June.
The two flaws were revealed in the first week of January and
affect Intel processors made since 1995.
Meltdown removes the barrier between user applications and
sensitive parts of the operating system. Spectre, which is also
reportedly found in some AMD and ARM processors, can trick
vulnerable applications into leaking the contents of their
memory.
LeMagIt said "surprisingly" Intel continued to market the
affected processors "and will likely continue to market
vulnerable processors for the next year or more. While waiting
for a new generation of chips whose design will be immune to
Spectrum, the plan . . . seems to rely on the developers of
operating systems".
Patches issued by Intel for the flaws have caused problems to the
extent that the company has told users to hold off on using them
and to instead wait for a fresh crop of updates. Linux creator
Linus Torvalds described the Intel patches as "total garbage".
When news of Mr. Krzanich's share sale first broke, the company
said that the sale was not related to the two flaws, "Brian's
sale is unrelated," Intel said. Mr. Krzanich "continues to hold
shares in line with corporate guidelines". [GN]
ITC FINANCIAL: Court Affirms Demurrer Ruling in "Schuldner" Suit
----------------------------------------------------------------
In the case, STAN SCHULDNER, Cross-Complainant and Appellant, v.
ITC FINANCIAL LICENSES, INC., et al., Cross-Defendants; OFFICE
DEPOT, INC., Cross-Defendant and Respondent, Case No. A150522
(Cal. App.), Judge James A. Richman of the Court of Appeals of
California for the First District, Division Two, affirmed the
trial court's order sustaining Office Depot's demurrer to
Schuldner's second amended cross-complaint ("SACC") without leave
to amend.
The case arises out of Schuldner's scheme to generate credit card
rewards points by purchasing gift cards on credit and returning
the cards for cash. Pursuant to this scheme, Schuldner purchased
"Do It Yourself Home Improvement" gift cards, each worth $500, in
quantities of 10 to 20 at a time from an Office Depot store in
San Francisco. He did not, however, intend to actually use the
gift cards to purchase home improvement goods or services.
Instead, he would immediately mail them to the issuer, ITC, for a
cash refund of the purchase price. From October 2013 to January
2014, he purchased at least 130 gift cards totaling $65,000.
ITC's auditors eventually discovered Schuldner's scheme and
determined he was violating the terms of the cardholder agreement
governing use of the cards. Relying on the terms of the
agreement, ITC declined to issue Schuldner any further refunds,
leaving $32,499 in outstanding gift cards. After notifying
Schuldner of its decision not to issue cash refunds for the
outstanding cards, ITC attempted to return the cards to
Schuldner, but he refused the delivery.
Schuldner initiated an arbitration against ITC, seeking a cash
refund for the outstanding gift cards, plus interest and punitive
damages. In a decision dated June 12, 2015, the arbitrator ruled
in ITC's favor. The arbitrator ordered ITC to return the full
value of the outstanding gift cards ($32,499), expressly stating
that Schuldner was responsible for accepting delivery. When ITC
attempted to return the cards, however, Schuldner refused to
accept them.
ITC filed a petition to confirm the arbitrator's award. On
September 14, 2015, the court granted the petition and confirmed
the award. That same day, Schuldner filed a document entitled
"Respondent's Petition to Vacate; and Respondent's Counter Claim-
Civil Action."
In the cross-complaint, Schuldner alleged that since
approximately 2012, ITC had published on its website a cardholder
agreement that provided the buyer could return the cards for a
refund, as well as notices and advertisements that the gift cards
it was selling could be used at various merchants including at
BenjaminMoore.com. He further alleged that in or about June 2015
and on various other dates, he went to BenjaminMoore.com and
noticed that it says it does not accept the gift cards.
According to Schuldner, he served ITC with a notice of violation
of the Consumer Legal Remedies Act ("CLRA") arising out of its
false advertising concerning where the gift cards could be used,
but ITC never responded. The cross-complaint asserted four
causes of action against ITC: (1) violation of the CLRA; (2)
breach of contract; (3) account stated; and (4) unjust
enrichment.
Schuldner obtained leave to file a first amended cross-complaint
("FACC"), which added The Bancorp Bank and Office Depot as cross-
defendants. The FACC purported to assert 12 causes of action
against all three cross-defendants: (1) violation of the CLRA;
(2) breach of contract (for failure to honor the cancellation
clause in the cardmember agreement and because the cards could
not be used on the Benjamin Moore website and in all stores); (3)
account stated; (4) unjust enrichment; (5) false advertising in
violation of Business and Professions Code section 17200 (section
17200); (6) fraud; (7) conversion; (8) violation of Penal Code
section 4963; (9) breach of fiduciary duty; (10) negligent
misrepresentation; (11) constructive trust; and (12) civil
conspiracy. The FACC also asserted class action allegations.
ITC and Bancorp demurred to the FACC, and on April 25, 2016, the
demurrer came on for hearing. At the outset, the trial court
rejected ITC's and Bancorp's argument that Schuldner was
collaterally estopped from raising any additional claims relating
to the gift cards due to the arbitration award. It agreed,
however, that the FACC failed to state a claim.
As to the four claims premised on cross-defendants' alleged
misrepresentation regarding where the cards could be used, the
court found that Schuldner failed to sufficiently allege that he
had relied on any purported misrepresentation and that he had
suffered damages as a result. Accordingly, it sustained the
demurrer as to those causes of action but granted Schuldner leave
to amend to allege reliance and damages. To the extent those
claims arose from the notice in the cardholder agreement that the
gift cards could be returned for a cash refund, the court held
that Schuldner was collaterally estopped from asserting such
claims due to the arbitration.
As to the remaining eight claims, the court held that they failed
as a matter of law and there was no reasonable possibility
Schuldner could amend to state viable claims. Accordingly, the
court sustained the demurrer without leave to amend as to those
causes of action. Lastly, it dismissed the class allegations as
improper since Schuldner was representing himself in propria
persona, and it denied his petition to vacate the arbitration
award.
On June 28, 2016, Schuldner filed the SACC. The SACC realleged
the four misrepresentation-based causes of action against all the
Defendants: violation of the CLRA (count 1); false advertising in
violation of section 17200 (count 2); fraud (count 3); and
negligent misrepresentation (count 14). And it alleged three new
causes of action against all the Defendants: rescission (count
4), declaratory relief (count 5), and negligence (count 12).
Additionally, the SACC reasserted against all cross-defendants
the six causes of action the court had dismissed with prejudice
as to ITC and Bancorp, that is breach of contract for
misrepresenting where the cards could be used (count 6), breach
of contract for failure to give a refund after the arbitration
(count 8), account stated (count 9), unjust enrichment (count
10), conversion (count 11), and violation of Penal Code section
496 (count 13). As to Office Depot and Bancorp only, the SACC
also alleged breach of contract for failure to give a refund
before the arbitration (count 7). Lastly, the SACC continued to
allege class claims despite the court's dismissal of the class
allegations.
Office Depot demurred to the SACC, and the demurrer came on for
hearing on Aug. 30, 2016. At the outset of the hearing, the
trial court observed that Schuldner had "ignored" its previous
rulings "in large order." Specifically, the court had granted
leave to amend only the claims relying on the misrepresentation
theory, but Schuldner had reasserted the causes of action the
court had dismissed with prejudice. Concluding those claims still
failed as a matter of law, the court sustained Office Depot's
demurrer to those claims without leave to amend.
As to the remaining claims, the court concluded that Schuldner
had not alleged, and could not allege, a misrepresentation by
Office Depot or his reliance on a misrepresentation by Office
Depot. The court thus sustained Office Depot's demurrer without
leave to amend. On Oct. 5, 2016, the court entered judgment for
Office Depot. The timely appeal followed.
Judge Richman
affirmed the trial court's order sustaining Office Depot's
demurrer to Schuldner's SACC without leave to amend. The Judge
finds, among other things, the trial court properly sustained the
demurrer to the causes of action based on Schuldner's
misrepresentation theories. To the extent this allegation
related to the replacement cards ITC sent in compliance with the
arbitration award, Schuldner has not alleged that Office Depot
was in any way connected with the second transaction.
He finds that Schuldner (i) cannot state a claim for breach of
contract arising out of where the gift cards could be used (count
6); (ii) cannot state a claim for breach of contract for Office
of Depot's alleged failure to issue a refund before the
arbitration (count 7); (iii) cannot state a claim for breach of
contract for Office of Depot's alleged failure to issue a refund
after the arbitration (count 8); (iv) cannot state a claim for
rescission based on a mutual mistake of fact; and (v) has not
alleged any other viable theory of liability.
After reviewing the trial court's denial of leave to amend for
abuse of discretion, Judge Richman holds that Schuldner has not
identified any facts he could allege suggesting a reasonable
possibility that he could amend to state a viable claim against
Office Depot. Therefore, the trial court did not abuse its
discretion in sustaining Office Depot's demurrer without leave to
amend.
A full-text copy of the Court's Jan. 16, 2018 Opinion is
available at https://is.gd/vXVPhW from Leagle.com.
J.E. KRUEGER: Faces "Decker" Suit in Southern District of Ind.
--------------------------------------------------------------
A class action lawsuit has been filed against J. E. Krueger
Warden. The case is styled as Robert Decker Disciplinary
Proceedings 896643-A1 - and all persons similarly situated in the
FBOP, Plaintiff v. J. E. Krueger Warden, Defendant, Case No.
2:18-cv-00031-JMS-MJD (S.D. Ind., January 25, 2018).
The Defendant is a government representative.
The Plaintiff appears PRO SE.
JANSSEN PHARMA: "T.R." Suit Remanded to Missouri State Court
------------------------------------------------------------
The United States District Court for Eastern District of
Missouri, Eastern Division, issued a Memorandum and Order
granting Plaintiff's Motion to Re-remand to the State Court the
Action styled T.R., et al., Plaintiffs, v. JANSSEN
PHARMACEUTICALS, INC., et al., Defendants, Case No. 4:17-cv-
02015-JAR (E.D. Mo.).
Plaintiffs first filed this action in the Circuit Court of the
City of St. Louis, Missouri seeking damages for injuries
sustained as a result of the use of the antipsychotic drug
Risperdal.
Defendants first removed this action to this Court on the basis
of diversity jurisdiction under 28 U.S.C. Section1332(a), federal
question jurisdiction under 28 U.S.C. Section 1331, and the Class
Action Fairness Act (CAFA). Defendants removed this case for a
second time, asserting that all of the non-Missouri Plaintiffs
should be dismissed from the case, and that the Court's diversity
jurisdiction then would apply to the remaining Missouri
Plaintiffs' claims.
Defendants' basis for their second removal primarily rests with
the United States Supreme Court's ruling in Bristol-Myers Squibb
Co. v. Superior Court of California, San Francisco Cty.
In that case, the Supreme Court held that state courts lack
specific jurisdiction over non-resident plaintiffs' claims that
have no connection to the forum where the lawsuit is filed, even
if those plaintiffs join their claims with in-state plaintiffs.
Defendants assert that the ruling in Bristol-Myers Squibb
qualifies as orders and/or other papers because it changed the
legal landscape by clarifying that specific jurisdiction over the
non-Missouri Plaintiffs does not exist and thus triggers a new
30-day period for removal under Section 1446(b)(3).
However, the orders and other paper exception is predominantly
limited to orders and other paper issued in the individual case
that is being removed. Orders and rulings in separate cases with
different parties do not trigger the recommencement of the 30-day
limit.
As a result, Defendants' removal of this matter for a second time
was procedurally improper because Bristol-Myers Squibb does not
constitute other paper. Therefore, the Court will grant
Plaintiffs' Motion to Remand this action to state court.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/y77anosk from Leagle.com.
T.R., Natasha Reese, as next friend for T.R. next friend Natasha
Reese, Darius Byrd, Codi Rowe, Benjamin Ventura, Calvin
McCrackin, Rutger Bontjes, Marcellus Jones, Dominique Sampson,
Anthony Long, Chance Dame, Damian Rumery, Raul Villalobos,
Antonio Hodges, Brandon Pryce, Durrell Donnie, Joseph Holstine,
Letreyvion Taylor, Colten Richardson, Kendall Turner, Anthony
Davis, Alan Kowalevicz, Nathan Christensen, John Pressler,
Maurice Skinner, Jesse Burgess, Thomas Dealy, Michael Sorrells,
Andre Williams, Jeremy Patton-Brooks, Christopher Jacobsen, Ryan
Hunt, Seamus Hufford, Corey Tucker, Nicholas Tzap, Keven Cruzado,
A.W., Johanna Hawley-Walker, as next friend for A.W. next friend
Johanna Hawley-Walker, Justin Deville, Nicholas Foster, Robert
Howell, Kyle Davis, Lee Wilson, Terrance McLeod, Dominic Pierce,
Cwintyin Haase, Denzel Boyd, Kieth Robinson, David Krieg, Andrew
Bither, Joshua Santiago, Michael Vasquez, Maxx Lepore, R.K., next
friend Brenda Kerr, Cornell Harris, Lamont Jordan, S.G.,
Dannielle Goodman, as next friend for S.G. next friend Dannielle
Goodman, Deonte Babineaux, Dariun Wells, Z.F., Teresa Richard, as
next friend for Z.F. next friend Theresa Richard, Mason Webster,
Dion Brooks, Daryl Rivera, Damien Curington, Darris Dias, Dillion
Mendiola, Timothy Linden, Corey Dearing, Davis Burns, Steve
Phillips, Noel Grijalva, T.D., next friend Tammy Domingue,
Chantel Anderson & Tokingea Peters, Plaintiffs, represented by D.
Todd Mathews -- todd@gorijulianlaw.com -, GORI AND JULIAN, P.C..
Janssen Pharmaceuticals, Inc., formerly known as Ortho-McNeil
Jannsen Pharmaceuticals, Inc. formerly known as Janssen
Pharmaceuticals Inc., Johnson & Johnson Company, also known as
Johnson & Johnson, Janssen Research & Development LLC, formerly
known as Johnson & Johnson Pharmaceutical Research & Development,
LLC & Patriot Pharmaceuticals, L.L.C., Defendants, represented by
Richard P. Cassetta -- richard.cassetta@bryancave.com -- BRYAN
CAVE LLP, Stefan A. Mallensamallen@bryancave.com, BRYAN CAVE LLP
& Stephen G. Strauss -- sgstrauss@bryancave.com -- BRYAN CAVE
LLP.
JANSSEN PHARMA: "Clayton" Remanded to Missouri State Court
----------------------------------------------------------
The United States District Court for Eastern District of
Missouri, Eastern Division, issued a Memorandum and Order
granting Plaintiff's Motion to Re-remand to the State Court the
Action styled MICHELE CLAYTON, et al., Plaintiffs, v. JANSSEN
PHARMACEUTICALS, INC., et al., Defendants, Case No. 4:17-cv-
02019-JAR (E.D. Mo.).
Plaintiffs first filed this action in the Circuit Court of the
City of St. Louis, Missouri seeking damages for injuries
sustained as a result of the use of the antipsychotic drug
Risperdal and/or Invega.
Defendants first removed this action to this Court on the basis
of diversity jurisdiction under 28 U.S.C. Section1332(a), federal
question jurisdiction under 28 U.S.C. Section 1331, and the Class
Action Fairness Act (CAFA). Defendants removed this case for a
second time, asserting that all of the non-Missouri Plaintiffs
should be dismissed from the case, and that the Court's diversity
jurisdiction then would apply to the remaining Missouri
Plaintiffs' claims.
Defendants' basis for their second removal primarily rests with
the United States Supreme Court's ruling in Bristol-Myers Squibb
Co. v. Superior Court of California, San Francisco Cty.
In that case, the Supreme Court held that state courts lack
specific jurisdiction over non-resident plaintiffs' claims that
have no connection to the forum where the lawsuit is filed, even
if those plaintiffs join their claims with in-state plaintiffs.
Defendants assert that the ruling in Bristol-Myers Squibb
qualifies as orders and/or other papers because it changed the
legal landscape by clarifying that specific jurisdiction over the
non-Missouri Plaintiffs does not exist and thus triggers a new
30-day period for removal under Section 1446(b)(3).
However, the orders and other paper exception is predominantly
limited to orders and other paper issued in the individual case
that is being removed. Orders and rulings in separate cases with
different parties do not trigger the recommencement of the 30-day
limit.
As a result, Defendants' removal of this matter for a second time
was procedurally improper because Bristol-Myers Squibb does not
constitute other paper. Therefore, the Court will grant
Plaintiffs' Motion to Remand this action to state court.
A full-text copy of the District Court's December 21, 2017
Memorandum Opinion and Order is available at
https://tinyurl.com/ya4tl689 from Leagle.com.
Michele Clayton, individually, R.A., guardian Michele Clayton,
Waleeah Brooks, individually, J.G., next friend Waleeah Brooks,
C.E.B., next friend Christopher N. Bass, Samuel Fisch,
Christopher N. Bass, individually, Ginger Plumley, individually,
K.K., next friend Ginger Plumley, Stephanie Redd, individually,
C.R., next friend Stephanie Redd, Connie Glover, individually &
C.G., next friend Connie Glover, Plaintiffs, represented by
Randall S. Crompton, scrompton@allfela.com HOLLAND LAW FIRM LLC.
Janssen Pharmaceuticals, Inc., formerly known as Ortho-McNeil
Jannsen Pharmaceuticals, Inc. formerly known as Janssen
Pharmaceutica Inc. & Janssen Research & Development LLC, formerly
known as Johnson & Johnson Pharmaceutical Research & Development,
LLC, Defendants, represented by Richard P. Cassetta --
richard.cassetta@bryancave.com -- BRYAN CAVE LLP & Stephen G.
Strauss -- sgstrauss@bryancave.com -- BRYAN CAVE LLP.
Johnson & Johnson Company, also known as Johnson & Johnson,
Defendant, represented by Stephen G. Strauss --
sgstrauss@bryancave.com -- BRYAN CAVE LLP.
JUNO THERAPEUTICS: Court OKs Program, Notice in Securities Suit
---------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order granting Plaintiffs' Motion
for an Order Regarding Program and Notice in the case captioned
In re JUNO THERAPEUTICS, INC., No. C16-1069 RSM (W.D. Wash.).
The Court certified the following Class in this action: ALL
PURCHASERS OF THE COMMON STOCK OF JUNO THERAPEUTICS, INC., DURING
THE PERIOD FROM JUNE 4, 2016 AND NOVEMBER 22, 2016, BOTH DATES
INCLUSIVE (THE CLASS PERIOD).
Excluded from the Class are defendants, present or former
officers and directors of Juno Therapeutics, Inc., members of
their immediate families and their legal representatives, heirs,
successors or assigns, and any entity in which any current or
former Defendant has or had a controlling interest.
The Amended Complaint alleges that, during the Class Period,
Defendants made false and/or misleading statements and/or failed
to disclose material facts about JCAR015, an immunotherapy
candidate developed by the Company to treat a rare form of blood
cancer known as Acute Lymphoblastic Leukemia. During the Class
Period, and pursuant to Food and Drug Administration (FDA)
regulations, JCAR015 was being studied in various clinical trials
to assess its efficacy and safety, so that the FDA could
determine whether to approve the therapy for use in the United
States.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/yb3ua56m from Leagle.com.
Man Nguyen, Movant, represented by Clifford A. Cantor, 627 208th
Ave SE, Sammamish, WA 98074, USA
Gilbert Hoang Nguyen, Movant, represented by Jeremy A. Lieberman
-- jalieberman@pomlaw.com -- POMERANATZ LLP, pro hac vice,
Joseph Alexander Hood, II -- ahood@pomlaw.com -- POMERANTZ LLP,
pro hac vice, Leigh Handelman Smollar -- lsmollar@pomlaw.com --
POMERANTZ LLP, pro hac vice, Omar Jafri -- ojafri@pomlaw.com --
POMERANTZ LLP, pro hac vice & Clifford A. Cantor.
Goce Veljanoski, Plaintiff, represented by Janissa Ann Strabuk --
jstrabuk@tousley.com -- TOUSLEY BRAIN STEPHENS, Jeffrey C. Block
-- jeff@blockesq.com -- BLOCK & LEVITON LLP, pro hac vice, Joel
Fleming -- joel@blockesq.com -- BLOCK & LEVITON LLP, pro hac vice
& Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN
STEPHENS.
Liberata Paradisco, individually and on behalf of all others
similarly situated, Plaintiff, represented by Duncan Calvert
Turner -- duncanturner@badgleymullins.com -- BADGLEY MULLINS
TURNER PLLC.
Gilbert Hoang Nguyen, Plaintiff, represented by Patrick V.
Dahlstrom -pdahlstrom@pomlaw.com -- POMERANTZ LLP, pro hac vice &
Clifford A. Cantor, 627 208th Ave. SE. Sammamish, WA 98074-7033
Susan Tan, Plaintiff, Pro se.
Juno Therapeutics Inc & Hans E Bishop, individually and on behalf
of the marital community, Defendants, represented by Daniel
Slifkin -- dslifkin@cravath.com -- CRAVATH SWAINE & MOORE, pro
hac vice, Drew Liming -- dliming@wsgr.com -- WILSON SONSINI
GOODRICH & ROSATI, pro hac vice, Ignacio E. Salceda --
Isalcedo@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac
vice, Joni Ostler -- jostler@wsgr.com -- WILSON SONSINI GOODRICH
& ROSATI, pro hac vice, Karin A. DeMasi -- kdemasi@cravath.com --
CRAVATH SWAINE & MOORE, pro hac vice, Lauren M. Rosenberg --
lrosenberg@cravath.com -- CRAVATH SWAINE & MOORE, pro hac vice,
Morgan J. Cohen, CRAVATH SWAINE & MOORE, pro hac vice, Nina F.
Locker -- NLocker@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI,
pro hac vice & Gregory Lewis Watts -- Gwatts@wsgr.com -- WILSON
SONSINI GOODRICH & ROSATI.
Steven D. Harr & Mark J. Gilbert, Defendants, represented by
Daniel Slifkin, CRAVATH SWAINE & MOORE, pro hac vice, Karin A.
DeMasi, CRAVATH SWAINE & MOORE, pro hac vice, Lauren M.
Rosenberg, CRAVATH SWAINE & MOORE, pro hac vice, Morgan J. Cohen,
CRAVATH SWAINE & MOORE, pro hac vice & Joni Ostler, WILSON
SONSINI GOODRICH & ROSATI.
KROENKE ARENA: Pepsi Center Settles Class Action Lawsuit
--------------------------------------------------------
Taylor Mims, writing for Amplify, reports that Kirstin Kurlander,
a deaf woman and season ticket holder for lacrosse team Denver
Mammoth, has settled a lawsuit with the Kroenke Arena Company
over the Pepsi Center's lack of captioning at non-concert events.
Per the settlement, Pepsi Center in Denver will caption all aural
content spoken over the public address system.
The settlement also calls on Kroenke, who owns the 18,000-
capacity arena, to provide the lyrics of songs selected at least
24 hours before the event for any non-concert event for which the
center-hung display is used.
"The Pepsi Center has offered interpreters to its Deaf and Hard
of Hearing patrons since its opening and, more recently,
captioning on handheld devices at sporting events. We are now
pleased to offer open captioning in the arena for sporting and
similar non-concert events," said Jim Martin, President and Chief
Executive Officer of Kroenke Arena Company in a statement.
In 2016, Kurlander filed a class action lawsuit against the
owners of the Pepsi Center after informally requesting captions
at the arena. As a result, later that year Pepsi Center began to
provide captions on handheld devices such as smartphones or
tablets and worked with Kurlander and her attorneys at the Civil
Rights Education and Enforcement Center in Colorado on a solution
that would provide general visibility throughout the arena.
Kroenke will now provide open captioning on four LED displays
mounted on the face of the third level of the Pepsi Center and
generally visible throughout the arena. The settlement stipulates
that with the new captioning will begin with the first preseason
Avalanche game of the 2018 season. Each board will show two lines
of captioning in a font that is at least 10 inches high and will
provide space for captioning that is at least 45 characters long.
The settlement also requires Kroenke to retain a third party
consultant to monitor the quality of captioning provided.
Kurlander said in a release, "I am very pleased that the Pepsi
Center will provide captioning and I look forward to attending
lacrosse and other games there with full access to the
information broadcast in the arena."
The settlement also requires Kroenke to retain a third party
consultant to monitor the quality of captioning provided, which
the arena company will be financially responsible for.
The agreement does not provide monetary relief for Kurlander or
other members of the class, but Kroenke will pay their counsel
for reasonable attorneys' fees, expenses, and costs.
"We were pleased with the Pepsi Center's willingness to explore
different solutions, and are glad that Deaf and Hard of Hearing
sports fans will have equal access to games there," said Amy
Robertson, Co-Executive Director at CREEC in a statement. [GN]
KUSHNER COS: Sued by Tenants Ordered to Reveal Who Partners Are
---------------------------------------------------------------
Peter Blumberg, writing for Bloomberg, reports that a rental
apartment management firm run by presidential adviser Jared
Kushner's family was ordered by a federal judge to disclose the
identities of its business partners in an ongoing lawsuit filed
by Maryland tenants.
At the behest of media organizations, U.S. District Judge James
Bredar in Baltimore ruled January 26 that Westminster
Management's desire to keep the names secret is outweighed by the
public interest in the class-action case. Westminster is accused
of charging tenants illegal fees on top of the monthly rent, then
threatening to evict them if they don't pay.
Before joining the administration, Kushner was chief executive
officer of the Kushner Cos. Kushner, who is married to Trump's
daughter, Ivanka, divested his interest in his family's business
when he joined the administration. He isn't named as a defendant
in the case.
Bredar directed Westminster Management to file an unsealed
document identifying its partners by Feb. 9. [GN]
MICHAELS COMPANIES: Feb. 18 Trial of Store Manager's Claim
----------------------------------------------------------
Trial of a store manager's claim is set for Feb. 18, 2018, The
Michaels Companies, Inc. said in a regulatory filing with the
Securities and Exchange Commission.
On September 15, 2011, Michaels Stores, Inc. ("MSI") was served
with a lawsuit filed in the California Superior Court in and for
the County of Orange ("Superior Court") by four former store
managers as a class action proceeding on behalf of themselves and
certain former and current store managers employed by MSI in
California. The lawsuit alleged that MSI improperly classified
its store managers as exempt employees and as such failed to pay
all wages, overtime and waiting time penalties and failed to
provide accurate wage statements. The lawsuit also alleged that
the foregoing conduct was in breach of various laws, including
California's unfair competition law.
On December 3, 2013, the Superior Court entered an order
certifying a class of approximately 200 members. MSI successfully
removed the case to the U.S. District Court for the Central
District of California and on May 8, 2014, the class was
decertified.
Michaels Companies said in its Form 10-Q Report for the quarterly
period ended July 29, 2017, that three of the four named
plaintiffs' claims were resolved in September 2014 and the
remaining one is set for trial on December 12, 2017.
In its Form 10-Q Report for the quarterly period ended October
28, 2017, the Company said the remaining one is set for trial on
February 18, 2018.
The individual claims of 26 former class members remain pending
in the Central District of California. In addition, a separate
representative action brought on behalf of store managers
throughout the state is pending in the California Superior Court,
County of San Diego.
The Michaels said "We believe we have meritorious defenses and
intend to defend the lawsuits vigorously. We do not believe the
resolution of the lawsuits will have a material effect on our
consolidated financial statements."
The Michaels is the largest arts and crafts specialty retailer in
North America (based on store count) providing materials, project
ideas and education for creative activities under the retail
brands of Michaels, Aaron Brothers and Pat Catan's. The company
also operates an international wholesale business under the
Darice brand name and a market-leading vertically-integrated
custom framing business under the Artistree brand name. The
company is based in Irving, Texas.
MICHAELS COMPANIES: "Bercut" Suit Proceeding in State Court
-----------------------------------------------------------
The Michaels Companies, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended October 28, 2017, that the case Michelle Bercut v.
Michaels Stores, Inc. has been remanded to California Superior
Court.
On December 11, 2014, Michaels Stores, Inc. ("MSI") was served
with a lawsuit, Christina Graham v. Michaels Stores, Inc., filed
in the U.S. District Court for the District of New Jersey by a
former employee. The lawsuit is a purported class action,
bringing plaintiff's individual claims, as well as claims on
behalf of a putative class of applicants who applied for
employment with Michaels through an online application, and on
whom a background check for employment was procured. The lawsuit
alleges that MSI violated the Fair Credit Reporting Act ("FCRA")
and the New Jersey Fair Credit Reporting Act by failing to
provide the proper disclosure and obtain the proper authorization
to conduct background checks.
Since the initial filing, another named plaintiff joined the
lawsuit, which was amended in February 2015, Christina Graham and
Gary Anderson v. Michaels Stores, Inc., with substantially
similar allegations. The plaintiffs seek statutory and punitive
damages as well as attorneys' fees and costs.
Following the filing of the Graham case in New Jersey, five
additional purported class action lawsuits with six plaintiffs
were filed, Michele Castro and Janice Bercut v. Michaels Stores,
Inc., in the U.S. District Court for the Northern District of
Texas, Michelle Bercut v. Michaels Stores, Inc. in the Superior
Court of California for Sonoma County, Raini Burnside v. Michaels
Stores, Inc., in the U.S. District Court for the Western District
of Missouri, Sue Gettings v. Michaels Stores, Inc., in the U.S.
District Court for the Southern District of New York, and Barbara
Horton v. Michaels Stores, Inc., in the U.S. District Court for
the Central District of California.
All of the plaintiffs alleged violations of the FCRA. In
addition, the Castro, Horton and Janice Bercut lawsuits also
alleged violations of California's unfair competition law. The
Burnside, Horton and Gettings lawsuits, as well as the claims by
Michele Castro, have been dismissed. The Graham, Janice Bercut
and Michelle Bercut lawsuits were transferred for centralized
pretrial proceedings to the District of New Jersey.
On January 24, 2017, the Company's motion to dismiss for lack of
standing was granted, and the court declined to rule on the
merits of plaintiffs' claims. The dismissal order was stayed for
30 days to allow the plaintiffs to amend their complaints.
Because there were no amendments filed, two of the three
centralized cases were dismissed and subsequently appealed to the
U.S. Court of Appeals for the Third Circuit, and the remaining
case (Michelle Bercut) was remanded to California Superior Court.
The Michaels said "the company intends to defend the remaining
lawsuits vigorously. We cannot reasonably estimate the potential
loss, or range of loss, related to the lawsuits, if any."
The Michaels is the largest arts and crafts specialty retailer in
North America (based on store count) providing materials, project
ideas and education for creative activities under the retail
brands of Michaels, Aaron Brothers and Pat Catan's. The company
also operates an international wholesale business under the
Darice brand name and a market-leading vertically-integrated
custom framing business under the Artistree brand name. The
company is based in Irving, Texas.
MICHAELS COMPANIES: Says "Whalen" Suit Concluded
------------------------------------------------
The Michaels Companies, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended October 28, 2017, that the case, Jane Whalen v.
Michaels Stores, Inc., which was filed in the U.S. District Court
for the Eastern District of New York, has been concluded.
Five putative class actions were filed against MSI relating to
the January 2014 data breach. The plaintiffs generally alleged
that MSI failed to secure and safeguard customers' private
information including credit and debit card information, and as
such, breached an implied contract and violated the Illinois
Consumer Fraud Act (and other states' similar laws). The
plaintiffs were seeking damages including declaratory relief,
actual damages, punitive damages, statutory damages, attorneys'
fees, litigation costs, remedial action, pre and post judgment
interest, and other relief as available.
The cases were as follows: Christina Moyer v. Michaels Stores,
Inc., was filed on January 27, 2014; Michael and Jessica Gouwens
v. Michaels Stores, Inc., was filed on January 29, 2014; Nancy
Maize and Jessica Gordon v. Michaels Stores, Inc., was filed on
February 21, 2014; and Daniel Ripes v. Michaels Stores, Inc., was
filed on March 14, 2014. These four cases were filed in the U.S.
District Court for the Northern District of Illinois, Eastern
Division.
On March 18, 2014, an additional putative class action was filed
in the U.S. District Court for the Eastern District of New York,
Mary Jane Whalen v. Michaels Stores, Inc., but was voluntarily
dismissed by the plaintiff on April 11, 2014 without prejudice to
her right to re-file a complaint. On April 16, 2014, an order was
entered consolidating the Illinois actions. On July 14, 2014, the
Company's motion to dismiss the consolidated complaint was
granted.
On December 2, 2014, Whalen filed a new lawsuit against MSI
related to the data breach in the U.S. District Court for the
Eastern District of New York, Mary Jane Whalen v. Michaels
Stores, Inc., seeking damages including declaratory relief,
monetary damages, statutory damages, punitive damages, attorneys'
fees and costs, injunctive relief, pre and post judgment
interest, and other relief as available.
The Company filed a motion to dismiss which was granted on
December 28, 2015, and judgment was entered in favor of the
Company on January 8, 2016. Plaintiff appealed the judgment to
the U.S. Court of Appeals for the Second Circuit and on May 2,
2017, the Second Circuit affirmed the dismissal and Whalen did
not appeal further, thereby concluding the matter.
The Michaels is the largest arts and crafts specialty retailer in
North America (based on store count) providing materials, project
ideas and education for creative activities under the retail
brands of Michaels, Aaron Brothers and Pat Catan's. The company
also operates an international wholesale business under the
Darice brand name and a market-leading vertically-integrated
custom framing business under the Artistree brand name. The
company is based in Irving, Texas.
MICHIGAN: ACLU Demands Justice for Flint Students Exposed to Lead
-----------------------------------------------------------------
Michael Jackman, writing for Detroit Metro Times, reports that a
class-action lawsuit brought against local and state education
officials by the Michigan ACLU on behalf of Flint children
exposed to lead is scheduled to begin at 8:30 a.m. January 29 in
federal court in Detroit.
The hearing in the court of Judge Arthur J. Ternaw could last for
several days. It will include testimony from experts including
Dr. Mona Hanna-Attisha, the pediatrician and public health
advocate whose research revealed Flint children were exposed to
high levels of lead.
As groundbreaking reporting by Curt Guyette, right here in Metro
Times helped reveal, Flint residents were exposed to lead in
their drinking water for more than 18 months. As the crisis
reminded us, lead exposure during childhood can lead to limited
IQ, attention span, and behavioral problems.
But the suit charges that state and local officials have been
dragging their feet when it comes to the expensive and time-
consuming task of identifying poisoning among the estimated
30,000 children affected by high lead levels and providing them
with special education services as required by federal law.
That's why the plaintiff children's counsel -- the ACLU of
Michigan, the Education Law Center, and White & Case LLP -- are
seeking a court order compelling the state to screen students for
lead exposure and provide the resources they need.
That's important for many reasons. For one, school districts
serving Flint students face tight budgets, and the expenses of
special education can strain them to the breaking point. From a
scholastic standpoint, Flint, never an excellent provider of
special education, presents one of the worst possible settings
for this tragedy to play out.
Worse still, the powers that be have a vested interest in not
identifying the size and cost of the consequences of their
actions. After all, why should Gov. Snyder, state education
officials, and other forces allied with emergency management
object if the ills of a poisoned population simply get lost in
the background noise of a disinvested city and an underfunded
school district.
Sources close to the situation say that Flint's school systems
are simply expelling students who really should be identified as
victims, not problems, and give them the neurological testing
that could confirm their troubles. Then, they could begin the
expensive and time-consuming job of actually helping them.
This is yet another in a series of lawsuits against the outcomes
of emergency management filed by public interest lawyers against
the state. One case last year in U.S. District Judge David M.
Lawson's court resulted in state and city officials being ordered
to deliver potable water to residents. (The Snyder administration
fought it for months.) Another suit filed last year in the court
of Judge Stephen J. Murphy III named Gov. Snyder as a defendant,
cited the actions of emergency managers, and ordered the state to
comply with the law and offer Detroit schoolchildren a meaningful
opportunity to learn. [GN]
MIDLAND CREDIT: Faces "Trichell" Suit in N. Dist. Alabama
---------------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc. The case is styled as John Trichell,
individually and on behalf of all others similarly situated,
Plaintiff v. Midland Credit Management, Inc., a Kansas
Corporation and Midland Funding, LLC, a Delaware Limited Company,
Defendants, Case No. 4:18-cv-00132-VEH (N.D. Ala., January 25,
2018).
Midland Credit Management, Inc., a licensed debt collector,
assists customers in resolving past-due financial obligations
through various education and payment plans.[BN]
The Plaintiff is represented by:
Bradford W Botes, Esq.
Bond, Botes, Reese & Shinn, P.C.
600 University Park Place, Suite 510
Birmingham, AL 35209
Tel: (205) 802-2200
Fax: (205) 870-3698
Email: bbotes@bondnbotes.com
MISONIX INC: $500,000 Settlement in "Scalfani" Suit Okayed
----------------------------------------------------------
The shareholder lawsuit filed by Richard Scalfani against
Misonix, Inc., has been dismissed following approval of a case
settlement.
On September 19, 2016, Richard Scalfani, an individual
shareholder of Misonix, filed a lawsuit against the Company and
its former CEO and CFO in the U.S. District Court for the Eastern
District of New York, alleging violations of the federal
securities laws. The complaint alleges that the Company's stock
price was artificially inflated between November 5, 2015 and
September 14, 2016 as a result of alleged false and misleading
statements in the Company's securities filings concerning the
Company's business, operations, and prospects and the Company's
internal control over financial reporting. Scalfani filed the
action seeking to represent a putative class of all persons
(other than defendants, officers and directors of the Company,
and their affiliates) who purchased publicly traded Misonix
securities between November 5, 2015 and September 14, 2016.
Scalfani seeks an unspecified amount of damages for himself and
for the putative class under the federal securities laws.
On March 24, 2017, the Court appointed Scalfani and another
individual Misonix shareholder, Tracey Angiuoli, as lead
plaintiffs for purposes of pursuing the action on behalf of the
putative class. The lead plaintiffs, on behalf of the putative
class, and the Company have reached a settlement in principle
under which the Company would pay $500,000 to resolve the matter,
Misonix said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended June
30, 2017.
The district court approved the settlement and dismissed the
lawsuit with prejudice in an order dated December 16, 2017, The
Company said in a Form 10-Q filing for the quarterly period ended
December 31, 2017. The Company has paid its $250,000,
representing its insurance retention. The balance was paid by the
Company's insurance carrier.
Misonix designs, manufactures, develops and markets therapeutic
ultrasonic devices. These products are used for precise bone
sculpting, removal of soft and hard tumors, and tissue
debridement, orthopedic surgery, plastic surgery, and wound and
burn care. The company is based in Farmingdale, New York.
MITSUBISHI UFJ: Faces "Duncan" Suit in Eastern District New York
----------------------------------------------------------------
A class action lawsuit has been filed against Mitsubishi UFJ
Financial Group, Inc. The case is styled as Eugene Duncan, on
behalf of himself and all others similarly situated, Plaintiff v.
Mitsubishi UFJ Financial Group, Inc., Defendant, Case No. 1:18-
cv-00538 (E.D. N.Y., January 25, 2018).
Mitsubishi UFJ Financial Group, Inc. is a Japanese bank holding/
financial services company headquartered in Chiyoda, Tokyo,
Japan.[BN]
The Plaintiff is represented by:
Daniel C Cohen, Esq.
Daniel Cohen, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Tel: (646) 645-8482
Fax: (347) 665-1545
Email: dancohenlaw@gmail.com
MONSANTO CO: Court Won't Stay "Claasen" Pending Dismissal Bid
-------------------------------------------------------------
The United States District Court for the District of Kansas
issued an Order denying Defendant's Motion to Stay Pending
Court's Ruling on the Motions to Dismiss filed BASF Corporation
and BASF Plant Science LP, and separately by Monsanto Company in
the case captioned JED R. CLAASSEN, et al., Plaintiffs, v.
MONSANTO CO., et al., Defendants, Case No. 17-1210-JTM (D. Kan.).
Plaintiff Jed R. Claassen, individually and as a representative
of what he refers to as Claassen Farms, filed this putative,
nationwide, class-action lawsuit alleging defendants jointly
collaborated to develop and release a defective and unreasonably
dangerous dicamba-tolerant crop system, which has directly
resulted in massive harm to crops in Kansas, Arkansas, Missouri,
Tennessee, Mississippi, and other states.
The decision whether to stay discovery rests in the sound
discretion of the court. The Tenth Circuit has stated, however,
that the right to proceeding in court should not be denied except
under the most extreme circumstances. The court has recognized
that there may be exceptions to this rule, such as where (1) the
case is likely to be finally concluded via a dispositive motion,
(2) the facts sought through discovery would not affect the
resolution of the dispositive motion, or (3) discovery on all
issues posed by the complaint would be wasteful and burdensome.7
The court does not find this to be one of the rare instances in
which staying discovery is justified. Considering the first
exception, the undersigned has reviewed the motions to dismiss
and their accompanying briefs, and cannot say that this action is
likely to be concluded via a ruling on the motions.
Second, the undersigned is not clearly convinced that facts
learned in discovery would not affect the resolution of the
motions to dismiss.
The Magistrate does not find that moving forward with discovery
will be burdensome. Dicamba litigation is currently pending
against defendants in a number of cases across the country, and
as plaintiffs note, much of the information they will seek has
likely already been gathered by defendants and produced in those
cases.
Because no clear exception applies that would warrant it, the
undersigned declines to stay discovery pending resolution of the
dispositive motions.
Defendants' motion to stay discovery is denied.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/ya33f2g6 from Leagle.com.
Jed R. Claassen, Individually and as Representative of Claassen
Farms & Claassen Farms, Plaintiffs, represented by Cody G.
Claassen -- cclaassen@devaughnjames.com -- DeVaughn James Injury
Lawyers, Dustin L. DeVaughn -- ddevaughn@devaughnjames.com --
DeVaughn James Injury Lawyers, Jerry Obe Kelly --
gkelly@kellydorseylaw.com -- Kelly Law Firm, PA, pro hac vice,
Joseph Dean Gates, Paul Byrd Law Firm, PLLC, pro hac vice, Paul
Byrd, Paul Byrd Law Firm, PLLC, 415 N. McKinley St., Suite 210
Little Rock, AR 72205, pro hac vice & Richard W. James --
rjames@devaughnjames.com -- DeVaughn James Injury Lawyers.
Monsanto Company, Defendant, represented by Ann Elizabeth S.
Blackwell -- eblackwell@thompsoncoburn.com -- Thompson Coburn
LLP, pro hac vice, Christopher M. Hohn --
chohn@thompsoncoburn.com -- Thompson Coburn LLP, Daniel C. Cox --
dcox@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Jan
Paul Miller, Thompson Coburn LLP, pro hac vice & Jeffrey A.
Masson, Thompson Coburn LLP, pro hac vice.
BASF Corporation & BASF Plant Science LP, Defendants, represented
by Alan L. Rupe -- jmiller@thompsoncoburn.com -- Lewis Brisbois
Bisgaard & Smith, LLP, Jason D. Stitt --
Jason.Stitt@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith,
LLP & John P. Mandler -- john.mandler@FaegreBD.com -- Faegre
Baker Daniels, LLP, pro hac vice.
MONTAGE HOTELS: Faces "Campos" Suit in C.D. California
------------------------------------------------------
A class action lawsuit has been filed against Montage Hotels and
Resorts, LLC. The case is styled as Jennifer Campos, an
individual, or behalf of herself and others similarly situated,
Plaintiff v. Montage Hotels and Resorts, LLC and DOES 1 through
50, inclusive, Defendants, Case No. 8:18-cv-00151 (C.D. Cal.,
January 26, 2018).
Montage Hotels & Resorts, LLC operates and manages luxury hotels,
resorts, and residences for travelers and homeowners.[BN]
The Plaintiff appears PRO SE.
MULTICHOICE: Pomerantz Mull Class Action Mulled Over Kickbacks
--------------------------------------------------------------
Huffington Post reports that it is just one of several
investigations into claims that MultiChoice paid the SABC and
ANN7 for political influence over government policy.
The Independent Communications Authority of SA (Icasa) will
investigate MultiChoice over allegations that it paid ANN7 and
the SABC in exchange for political influence over government
policy on digital migration, Business Day reported.
The DA reportedly asked Icasa to investigate in November last
year after the allegations came to light.
On Jan. 28, DA shadow minister of communications Phumzile van
Damme reportedly said that the party had received confirmation of
the investigation by Icasa.
"The DA is pleased that Icasa has agreed that the payments
require investigation. SA deserves to know whether the payments
were indeed above the board, as MultiChoice has maintained," she
said.
Minutes of a 2013 meeting emerged last year, in which it is
alleged that MultiChoice offered to pay the SABC R100-million for
its 24-hour news channel in exchange for political influence over
digital migration. It was also alleged that MultiChoice offered
to increase the amount it paid ANN7 for political influence.
MultiChoice denied the allegations.
It is just one of several investigations into the allegations.
In December, international law firm Pomerantz said that it would
be announcing the allegations in a potential class action suit,
according to TimesLive.
"On December 1, 2017, the Company reported that its wholly-owned
television unit MultiChoice had initiated an investigation into
whether improper payments were made to ANN7, a South African news
channel owned by the politically connected Gupta family.
According to local media, citing leaked emails, MultiChoice
substantially increased its annual payment to ANN7 from R50-
million to R141-million over the past two years," the firm
reportedly said in a statement.
According to Eyewitness News (EWN), the Right2Know (R2K) campaign
lodged a complaint with the Public Protector in November, calling
the payments "kickbacks".
R2K claimed that former communications minister Faith Muthambi
was central to the debacle, as she had pushed for a decision on
digital migration that favoured Multichoice, in contravention of
ANC policy.
MultiChoice itself also said it was investigating the
allegations, News24 reported. [GN]
NATIONWIDE TRUCKERS' INSURANCE: Missouri Issues Mixed Ruling
------------------------------------------------------------
Sam Knef, writing for St. Louis Record, reports that U.S.
District Judge Shirley Padmore Mensah issued a mixed ruling in a
junk fax lawsuit being litigated in the Eastern District of
Missouri.
In a Jan. 5 ruling, Mensah denied the plaintiffs' request to
strike the defendants' "failure to state a claim upon which
relief can be granted" and "unclean hands, waiver, laches,
acquiescence and estoppel" affirmative defense answers.
However, she granted the plaintiffs' request to strike
defendants' "failure to mitigate or prevent damages" and "statute
of limitations" affirmative defense answers.
According to background information in the ruling, Swinter Group
Inc. filed a class action against Nationwide Truckers' Insurance
Agency and others last year claiming violations of the Telephone
Consumer Protection Act (TCPA). They seek statutory damages of
$500 per TCPA violation and treble (triple) damages of up to
$1,500 per alleged violation.
The plaintiffs claim the defendants have sent other ads by fax to
at least 40 other people. They further claim that the ads lack a
notice that is required by the TCPA that tells recipients how to
avoid future unsolicited ads.
The defendants answered the suit in September and asserted
several affirmative defenses, which the plaintiffs responded to
by seeking to strike four of the defendants' affirmative
defenses.
Regarding the statute-of-limitations argument the defendants
asserted, Mensah found it "insufficient as a matter of law."
"Defendants have offered nothing to dispute that the four-year
statute of limitations applies to the claims in this case and
have offered no explanation for how the statute of limitations
might bar the claims in this case," Mensah wrote. "The Court
finds that here, as in that case, this defense is insufficient as
a matter of law, and the motion to strike this affirmative
defense will be granted."
On the plaintiffs' request to strike the defendants' failure to
state a claim argument because that "is not actually an
affirmative defense but is rather a defense that asserts a defect
in the plaintiff's prima facie case," Mensah sided with
defendants.
"Regardless of whether this is an affirmative defense, however,
Plaintiff has not shown that its inclusion in the pleadings
prejudices Plaintiff in any way. The Court finds no reason to
believe that such prejudice would exist. Thus, the motion to
strike this affirmative defense will be denied." [GN]
NEIMAN MARCUS: Suit by Roces & Ahmed Removed to N.D. Cal.
---------------------------------------------------------
ONDREA ROCES and SOPHIA AHMED, and on behalf of all others
similarly situated v. NEIMAN MARCUS GROUP LTD LLC, was removed
from the San Francisco County Superior Court, CGC-17-562858, to
the U.S. District Court for the Northern District of California,
Case No. 4:18-CV-0221-YGR, on Jan. 10, 2018. The case was
reassigned to Judge Yvonne Gonzalez Rogers for all further
proceedings.
Neiman Marcus Group LTD LLC operates as a luxury omni-channel
retailer. It sells women's apparel, including dresses,
eveningwear, suits, coats and sportswear, skirts, pants, blouses,
jackets, and sweaters; women's accessories, such as belts,
gloves, scarves, hats and sunglasses, and shoes and handbags;
men's apparel and shoes comprising suits, dress shirts and ties,
sport coats, jackets, trousers, casual wear, and eveningwear, as
well as business and casual footwear; children's apparel; and
cosmetics and fragrances, including facial and skin cosmetics,
skin therapy products and lotions, soaps, fragrances, candles,
and beauty accessories, as well as off-price merchandise. [BN]
Plaintiff represented by:
Jahan C. Sagafi, Esq.
Relic Sun, Esq.
OUTTEN AND GOLDEN LLP
One Embarcadero Center, 38th Floor,
San Francisco, CA 94111-3339
Telephone:(415) 638-8800
Facsimile:(415) 638-8810
Email:jsagafi@outtengolden.com
rsun@outtengolden.com
Defendant is represented by:
Aaron L. Agenbroad, Esq.
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:(415) 626-3939
Facsimile:(415) 875-5700
Email: alagenbroad@jonesday.com
- and -
Cindi Lynn Ritchey, Esq.
JONES DAY
4655 Executive Drive, Suite 1500
San Diego, CA 92121
Telephone: (858)314-1200
Facsimile: (858)314-1150
Email: critchey@jonesday.com
- and -
Koree Lynn Blyleven, Esq.
JONES DAY
4655 Executive Drive, Suite 1500
San Diego, CA 92121
Telephone: (858)314-1200
Facsimile: (858)314-1150
Email: kblyleven@jonesday.com
NEVADA: High Ct. Denies Request for Extraordinary Writ Relief
-------------------------------------------------------------
The Supreme Court of Nevada issued an Opinion denying
Petitioners' Writ of Mandamus in the case captioned ARCHON
CORPORATION; PAUL W. LOWDEN; AND SUZANNE LOWDEN, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND
FOR THE COUNTY OF CLARK; AND THE HONORABLE JOSEPH HARDY, JR.,
DISTRICT JUDGE, Respondents, and STEPHEN HABERKORN, AN
INDIVIDUAL, Real Party in Interest. No. 71802. (Nev.)
The original writ proceeding raises the question of when it is
appropriate to exercise the Court's discretion to grant
extraordinary relief in the form of advisory mandamus.
Petitioners ask the Court to direct the district court to vacate
and reconsider its order denying their motion to dismiss, without
applying the doctrine of cross-jurisdictional class-action
tolling to their statute of limitations defenses.
Real party in interest Stephen Haberkorn owned exchangeable,
redeemable, preferred stock in petitioner Archon Corporation. In
2007, Archon redeemed its preferred stock for $5.241 per share.
The redemption led investors to file three separate lawsuits
against Archon in Nevada federal district court. In each, the
plaintiffs asserted that Archon had miscalculated the redemption
price and should have paid $8.69 per share. Two of the suits,
both by institutional investors, were resolved on summary
judgment awarding damages based on a redemption price of $8.69
per share. The third suit was a class action in which the named
plaintiff, David Rainero, sought contract-based damages on behalf
of himself and other preferred stockholders, including Haberkorn,
for the correctly calculated redemption price. In 2013, based on
the summary judgments won by the institutional investors, the
federal district court granted partial summary judgment to
Rainero, holding that Archon should have paid all of its
preferred shareholders $8.69 per share to redeem their stock.
Haberkorn filed the complaint underlying this writ petition on
February 29, 2016, after the district court's dismissal but
before the Ninth Circuit affirmed. Haberkorn's state court
complaint overlaps Rainero's federal court complaint in that it
includes allegations that Archon shortchanged its preferred
stockholders when it calculated the redemption price for their
stock in 2007.
Petitioners Archon and the Lowdens moved to dismiss Haberkorn's
complaint under NRCP 12(b)(5). The motion asserted that Haberkorn
waited too long to file suit and the statute of limitations had
run on all of his claims.
Haberkorn countered that the pendency of the class action in
federal court tolled the statute of limitations and that, even if
it didn't, Archon's ongoing breaches caused ongoing harm, making
it improper to dismiss the complaint for failure to state a
claim.
The district court denied Archon's motion to dismiss. Its order
summarizes its reasons as follows:
(1) general class action tolling applies;
(2) under these circumstances, cross jurisdictional tolling
also applies;
(3) the remaining arguments in favor of, or against,
dismissal, would be more appropriately raised in a Motion for
Summary Judgment, in particular Defendants' argument that
Plaintiff knew or should have known of various public record
filings;
(4) the Court could not rule on NRS 11.500 at this time, as it
was not raised in the briefs; and
(5) in the alternative, the Motion should also be denied
because of the ongoing harm as alleged [by plaintiff].
A writ of mandamus is not a substitute for an appeal.
Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964). Nor should the
interlocutory petition for mandamus be a routine litigation
practice; mandamus is an extraordinary remedy, reserved for
extraordinary causes. Ex parte Fahey, 332 U.S. 258, 260 (1947);
52 Am. Jur. 2d Mandamus Section 22 (2011), Writs of mandamus are
issued cautiously and sparingly, as the remedy of mandamus is a
drastic one, to be invoked only in extraordinary situations or
under exceptional circumstances.
In this case, Archon concedes that the district court was not
required to dismiss Haberkorn's action pursuant to clear
authority, and that an appeal is an adequate remedy at law.
Instead, Archon asks us to exercise advisory writ review because
it claims that cross-jurisdictional class-action tolling of
statutory limitation periods presents an issue of state-wide
importance that needs clarification. As the petitioner, Archon
bears the burden of demonstrating that extraordinary writ relief
is warranted. The decision to entertain a petition for advisory
mandamus, equally with any other petition for extraordinary writ
relief, is purely discretionary. The sound exercise of that
discretion requires special care in the advisory mandamus
context, to avoid subverting the final judgment rule and
inviting, rather than avoiding, undue delay and expense in
dispute resolution.
Class-action tolling suspends the statute of limitations for all
purported members of the class until a formal decision on class
certification has been made, or until the individual plaintiff
opts out.
In its petition, Archon urges this court to reject the doctrine
of cross-jurisdictional class-action tolling. As support, Archon
cites the extra-jurisdictional cases that have rejected the
doctrine. But Archon argues that perhaps the most important issue
presented by its petition is whether the doctrine of cross-
jurisdictional class-action tolling conflicts with NRS 11.500.
Under NRS 11.500, an action dismissed for lack of subject matter
jurisdiction may be recommenced in the court having jurisdiction
within ninety days, even if the statute of limitations has run,
unless more than five years has passed since the original action
was commenced. Cross-jurisdictional class-action tolling, Archon
urges, would allow the federal judiciary's actions to
indefinitely extend the statute of limitations beyond what it
characterizes as NRS 11.500's five-year period of repose.
This argument, however, was never adequately presented to the
district court. Archon failed to discuss NRS 11.500 in its
written motion to dismiss or reply thereto, resulting in the
district court's refusal to consider the argument when Archon
tried to raise it orally at the hearing on its motion to dismiss.
And, not only did Archon fail to properly present NRS 11.500 to
the district court, the NRS 11.500 argument set forth in its writ
petition differs significantly from that made orally in district
court.
The Court also is not persuaded that clarifying the law as Archon
asks this to do would affect the district court's denial of the
motion to dismiss, thereby advancing the litigation. The district
court denied the motion to dismiss by applying cross-
jurisdictional class-action tolling to the statute of
limitations, but it also found that Haberkorn alleged ongoing
harms within the statute of limitations, and that some of the
issues needed further development and were better suited for
resolution at summary judgment.
Thus, the district court's order provided bases independent from
the cross-jurisdictional class-action tolling issue for denying
Archon's motion to dismiss. The Court is not asked to consider
whether the alternative bases for denial are sound only to answer
whether Nevada recognizes cross-jurisdictional class-action
tolling.
It would not promote sound judicial economy to grant
extraordinary writ relief at this point in the proceeding. The
district court denied Archon's motion to dismiss without
prejudice, declining to entertain its NRS 11.500 argument at this
time. Archon will have further opportunity to present its full
legal argument to the district court at summary judgment, or to
this court on appeal or, even, in another writ petition,
depending on discovery and the eventual substantive motion
practice that may ensue.
This is not an extraordinary cause for which the extraordinary
relief of advisory mandamus should issue. Petitioners raise a new
legal argument in their petition, and even if the Court was to
clarify the law as requested, it would not dispose of the entire
controversy in the district court. Sound judicial economy and
administration militate against the Supreme Court's intervention
in the district court's proceedings under these circumstances,
and the Supreme Court, therefore, deny petitioners' request for
extraordinary writ relief.
A full-text copy of the Supreme Court's December 21, 2017 Opinion
is available at https://tinyurl.com/y8e27moa from Leagle.com.
Dickinson Wright PLLC and John P. Desmond -- JDesmond@dickinson-
wright.com -- Justin J. Bustos -- JBustos@dickinson-wright.com --
and Kenneth K. Ching -- kching@dickinsonwright.com -- for
Petitioners.
Sklar Williams PLLC and Stephen R. Hackett and Johnathon Fayeghi,
Las Vegas, for Real Party in Interest.
NEW YORK: Injunction Blocking Free Air Gas Station Law Issued
-------------------------------------------------------------
John Asbury, writing for Newsday, reports that a Nassau Supreme
Court judge issued an injunction blocking the Town of Hempstead
from enforcing a controversial law mandating service stations to
provide free air to motorists, as the case heads to court.
Judge Karen Murphy ruled that the town cannot proceed with its
2016 law that requires businesses to waive the normal 75 cents to
$1 fee for motorists to fill their tires. The temporary
injunction is in place until the case is heard on Feb. 7 in
Nassau County Supreme Court.
The town board, led by former Supervisor Anthony Santino, passed
the ruling in 2016, citing concern for drivers' safety and
underfilled tires on the town's roadways.
A class-action lawsuit was filed by Manhattan attorney Erica
Dubno on behalf of more than 200 businesses led by William McCabe
and Floral Park-based Service Station Vending Equipment, who
argued in court and to the town board that the new law would hurt
their businesses.
The town's law could jail service station owners for up to 15
days if an air machine isn't functional and charge up to $10,000
per week in fines.
McCabe and other plaintiffs are not seeking any monetary damages
from the town.
Town officials did not comment on the pending litigation.
In Murphy's ruling on Jan. 2, she cited ambiguity in New York
State law that allows service stations to charge customers for
air. [GN]
NEW YORK: Overcrowding Class Action Against LIRR Pending
--------------------------------------------------------
Alfonso A. Castillo, writing for Newsday, reports that during a
recent Jan. 24 night rush hour, a dozen or so Long Island Rail
Road regulars decided to catch a later train so they could drown
their commuting sorrows together at a Penn Station bar.
When the lights briefly flickered inside, Steve Johnson of
Massapequa immediately quipped, "Blame Amtrak." His comrades
knowingly laughed at the joke -- a reference to the finger-
pointing that often goes on between the LIRR and its Penn Station
landlord when service tanks.
When they're not commiserating in person, they're doing so online
as members of Long Island FAILroad -- a Facebook group bonded by
what they say is the near-daily torment that comes with commuting
on the LIRR. They're not shy about telling LIRR officials what
they think, and they are very much on those officials' radar.
"You can go into third-world countries and have better
transportation systems than we do," said Scott Abel, who commutes
from Merrick.
"When have they shown accountability for anything?" asked
Liza Galano of Centerport.
The group began about two years ago when Michael Taub, 40, a
commuter from East Northport, said he was blocked from commenting
on the LIRR's official Facebook page.
"I decided to start my own group where I'd have a voice that they
couldn't block," said Mr. Taub, an accountant.
The closed group -- meaning that members must be approved by
administrators -- grew to about 200 members in its first year.
Then, last spring, a string of major service disruptions at Penn
Station -- including those caused by three train derailments
within four months there -- led to Amtrak's "summer of hell"
repairs, and an increasingly frustrated, and vocal, LIRR
ridership.
"From April '17 to the end of July '17, we went from 200 members
to 1,000 members," Mr. Taub said.
Today, the group boasts nearly 1,300 participants covering all
branches and zones of the railroad -- a healthy sampling of the
approximately 100,000 people who ride the LIRR on an average
weekday morning. They populate the group's Facebook page with
rants, photos and videos documenting their daily travails.
Common posts include photos of spilled coffee on trains, of
dangerously crowded conditions on platforms and of the constant
LIRR service alerts on their phones -- and the occasional typos
within them.
When the railroad issued an alert on Jan. 25 about westbound
delays "though Queens Village," group member Bill O'Brien posted:
"I see they use grammar as well as they run the railroad."
LIFR members say their group serves multiple purposes, such as
outing riders who offend them -- including one video recorded by
Johnson of a passenger stinking up a train car by "eating green
peppers like you would eat an apple" -- and providing real-time
information on service conditions to each other that are often
faster and more accurate than official LIRR communications, they
said.
"We know about problems oftentimes before the conductors know
about problems," said Kelly Bodami of Centereach.
But, most of all, members said the group provides a forum for
them to vent and feel like they are not alone.
"I think we all have a commonality," Ms. Galano said. "We'd all
complain about the Long Island Rail Road on our pages. And our
friends just got tired of listening to our stories."
Through their commiseration, bonds have been formed. Ms. Galano
was the first to get "Long Island Failroad" buttons made to
distribute to fellow members and other commuters. Tote bags soon
followed. Before long, virtual conversations became real ones as
members began meeting regularly for drinks at Penn Station.
"I think we all feel each other's pain," said Abel of East
Meadow, sitting at the group's usual gathering spot, the bar
inside the Pret A Manger near Penn's 34th Street entrance.
"We're not going to stop," he said. "We're not just going to
roll over and say, 'Yes, sir. May I have another?' We're going
to continue to be a thorn in their side until somebody wakes up
and says, 'Hey, enough is enough.' "
And the LIRR says it's listening -- or at least trying to.
Railroad spokesman Aaron Donovan said the LIRR is aware of the
group, but because it is closed to the public, they can't monitor
posts or make any adjustments to service or communications based
on what members say. The group prohibits any Metropolitan
Transportation Authority employees from joining.
Mr. Donovan said the LIRR generally monitors social media and
tries to interact with commuters as much as possible. MTA board
member Mitchell Pally of Stony Brook encouraged the group's
members to continue speaking up.
"It's always appropriate. It always gets attention from the MTA
and will always do so," Pally said. "Obviously, one understands
their frustrations. We're as frustrated as they are. . . . The
more customers tell us what is good or bad, the better it is."
Some Long Island FAILroad group members have already gone to some
extreme lengths to make sure their voices are heard. In July,
group moderator Meredith Jacobs and member Paul Liggieri, a
Manhattan attorney, filed a class-action lawsuit seeking
unspecified damages because of dangerous overcrowding caused by
LIRR service disruptions. LIRR officials have said they cannot
comment on pending litigation.
"Ultimately, that's not about anybody getting money back from the
railroad. That's about them making the changes needed so we
don't have all these issues," said Mr. Taub, who wants his
group's members to keep up their fight. "If you're going to be
taking the railroad and you're going to be facing these issues,
you should speak up. Because nothing is ever going to change if
you don't say anything." [GN]
NIKE RETAIL: Objection to Bill of Costs in "Rodriguez" Overruled
----------------------------------------------------------------
In the case captioned ISAAC RODRIGUEZ, Plaintiff, v. NIKE RETAIL
SERVICES, INC., Defendant, Case No. 14-cv-01508-BLF (N.D. Cal.),
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, overruled
Rodriguez's objection to Nike's Bill of Costs on the ground that
Section 218.5 applies.
After granting Nike's motion for summary judgment, the Court
entered judgment in favor of Nike and against the Plaintiff and
the class on Sept. 12, 2017. Thereafter, Nike filed a Bill of
Costs, which Rodriguez objects to on a single ground.
Specifically, Rodriguez argues that the entire Cost Bill is
objectionable pursuant to California Labor Code Section 218.5.
According to Rodriguez, Nike is entitled to its costs as the
prevailing party in the suit only if the Court finds that
Rodriguez brought the action in bad faith.
Nike responds that the award of costs is a procedural matter
governed by federal law, and Section 218.5 does not apply. It
therefore requests that the Clerk award costs against Rodriguez
in the full amount of $19,316 as detailed in Nike's Bill of
Costs.
Judge Freeman finds that Rule 54(d) applies. He says, contrary
to Rodriguez's argument, an award of standard costs in federal
district court is normally governed by Federal Rule of Civil
Procedure 54(d), even in diversity cases. Several district
courts have rejected Rodriguez's precise arguments regarding the
applicability of Section 218.5 to costs instead of Rule 54(d).
As recently as Dec. 22, 2017, another Court in the District held
that federal law governs a nearly identical dispute. He finds
these cases persuasive.
Moreover, Rodriguez relies on cases that applied Section 218.5 to
a prevailing party's motion for attorney's fees, not to a
prevailing party's application for costs. Rodriguez does not
cite to any cases that apply Section 218.5 to costs instead of
Rule 54(d). The Judge is therefore not convinced that Section
218.5 applies to Nike's Bill of Costs, and he need not make a
determination as to whether Rodriguez brought the action in bad
faith.
For the foregoing reasons, Judge Freeman concludes that Nike is
entitled to its costs under Federal Rule of Civil Procedure
54(d), and Rodriguez's objection to Nike's Bill of Costs on the
ground that Section 218.5 applies. Moreover, because Rodriguez
does not challenge the propriety of any specific costs in Nike's
Bill of Costs, Nike is entitled to its permissible costs pursuant
to Rule 54(d) and Civil Local Rule 54-3. The Clerk is instructed
to tax costs accordingly.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/u0NWR9 from Leagle.com.
Isaac Rodriguez, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Larry W. Lee,
Diversity Law Group, P.C., Daniel Hyo-Shik Chang, Diversity Law
Group, P.C., Dennis Sangwon Hyun, Hyun Legal APC, Nicholas
Rosenthal, Diversity Law Group & William Lucas Marder --
bill@polarislawgroup.com -- Polaris Law Group, LLP.
Nike Retail Services, Inc., Defendant, represented by Jonathan
Douglas Meer -- jmeer@seyfarth.com -- Seyfarth Shaw LLP, Michael
Afar -- mafar@seyfarth.com -- Seyfarth Shaw LLP & Sheryl Lyn
Skibbe -- sskibbe@seyfarth.com -- Seyfarth Shaw LLP.
NORTH CAROLINA: Court Won't Certify Inmates Class in "Johnson"
--------------------------------------------------------------
In the case, WILEY DALLAS JOHNSON, Plaintiff, v. NORTH CAROLINA
DEPARTMENT OF PUBLICSAFETY, et al., Defendants, Case No. 1:16-cv-
267-FDW (W.D. N.C.), Judge Frank D. Whitney of the U.S. District
Court for the Western District of North Carolina, Asheville
Division, (i) denied the Plaintiff's motion to certify a class
and (ii) denied as moot the Plaintiff's motion for preliminary
injunction.
Pro se Plaintiff Johnson has filed a civil rights suit pursuant
to 42 U.S.C. Section 1983, the Americans with Disabilities Act
("ADA"), Rehabilitation Act ("RA") and the North Carolina
Constitution with regards to incidents that allegedly occurred at
the Mountain View and Avery Mitchell Correctional Institutions.
He names the following as Defendants: North Carolina Department
of Public Safety ("DPS") Division of Prisons, DPS Commissioner
David W. Guice, Dr. Robert Uhren, DPS Secretary Frank L. Perry,
Education Assistant James Duckworth, Unit Manager Bret Bullis,
Assistant Unit Manager Chad Green, PA Keith D'Amico, Nurse
Pendland, Dr. Paula Y. Smith, Nurse Stroupe, Nurse Remfro,
Classification Coordinator Cindy Haynes, Program Director I
Carolyn Buchanan, Program Supervisor of Education James Vaughn,
Western Regional Medical Director Sandra Pittman, Mountain View
C.I. Lead RN Norma Melton, Mountain View C.I. Administrator Mike
Slagle, Avery Mitchell C.I. Administrator Mike Ball, and John and
Jane Doe A-Z.
In his 54-page Amended Complaint filed on Dec. 29, 2016, the
Plaintiff makes repetitive allegations on behalf of himself and
unnamed class members for whom he seeks class certification. The
gist of his allegations is that DPS does not screen incoming
inmates for Hepatitis-C virus and, for inmates who have been
diagnosed with Hepatitis-C, and refuses to provide "breakthrough"
12-week oral pill treatment until infected inmates have
experienced severe and irreversible liver damage.
DPS policy, and its employees' enforcement of it, amounts to
cruel and unusual punishment, violates equal protection because
Hepatitis-C is screened and treated differently from HIV, and
violates the North Carolina Constitution. Further, the policy
violates the ADA and RA because Hepatitis-C infected inmates are
excluded from DPS programs that could result in gain time.
The Plaintiff seeks declaratory judgment, injunctive relief,
compensatory and punitive damages, and such other relief to which
he is entitled. He also seeks preliminary injunctive relief for
immediate treatment with the 12-week oral pill.
Due to the allegedly serious nature of the Plaintiff's severe and
worsening medical condition, the Court ordered DPS to show cause
why preliminary injunctive relief should not be granted. DPS
filed a Response arguing that preliminary injunctive relief is
moot. According to an affidavit by Defendant Smith, the
Plaintiff began the 12-week oral Hepatitis-C treatment on Aug.
22, 2016. The blood tests drawn on Nov. 30, 2016, and March 1,
2017, demonstrate that he has been cured of the Hepatitis-C
virus.
The Plaintiff filed a sworn statement in reply admitting that DPS
had provided the medication, but arguing that it only did so
after he filed a tort claim in North Carolina court in September
2013. He explains that the lack of proactive treatment to
prevent total liver failure and death prior to the completion of
his sentence is the "ultimate cause" of him filing the suit.
Judge Whitney finds that the Plaintiff seeks emergency treatment
for his Hepatitis-C infection. However, DPS has demonstrated,
and Plaintiff now admits, that he received the "breakthrough"
drug treatment he sought and has been cured of Hepatitis-C.
Therefore, he will deny as moot the Plaintiff's motion for
preliminary injunction.
As for the Plaintiff's motion for class certification, the Judge
holds that the Plaintiff, who is a pro se prisoner, fails to
precisely define the class on whose behalf he wishes to proceed,
and has failed to demonstrate he will adequately protect the
class' rights. He cannot satisfy Rule 23(b) and is precluded by
Fourth Circuit law from litigating an action on behalf of a
class. Therefore, his request for class certification will be
denied.
Judge Whitney holds that the Amended Compliant will be permitted
to proceed on the Plaintiff's claims of deliberate indifference
to a serious medical need, violation of the ADA, violation of the
RA, and violations of North Carolina law. The Amended Compliant
will be dismissed insofar as the Plaintiff attempts to obtain
relief on behalf of others, against the NC DPS, and against John
and Jane Doe Defendants. The motion for mandatory preliminary
injunctive relief for immediate provision of "breakthrough" drug
treatment will be denied as moot. The Court will exercise
supplemental jurisdiction over the Plaintiff's North Carolina law
claim. The remaining claims will be dismissed.
For these reasons, the Judge denied as moot the Plaintiff's
motion to certify a class and motion for preliminary injunction
that are incorporated in the Amended Complaint. He says the
Plaintiff's claims of deliberate indifference to a serious
medical need, and violations of the ADA and RA survive initial
review under 28 U.S.C. Section 1915, and the Court will exercise
supplemental jurisdiction over the Plaintiff's North Carolina law
claims. He dismissed the claims that the Plaintiff attempts to
assert claims on behalf of others, claims against the North
Carolina Department of Public Safety, and claims against John and
Jane Doe Defendants.
The Judge directed the clerk to mail summons forms to the
Plaintiff for the Plaintiff to fill out and return for service of
process on Defendants Duckworth, Bullis, Green, Guice, Urhen,
Perry, Damico, Penland, Smith, FNU Stroupe, FNU Remfro, Haynes,
Buchanan, Vaughn, Pittman, Melton, Slagle, and Ball. Once the
Court receives the summons forms, the Clerk will then direct the
U.S. Marshal to effectuate service on the Defendants. The Clerk
is respectfully instructed to note on the docket when the form
has been mailed to the Plaintiff.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/pZeyKk from Leagle.com.
Wiley Dallas Johnson, Individually and on behalf of those
similarly situated, Plaintiff, Pro Se.
NC Department of Public Safety/Division of Prisons, Defendant,
represented by Joseph Finarelli, Special Deputy Attorney General
N.C. Department of Justice.
PARTSSOURCE: "Gembarski" Suit Brought Before Ohio Supreme Court
---------------------------------------------------------------
The case captioned Edward F. Gembarski, on behalf of himself and
all others similarly situated, Plaintiff v. PartsSource, Inc.,
Defendant, Case No. 2018-0125 was brought before the Supreme
Court of Ohio on January 25, 2018.
PartsSource, Inc. supplies biomedical replacement parts and
procurement solutions to hospitals, imaging centers, biomedical
equipment technicians, imaging engineers, clinical engineers, and
independent service organizations in the United States and
internationally.[BN]
The Plaintiff is represented by:
Thomas John Connick, Esq.
Connick Law, LLC
25550 Chagrin Blvd Ste 101
Cleveland, OH
Tel: (216) 364-0512
Email: www.connicklawllc.com
PERFORMANCE FOOD: $1.9MM Accord in "Wilder" Has Final Approval
--------------------------------------------------------------
Performance Food Group Company said in its Form 10-Q report for
the quarterly period ended December 30, 2017, that in the case,
Wilder, et al. v. Roma Food Enterprises, Inc., et al., the court
granted final approval of the settlement stipulation on November
6, 2017. The Company funded the $1.9 million settlement on
January 10, 2018, thereby ending the litigation.
Performance Food said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended July
1, 2017, that in October 2014, three former delivery drivers who
worked in Performance Food former Roma of New Jersey warehouse in
Piscataway, New Jersey filed a class action lawsuit in the
Superior Court of New Jersey, Law Division, Middlesex County
against the company entitled Wilder, et al. v. Roma Food
Enterprises, Inc., et al. The lawsuit alleges on behalf of a
proposed class of delivery drivers who worked in Roma, broadline
and Vistar facilities in New Jersey from October 2012 to the
present that, under New Jersey state law, the company failed to
pay minimum wages and overtime compensation to the delivery
drivers in these facilities. The lawsuit seeks the following
relief: (1) award of unpaid minimum wages and overtime under New
Jersey state law; (2) an injunction preventing the company from
committing the alleged violation; (3) a declaration from the
court that the alleged violations were knowing and willful; (4)
reasonable attorneys' fees and costs; and (5) pre-judgment and
post-judgment interest. The case is in the preliminary phases of
discovery, and no class has been certified.
On October 4, 2016, the company engaged in mediation with the
plaintiffs, and on October 25, 2016, the company indicated their
non-binding agreement to settle the lawsuit on the basis of a
settlement fund of $2.3 million, subject to negotiation of a
mutually agreeable settlement agreement. On February 1, 2017, the
parties filed a motion for preliminary approval of the settlement
stipulation with the Court, and a hearing on that motion occurred
on March 1, 2017, during which the court requested additional
pleadings from the parties and continued the motion for
preliminary approval until such pleadings were filed. The court
held another hearing on the motion for preliminary approval on
June 19, 2017, at which time preliminary approval was granted.
Notice of the settlement stipulation was issued to the settlement
class members on or about July 17, 2017. The notice period will
close on October 6, 2017, and the final approval hearing has been
set for November 6, 2017. As of July 1, 2017 the Company has
accrued $2.3 million for this settlement.
Performance Food Group is an American company that was founded in
1875. Headquartered in Goochland County, Virginia (just outside
Richmond), the company distributes a range of food products. The
company markets and distributes over 150,000 food and food-
related products to customers across the United States from
approximately 76 distribution facilities to over 150,000 customer
locations in the "food-away-from-home" industry.
PHO DELUXE: Fails to Pay Proper Overtime, "Chicas" Suit Alleges
---------------------------------------------------------------
ROBERTO GUEVARA CHICAS, on behalf of himself, all others
similarly situated v. PHO DELUXE ARLINGTON, INC., PHO DELUXE
TYSONS, INC., HUE KIM NGUYEN, and DAN D. NGUYEN, Case No. 1:18-
cv-39-CMH/TCB (E.D. Va., January 10, 2018), seeks to recover
unpaid overtime wages, and unlawful deductions, pursuant to the
Federal Fair Labor Standards Act.
In July 2015, Defendants hired the Plaintiff to work as a
dishwasher and cook for the restaurant in Arlington, Virginia.
Plaintiff worked six days a week from 10 a.m. to 10 p.m. each day
and was never afforded a break lasting longer than 15 minutes. On
some occasions, Plaintiff was required to deliver food to
customers in his own car by the Defendants, and was required by
Defendants to bus tables, prepare tables and wash dishes.
Plaintiff allege that he was paid $480 a week, and then $500 a
week, and $510 to $520 a week.
The Defendants failed to pay Plaintiff and the putative class
members at a rate of at least 1.5 times their regular rate for
hours worked in excess of 40 in a week, for each week during the
period of his employment with Defendants.
Pho Deluxe Arlington, Inc. is a corporation formed under the laws
of the Commonwealth of Virginia with its principal place of
business in Arlington County, Virginia. [BN]
The Plaintiff is represented by:
Matthew T. Sutter, Esq.
SUTTER & TERPAK, PLLC
7540A Little River Turnpike, First Floor
Annandale, VA 22003
Telephone: (703) 256-1800
Facsimile: (703) 991-6116
E-mail: matt@sutterandterpak.com
PINNACLE RECOVERY: Faces "Nogid" Suit in E. Dist. New York
----------------------------------------------------------
A class action lawsuit has been filed against Pinnacle Recovery,
Inc. The case is styled as Richard Nogid, individually and on
behalf of all those similarly situated, Plaintiff v. Pinnacle
Recovery, Inc., Defendant, Case No. 2:18-cv-00549 (E.D. N.Y.,
January 25, 2018).
Pinnacle Recovery, Inc. is a nationwide full-service debt
recovery company that specializes in the professional, efficient
and ethical resolution of its client's delinquent and defaulted
receivables.[BN]
The Plaintiff appears PRO SE.
PK MANAGEMENT: Tenants Look to Organize Class-Action Lawsuit
------------------------------------------------------------
Jack Howland, writing for Poughkeepsie Journal, reports that when
temperatures dipped below freezing in the City of Poughkeepsie in
December, 28-year-old Abeliz Torres said it didn't feel much
warmer inside of her Rip Van Winkle House apartment.
The third-floor resident is one of several tenants who say they
have had intermittent problems with heating and hot water. On
particularly chilly December nights, Torres said she would wrap
her 7-year-old son, Steven, in pajamas, a shirt, a winter coat
and a blanket. She would wrap herself up, too.
Torres, who is eight months pregnant, said she switched
apartments in late December when the Dutchess County Department
of Behavioral and Community Health measured the temperature in
her room at around 39 degrees, and found black mold.
But she said she still has sporadic problems with hot water, and
claimed the complex's management company -- PK Management -- has
been unresponsive to her complaints.
"I understand we're low-income. We're not living in a five-star
hotel. I get that," she said. "But they're getting paid $1,500
for my apartment ... I should be able to get services."
Torres is among the building's residents who are looking to
organize a class-action lawsuit against the management company,
according to Democratic city councilman Chris Petsas, who said he
is "100 percent confident" the lawsuit "will happen in the coming
weeks."
Complaints include unannounced rent hikes and increased electric
bills. That's in addition to the heating and hot water problems,
issues that grabbed attention in the aftermath of an October
electrical fire that left more than 300 temporarily displaced.
PK Management Vice President of Community Development Joyce
Walker on January 26 disputed those claims in a response to the
Journal, and said the company has made lines of communication
available for residents to reach management.
Walker pointed out that the City of Poughkeepsie on Jan. 12
determined each of the building's 179 apartments had adequate
heat, and said "brand new hot water boilers and heating boilers
have recently been installed."
Petsas and the nonprofit group Community Voices Heard organized a
meeting January 25 to discuss any ongoing issues at the property.
More than 30 tenants were at the meeting, in addition to
representatives from the law firm Mackey Butts & Wise LLP.
Torres and tenant Darleen Daniels said communicating with PK has
been difficult, and Torres said she has not been able to get
through on the phone number the management group provided for
reporting complaints.
Daniels, 58, also claims the management group raised her rent
unexpectedly, notifying her through a notice on her door months
later, and now owes more than $1,000.
"They were saying (my rent) went up in August," said Daniels, who
relies on a cane due to arthritis in her left leg. "It's more
than a handful of people who have had these notices put on their
door ... when you do things like that, we're supposed to be
notified and we're supposed to sign off on our lease."
Angela Pittman, 45, said she spotted the notices on her
neighbor's doors and felt worried she would also get one, though
she never did. She said if management knew rent had gone up in
August, then "why were you taking money?"
However, Walker said "in general, only notices regarding
appointments with the leasing office, requests for unit
inspection and other information notices are posted." She also
said rents are "verified and recertified annually," as it "is
based on 30 percent of each household's gross adjusted income,"
which can change.
Pittman, a mother of two, said she's lived in the building for 12
years, and the problems started about four years ago when PK
Management took over ownership.
"My great grandma lived here when I was 10 or 11 years old,"
Pittman said. "This building has never ever been like this ...
they don't want to talk to people." [GN]
PLS FINANCIAL: Summary Judgment Bid in "Vine" Partly Granted
------------------------------------------------------------
In the case, LUCINDA VINE, KRISTY POND, on behalf themselves and
for all others similarly situated, Plaintiffs, v. PLS FINANCIAL
SERVICES, INC., and PLS LOAN STORE OF TEXAS, INC., Defendants,
Case No. EP-16-CV-31-PRM (W.D. Tex.), Judge Philip Martinez of
the U.S. District Court for the Western District of Texas, El
Paso Division, granted in part and denied in part the Defendants'
Motion for Summary Judgment.
The Plaintiffs filed their original complaint on Dec. 17, 2015.
They, on behalf of themselves and others similarly situated,
allege (1) malicious prosecution, (2) violations of the Texas
Deceptive Trade Practices Act ("DTPA"), (3) fraud, and (4)
violations of Texas Finance Code Section 392.301 (Texas Debt
Collection Act).
The Defendants removed the case on Jan. 26, 2016, based on
diversity jurisdiction. On March 23, 2016, the Defendants filed
a Motion to Dismiss and to Compel Lucinda Vine to Arbitration
which the Court denied on June 6, 2016. The Defendants moved for
reconsideration, which the Court also denied on Aug. 11, 2016,
and the Defendants filed an interlocutory appeal.
The Fifth Circuit upheld the Court's denial of the Defendants'
motion to compel arbitration on May 19, 2017. The Court
thereafter held a status conference to discuss class action
certification and how to proceed with discovery. After the
conference, the Court granted the parties 60 days to conduct
limited discovery for matters relating to class certification.
Shortly after the Plaintiffs filed a motion for class
certification on Sept. 12, 2017, the Defendants filed the instant
Motion requesting summary judgment on Oct. 13, 2017. In the
Motion, the Defendants argue that all of the Plaintiffs' claims
are either legally invalid or unsupported by the evidence adduced
during the limited discovery phase.
After due consideration, Judge Martinez granted in part and
denied in part the Defendants' .Motion for Summary Judgment. The
Judge granted summary judgment on the following claims: (1) the
Plaintiffs' malicious prosecution claims; (2) the DTPA claims
based on violations of that specific statute (i.e., not the tied-
in claims); (3) the tied-in Texas Finance Code Section 392 claim;
and (4) the fraud claim based on Defendants' representations
about the reason for requiring a post-dated check. He denied
summary judgment for all other claims.
The Judge concluded that summary judgment regarding PLS
Financial's involvement in any alleged wrongdoing is premature at
this time. As Plaintiffs highlight, the only discovery that the
Court has allowed thus far is a two-month period to complete
limited discovery for matters relating to class certification.
Thus, he allowed the Plaintiffs an opportunity to support their
claim that PLS Financial is involved in the alleged wrongdoing
and deny without prejudice the Defendants' request for summary
judgment on this ground.
He also concluded that the Plaintiffs have properly stated a
Section 393 claim, and that there is sufficient evidence to
create questions of material fact regarding that claim sufficient
to deny summary judgment. There is also sufficient evidence for
justifiable reliance on all of the Plaintiffs' claims except for
the claim that the Defendants misrepresented the purpose of
keeping a postdated check. He granted summary judgment on that
claim, but denied summary judgment on the remaining fraud claims.
Because the Defendants have failed to demonstrate that any other
provision of law expressly requires a two-year limitations period
for DCPA suits such as this one, Judge Martinez applied the four-
year limitations period. Since the claim was brought in December
2015, it is within the four-year limitations period. Thus, the
DCPA claim is not time-barred and he denied summary judgment on
this claim.
A full-text copy of the Court's Jan. 16, 2018 Memorandum Opinion
and Order is available at https://is.gd/BnEkvK from Leagle.com.
Lucinda Vine & Kristy Pond, Plaintiffs, represented by H. Mark
Burck -- mburck@hanszenlaporte.com -- Hanszen Laporte LLP, Daniel
R. Dutko -- dutko@hanszenlaporte.com -- Hanszen Laporte LLP, M.
Mitchell Moss, Moss Legal Group, PLLC & Priscilla M. Castillo --
pcas@scotthulse.com -- Moss Legal Group, PLLC.
PLS Financial Services, Inc. & PLS Loan Store of Texas, Inc.,
Defendants, represented by Richard Andrew Bonner --
richard.bonner@kempsmith.com -- Kemp Smith LLP, J. Austen
Irrobali -- airrobali@tillotsonlaw.com -- Tillotson Law, Jeffrey
Mark Tillotson -- jtillotson@tillotsonlaw.com -- Tillotson Law,
Jonathan R. Patton -- patton@tillotsonlaw.com -- Tillotson Law,
Jose Abelardo Howard-Gonzalez -- abe.gonzalez@kempsmith.com --
Kemp Smith LLP, Mark N. Osborn -- mark.osborn@kempsmith.com --
Kemp Smith LLP & Shelly W. Rivas -- shelly.rivas@kempsmith.com --
Kemp Smith LLP.
PREMIER HEALTHCARE: Final Judgment in "Criddell" Suit Entered
-------------------------------------------------------------
In the case, MYLINDA CRIDDELL, individually and on behalf of all
others similarly situated, Plaintiff, v. PREMIER HEALTHCARE
SERVICES, LLC, Defendant, Case No. 2:16-cv-05842-R-KS (C.D.
Cal.), Judge Manuel L. Real of the U.S. District Court for the
Central District of California granted the Plaintiff's Unopposed
Motion to Grant Final Approval and Enter Judgment on Behalf of
the Fair Credit Reporting Act Class and to Award Attorneys' Fees
and Costs to Class Counsel.
On Aug. 7, 2017, the Court preliminarily approved the proposed
Fair Credit Reporting Act("FCRA") class action judgment in the
matter, approved the proposed form of Class Notice, and ordered
that Class Notice be issued. On Dec. 4, 2017, it granted final
approval to the FCRA class action judgment.
Following the dissemination of the Class Notice, the Class
Members were given an opportunity to request exclusion from the
FCRA class action judgment, and/or comment or object to the FCRA
class action judgment. No class member filed a written
objection, and only three Class Members opted-out.
A final fairness hearing was held on Dec. 4, 2017, at which time
all interested persons were given a full opportunity to state any
objections to the class action judgment. Upon consideration of
the Plaintiff's Unopposed Motion to Grant Final Approval and
Enter Judgment on Behalf of the Fair Credit Reporting Act Class
and to Award Attorneys' Fees and Costs to Class Counse, and the
arguments, pleadings, and evidence presented, Judge Real granted
the Plaintiff's Unopposed Motion.
The Judge entered final judgment in favor of Plaintiff Criddell
and the FCRA class members and against the Defendant in the
amount of $247,854. He has reviewed the arbitration award of
attorneys' fees and costs issued Oct. 27, 2017 by Hon. Rosalyn
Chapman (Ret.) of JAMS and adopted and entered the award as part
of the Final Judgment. As such, he ordered and adjudged that the
Defendant will pay the Class Counsel (Stueve Siegel Hanson LLP
and Weinhaus & Potashnick) attorneys' fees in the amount of
$306,158 and litigation costs and expenses in the amount of
$26,625.90.
Judge Real ordered that within 30 days of the date of entry of
the Final Judgment, the Defendant will transfer the judgment
funds to third party claims administrator Dahl Administration.
Dahl Administration will issue the funds to class members within
30 days of receipt of the judgment funds.
The Judge ordered that within 30 days of the date of entry of the
Final Judgment, the Defendant will transfer the sums awarded to
the Class Counsel as attorneys' fees and costs to Stueve Siegel
Hanson LLP for distribution between the Class Counsel firms.
Judge Real dismissed the matter with prejudice, and the Order
will constitute a final judgment for purposes of Rule 58 of the
Federal Rules of Civil Procedure.
A full-text copy of the Court's Jan. 16, 2018 Final Judgment is
available at https://is.gd/182K8S from Leagle.com.
Mylinda Criddell, individually and on behalf of similarly
situated persons, Plaintiff, represented by Jason M. Lindner --
lindner@stuevesigel.com -- Stueve Siegel Hanson LLP, Alexander T.
Ricke -- ricke@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro
hac vice, George A. Hanson -- hanson@stuevesiegel.com -- Stueve
Siegel Hanson LLP, pro hac vice & Mark A. Potashnick -- mark@wp-
attorneys.com -- Weinhaus and Potashnick, pro hac vice.
Premier Healthcare Services, LLC, Defendant, represented by
Elizabeth H. Murphy -- Elizabeth.Murphy@jacksonlewis.com --
Jackson Lewis P.C. & Negin Iraninejadian --
Negin.Iraninejadian@jacksonlewis.com -- Jackson Lewis PC.
PROFESSIONAL PLACEMENT: Kowaleski Sues over Debt Collection
-----------------------------------------------------------
Alison Kowaleski on behalf of herself and all others similarly
situated v. PROFESSIONAL PLACEMENT SERVICES, LLC, Case No. 3:18-
cv-00352-PGS-TJB (D.N.J. January 10, 2018), seeks to stop the
Defendant's unfair and unconscionable means to collect debt.
Profiles Placement Services, LLC provides staff recruitment
services. The Company offers temporary and permanent employees in
the field of marketing, information technology, web designing,
programming, and application development. Profiles Placement
Services serves customers in the United States. [BN]
The Plaintiff is represented by:
Joseph K. Jones, Esq.
JONES, WOLF & KAPASI, LLC
375 Passaic Avenue, Suite 100
Fairfield, NJ 07004
Telephone: (973) 227-5900
Facsimile: (973) 244-0019
Email: jkj@legaljones.com
QUEENSLAND: Gov't Faces Class Action Over Stolen Wages
------------------------------------------------------
Vanessa Jarrett, writing for The Morning Bulletin, reports that
hundreds of Aboriginal and Torres Strait Island persons were
expected to fill out Rockhampton's Schotia Place on Jan. 29 and
Jan. 30.
An information meeting would be held for persons affected by the
Stolen Wages Class Action.
Cairns man Hans Pearson brought a case in the Federal Court
against the Queensland Government on behalf of all Aboriginal and
Torres Strait Islander peoples who weren't paid all their wages.
The Queensland Government is defending the case. The case is
called a class action because Mr Pearson is bringing the case for
everyone like him who was not given all their pay.
Mr Pearson's lawyers are Bottoms English Lawyers (BELAW) and they
are helping him run the case. Litigation Lending Services
Limited is paying for the case to be brought.
"We have had a visit for a different type of session and we had
about 150 last time in Rockhampton," BELAW Associate Jerry Tucker
said.
To be eligible for the class action, you must be an Aboriginal or
Torres Strait Island person who; between 1939 and 1972 lived in a
district, mission or reserve in Queensland and had a paid job,
their pay was controlled by Queensland Government or head of
mission/reserve and believe they weren't given all their pay.
Direct family members can also make claims on behalf of deceased
estates.
"There are thousands of people in Rockhampton that are eligible,"
Ms Tucker said.
Most importantly, those who are eligible are automatically in the
case. If you don't want to be involved, you must tell the Federal
Court.
"The information sessions we are conducting now are just for
people that are in the class action to opt out, register or ask
questions," Ms Tucker said.
"Just to make sure they know they have been thrown into a legal
action."
"It is really important that people come and understand the class
action they are automatically entered into."
BELAW are based in Cairns and are doing meetings across the state
from as far as Roma, Mount Isa, Brisbane, Cunnamulla, Townsville.
They anticipated a number of questions from the audience.
"What it is the class action is all about, a lot of people are
wondering what they are likely to get paid," Ms Tucker said. [GN]
RETAIL FOOD: Bannister Law Proposes Franchise Class Action
----------------------------------------------------------
Chloe Lyons, writing for The Sunshine Coast Daily, reports that
Bryan and Amanda Kelly say they have always been "successful" in
everything they've done, but "four years of hell" owning a
franchise through Retail Food Group has left them picking up the
tatters of their old life.
A lack of support, exorbitant compulsory refurbishments, un-
competitive pricing and a slew of fees ran their business into
the ground before they could even get started, the Kellys claim.
But, their story is not the only one.
RFG -- which includes brands Donut King, Brumby's, Gloria Jean's,
Pizza Capers, Crust Gourmet Pizzas and Michel's Patisserie -- has
recently come under a fire after a Fairfax investigation into its
"brutal business model" as more and more financially devastated
franchisees come forward to share their stories.
Legal firm Bannister Law has proposed a class action against the
company which RFG has said it will defend "vigorously".
With experience in running businesses and 30 years of bakery and
pastry cooking knowledge, Mr Kelly said when they moved from
Victoria to Queensland he thought it would be best to start out
with a franchise before moving onto their own store, so they
could learn the local market while being supported.
The Kellys took over Brumby's at the Sunshine Plaza in 2009, but
just weeks later they said it was clear the figures they'd been
given "weren't right" with the couple only making about $200 per
week.
"They were pumping us up saying, you've got a gold mine," Mrs
Kelly said.
"You'll do better than Brisbane."
They walked away from the business on June 30, 2013, owing more
than $800,000.
"We really felt like a failure," Mr Kelly said.
"We thought maybe it was us, but we've gone through everything
and thought, 'we tried everything in our power'."
Through their short tenure with the company, the pair said they
faced many brick walls including trying to compete with their
neighbouring store Coles, which was selling bread for less than a
dollar.
During a meeting with an area manager, Mr Kelly also claims they
were offered waived fees to help keep their heads above water
only to receive a $55,000 fee relief debt bill months later.
They were further required to spend $150,000 updating the store
despite their claims the store was physically fine and the
upgrade was unnecessary.
The couple have been left with nothing and are now renting a
home, with Mr Kelly suffering from an auto-immune disease
believed to be brought on by the stress of the situation.
He's now on a partial disability pension while his wife works
full-time in administration.
An RFG spokeswoman said she was unable to comment on "specific
details of our current and former franchisees", but the company
was now "six months into a business-wide review to improve the
support, value and services we provide to our franchisees".
"Recently, the focus has been on the negative experiences of some
franchisees rather than the majority of our franchisee network
who are running successful businesses," she said.
"With such a huge network, we don't get it right every time or
claim that all our franchisees are always happy, but we do know
that we are working extremely hard to support them in incredibly
tough retail market conditions."
Mrs Kelly said she hoped by sharing their story more former RFG
franchise owners would come forward and be able to offer each
other support. [GN]
RL REPPERT: 3rd Cir. Affirms Partial Summary Judgment in "Askew"
----------------------------------------------------------------
The United States Court of Appeals, Third Circuit, issued an
Opinion affirming the judgment of the District Court granting
Plaintiff's Partial Summary Judgment in the cases captioned
DERRICK ASKEW, for himself and as representative of similarly
situated employees Appellant in 16-3924, v. R.L. REPPERT INC.,
RICHARD L. REPPERT, R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING
401(k) PLAN, R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON
PLAN); R.L. REPPERT, INC. MEDICAL PLAN; R.L. REPPERT, INC. HRA
MEDICAL EXPENSE REIMBURSEMENT PLAN, v. CALIFORNIA PENSION
ADMINSITRATORS & CONSULTANTS INC.; KISTLER TIFFANY BENEFITS CORP.
R.L. REPPERT, INC; RICHARD REPPERT; R.L. PEPPERT, INC. EMPLOYEES
PROFIT SHARING 401(K) PLAN; R.L. PEPPERT, INC MONEY PURCHASE
PLAN, (DAVIS BACON PLAN); R.L. REPPERT, INC. MEDICAL PLAN; R.L.
REPPERT, INC. HRA MEDICAL EXPENSE REIMBURSEMEMNT PLAN, Appellants
in 16-3943, Nos. 16-3924, 16-3943 (3rd Cir.).
This appeal by Derrick Askew, a former employee of
Appellee/Cross-Appellant R.L. Reppert Inc. (Reppert), arises over
the alleged failure of Reppert to properly contribute to its
employees' Pension Plan and its alleged subsequent failure to
produce requested Pension Plan documents when the error was
discovered.
After the cessation of his employment with Reppert, Askew noted
an underpayment of vacation pay owed to him. Counsel for Askew
eventually sent a letter to Reppert seeking documents relating to
all assets held in the Davis-Bacon and 401(k) Plans pursuant to
29 U.S.C. Sections 1024(b)(4).
Counsel for Askew reviewed the documents provided and noted
deficiencies in the documentation for the Plans. Askew commenced
this putative class action. Counts One and Two of the complaint
claimed that Reppert failed to create and provide documents as
required by ERISA; Count Three alleged that Reppert failed to
establish a trust as required by 29 U.S.C. Section 1103; Count
Four asserted that Reppert breached fiduciary duties to the Plans
by failing to administer them in accordance with ERISA and
failing to collect amounts owing to the Plans on a timely basis;
Count Five averred that Reppert failed to deposit certain
withheld wages; and Count Six sought a declaratory judgment
regarding the benefits due to Askew.
After prolonged discovery, Askew filed a Motion for Partial
Summary Judgment and Dismissal, seeking an independent audit of
the Reppert Pension Plans and assessment of penalties for the
non-production of documents. Third-party Plan Administrator
CalPac and Reppert Inc. filed separate cross-motions for summary
judgment.
The District Court granted in part Askew's Motion for Partial
Summary Judgment and Dismissal, finding liability for Reppert's
failure to provide Askew with the documents relating to the
401(k) Plan assets in a timely manner and for Reppert's failure
to produce the Nationwide agreement. The District Court denied
Askew's motion in all other respects. Regarding the need for an
audit for Plan years 2008-2011, the District Court found that
there was a genuine issue of material fact as to whether
defendants were required by ERISA to conduct audits and failed to
do so.
The District Court granted Reppert's Motion for Summary Judgment
in its entirety, except as to the failure to produce the
documents relating to assets in the 401(k) Plan and the
subpoenaed Nationwide agreement. Subsequent motions for
reconsideration and class certification filed by Askew were
denied.
Askew timely filed his Notice of Appeal as to the final judgment
and related interlocutory orders. Reppert filed its Notice of
Cross-Appeal as to the final judgment.
The Court will first address the summary judgment rulings on the
questions of whether Reppert failed to produce documents required
by ERISA and whether Askew showed any recoverable losses to the
Reppert 401(k) Plan.
The Court will then consider the post-trial findings concerning
the amount of the fines assessed, the need for an independent
audit, and the ability of Reppert to choose the auditor.
Finally, the Court will turn to the entry of judgment in favor of
CalPac on Reppert's third-party claim.
A plan administrator is required to disclose certain documents
and records within 30 days of a written request by any plan
participant or beneficiary.
These conclusions are supported by a painstaking examination of
the record and the parties' contentions. The Court discern no
error in the District Court's conclusion that Reppert ultimately
satisfied its disclosure obligations under ERISA.
The Court also find no error in the District Court's conclusion
that Askew had failed to produce any evidence of a recoverable
loss sustained by the 401(k) Plan as a result of any wrongdoing.
On appeal, Askew argues that the District Court acted prematurely
in dismissing claims for recovery of any Pension Plan losses that
may be uncovered by an audit. As Reppert asserts, however, Askew
is not foreclosed from presenting any cognizable claim that the
audit may disclose. Thus, the Court will affirm the District
Court's dismissal of Counts III through VI of the complaint.
Both Askew and Reppert challenged the District Court's assessment
of fines for the delay in producing required documents.
Section 502(c)(1) of ERISA provides: "Any administrator who fails
or refuses to comply with a request for any information which
such administrator is required by this subchapter to furnish to a
participant or beneficiary (unless such failure or refusal
results from matters reasonably beyond the control of the
administrator) by mailing the material requested to the last
known address of the requesting participant or beneficiary within
30 days after such request may in the court's discretion be
personally liable to such participant or beneficiary in the
amount of up to $100 a day from the date of such failure or
refusal."
In assessing this fine, the District Court explained: "The Court
concluded that Section 1024(b)(4) does require the production of
the Nationwide agreement only after an extensive analysis, and
even then, The Court found it a close question. Consequently,
imposing a substantial document penalty in these circumstances
would not serve its purpose in providing plan administrators with
an incentive to comply with the requirements of ERISA and to
punish noncompliance. Punishing Reppert, Inc. for failing to
comply with a requirement it was reasonably not aware of would
not provide it or any other plan administrator any future
incentive to comply with requirements it is not reasonably aware
of, and it would be unfair."
The Court find no abuse of discretion in this determination.
Accordingly, the Court will affirm the monetary penalties imposed
by the District Court.
Reppert brought a state law claim alleging that CalPac breached
its contract to provide the company with plan administration and
recordkeeping services when it incorrectly determined the number
of participants in the 401(k) Plan at the beginning of 2008 and
incorrectly recommended that Reppert not conduct an audit of the
401(k) Plan. In its agreement with Reppert, CalPac disclaimed any
responsibility for mistakes or omissions arising from information
given to it by Reppert. Rather, CalPac only assumed
responsibility for the mistakes that arise solely from the
actions of CalPac.
The agreement further specified that CalPac accepted no liability
for mistakes that cause legal consequences because Reppert was
supposed to consult its attorney and independently verify any
legal advice, such as whether an audit would be necessary.
Additionally, trial testimony showed that the annual reports of
participants in the plans was the product of close collaboration
between Reppert and CalPac. Thus, it cannot be said the
computation of plan participants was the sole responsibility of
CalPac.
The Court, therefore, agrees that judgment in favor of CalPac on
Reppert's third-party claims was appropriate.
The Court will affirm the Orders of the District Court disposing
of all claims between the parties.
A full-text copy of the Third Circuit's December 21, 2017 Opinion
is available at https://tinyurl.com/y8ko9ddw from Leagle.com.
ROSEVILLE, MI: $150K Settlement in "Garner" Has Final Approval
--------------------------------------------------------------
In the case, LAWRENCE M. GARNER, et al., Plaintiffs, v. CITY OF
ROSEVILLE, et al., Defendants, Case No. 16-10760 (E.D. Mich.),
Judge Victoria A. Roberts of the U.S. District Court for the
Eastern District of Michigan, Southern Division, granted the (1)
Plaintiffs' unopposed motions (i) for final approval of the class
action settlement, and (ii) for attorney fees, costs and
incentive fee.
The Court held a final fairness and approval hearing on Jan. 16,
2018. No class members objected.
Judge Roberts, pursuant to Rule 23(e) of the Federal Rules of
Civil Procedure, finally approved the settlement of the action,
as embodied in the terms of the Settlement Agreement.
She certified the Settlement Class and Sub-Class defined as:
a. Class: All persons and entities who currently own or at
one time owned any non-owner occupied residential structures
located within the City of Roseville who or which has been issued
a misdemeanor ticket for failure to obtain a Certificate of
Compliance under the City's Non-Owner-Occupied Housing Ordinance,
and subsequently paid a fine at any time since Jan. 1, 2010
through Dec. 15, 2016.
b. Sub-Class: All persons and entities who were not owners
of non-owner occupied residential structures located within the
City of Roseville, yet were issued a misdemeanor ticket for
failure to obtain a Certificate of Compliance under the City's
Non-Owner-Occupied Housing Ordinance from Jan. 1, 2010 through
De. 15, 2016.
The Defendants created the Settlement Fund of $150,000 to pay
valid class member claims, class action settlement administration
costs, attorney's fees, costs, and expenses, and an incentive
award to the Plaintiffs as determined and awarded by the Court.
The unclaimed monies in the Settlement Fund must revert to the
Defendants.
As agreed in and subject to the Settlement Agreement, each member
of the Settlement Class who or which submits a timely and valid
Claim Form will be mailed a check for their pro rata share of the
Settlement Fund. Each member of the Sub-Class who or which
submits a timely and valid Claim Form will be mailed a check for
$350, in addition to their pro rata share of the Settlement Fund,
if any. The Claims Administrator will cause those checks to be
mailed after receiving the Settlement Funds. Checks issued to
the claiming Settlement Class members will be void 181 days after
issuance. The Judge allows the claim of Teri Bade per agreement
of the parties.
As agreed between the parties, the Judge approved the Class
Counsel's attorneys' fees in the total amount of $50,000 plus
out-of-pocket expenses in the amount of $4,569.43. Those amounts
will be paid from the Settlement Fund when the Final Approval
Order becomes final as those terms are defined in the Settlement
Agreement. Attorney fees and costs will be paid directly to the
Law Offices of Aaron D. Cox, PLLC. Any balance due to the Claims
Administrator may be paid directly to the Claims Administrator.
As agreed between the parties, Judge Roberts approved a $2,500
incentive award each to Lawrence M. Garner, Christopher Garner,
William Kaupus, Cordia Michigan, LLC, Rudalev I, LLC, and Garner
Properties & Management, LLC for serving as the Class
Representatives. In accordance with the Settlement Agreement,
that amount must be paid from the Settlement Fund when the Final
Approval Order becomes final as those terms are defined in the
Settlement Agreement. Payments must be made directly to each
Plaintiff upon presentation of a W 9 form.
The Court retains jurisdiction for 180 days to determine all
matters relating in any way to this Final Order and Judgment, the
Preliminary Approval Order, or the Settlement Agreement,
including but not limited to, their administration,
implementation, interpretation or enforcement. The Court also
retains jurisdiction to enforce this Order and the Settlement
Agreement.
The Judge finds that there is no just reason to delay the
enforcement of the Final Approval Order and Judgment.
A full-text copy of the Court's Jan. 16, 2018 Final Approval and
Order is available at https://is.gd/0PrQ2b from Leagle.com.
Lawrence M. Garner, Christopher Garner, William Kaupus, Cordia
Michigan, LLC, Garner Properties & Management & Rudalev, LLC,
Plaintiffs, represented by Mark K. Wasvary --
markwasvary@hotmail.com -- Becker and Wasvary & Aaron D. Cox --
aaron@aaroncoxlaw.com -- Law Offices of Aaron D. Cox PLLC.
City of Roseville, Glenn Sexton & Rodney Browning, Defendants,
represented by Carlito H. Young -- cyoung@jrsjlaw.com -- Johnson,
Rosati & Stephanie S. Morita -- smorita@jrsjlaw.com -- Johnson
Rosati.
RT MOORE: Court Compels Arbitration in "Hackler" FLSA Suit
----------------------------------------------------------
The United States District Court for Middle District of Florida,
Fort Myers Division issued an Opinion and Order granting
defendant's motion to stay proceedings and compel arbitration and
denying defendant's motion to dismiss the case captioned JEREMIAH
HACKLER, on behalf of himself and those similarly situated,
Plaintiff, v. R.T. MOORE CO., INC., an Indiana profit
corporation, Defendant, Case No. 2:17-cv-262-FtM-29MRM (M.D.
Fla.).
Plaintiff Jeremiah Hackler filed a Collective Action Complaint
under the Fair Labor Standards Act on behalf of himself and other
similarly-situated individuals against defendant R.T. Moore Co.,
Inc. The Complaint asserts that during plaintiff's employment
with Moore, plaintiff was not paid overtime and minimum wage pay
in accordance with the Fair Labor Standards Act (FLSA).
Plaintiff and Moore voluntarily entered into an Agreement to
Arbitrate Certain Disputes (Arbitration Agreement). The
Arbitration Agreement outlines the process for resolving disputes
between Moore and its employees.
The Supreme Court has said that even claims arising under a
statute designed to further important social policies may be
arbitrated because so long as the prospective litigant
effectively may vindicate his or her statutory cause of action in
the arbitral forum, the statute serves its functions.
In its motion, defendant cites to Sanders v. Comcast Cable
Holdings, LLC, No. 3:07-cv-918-J-33HTS, 2008 WL 150479, (M.D.
Fla. Jan. 14, 2008) for the proposition that a contractual
provision shortening the applicable statute of limitations is not
contrary to public policy.
That case, however, does not deal with claims brought under the
FLSA which, as the Court pointed out, Congress enacted in order
to provide special protections to employees. Therefore, the Court
finds Sanders to be inapplicable to the case at hand.
The Court finds that the six-month notice provision in the
Arbitration Agreement precludes plaintiff from vindicating his
rights set forth under the FLSA and is therefore unenforceable.
The notice provision interferes with substantive rights under the
FLSA by precluding plaintiff from recovering what he would
potentially otherwise be able to recover would he have brought
his claim in the district court.
Since this notice provision is unenforceable, the Court must now
look to Florida law to determine whether it is severable pursuant
to the severability clause in the Arbitration Agreement. For the
reasons set forth below, the Court concludes that it is
severable.
The Court finds that the notice provision that purports to
shorten the statute of limitations for FLSA claims does not go to
the essence of the contract. The Arbitration Agreement is focused
around providing an efficient alternative method of resolving
disputes surrounding plaintiff's employment. The notice provision
is merely an ancillary procedural agreement that is not essential
to the overarching purpose of the Arbitration Agreement. Without
the notice provision, there still exists a valid contract.
Therefore, the Court severs the notice provision shortening the
statute of limitations period in FLSA claims from the Arbitration
Agreement, and enforces the remainder of the Arbitration
Agreement.
Accordingly, defendant's Motion to Dismiss is denied. The
alternative Motion to Stay Proceedings and Compel Arbitration is
granted. The Court compels the parties to arbitrate plaintiff's
individual claims, and stays these proceedings pending the
outcome of the arbitration.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/y9v7wfbe from Leagle.com.
Jeremiah Hackler, on behalf of himself and those similarly
situated, Plaintiff, represented by Conor Foley, Jason L. Gunter,
PA & Jason L. Gunter, Jason L. Gunter, PA, 1514 Broadway, Suite
101 Ft. Myers, FL 33901
R.T. Moore Co., Inc., an Indiana profit corporation, Defendant,
represented by Denise Wheeler Wright -- dwheeler@fowlerwhite.com
-- Ford & Harrison, LLP.
SAN DIEGO GAS: Class Action Mulled Over Unplanned Power Outages
---------------------------------------------------------------
Miriam Raftery, writing for East County Magazine, reports that
with a red flag warning in effect due to high fire danger and
gusty Santa Ana Winds forecast through Jan. 29, San Diego Gas &
Electric Company (SDG&E) has once again shut off power to many
rural and mountain communities. An outage map curiously labels
these as "unplanned outages" even though clicking on communities
show in the SDG&E outages page map reveals that in most of the
current outages, "We've shut off the power for safety."
Power went off on Jan. 27 during Saturday evening hours and was
not slated for restoration until mid-to-late afternoon on Jan.
29.
The power is presently out in many areas including the East
County communities Boulevard, Live Oak Springs, Descanso, Pine
Valley, Alpine, Pine Hills, Santa Ysabel and surrounding
communities, affecting thousands of customers. Portions of North
County including Valley Center and the Pauma area are also
without power.
Many of these areas have had frequent intentional outages since a
California Public Utilities Commission ruling late last year
prohibited SDG&E from charging ratepayers for wildfires that the
state found its lines and equipment caused in 2007. Those
outages caused food spoilage that SDG&E has refused to pay for.
Residents also suffered hardships due to inability to pump
electric wells needed to supply water for livestock, households,
irrigation and firefighting, among other risks created by
prolonged outages.
In Descanso, which had experienced 11 such outages as of mid to
late December, the latest outage has sparked angry comments on
the Descanso Neighbors forum on Facebook, which some residents
can still access via mobile devices.
Bill West posted, "I have never lived in a place in the United
States where the power goes out this much. I've seen it in a
number of undeveloped countries, however." He also indicated
that PG&E has not shut off power during high winds.
Some posters urged fellow residents to be self reliant. Some have
invested in generators or switched to AT&T land lines, which
unlike cable phone lines, stay on during outages.
But Claudia D'Spain White posted, "Why do I need to pay SDG&E if
I have to be self reliant? How do I prepare for no phone service
when the power is down? If there is an emergency in many areas in
the backcountry there is no cell service! Electric goes out and
landlines don't work."
Joe Carroll voiced a life-threatening concern. "I need power for
my oxygen machine it does sent have battery back up."
Karen Noblitt-McIntyre proposed litigation. "I am wondering why
do we not all band together and start a class action lawsuit up
against them [SDG&E]," she posted on the Pine Valley Facebook
forum., accusing the utility of putting "profits ahead of
customers." She proposed that residents contact former San Diego
city attorney Mike Aguirre, who has filed previous suits on
behalf of ratepayers.
A few defended SDG&E's actions. "Thousands of acres (5 separate
fires) and many communities were destroyed by wildfires during
Santa Ana wind episodes in October, just north of SF (San
Francisco)," Julie Proctor posted on the Descanso Neighbors
forum. "Maybe if PG&E had cut power, it wouldn't have been so
bad?It's only out of precaution."
But White retorted, "How would t be if the utility companies
built and maintained their equipment so neither fires caused by
lines or outages were necessary. It isn't like Santa Ana winds
are a new thing!"
On the Pine Valley forum on Facebook, Susan Major-King asked of
SDG&E, "Isn't it their responsibility to maintain their lines for
any disaster?"
ECM has emailed SDG&E to ask once again whether they have any
plan to upgrade lines to withstand higher winds in areas that
have had repeated outages, and will publish any response
received.
Customers with concerns about frequent outages may wish to
contact the California Public Utilities Commission as well as
state legislators in areas that have had recurrent outages
including State Senator Joel Anderson, Assembly member Randy
Voepel and State Senator Ben Hueso. The latter chairs a
committee overseeing utilities in the California Legislature.
You can find contact information for these State Senate and State
Assembly officials here.
You can check the status on current outages at www.sdge.com by
clicking the outage tab at the top right side of the page. [GN]
SANDERSON FARMS: Broiler Chicken Suits Proceed into Discovery
-------------------------------------------------------------
Consolidated class action lawsuits filed by direct and indirect
purchasers of broiler chickens remain pending after a U.S. court
denied Defendants' motions to dismiss the amended complaints.
Sanderson Farms, Inc. said in regulatory filings with the
Securities and Exchange Commission that between September 2, 2016
and October 13, 2016, Sanderson Farms, Inc. and its subsidiaries
were named as defendants, along with 13 other poultry producers
and certain of their affiliated companies, in multiple putative
class action lawsuits filed by direct and indirect purchasers of
broiler chickens in the United States District Court for the
Northern District of Illinois. The complaints allege that the
defendants conspired to unlawfully fix, raise, maintain and
stabilize the price of broiler chickens, thereby violating
federal and certain states' antitrust laws, and also allege
certain related state-law claims. The complaints also allege that
the defendants fraudulently concealed the alleged anticompetitive
conduct in furtherance of the conspiracy. The complaints seek
damages, including treble damages for the antitrust claims,
injunctive relief, costs and attorneys' fees. The court has
consolidated all of the direct purchaser complaints into one
case, and the indirect purchaser complaints into two cases, one
on behalf of commercial and institutional indirect purchaser
plaintiffs and one on behalf of end-user consumer plaintiffs.
On October 28, 2016, the direct and indirect purchaser plaintiffs
filed consolidated, amended complaints, and on November 23, 2016,
the direct and indirect purchaser plaintiffs filed second amended
complaints. On December 16, 2016, the indirect purchaser
plaintiffs separated into two cases. On that date, the commercial
and institutional indirect purchaser plaintiffs filed a third
amended complaint, and the end-user consumer plaintiffs filed an
amended complaint. On January 27, 2017, the defendants filed
motions to dismiss the amended complaints in all of the cases.
These motions were fully briefed, Sanderson Farms said in its
Form 10-Q Report for the quarterly period ended June 30, 2017.
On November 20, 2017, the motions to dismiss were denied, the
Company said in its Form 10-K Annual Report for the fiscal year
ended October 31, 2017.
The Company said, "The lawsuits will now move into discovery, and
we intend to continue to defend them vigorously; however, the
Company cannot predict the outcome of these actions. If the
plaintiffs were to prevail, the Company could be liable for
damages, which could have a material, adverse effect on our
financial position and results of operations."
Sanderson Farms is the third largest poultry producer in the
United States and produces 9.375 million chickens per week. It is
the only Fortune 1000 company headquartered in Mississippi.
SANDERSON FARMS: Bid to Dismiss NY Securities Suit Underway
-----------------------------------------------------------
Sanderson Farms, Inc. said in regulatory filings with the
Securities and Exchange Commission that the Company and several
individual defendants continue to defend a securities class
action lawsuit in New York.
Sanderson Farms, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
June 30, 2017, that Sanderson Farms, Inc., Joe F. Sanderson, Jr.,
the Chairman of the Registrant's Board of Directors and its Chief
Executive Officer and D. Michael Cockrell, director and Chief
Financial Officer, were named as defendants in a putative class
action lawsuit filed on October 28, 2016, in the United States
District Court for the Southern District of New York. On March
30, 2017, the lead plaintiff filed an amended complaint adding
Lampkin Butts, director, Chief Operating Officer, and President,
as a defendant, and on June 15, 2017, the lead plaintiff filed a
second amended complaint.
The complaint alleges that the defendants made statements in the
Company's SEC filings and press releases, and other public
statements, that were materially false and misleading in light of
the Company's alleged, undisclosed violation of the federal
antitrust laws described above. The complaint also alleges that
the material misstatements were made in order to, among other
things, "artificially inflate and maintain the market price of
Sanderson Farms securities." The complaint alleges the defendants
thereby violated the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including Section 10(b) of the Exchange Act
and Rule 10b-5 promulgated thereunder, and, for the individual
defendants, Section 20(a) of the Exchange Act, and seeks damages,
interest, costs and attorneys' fees.
On June 29, 2017, the defendants filed a motion to dismiss the
amended complaint, and on August 15, 2017, the plaintiffs filed
their response.
The Company said in its Form 10-K Annual Report for the fiscal
year ended October 31, 2017, that on September 15, 2017, the
defendants filed a reply to the response. The motion is now fully
briefed and awaiting decision.
Sanderson Farms said "The lawsuit is in an early stage and the
defendants intend to defend it vigorously; however, the Company
cannot predict the outcome of this action. If the plaintiffs were
to prevail, the Company could be liable for damages, which could
have a material, adverse effect on our financial position and
results of operations."
Sanderson Farms is the third largest poultry producer in the
United States and produces 9.375 million chickens per week. It is
the only Fortune 1000 company headquartered in Mississippi.
SANDERSON FARMS: Oklahoma Class Action Suit Ongoing
---------------------------------------------------
Sanderson Farms, Inc. continues to defend a class action lawsuit
in Oklahoma against poultry producers.
The Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
June 30, 2017, that on January 27, 2017, the Company and its
subsidiaries were named as defendants, along with four other
poultry producers and certain of their affiliated companies, in a
putative class action lawsuit filed in the United States District
Court for the Eastern District of Oklahoma. On March 27, 2017,
Sanderson Farms, Inc. and its subsidiaries were named as
defendants, along with four other poultry producers and certain
of their affiliated companies, in a second putative class action
lawsuit filed in the United States District Court for the Eastern
District of Oklahoma. The court ordered the suits consolidated
into one proceeding, and on July 10, 2017, the plaintiffs filed a
consolidated amended complaint.
The consolidated amended complaint alleges that the defendants
unlawfully conspired by sharing data on compensation paid to
broiler farmers, with the purpose and effect of suppressing the
farmers' compensation below competitive levels. The consolidated
amended complaint also alleges that the defendants unlawfully
conspired to not solicit or hire the broiler farmers who were
providing services to other defendants. The consolidated amended
complaint seeks treble damages, costs and attorneys' fees.
The Company said in its Form 10-K Annual Report for the fiscal
year ended October 31, 2017, that on September 8, 2017, the
defendants filed a motion to dismiss the amended complaint, on
October 23, 2017, the plaintiffs filed their response, and on
November 22, 2017, the defendants filed a reply. Oral argument on
the motion to dismiss was scheduled for January 19, 2018.
Sanderson Farms said "The lawsuit is in its early stages, and we
intend to defend it vigorously; however, the Company cannot
predict the outcome of this action. If the plaintiffs were to
prevail, the Company could be liable for damages, which could
have a material, adverse effect on our financial position and
results of operations."
Sanderson Farms is the third largest poultry producer in the
United States and produces 9.375 million chickens per week. It is
the only Fortune 1000 company headquartered in Mississippi.
SEVCON INC: "Scarantino" Stockholder Class Action Dropped
---------------------------------------------------------
Louis Scarantino on Jan. 11, 2018, filed a Notice of Voluntary
Dismissal of the class action lawsuit, entitled Louis Scarantino
v. Sevcon, Inc., et al., Case No. 1:17-cv-11580 (D. Mass., August
22, 2017).
Sevcon, Inc. said in a Form 8-K filing with the U.S. Securities
and Exchange Commission that on August 22, 2017, Louis Scarantino
filed a purported stockholder class action lawsuit against the
Company and its directors and BorgWarner Inc. and one of its
subsidiaries in the U.S. District Court for the District of
Massachusetts. In the case, captioned Louis Scarantino v. Sevcon,
Inc., et al., Case No. 1:17-cv-11580, plaintiff alleges that the
Company's preliminary proxy statement filed on August 8, 2017,
which concerns the proposed acquisition of the Company by
BorgWarner Inc., omits or misrepresents material information with
respect to certain financial data and analyses underlying
Rothschild Inc.'s opinion, the possible terms of any
nondisclosure agreements that may have been entered into by the
Company with certain other parties, and purported conflicts of
interest on the part of the Company's officers and directors and
Rothschild Inc.
Plaintiff asserts claims under the federal securities laws and
seeks, among other things, to enjoin the acquisition or, in the
alternative, rescission or rescissory damages if the acquisition
closes.
Sevcon said at that time, "The outcome of this lawsuit cannot be
predicted with certainty. However, the Company believes that it
is without merit. If additional similar complaints are filed, the
Company will not necessarily announce such additional filings."
A Dec. 12, 2017 docket entry provided that, "a Notice of
potential dismissal of action pursuant to FCRP 4(m) and Local
Rule 4.1(b): This action will be dismissed in twenty-one days
unless proof of service is filed."
Sevcon has been at the forefront of electric vehicle technology
for over half a century and in that time has partnered with many
of the world's leading companies to achieve their low-carbon
ambitions. The company is based in Southborough, Massachusetts.
SINGING RIVER: Judge Approves Pension Class Action Settlement
-------------------------------------------------------------
The Associated Press reports that a federal judge on Jan. 26
approved a south Mississippi hospital's plan to settle a lawsuit
over its financially troubled pension system, although opponents
question whether the plan will work.
U.S. District Judge Louis Guirola Jr. on Jan. 26 ruled in favor
of the plan for Singing River Health System to pay more than $156
million to its pension fund over 35 years.
The 5th U.S. Circuit Court of Appeals had ordered Judge Guirola
to re-examine the issue after opponents of the settlement had
appealed. The legal battle has pitted retirees against Singing
River, with retirees trying to hold onto their full benefit, or
at least capture as much money as possible.
Singing River, which operates hospitals in Pascagoula and Ocean
Springs, stopped paying into the system from 2009 to 2014 without
telling employees and retirees. That decision was part of a
financial crisis at the county-owned hospital system.
The pension plan is paying 725 retirees now, and covers 3,200
people, including employees who have yet to retire, as well as
former workers who have left. Pension plan manager Traci
Christian has reported that the $123 million now in the bank
won't last past 2025 without the settlement. Even with it,
retirees might only get 59 cents on the dollar. Hospital
officials have been pushing for the settlement in part because
retirees have been getting full benefits during the case,
reducing the fund more rapidly.
Those who object to the federal class action settlement say they
don't believe the pension will last as long as Singing River
says, and question whether the hospital system can make the
payments.
Judge Guirola, though, found there was no evidence to support
those claims.
"The objectors have been given their full and fair 'day in
court,'" he wrote "In the opinion of the court, the parties have
demonstrated that the best means of protecting the plan, the
class, and the future financial stability of SRHS is to approve
the settlement."
Lawyers for 200 opponents of the settlement say they plan further
appeals. Lawyer Harvey Barton said none of the payout models
proposed would work based on the money available. Even with the
settlement, "at some point, it will go broke," he told the Sun
Herald.
Barton said Judge Guirola failed to satisfy the demands by the
5th Circuit for more information
Jackson County supervisors agreed to pay $13.6 million to the
hospital by 2024 to support care for poor people and prevent the
hospital from defaulting on a bond issue as a condition of the
settlement. [GN]
SLT GROUP: Faces "Conner" Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against SLT Group, LLC. The
case is styled as Mary Conner, individually and as the
representative of a class of similarly situated persons,
Plaintiff v. SLT Group, LLC doing business as: Strengthen,
Lengthen and Tone, Defendant, Case No. 1:18-cv-00665 (S.D. N.Y.,
January 25, 2018).
SLT Group operates fitness studios in New York. It offers
strengthening, lengthening, and body toning services.[BN]
The Plaintiff appears PRO SE.
SPEEDYPC SOFTWARE: Loses Bid to Bar Expert Report in "Beaton"
-------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
denying Defendant's Motion to Bar Expert Report in the case
captioned ARCHIE BEATON, individually and on behalf of all others
similarly situated, Plaintiff, v. SPEEDYPC SOFTWARE, a British
Columbia company, Defendant, No. 13-cv-08389 (N.D. Ill.).
Plaintiff Archie Beaton has sued SpeedyPC claiming that the
premium version of SpeedyPC's software that he and other class
members purchased and installed on their computers did not live
up to SpeedyPC's promises. Beaton and other SpeedyPC customers
purchased the premium software after first running a diagnostic
scan using SpeedyPC's free software that, according to Beaton,
would report extensive problems regardless of whether such
problems were actually present. After receiving the results of
the scan, the customers were invited to purchase the premium
software, SpeedyPC Pro, to fix those problems. But the premium
software did not actually do what it claimed.
In connection with his motion to certify the class and subclass,
Beaton proffered the expert report of Craig Snead.
SpeedyPC argues that Snead's opinions, as reflected in his report
and deposition testimony, fail to meet the requirements of Rule
702 because (1) Snead is not qualified to render the opinions
proffered, and (2) Snead's opinions were rendered based on a
deficient methodology and therefore do not satisfy the
reliability standards of Rule 702.
Despite SpeedyPC's protests, the Court determines that Snead is
qualified as an expert by knowledge, skill, experience, training,
or education to render the proffered opinions. Snead is an
experienced software developer with a bachelor's degree in
Information Engineering from the University of Cincinnati. Since
graduating in 2004, he has worked as a software developer. He
represents that he is experienced in software-code analysis for
litigation and that he has worked in designing, developing, and
maintaining a variety of security software products.
The Court also concludes that Snead's opinions satisfy Rule 702's
reliability and methodological standards. SpeedyPC complains
that: (1) Snead only looked at the code for the free version of
the software and not the premium version of the software; (2)
Snead never looked at an image of Beaton's laptop; (3) Snead did
not inquire into the efficacy of the software's purported fixes;
and (4) Snead did not know or research if there were any
standards relating to the issues in this case.
SpeedyPC claims that Snead's opinions are subjective and nothing
more than uninformed speculation, conjecture, and guesswork.
However, SpeedyPC provides nothing more to support these
characterizations. Thus, the Court denies SpeedyPC's motion to
bar Snead's expert report and testimony.
Beaton argues that parts of Monty G. Myers's report and testimony
should be barred because: (1) they exceed the scope of a rebuttal
report; (2) they include an improper factual narrative; (3) they
contain improper speculation about Beaton's mental state and
offers improper legal conclusions; and (4) their conclusions
about consumer behavior and expectations do no satisfy the
strictures of Rule 702.
To the extent SpeedyPC and Beaton understood the Court's
scheduling order differently, Beaton had notice of SpeedyPC's
interpretation and what sort of expert testimony Myers intended
to introduce, and there is no indication in the record that
Beaton would be prejudiced by allowing Myers's testimony.
Accordingly, the Court will not limit Myers's report to
responding to Snead's contentions and, instead, will consider
whatever is relevant to Beaton's motion for class certification
in Myers's report.
Beaton next argues that Section D of Myers's report which
discusses Beaton's laptop contains improper factual narrative. In
particular, Beaton objects to two sentences in which Myers refers
to Beaton's testimony about his purchase and use of his laptop
and the operating system on the laptop as confusing..
The Court finds Myers's commentary that certain purported
inconsistencies in Beaton's testimony are confusing to be
irrelevant to his expert opinions about Beaton's laptop. The
Court will not strike these portions of Section D of Myers's
report but also will not consider Myers's commentary on Beaton's
testimony in evaluating Beaton's motion for class certification.
The Court denies SpeedyPC's motion to bar Beaton's expert Craig
Snead and denies in part and grants in part Beaton's motion to
strike the expert report and testimony of Monty G. Myers striking
paragraphs 83, 127, and 128 from Myers's expert report and
barring any testimony from Myers on the subject matter of those
paragraphs.
A full-text copy of the District Court's December 21, 2017
Memorandum Opinion and Order is available at
https://tinyurl.com/y7wzencd from Leagle.com.
Archie Beaton, individually and on behalf of all others similarly
situated, Plaintiff, represented by Benjamin Harris Richman --
brichman@edelson.com -- Edelson PC, Rafey S. Balabanian --
rbalabanian@edelson.com -- Edelson PC, Amir Cheyenne Missaghi --
amissaghi@edelson.com -- Edelson PC, David Ira Mindell --
dmindell@edelson.com -- Edelson P.C., Eve -Lynn J. Rapp --
erapp@edelson.com -- Edelson P.C. & Sydney M. Janzen --
ejanzen@edelson.com -- Edelson PC.
SpeedyPC Software, a British Columbia company, Defendant,
represented by James Kenneth Borcia -- jborcia@tresslerllp.com --
Tressler LLP & Kevin Krikor Kearney -- kkearney@tresslerllp.com -
- Tressler LLP.
STAPLES INC: Four Class Suits over Merger Dismissed
---------------------------------------------------
Judge Rya W. Zobel entered Orders dated Nov. 15, 2017, granting
separate stipulations dismissing four class action lawsuits:
-- Raymond Haag v. Staples, Inc. et al.,
-- Bushanksy v. Staples, Inc. et al.,
-- Michael Huntley v. Staples, Inc. et al., and
-- Leif Haugen v. Staples, Inc. et al.
Staples, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
July 29, 2017, that on August 4, 2017 a purported class action
lawsuit relating to the Merger was filed against the Company,
each of its directors, Sycamore, Merger Sub and Parent, captioned
Raymond Haag v. Staples, Inc. et al., Civil Action No. 1:17-cv-
11447 ("Haag").
Three additional purported class action lawsuits were also filed
against the Company and each of its directors, on August 8, 2017
captioned Stephen Bushansky v. Staples, Inc. et al., Civil Action
No. 1:17-cv-11464 ("Bushansky"), on August 8, 2017 captioned
Michael Huntley v. Staples, Inc. et al., Civil Action No. 1:17-
cv-11467 ("Huntley"), and on August 10, 2017 captioned Leif
Haugen v. Staples, Inc. et al., Civil Action No. 1:17-cv-11480
("Haugen"). Each of the lawsuits was filed in the United States
District Court for the District of Massachusetts and alleges
violations of Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934 and Rule 14a-9 promulgated thereunder against the
defendants for allegedly disseminating a false and misleading
proxy statement in connection with the Merger.
Each of the plaintiffs seeks to enjoin the defendants from
proceeding with the Merger. In addition, plaintiffs variously
seek other forms of injunctive and declaratory relief, including
declaring that the defendants violated Sections 14(a) and/or
20(a) of the 1934 Act, as well as Rule 14a-9 promulgated
thereunder; declaring that the proxy statement is materially
false or misleading; enjoining the defendants from proceeding
with any vote on the Merger; directing the defendants to
disseminate a proxy statement that does not contain any untrue
statements of material fact and that states all material facts
required in it or necessary to make the statements contained
therein not misleading; rescinding the Merger or awarding
rescissory damages to the extent already consummated; and
requiring an accounting of all damages caused and profits
obtained by the defendants. In addition, each of the plaintiffs
seeks an award of costs and attorneys' fees.
The Company and its directors believe all four of these lawsuits
are without merit.
In a Form 8-K filing on August 25, 2017, Staples said the company
and the plaintiffs in the federal actions have entered into a
memorandum of understanding in which the plaintiffs agreed to
dismiss their individual claims with prejudice, and to dismiss
claims asserted on behalf of the putative class without
prejudice, in return for the Company's agreement to make the
supplemental disclosures set forth herein.
Staples, Inc. said "The memorandum of understanding will not
affect the amount of the merger consideration that the Company's
stockholders are entitled to receive in the Merger or the timing
of the special meeting of the Company's stockholders, scheduled
for September 6, 2017, to, among other things, consider and vote
upon a proposal to approve the Merger Agreement."
Staples, Inc. is an American multinational office supply
retailing corporation, with over 1,500 stores in North America.
Headquartered in Framingham, Massachusetts, Staples also does
business extensively with enterprises in the United States and
Canada, and as Staples Business Advantage. Staples sells supplies
which include staples, office machines, promotional products,
technology, and business services both in stores and online.
STATE FARM: Court Discharges Show Cause Order in "Ayers" Suit
-------------------------------------------------------------
The United States District Court for Middle District of Florida,
Orlando Division, issued an Order discharging the Show Cause
Order issued in the case captioned FRANK AYERS, Plaintiff, v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; RUTH MIER GRAHAM;
GOVERNMENT EMPLOYEES INSURANCE COMPANY; TAMMY BOOTH; and STEVEN
HERSH, Defendants, Case No. 6:17-cv-1265-Orl-37TBS (M.D. Fla.).
Plaintiff Frank Ayers initiated this action in state court
against several defendants asserting numerous individual state-
law claims and a putative nation-wide class claim. Plaintiff
brought claims against Defendants for: (1) bad faith; (2) fraud;
and (3) tortious interference (Individual Claim). Based on its
alleged obligation to provide Plaintiff with counsel and
reimbursement of fees, he also lodges a putative class action
claim for breach of contract against State Farm (Class Claim).
Invoking the Court's diversity jurisdiction, State Farm removed
the action, claiming that the Class Claim met the requirements of
the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(2)
("CAFA"). The Class Claim meets CAFA's jurisdictional
requirements, but State Farm argues that the Court also has
supplemental jurisdiction over the Individual Claims. Upon
review, the Court directed Defendants to show cause why the
Individual Claims should not be remanded given that they do not
appear to be within the Court's supplemental jurisdiction.
Defendants seek to invoke the Court's jurisdiction over the
Individual Claims by arguing that: (1) CAFA provides original
jurisdiction, rendering Section 1367 inapplicable
(Inapplicability Argument); or, alternatively, (2) the Individual
Claims arise from a common nucleus of operative facts, satisfying
Section 1367(a) (Satisfaction Argument).
The Court rejects Defendants' Inapplicability Argument, which is
nothing more than selective quotation from a patchwork of non-
binding opinions. Contrary to Defendants' position, the U.S.
Court of Appeals for the Eleventh Circuit has indicated in dicta
that supplemental jurisdiction does have a role in CAFA cases,
but only in those that also have `state-law claims that were
never subject to CAFA jurisdiction. Wright Transp., Inc. v. Pilot
Corp., 841 F.3d 1266, 1273 (11th Cir. 2016) (quoting In Touch
Concepts, Inc. v. Cellco P'ship, 788 F.3d 98, 102 (2d Cir.
2015)).
Nevertheless, Defendants peddle an argument seeking Section
1367's preclusion simply because they have invoked CAFA. Where
Congress intends to preclude application of Section 1367, it says
so. For instance, CAFA's mass action provision limits the
application of supplemental jurisdiction to claims which exceed
the amount in controversy of $75,000. No such language appears in
Section 1332(d)(2), which Defendants have invoked here.
Thus, the absence of such text, combined with CAFA's legislative
history, leads the Court to conclude that Section 1367 applies.
Because Section 1367(a) applies in the CAFA context, the Court
turns to apply it. Defendants posit that the Individual Claims
arise out of a common nucleus of operative fact with the Class
Claim by citing these common threads: (1) State Farm's insurance
policy; (2) the auto accident between Plaintiff and Ms. Graham;
and (3) State Farm's handling of Ms. Graham's claims. With this,
Defendants conclude that all claims are so related as to form the
same case or controversy under Section 1367(a).
The Court disagrees.
Here, the Individual Claims will not require the same witnesses,
presentation of the same evidence, nor determination of similar
facts as the Class Claim. As Defendants admit, and the Court has
previously explained, to prove the Individual Claims, the Court
need not resolve the policy interpretation issue of the Class
Claim.5Instead, the evidence needed to prove the Individual
Claims concerns Defendants' handling of Ms. Graham's bodily
injury claim and Plaintiff's request for information about such
claim. Sure, all claims may minimally overlap, but that alone
does not satisfy Section 1367(a). So the Individual Claims do not
arise out of common nucleus of operative fact with the Class
Claim, and the Court does not have supplemental jurisdiction over
the Individual Claims.
The Court's Show Cause Order is discharged.
The claims set forth in Counts II-VI of the Complaint are severed
and remanded to the Circuit Court of the Ninth Judicial Circuit
in and for Orange County, Florida.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/y9cnd9g5 from Leagle.com.
Frank Ayers, Plaintiff, represented by Henry Arnold Seiden --
haseidenpa@aol.com -- Seiden Law.
State Farm Mutual Automobile Insurance Company, Defendant,
represented by Benjamine Reid -- breid@carltonfields.com --
Carlton Fields Jorden Burt, PA, David Matthew Allen --
mallen@carltonfields.com -- Carlton Fields Jorden Burt, PA,
Jeffrey A. Cohen -- jacohen@carltonfields.com, Carlton Fields
Jorden Burt, PA & Jon Michael Philipson --
philipson@carltonfields.com -- Carlton Fields Jorden Burt, PA.
Ruth Mier Graham, Defendant, represented by David Cyril Knapp --
dknapp@rclawpa.com -- James A. Coleman, PA, James A. Coleman --
jcoleman@rclawpa.com -- James A. Coleman, PA, Kendall B. Rigdon,
Rigdon, Alexander & Rigdon, LLP & Kurt Edward Alexander, Rigdon,
Alexander & Rigdon, LLP, 2405 N. Courtnay Pkwy. Suite 202Merritt
Island, FL 32953
Government Employees Insurance Company, Defendant, represented by
Kendall B. Rigdon, Rigdon, Alexander & Rigdon, LLP & Kurt Edward
Alexander, Rigdon, Alexander & Rigdon, LLP.
Tammy Booth & Steven Hersh, Defendants, represented by Alan
Jeffrey Nisberg -- anisberg@butler.legal -- Butler Weihmuller
Katz Craig LLP & John W. Weihmuller -- jweihmuller@butler.legal -
- Butler Weihmuller Katz Craig LLP.
STERLING JEWELER: Class Determination Award in "Jock" Vacated
-------------------------------------------------------------
In the case, LARYSSA JOCK, et al., Plaintiffs, v. STERLING
JEWELERS INC., Defendant, Case No. 08 Civ. 2875 (S.D. N.Y.),
Judge Jed. S. Rakoff of the U.S. District Court for the Southern
District of New York granted Sterling's motion to vacate the Feb.
2, 2015 Award in so far as that Award certifies a class that
includes individuals who have not affirmatively opted in to the
arbitral proceedings.
The Plaintiffs, current and former female employees of defendant
Sterling, filed the putative class action on March 18, 2008
alleging that Sterling discriminated against them in pay and
promotion on the basis of their gender. Subsequently, the
Plaintiffs moved to compel arbitration pursuant to a dispute
resolution agreement ("Resolve Agreement"), which motion the
Court granted by Order dated June 18, 2008.
Now before the Court is Sterling's motion to vacate a Class
Determination Award issued by the Arbitrator certifying, for the
Plaintiffs' Title VII disparate impact claims for declaratory and
injunctive relief, a class that, Sterling estimates, includes
over 70,000 "absent" class members, i.e., Sterling employees
other than the named Plaintiffs and several hundred individuals
who have affirmatively opted in to the class proceedings before
the Arbitrator.
According to Sterling, even though the Arbitrator is planning to
permit members of the certified class to opt out, the Arbitrator
exceeded her authority by purporting to bind the larger group in
any way as they never submitted to her authority or presented to
her the question of whether the Resolve Agreement permits class
action arbitration. The Plaintiffs oppose Sterling's motion,
arguing that the Court must defer to the Arbitrator's
interpretation of the agreement and her decision to certify the
larger class.
The Court initially denied Sterling's motion. Sterling timely
appealed. However, while Sterling's appeal was pending, the
Supreme Court issued an opinion in Stolt-Nielsen S.A. v.
AnimalFeeds Int'l Corp., which reversed the Second Circuit's
reversal of the undersigned's decision holding that a class
action proceeding is not available in arbitration unless the
contracting parties so provide, Stolt-Nielsen SA v. Animalfeeds
Int'l Corp. Thereafter, Sterling moved pursuant to Federal Rules
of Civil Procedure 62.1 and 60(b) for relief from the Dec. 28,
2009 Opinion and Order, and the Second Circuit remanded the case
to permit the Court to address Sterling's motion.
On Aug. 6, 2010, the Court reversed its earlier decision and
granted Sterling's motion to vacate, finding in relevant part
that the Plaintiffs had failed to identify any concrete basis in
the record for the arbitrator to conclude that the parties
manifested an intent to arbitrate class claims. The Plaintiffs
timely appealed, and a divided panel of the Second Circuit
reversed, with the majority finding that (1) the parties had
squarely presented the question of whether the Resolve Agreement
allowed for class arbitration to the arbitrator; and (2) whether
the arbitrator was right or wrong in her analysis, she had the
authority to make the decision, and the parties to the
arbitration are bound by it.
Several years later, on Feb. 2, 2015, the Arbitrator issued a
Class Determination Award, certifying, inter alia, an
approximately 70,000-person class for the Plaintiffs' Title VII
disparate impact claims. On March 3, Sterling moved to vacate
that Award, arguing that the Arbitrator exceeded her authority by
purporting to bind employees other than the named Plaintiffs and
those who had affirmatively opted into the proceedings before the
Arbitrator.
On Nov. 15, 2015, the Court denied Sterling's motion, finding
that vacatur was foreclosed by earlier rulings in the case.
Specifically, given Jock I, which affirmed the Arbitrator's
prerogative to decide whether the Resolve Agreement permitted
class action procedures, the Court reasoned that there is no
basis for vacating the Class Determination Award on the ground
that the Arbitrator has now exceeded her authority in purporting
to bind absent class members.
Sterling, once again, appealed. On July 24, 2017, the Second
Circuit vacated the November 2015 Opinion and Order, holding that
the decision in Jock I did not squarely address whether the
arbitrator had the power to bind absent class members to class
arbitration given that they the absent class members, unlike the
parties here, never consented to the arbitrator determining
whether class arbitration was permissible under the agreement in
the first place.
Judge Rakoff finds that the Arbitrator had no authority to decide
whether the Resolve Agreement permitted class action procedures
for anyone other than the named parties who chose to present her
with that question and those other individuals who chose to opt
in to the proceeding before her. He says as the arbitrator
exceeded her powers, he granted Sterling's motion to vacate the
Feb. 2, 2015 Award in so far as that Award certifies a class that
includes individuals who have not affirmatively opted in to the
arbitral proceedings. The Clerk is directed to close docket
entry number 162.
A full-text copy of the Court's Jan. 16, 2018 Opinion and Order
is available at https://is.gd/4Fvd1H from Leagle.com.
Laryssa Jock, Plaintiff, represented by John Douglas Richards --
drichards@cohenmilstein.com -- Pomerantz LLP, Joseph M. Sellers -
- jsellers@cohenmilstein.com -- Cohen Milstein Sellers & Toll
PLLC, pro hac vice, Loren B. Donnell, Burr & Smith, pro hac vice,
Sam J. Smith, Burr & Smith, LLP, pro hac vice, Thomas Warren,
Thomas A. Warren Law Offices, P.L, Kalpana Kotagal --
kkotagal@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC
& Shaylyn Cochran -- scochran@cohenmilstein.com -- Cohen Milstein
Sellers & Toll, PLLC, pro hac vice.
Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Khristina
Rodriguez & Leighla Smith, Plaintiffs, represented by Joseph M.
Sellers, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Loren
B. Donnell, Burr & Smith, pro hac vice, Lynda J. Grant, Cohen
Milstein Sellers & Toll PLLC, Sam J. Smith, Burr & Smith, LLP,
pro hac vice, Thomas Warren, Thomas A. Warren Law Offices, P.L &
Shaylyn Cochran, Cohen Milstein Sellers & Toll, PLLC, pro hac
vice.
Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy
Reed, Linda Rhodes, Nina Shahmirzadi, Marie Wolf, Kelly Contreras
& Dawn Souto-Coons, Plaintiffs, represented by Joseph M. Sellers,
Cohen Milstein Sellers & Toll PLLC, pro hac vice, Loren B.
Donnell, Burr & Smith, pro hac vice, Sam J. Smith, Burr & Smith,
LLP, pro hac vice, Thomas Warren, Thomas A. Warren Law Offices,
P.L & Shaylyn Cochran, Cohen Milstein Sellers & Toll, PLLC, pro
hac vice.
Sterling Jewelers, Inc, Defendant, represented by Gerald Leonard
Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw LLP,
Christina M. Janice -- cjanice@seyfarth.com -- Seyfarth Shaw LLP
& Peter J. Wozniak -- pwozniak@seyfarth.com -- Seyfarth Shaw LLP.
Sterling Jewelers, Inc, Counter Claimant, represented by Gerald
Leonard Maatman, Jr., Seyfarth Shaw LLP.
STONELEIGH RECOVERY: Loses Bid to Dismiss "Cadillo" FDCPA Suit
--------------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion denying Defendant's Motion to Dismiss the case
captioned NATALIE CADILLO, on behalf of herself and all others
similarly situated, Plaintiff, v. STONELEIGH RECOVERY ASSOCIATES,
LLC, and JOHN DOES 1-25, Defendants, Civil Action No. 17-7472-
SDW-SCM (D.N.J.).
Plaintiff, a resident of New Jersey, incurred a financial
obligation in the amount of $1,134.45 to Jersey City Medical
Center (JCMC). JCMC then referred the obligation to Stoneleigh,
a debt collection company, to collect the amount owed. Plaintiff
filed suit in this Court against Defendant for "damages and
declaratory relief arising from Defendant's violation of Fair
Debt Collection Practices Act (FDCPA).
Plaintiff also alleges that Defendant's notice violates Section
1692e(10) which prohibits the use of any false, deceptive, or
misleading representations or means to collect or attempt to
collect any debt. A letter is deceptive when it can reasonably be
read to have two or more meanings, one of which is inaccurate or
contradictory to another requirement. Plaintiff argues that
Defendant's January 5, 2017 letter is misleading because the
instruction regarding how to dispute Plaintiff's debt "can be
read to have two or more meanings."
The Court finds that the least sophisticated consumer may not
understand that she is required to respond in writing, and could
be misled by Defendant's collection notice.
Therefore, for purposes of the instant motion, Plaintiff has also
pled facts sufficient to state a claim under Section 1692e(10).
Defendant's Motion to Dismiss is denied.
A full-text copy of the District Court's December 21, 2017
Opinion is available at https://tinyurl.com/y9fxuq7w from
Leagle.com.
NATALIE CADILLO, on behalf of herself and all others similarly
situated, Plaintiff, represented by BENJAMIN JARRET WOLF --
BWOLF@LEGALJONES.COM -- Jones, Wolf & Kapasi, LLC & JOSEPH K.
JONES, Jones, Wolf & Kapasi, LLC, 375 Passaic Ave, Fairfield, NJ
07004, USA
STONELEIGH RECOVERY ASSOCIATES, LLC, Defendant, represented by
ANDREW MICHAEL SCHWARTZ -- amschwartz@mdwcg.com -- MARSHALL
DENNEHEY WARNER COLEMAN & GOGGIN, PC.
SUR LA TABLE: Faces "Conner" Suit in Southern District of NY
------------------------------------------------------------
A class action lawsuit has been filed against Sur La Table, Inc.
The case is styled as Mary Conner, individually and as the
representative of a class of similarly situated persons,
Plaintiff v. Sur La Table, Inc., Defendant, Case No. 1:18-cv-
00677 (S.D. N.Y., January 25, 2018).
Sur La Table, Inc. is a privately held retail company based in
Seattle, Washington, that sells kitchenware products, including
cookware, cutlery, cooks' tools, small electrics, tabletop and
linens, bakeware, glassware and bar, housewares, food and
outdoor.
The Plaintiff appears PRO SE.
SWIFT TRANSPORTATION: "Sciabacucchi" Merger Suit Dropped
--------------------------------------------------------
The Plaintiff in the case, Sciabacucchi v. Swift Transportation
Company et al., Case No. 2:17-cv-01683 (D. Ariz., May 31, 2017),
filed a notice of voluntary dismissal on November 6, 2017.
The dismissal followed Swift's announcement in August 2017 that
the parties have reached a settlement.
Swift said in its Form 8-K filing with the U.S. Securities and
Exchange Commission on August 25, 2017, that the parties in the
actions Matthew Sciabacucchi et al. v. Swift Transportation
Company, et al., No. CV-17-0163-PHX-SPL and Gaylen A. Peterson,
et al. v. Swift Transportation Company, et al., No. CV-17-2073-
PHX-DMF had entered into a memorandum of understanding.
On April 9, 2017, Swift Transportation Company ("Swift") entered
into an Agreement and Plan of Merger (the "Merger Agreement"), by
and among Swift, Bishop Merger Sub, Inc., an Arizona corporation
and a direct wholly owned subsidiary of Swift ("Merger Sub"), and
Knight Transportation, Inc., an Arizona corporation ("Knight"),
pursuant to which, on the terms and subject to the conditions
therein, Merger Sub will merge with an into Knight (the
"Merger"), with Knight continuing as the surviving corporation
and as a direct wholly owned subsidiary of Swift.
On August 9, 2017, Swift and Knight filed a definitive joint
proxy statement/prospectus (the "Joint Proxy
Statement/Prospectus") with the Securities and Exchange
Commission (the "SEC") relating to the proposed Merger.
As disclosed in the Joint Proxy Statement/Prospectus, following
the announcement of the execution of the Merger Agreement,
purported stockholders of Swift filed two putative stockholder
class actions (the "Actions" or, each individually, an "Action")
in the United States District Court for the District of Arizona,
purporting to allege, among other matters, that the Joint Proxy
Statement/Prospectus failed to disclose certain information in
connection with the Merger. Each Action named Swift and its
directors as defendants, and one Action also named Knight as a
defendant. The Actions, among other things, sought various
remedies, including an order enjoining the Merger or rescinding
it to the extent it had already been implemented, damages, and an
award of costs and attorneys' fees.
On August 25, 2017, the parties to the Actions entered into a
memorandum of understanding (the "MOU"), pursuant to which the
parties have agreed, and without admitting any wrongdoing or that
the supplemental disclosures are material or required to be made,
among other things, that Swift will make certain supplemental
disclosures, which are set forth in the supplemental disclosures
below. The MOU provides that, in light of the supplemental
disclosures, the plaintiffs will dismiss the Actions with
prejudice on mootness grounds.
Swift Transportation said "The settlement will not affect the
timing of the respective special meetings of Swift stockholders
and Knight stockholders, the timing of the Merger or the amount
or form of consideration to be paid in the Merger." Swift
believes that the Actions are without merit and that no
supplemental disclosure is required to the Joint Proxy
Statement/Prospectus under any applicable rule, statute,
regulation or law.
Swift Transportation Company is a Phoenix, Arizona-based publicly
held American truckload motor shipping carrier. With over 16,000
trucks, it is one of the largest common carriers in the United
States. In 2017, Swift announced that it is merging with Knight
Transportation, also of Phoenix, to be called Knight-Swift. The
company is based in Phoenix, Arizona.
SYSCO SAN FRANCISCO: "Moreno" Remanded to Calif. State Court
------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiff's Motion to Remand
the case captioned ALBERT MORENO, Plaintiff, v. SYSCO SAN
FRANCISCO, INC., Defendant, Case No. 16-cv-07322-JSC (N.D. Cal.),
to state court.
Plaintiff Albert Moreno has been employed by Defendant as a non-
exempt order selector. He filed this putative class action
complaint in Alameda Superior Court. He alleges four claims for
relief under state law: (1) failure to provide meal periods in
violation of California Labor Code Sections 226.7, 512; (2)
failure to issue itemized wage statements in violation of
California Labor Code Sections 226(a), (e), (h); (3) violation of
unfair competition law in violation of California Business and
Professions Code Section 17200 et seq; and (4) for penalties
under California Labor Code Section 2699(f).
Plaintiff insists that remand is required because the Labor
Management Relations Act (LMRA) does not preempt Plaintiff's meal
break claim. The Court agrees.
Section 301 of the Labor Management Relations Act (LMRA),
codified at 29 U.S.C. Section 185(a), states in relevant part:
"Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce may be brought in any district court of the United
States having jurisdiction of the parties."
Defendant's suggestion that preemption applies because any meal
break claims brought on behalf of commercial truck drivers only
exist under the CBA is a non-starter. Defendant's argument is
based on Section 512(e) which bars state law meal and rest break
claims by commercial truck drivers if (1)[t]he employee is
covered by a valid collective bargaining agreement" and (2) [t]he
valid collective bargaining agreement expressly provides for the
wages, hours of work, and working conditions of employees, and
expressly provides for meal periods for those employees, final
and binding arbitration of disputes concerning application of its
meal period provisions, premium wage rates for all overtime hours
worked, and a regular hourly rate of pay of not less than 30
percent more than the state minimum wage.
Defendant insists that 512(e) would pre-empt any claim on behalf
of commercial truck drivers. Perhaps, but Plaintiff is a non-
exempt non-commercial truck driver employee who seeks to
represent a class of non-exempt employees, which as Plaintiff's
reply brief makes clear, excludes exempt commercial truck
drivers. As Defendant conceded at oral argument, Plaintiff would
not have standing to represent commercial truck drivers. The
Court thus construes Plaintiff's claim as excluding commercial
truck drivers.
Defendant has therefore failed to meet its burden to establish
preemption under Prong One.
Defendant insists that the Court will be required to interpret
the CBA to determine if it allows for more than one meal break
and if the provision of work under the seniority system
established in the CBA precludes a second meal break. Defendant
characterizes both of these as disputed issues, but the only
dispute the complaint identifies whether Defendant's actions
violated state law. Defendant has not cited a single CBAs
provision which would suggest that Plaintiff could not take a
second meal break if he worked more than a certain number of
hours. Plaintiff's state law right to a second meal break is pre-
empted only if the state law right is substantially dependent on
analysis of a collective-bargaining agreement.
Defendant has failed to cite to any specific CBA provision which
contradicts or even governs Plaintiff's claim for a second meal
break.
In sum, Defendant has not demonstrated that Plaintiff's first
claim for relief is preempted. As such, no basis for federal
subject matter jurisdiction exists and this case must be remanded
to the Alameda County Superior Court.
A full-text copy of the District Court's December 21, 2017 Order
is available at https://tinyurl.com/yctapopq from Leagle.com.
Albert Moreno, on behalf of himself and all others similarly
situated, and on behalf of the general public, Plaintiff,
represented by Daniel F. Gaines -- daniel@gaineslawfirm.com --
Gaines & Gaines, APLC, Alex Paul Katofsky --
alex@gaineslawfirm.com -- Gaines & Gaines, APLC & Kenneth Steven
Gaines -- ken@gaineslawfirm.com -- Gaines & Gaines, APLC.
Sysco San Francisco, Inc., a California corporation, Defendant,
represented by Margaret Rosenthal -- mrosenthal@bakerlaw.com --
Baker & Hostetler LLP, Sabrina Layne Shadi --
sshadi@bakerlaw.com -- Baker & Hostetler LLP & Vartan Serge
Madoyan -- vmadoyan@bakerlaw.com -- Baker & Hostetler LLP
TD BANK: Bid to Vacate "Purisima" Dismissal Denied
--------------------------------------------------
In the case, ANTON PURISIMA, Plaintiff, v. TD BANK and PEOPLE'S
REPUBLIC OF CHINA, Defendants, Case No. 1:16-cv-2906 (NLH/JS) (D.
N.J.), Judge Noel L. Hillman of the U.S. District Court for the
District of New Jersey denied the Plaintiff's Motion to Vacate
the Court's June 2, 2016 Order granting his application to
proceed in forma pauperis but dismissing his complaint without
prejudice.
The June 2, 2016 order states that the Plaintiff alleges that
there is wrong and fraudulent information in his TD Bank
statements, purposefully generated as an intentional insult based
upon his Filipino national origin. He further alleges TD Bank is
conspiring with Chinese employees of TD Bank who are also
employed by the People's Republic of China to steal his money.
The Plaintiff alleges claims under Title II of the Civil Rights
Act of 1964, public accommodation violations pursuant to 42
U.S.C. 2000a-6, and retaliation. He requests 11 decillion
dollars in damages.
While the Plaintiff identifies numerous TD Bank statement entries
he alleges are fraudulent, the Plaintiff fails to plausibly
allege how these false charges are related in any way to
discrimination based on his national origin. Additionally, the
Court finds that the complaint fails to comply with Rule 8(a) of
the Federal Rules of Civil Procedure, which requires that a
complaint contain a short and plain statement of the claim
showing that the pleader is entitled to relief. Specifically,
the Plaintiff's 18-page complaint does not contain factual
averments to support his claims for relief that he was
discriminated against based on his national origin.
On June 2, 2017, the Plaintiff filed a Motion to Vacate the
Court's June 2, 2016 Order.
Judge Hillman finds that while Plaintiff argues the Motion is
being made pursuant to Rule 60(b)(1), (2), and (6), he does not
argue mistake, inadvertence, surprise, or excusable neglect. The
Plaintiff further does not present the Court with newly
discovered evidence. Indeed, Plaintiff's Motion does not provide
this Court with any reason to vacate its prior Order.
Accordingly, he will deny the Plaintiff's Motion to Vacate.
The Judge will also deny the Plaintiffs' further requests class
action certification and appointment of pro bono counsel as the
Court's June 2, 2016 Order dismissing the Plaintiff's complaint
will not be vacated. He further will deny the Plaintiff's
various requests to supplement the Motion with additional
filings.
Accordingly, Judge Hillman directed the Clerk to reopen the
matter. He denied the Plaintiff's Motion to Vacate and directed
the Clerk to mark the matter as closed.
A full-text copy of the Court's Jan. 16, 2018 Order is available
at https://is.gd/4H6b8I from Leagle.com.
ANTON PURISIMA, Plaintiff, Pro Se.
TELENAV INC: March 5 Deadline to File Settlement Approval Bid
-------------------------------------------------------------
A settlement has been reached in a class action lawsuit filed by
Nathan Gergetz against Telenav, Inc., the company disclosed in a
regulatory filing with the Securities and Exchange Commission.
On July 28, 2016, Nathan Gergetz filed a putative class action
complaint in the U.S. District Court for the Northern District of
California, alleging that Telenav violated the Telephone Consumer
Protection Act, or TCPA. The complaint purports to be filed on
behalf of a class, and it alleges that Telenav caused unsolicited
text messages to be sent to the plaintiff from July 6, 2016 to
July 26, 2016. Plaintiffs seek statutory and actual damages under
the TCPA law, attorneys' fees and costs of the action, and an
injunction to prevent any future violations.
Telenav said in its Form 10-K report for the fiscal year ended
June 30, 2017, that trial is scheduled for January 2020. On
August 24, 2017, the court entered a 90-day stay in the case at
the parties' request, and the case was stayed until October 24,
2017.
Telenav moved to dismiss the complaint on November 21, 2016 and a
hearing was held on December 21, 2017.
The Company disclosed in its Form 10-Q report for the quarterly
period ended December 31, 2017, that a settlement has been
reached and the court set a deadline for March 5, 2018 for
plaintiff to file a motion for preliminary approval of class
action settlement. The court set that motion for hearing on
April 26, 2018.
"The proposed settlement will be paid by our technology errors
and omissions liability insurance policy, after payment of our
deductible of $250,000. We accrued the $250,000 deductible
payment in the three months ended December 31, 2017, and recorded
this amount as general and administrative expense in our
consolidated statement of operations," the Company said.
Telenav is a provider of connected car and location-based
platform products and services. The company utilizes its
automotive navigation platform and its advertising platform to
deliver such products and services. The company is based in Santa
Clara, California.
TICKETMASTER: Accused of Deceptive Marketing
--------------------------------------------
Rahul Kalvapalle, writing for Global News, reports that online
ticketing giant Ticketmaster and parent company Live Nation are
facing a class-action lawsuit accusing them of deceptive
marketing and pricing.
The litigation comes on the heels of a Competition Bureau lawsuit
which alleged widespread use of "drip pricing," a practice in
which customers pay far higher prices than advertised, due to the
addition of various fees and surcharges.
Launched by Merchant Law Group LLP, the class action litigation
seeks compensation for all Canadians who have purchased tickets
for sporting events, concerts and other entertainment events
through Ticketmaster.
"Canadians always expect to pay the price advertised, whether
it's for buying groceries or tickets to a concert. Ticketmaster
and Live Nation collected these fees by advertising a much lower
price for tickets, then jacking up the price," counsel Tony
Merchant said in a statement.
"This case is particularly egregious given the dominant position
which these companies hold over online ticket sales. When you
consider the millions of sales transactions done by Ticketmaster
in Canada each year, the magnitude of this class action becomes
clear."
Merchant said ticket prices are often inflated by over 20 per
cent, and in some cases by over 65 per cent.
He said the class action's plaintiff estimated paying over $1,000
in drip fees in the last five years. [GN]
TICKETMASTER: Merchant Law Group Launches Class Action in Canada
----------------------------------------------------------------
Liz Brown, writing for KamloopsBCNow, reports that Merchant Law
Group LLP has announced a national class action suit against
Ticketmaster and Live Nation, Canada's leading online ticket
sellers.
The Ticketmaster class action comes after a Competition Bureau of
Canada investigation found Ticketmaster and Live Nation use false
marketing practices, by using the term "drip pricing" where
consumers pay higher prices than advertised.
Live Nation and Ticketmaster's mandatory fees often inflate the
price of a concert or sporting event by more than 20%, and in
some cases, by more than 60%.
Concert goers have become frustrated and angry with
Ticketmaster's schemes and now have an opportunity to join a
class action suit.
"Canadians always expect to pay the price advertised, whether
it's for buying groceries or tickets to a concert. Ticketmaster
and Live Nation collected these fees by advertising a much lower
price for tickets, then jacking up the price," said Tony
Merchant, Q.C.
The class action litigation was launched on Jan. 26 and seeks
compensation and repayment to affected Canadian residents for all
improperly collected fees, where drip pricing was used by
Ticketmaster and Live Nation.
"This case is particularly egregious given the dominant position
which these companies hold over online ticket sales. When you
consider the millions of sales transactions done by Ticketmaster
in Canada each year, the magnitude of this class action becomes
clear.
"Our plaintiff, Micheal Lindenbach, estimates that in the last
five years, he has paid more than $1,000 overall in drip fees,"
said Merchant.
Any Canadians who have used Ticketmaster and Live Nation to
purchase event tickets, may provide their contact information at
Merchant Law. [GN]
UDELL JEWELERS: Faces "Olsen" Suit in E.D. of New York
------------------------------------------------------
A class action lawsuit has been filed against Udell Jewelers,
Inc. The case is styled as Thomas J Olsen, individually and on
behalf of all other persons similarly situated, Plaintiff v.
Udell Jewelers, Inc. doing business as: London Jewelers,
Defendant, Case No. 2:18-cv-00583 (E.D. N.Y., January 27, 2018).
Udell Jewelers, Inc. was founded in 1947. The company's line of
business includes the retail sale of jewelry such as diamonds and
other precious stones.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
UNITED STATES: Court Awards $5,255 Atty Fees in FOIA Suit
---------------------------------------------------------
The United States District Court for the District of Columbia
issued a Memorandum Opinion granting Plaintiff's Motion for
Attorney's Fees in the case captioned RICA GATORE, et al.,
Plaintiffs, v. UNITED STATES DEPARMENT OF HOMELAND SECURITY,
Defendant, Civil Action No. 15-459(RBW)(D.D.C.).
Catholic Charities and eight individual plaintiffs brought this
civil action against the defendant, the United States Department
of Homeland Security, under the Freedom of Information Act
(FOIA), seeking, inter alia, documents relating to the
defendant's processing of FOIA requests for the assessments of
asylum officers.
The Court previously concluded that Catholic Charities is
eligible for and entitled to attorney's fees and costs based on
its ninth cause of action.
In assessing whether a plaintiff is entitled to attorney's fees,
the Court typically considers four factors: (1) the public
benefit derived from the case; (2) the commercial benefit to the
plaintiff; (3) the nature of the plaintiff's interest in the
records; and (4) the reasonableness of the agency's withholding
of the requested documents.
As to the first factor, which requires the Court to consider both
the effect of the litigation for which fees are requested and the
potential public value of the information sought.
The defendant argues that the Guide is of no public value citing
as support for this position a decision in which the District of
Columbia Circuit concluded that documents relating to the
Smithsonian's museum shops had no potential public value because
no evidence exist[ed] that the release of the documents w[ould]
contribute to the public's ability to make vital political
choices, and the plaintiff sought these documents for the sole
purpose of facilitating her employment discrimination suit.
Access to such information is especially important for
organizations like Catholic Charities and their clients given
that the FOIA is the exclusive means that a respondent in
Immigration Court proceedings must use to obtain documents for
use in immigration proceedings. Moreover, the defendant's
argument fails to address the effect of this litigation, which is
a component of the public benefit analysis. This factor weighs in
favor of Catholic Charities, because the defendant did not turn
over any documents to Catholic Charities until after it filed
suit," making the defendant's release of the Guide a fruit of
Catholic Charities' litigation.
Thus, the Court again concludes that the first entitlement factor
weighs in Catholic Charities' favor.
As to the second and third factors, which concern the commercial
benefit to the plaintiff and the nature of the plaintiff's
interest in the records, the defendant argues that Catholic
Charities sought [the Guide] specifically for use in this
litigation and its request therefore was for private advantage
and not for public informational purposes.
However, as the Court previously found, Catholic Charities'
objective in seeking the Guide and other documents was, inter
alia, to promote the fairness and integrity of this country's
asylum process. And the mere fact that Catholic Charities has
cited the Guide's content in litigating its remaining claims in
this suit, without more, does not transform this non-profit's
interests from a public interest to a commercial or self-
interest.
Regarding the fourth factor, which concerns whether the
defendant's opposition to disclosure 'had a reasonable basis in
law' and whether the defendant had not been recalcitrant in its
opposition to a valid claim or otherwise engaged in obdurate
behavior the defendant argues that it was not unreasonable in not
releasing the full Guide to Catholic Charities because Catholic
Charities limited its FOIA request to documents about
'processing, answering, and responding to FOIA requests for
assessments of an asylum officer, so the defendant released only
the sections of its Guide related to that specified subject
matter.'
However, this was not a reasonable basis in the law for the
defendant's failure to disclose the entire Guide, as this Court's
prior rulings make clear. In addition, the defendant offers no
evidence to show that it had a reasonable basis for not
disclosing any part of the Guide until after Catholic Charities
filed suit.
Thus, the Court again finds that all four entitlement factors
weigh in favor of Catholic Charities, and as a result, Catholic
Charities is entitled to some amount of attorney's fees and
costs.
Having found that Catholic Charities is both eligible for and
entitled to attorney's fees and costs, the Court must next assess
the reasonableness of the fees and costs requested, as the FOIA
permits an award of "reasonable attorney fees and other
litigation costs.
Here, the defendant acquiesces in the notion that the litigation
at issue qualifies as complex federal litigation as to which the
Laffey Matrices apply, because it argues that one Laffey Matrix
should apply instead of the other. And, the defendant does not
argue or present evidence to suggest that FOIA litigation is a
submarket of complex federal litigation.
Both parties have also submitted market data to demonstrate that
the rates in their preferred matrix better estimate the
prevailing market rate for complex federal litigation in the
District.
The Court acknowledges that no data set is perfect, including the
2011 ALM survey underlying the USAO Matrix, which, as already
discussed, has been criticized as over-inclusive. However, in
light of the significant questions raised by the LSI Laffey
Matrix's original survey, and the limited value of Catholic
Charities' market data in filling in the gaps, the Court remains
persuaded that the USAO Matrix is a more reliable, albeit
imperfect, estimator of the prevailing rates for complex federal
litigation in this District.
Catholic Charities has also submitted affidavits and declarations
from District practitioners attesting that their billing rates
are in line with the LSI Laffey Matrix rates and that, in their
experience, the LSI Laffey Matrix rates are consistent with or
below the prevailing rate for complex federal litigation in this
District. Such declarations do not adequately show that the LSI
Laffey Matrix reflects the actual prevailing rates for complex
federal litigation in the District.
Both parties also cite cases in which courts have relied on the
rates in their preferred matrix to calculate fee awards. Catholic
Charities cites several decisions in which courts have relied on
the LSI Laffey Matrix rates, however, these decisions offer
little support for applying the LSI Laffey Matrix rates here.
n rebuttal, the defendant cites two decisions from this District
that considered the merits of the USAO Matrix and concluded that
it better approximates prevailing rates for complex federal
litigation in this District. The defendant also cites Judge
Cooper's decision in EPIC, which applied the USAO Matrix rates in
part based on testimony from Dr. Malowane similar to that
provided by the defendant here, including testimony that the USAO
Matrix is based on 2011 rather than 1989 billing rates.
Despite concluding that the USAO Matrix is the better estimator
of rates for complex federal litigation in this District, the
Court recognizes that Catholic Charities may also support its
requested rate by demonstrating that the rates customarily
charged by FOIA practitioners in the District are comparable to
those provided under" the LSI Laffey Matrix. However, Catholic
Charities has failed to do so here.
However, Catholic Charities does not claim that the FOIA
litigation at issue here is as complex or more complex than wage
enforcement litigation. Catholic Charities also claims that Dr.
Malowane's declaration in this case is undermined by her
testimony in Biery, 2012 WL 5914260, by having testified that
"some lawyers [in that case] deserved $705 per hour" for
attorney's fees. However, Dr. Malowane merely testified that
Arent Fox's "national hourly partner rate" of $705 per hour for
the firm's work in a Fifth Amendment just compensation case fell
reasonably within the range of rates for comparable `national'
firms" based in Washington, D.C., which she estimated was between
$195 and $999 per hour for partners. She therefore did not
conclude that a rate of $705 per hour is the prevailing rate for
complex federal litigation or specifically for FOIA litigation in
the District.
In sum, Catholic Charities has failed to show that FOIA
litigation, or this litigation in particular, warrants the higher
rates set forth in the LSI Laffey Matrix. The Court accordingly
finds it appropriate to compensate Catholic Charities at the
prevailing rate for complex federal litigation, which as the
Court explained above is best approximated by the rates set forth
in the current USAO Matrix.
Upon careful review of the billing records submitted by Catholic
Charities for its fees on fees request, the Court is satisfied
that its request is not excessive. Again, although several of
Catholic Charities' entries are less precise than would be ideal,
it is the Court's view that a total of 9.25 hours is a reasonable
amount of time to spend on preparing a motion for attorney's
fees, a memorandum in support of that motion, and two exhibits,
including the declaration of Catholic Charities' attorney.
Catholic Charities even appears to under-bill for its time
expended drafting, as opposed to researching, its substantive
motion and memorandum. (Itemization of Hours) (claiming only 1.1
hours for assembling motion for attorney fees; itemizing fees"
and 1.25 hours for "re-reading, improving, and filing motion for
fees).
The defendant's contention that Catholic Charities' fees on fees
request is unreasonable because it exceeds the underlying fees
request, without more, is unpersuasive. It is the defendant's
burden to provide "specific contrary evidence" to rebut the
reasonableness of a prevailing party's request and as Catholic
Charities correctly points out, the defendant has not identified
any particular item that was excessive or otherwise presented
evidence to satisfy its burden (rejecting the defendant's
argument that 72.05 hours for a summary judgment motion were
excessive because the defendant failed] to explain why any
particular time entry is unreasonable").
Despite finding that Catholic Charities' requested fees on fees
hours are reasonable, the Court nonetheless agrees with the
defendant that Catholic Charities' total fees on fees award
should be reduced to account for its limited success on its fees
motion.
The Court will award Catholic Charities $5,255.78 in attorney's
fees, in accordance with the calculations attached to this
Memorandum Opinion. In addition, the Court will award Catholic
Charities $400 in costs, representing the filing fee paid to the
Court for this action,, as those costs are undisputed by the
defendant.
A full-text copy of the District Court's December 21, 2017
Memorandum Opinion is available at https://tinyurl.com/y9tp6lfe
from Leagle.com.
RICA GATORE, ISAM AL TIMEMY, GEORGINE LUMONIKA, INNOCENT KABANO
SHYAKA, CHARLY MINTH AYESSA, AMINATA OUEDRAOGO, HERVE SHYAKA,
CATHOLIC CHARITIES & VERONICA LEMUS-MIRANDA, Plaintiffs,
represented by David Laundon Cleveland, CATHOLIC CHARITIES. APT
3409 270 W YORK ST, NORFOLK, VA, 23510
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant,
represented by Johnny Hillary Walker, III, U.S. ATTORNEY'S OFFICE
Civil Division.
WELLS FARGO: RMBS Investors' New York Class Suit Ongoing
--------------------------------------------------------
Citigroup Commercial Mortgage Trust 2016-GC36 said in its Form
10-D Report filed with the Securities and Exchange Commission for
the monthly distribution period from July 13, 2017 to August 11,
2017, that Wells Fargo Bank, N.A. continues to face a class
action complaint by a group of investors.
On June 18, 2014, a group of institutional investors filed a
civil complaint in the Supreme Court of the State of New York,
New York County, against Wells Fargo Bank, N.A., ("Wells Fargo
Bank") in its capacity as trustee under 276 residential mortgage-
backed securities ("RMBS") trusts, which was later amended on
July 18, 2014, to increase the number of trusts to 284 RMBS
trusts. On November 24, 2014, the plaintiffs filed a motion to
voluntarily dismiss the state court action without prejudice.
That same day, a group of institutional investors filed a
putative class action complaint in the United States District
Court for the Southern District of New York (the "District
Court") against Wells Fargo Bank, alleging claims against the
bank in its capacity as trustee for 274 RMBS trusts (the "Federal
Court Complaint"). In December 2014, the plaintiffs' motion to
voluntarily dismiss their original state court action was
granted.
As with the prior state court action, the Federal Court Complaint
is one of six similar complaints filed contemporaneously against
RMBS trustees (Deutsche Bank, Citibank, HSBC, Bank of New York
Mellon and US Bank) by a group of institutional investor
plaintiffs.
The Federal Court Complaint against Wells Fargo Bank alleges that
the trustee caused losses to investors and asserts causes of
action based upon, among other things, the trustee's alleged
failure to: (i) notify and enforce repurchase obligations of
mortgage loan sellers for purported breaches of representations
and warranties, (ii) notify investors of alleged events of
default, and (iii) abide by appropriate standards of care
following alleged events of default. Relief sought includes money
damages in an unspecified amount, reimbursement of expenses, and
equitable relief. Other cases alleging similar causes of action
have been filed against Wells Fargo Bank and other trustees in
the District Court by RMBS investors in these and other
transactions, and these cases against Wells Fargo Bank are
proceeding before the same District Court judge. A similar
complaint was also filed May 27, 2016 in New York state court by
a different plaintiff investor. On January 19, 2016, an order was
entered in connection with the Federal Court Complaint in which
the District Court declined to exercise jurisdiction over 261
trusts at issue in the Federal Court Complaint; the District
Court also allowed plaintiffs to file amended complaints as to
the remaining, non-dismissed trusts, if they so chose, and three
amended complaints have been filed. On December 17, 2016, the
investor plaintiffs in the 261 trusts dismissed from the Federal
Court Complaint filed a new complaint in New York state court
(the "State Court Complaint").
On July 11, 2017, certain PIMCO investment funds filed a civil
complaint relating to Wells Fargo Bank's setting aside reserves
for legal fees and expenses in connection with the liquidation of
11 RMBS trusts at issue in the State Court Complaint. The
complaint seeks, among other relief, declarations that Wells
Fargo Bank is not entitled to (i) indemnification from, (ii)
advancement of funds from, or (iii) taking reserves from trust
funds for legal fees and expenses it incurs in defending the
claims in the State Court Complaint. With respect to the
foregoing litigations, Wells Fargo Bank believes plaintiffs'
claims are without merit and intends to contest the claims
vigorously, but there can be no assurances as to the outcome of
the litigations or the possible impact of the litigations on
Wells Fargo Bank or the RMBS trusts.
Wells Fargo Bank, N.A., is the Certificate Administrator for
Citigroup Commercial Mortgage Trust 2016-GC36.
WINGS OVER: Ct. Dismisses Counterclaims vs. FLSA Suit Plaintiff
---------------------------------------------------------------
In the case, JACOB WILSON, TY CARTS, LEWIS GROVE, COLIN KRIEGER,
BRANDEN RONALD, Individually and on behalf of all other similarly
situated individuals, Plaintiffs, v. WINGS OVER HAPPY VALLEY MDF,
LLC d/b/a WINGS OVER HAPPY VALLEY and STEVEN C. MOREIRA,
Defendants, Case No. 4:17-cv-00915 (M.D. Pa.), Judge Yvette Kane
of the U.S. District Court for the Middle District of
Pennsylvania granted the Plaintiffs' motion to dismiss the
Defendants' counterclaims against Plaintiff Wilson; (ii) deemed
the Plaintiffs' motion for leave to file a first amended
complaint ("FAC") withdrawn; and denied as moot the Defendants'
motion to strike the Plaintiffs' motion for leave to file a FAC.
On May 24, 2017, Plaintiffs Wilson, Carts, Grove, Krieger, and
Braden Ronald filed a putative collective and class action
complaint, alleging violations of the Fair Labor Standards Act
("FLSA"), the Pennsylvania Minimum Wage Act ("PMWA"), and the
Pennsylvania Wage Payment and Collection Law. The Plaintiffs
claim that they were formerly employed as delivery drivers at the
Defendants' restaurant, Wings Over Happy Valley. While employed
as drivers, they allege that they received wages below minimum
wage because a portion of their compensation came from tips from
customers.
The FLSA and the PMWA provide for this kind of tip-based
supplement to minimum wage. However, the Plaintiffs claim that
the Defendants violated the FLSA and the PMWA by requiring them
to share their tips in a "tip pool" with kitchen workers. They
assert that this tip pool was illegal because the Defendants'
kitchen workers are not employees who customarily and regularly
receive tips under the FLSA and the PMWA. By not paying them the
appropriate wages, the Plaintiffs claim the Defendants also
violated Pennsylvania's Wage Payment and Collection Law.
The Defendants filed an answer to the complaint on July 21, 2017,
asserting four state law counterclaims against Plaintiff Wilson,
including fraud, negligent misrepresentation, intentional
misrepresentation, and breach of the duty of loyalty. These
counterclaims are based on Wilson's dual employment with the
Defendants. The Defendants claim that Wilson was overpaid for
his work as a driver because he collected the wages of a manager,
and he also collected tip income when he was a driver.
On Aug. 9, 2017, the Plaintiffs filed a motion for leave to file
a FAC, explaining that they seek to file a FAC removing Plaintiff
Wilson from the lawsuit because, through the counterclaims, the
Defendants challenge his ability to adequately represent the
putative class members. The Plaintiffs invoke Federal Rules of
Civil Procedure 15(a) and 21, and did not file a brief in support
of the motion.
On Aug. 25, 2017, the Defendants filed a motion to strike and
deem withdrawn the Plaintiffs' motion to file a FAC, arguing that
because the Plaintiffs did not file a brief in support of their
motion to file a FAC within the requisite 14 days dictated by
Local Rule 7.5, the Plaintiffs' motion should be stricken from
the record and deemed withdrawn.
Previously, on the same date they filed their motion for leave to
file a FAC, the Plaintiffs filed a motion to dismiss the
Defendants' counterclaims against Plaintiff Wilson pursuant to
Federal Rule of Civil Procedure 12(b)(1). In their corresponding
brief, they argue that the Court does not have subject matter
jurisdiction over the Defendants' counterclaims against Plaintiff
Wilson, either because Wilson will be removed as a Plaintiff if
the Court grants their motion for leave to file a FAC, resulting
in unrelated counterclaims against a nonparty, or because the
Defendants' counterclaims are permissive, not compulsory, and the
Court should decline to exercise supplemental jurisdiction over
the counterclaims.
In their brief in opposition to the motion to dismiss, the
Defendants argue that the Court has subject matter jurisdiction
over its counterclaims against Plaintiff Wilson. Alternatively,
the Defendants argue that even if the counterclaims are
permissive, the Court should exercise supplemental jurisdiction
over the counterclaims because they share significant factual
overlap with the Plaintiffs' claims.
Judge Kane finds that it does not have supplemental jurisdiction
over the Defendants' counterclaims pursuant to 28 U.S.C. Section
1367(a). He says in the absence of supplemental jurisdiction
under Section 1367(a), the Court needs not reach the question of
whether it may decline to exercise supplemental jurisdiction over
a claim under subsection (a) pursuant to Section 1367(c).
Therefore, he will grant the Plaintiffs' motion to dismiss the
Defendants' counterclaims against Plaintiff Wilson pursuant to
Federal Rule of Civil Procedure 12(b)(1), without prejudice to
the Defendants' ability to refile those claims in state court.
The Judge also finds that the Plaintiffs filed a motion for leave
to file a first amended complaint, but failed to file a brief in
support of the motion, causing the Defendants to file a motion to
strike and deem withdrawn the Plaintiffs' motion, for failure to
comply with Local Rule 7.5. In accordance with Local Rule 7.5,
he deems Plaintiffs' motion for leave to file a FAC withdrawn for
failure to file a brief in support of the motion. Consequently,
the Judge will deny the Defendants' motion to strike the
Plaintiffs' motion for leave to file a FAC as moot.
For the foregoing reasons, Judge Kane granted the Plaintiffs'
motion to dismiss the Defendants' counterclaims against Plaintiff
Wilson; deemed the Plaintiffs' motion for leave to file a FAC
withdrawn; and denied as moot the Defendants' motion to strike
the Plaintiffs' motion for leave to file a FAC. An Order
consistent with the Memorandum follows.
A full-text copy of the Court's Jan. 16, 2018 Memorandum is
available at https://is.gd/UiiEHo from Leagle.com.
Jacob Wilson, individually and on behalf of all other similarly
situated individuals, Ty Carts, individually and on behalf of all
other similarly situated individuals, Lewis Grove, individually
and on behalf of all other similarly situated individuals, Colin
Krieger, individually and on behalf of all other similarly
situated individuals & Branden Ronald, individually and on behalf
of all other similarly situated individuals, Plaintiffs,
represented by David B. Consiglio -- dconsiglio@mkclaw.com --
Campbell, Miller, Williams, Benson & Consiglio, Inc. & David S.
Gaines, Jr. -- dgaines@mkclaw.com -- Campbell, Miller, Williams,
Benson & Consiglio, Inc.
Wings Over Happy Valley MDF, LLC d/b/a Wings Over Happy Valley &
Steven C. Moreira, Defendants, represented by Philip K. Miles,
III -- pkmiles@mqblaw.com -- McQuaide Blasko Law Offices.
Wings Over Happy Valley MDF, LLC d/b/a Wings Over Happy Valley &
Steven C. Moreira, Counterclaim Plaintiffs, represented by Philip
K. Miles, III, McQuaide Blasko Law Offices.
Jacob Wilson, individually and on behalf of all other similarly
situated individuals, Counterclaim Defendant, represented by
David B. Consiglio, Campbell, Miller, Williams, Benson &
Consiglio, Inc. & David S. Gaines, Jr., Campbell, Miller,
Williams, Benson & Consiglio, Inc.
* Data Breaches Prompt Class Action Securities Fraud Complaints
---------------------------------------------------------------
Michael Bergerson, Esq. -- mbergerson@winston.com -- Mike Claus,
Esq. -- mclaus@winston.com -- Steve Grimes, Esq. --
sgrimes@winston.com -- Joe Motto, Esq. -- jmotto@winston.com --
and Thomas Weber, Esq. -- tgweber@winston.com -- of Winston &
Strawn LLP, wrote that in the last few months, there have been a
number of class action federal securities fraud complaints filed
against companies that have disclosed data breaches or electronic
information security vulnerabilities. In the past, well-
publicized breaches triggered primarily shareholder derivative,
state consumer protection, and common law actions. With some
exceptions, most of those breaches did not lead to class action
securities fraud claims -- most likely because they did not
precipitate meaningful stock price drops. Recent data breach
disclosures, however, have been accompanied by relatively larger
price drops, and thus, putative shareholder class action fraud
suits asserting alleged violations of Section 10(b) of the
Securities Exchange Act of 1934 and SEC Rule 10b-5, or in the
case of plaintiffs that are able to connect their suit to a
recent public securities offering, alleged violations of Sections
11 and/or 12(a)(2) of the Securities Act of 1933. See, e.g.,
Kuhns v. Equifax Inc., No. 1:17-cv-03463-TWT (N.D. Ga.)
(complaint filed Sept. 8., 2017 following alleged approximately
16.8% stock price drop); Sgarlata v. Paypal Holdings, Inc., No.
3:17-cv-06956 (N.D. Cal.) (complaint filed Dec. 6, 2017 following
alleged 5.75% stock price drop); Ranmath v. Qudian, No. 17-cv-
9741 (S.D.N.Y.) (complaint filed Dec. 12, 2017 following alleged
45% drop in price of depositary shares); Alvira v. Intel Corp.,
No. 2:18-cv-00223 (C.D. Cal.) (complaint filed Jan. 10, 2018
following alleged 3.5% stock price drop).
The plaintiffs in these complaints have generally attempted
to fashion a fraud narrative by seizing upon statements
made by the defendants concerning the issuing company's
data security or internal controls in the past, when the
securities were first offered publicly or were otherwise
trading at a higher price, and asserting that the defendants'
statements were misleading and thus inflated the public
stock price. Plaintiffs then compare those statements to
the more recent, negative news -- i.e., news of a data hack
or revelation of an information security weakness -- that
allegedly corrected or revealed a truth that was concealed
or misrepresented by the prior statements, removing the
stock price inflation and precipitating a price drop. The
plaintiffs argue that, prior to the breach, the defendants
misrepresented the strength of the company's data security
or minimized its susceptibility to breach; and/or that, after
becoming aware of the breach or security vulnerability, the
defendants misleadingly concealed or downplayed the
nature of that breach or vulnerability. The latter theory, if
factually supported, appears more likely to stand up to
prediscovery motion practice and generate litigation carrying
potentially substantial exposure for issuers.
Certain Plaintiffs' Theories and Defense Arguments Are Likely to
be Tested
Plaintiffs asserting Section 10(b) claims in this context
will likely be subject to Rule 12(b)(6) motion practice
on the grounds that they do not adequately allege the
defendants' scienter with the factual specificity required
by the Private Securities Litigation Reform Act ("PSLRA"), 15
U.S.C. Secs. 78u-4(b). In cases involving an alleged pre-breach
misrepresentation concerning a company's susceptibility
to breach, unless the plaintiff has the unusual benefit of
detailed confidential witness allegations or publicized
findings stemming from a regulatory investigation, for
example, motions to dismiss based on scienter could prove
a powerful early weapon for issuers defending against
these types of suits.
Complaints that assert Securities Act claims likely will not
face the hurdle of pleading scienter, but may be subject
to motions to dismiss based on failure to allege falsity
(as will also be the case for Section 10(b) claims) -- again,
particularly as to alleged pre-breach misrepresentations --
unless they are able to point to specific statements on
the issue of data security that have proved to be untrue
at the time they were made. It might not be enough for
plaintiffs to point to company filings or releases that did
not expressly disclose a potential vulnerability or security
risk, as companies typically are not required to disclose
information -- even if material -- absent a particular duty to
disclose. See Matrixx Initiatives, Inc. v. Siracusano, 563
U.S. 27, 44 (2011).
Additionally, depending on the nature of the claim asserted,
statements made by the company as to the quality of its data
security may constitute opinions, which are actionable only in
delineated circumstances, see Omnicare, Inc. v. Laborers Dist.
Council Construction Indus., 135 S. Ct. 1318 (2015); or, if
accompanied by adequate cautionary language, may qualify for
protection under the judicially recognized "bespeaks caution"
doctrine, see Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir.
1986), or fall within the PSLRA safe harbor from liability for
forward-looking statements. 15 U.S.C. Sec. 78u-5(c). Perhaps
more complicated will be claims that the issuer was
aware of a breach or vulnerability but delayed in bringing
it to the attention of the public, such that post-breach
statements that failed to disclose that information were
materially misleading.
Ultimately, as noted in an early class action securities
fraud case that was brought in the wake of a data
hack against Heartland Payment Systems, Inc., a bank
card payment processor, "careful attention to context"
may not demonstrate that the defendants' alleged
misrepresentations are not actionable according to some
or all of the above defenses. See In re Heartland Payment
Sys., Inc. Sec. Litig., 2009 WL 4798148, Civ. No. 09-1043,
at *3, *4-8 (D.N.J. Dec. 7, 2009) (granting motion to dismiss
fraud claims under the Exchange Act alleging that the
defendants concealed the data hack and misrepresented
the state of Heartland's data security, finding that the
plaintiffs failed to adequately allege falsity, including
because the defendants had no duty to disclose the initial
hack, and additionally failed to sufficiently plead scienter).
Proactive Issuer Measures to Reduce Exposure
The uptick in securities fraud claims stemming from data
breaches seems likely to emerge as a trend in the face of
continued public consciousness, investor sensitivity, and
regulatory scrutiny concerning personal data privacy and
security. Expect these complaints to strengthen, as well,
as plaintiffs obtain the benefit of publicized regulatory
allegations or findings, support from confidential witnesses
(particularly where data breaches result in employee
terminations or reorganizations), or additional indicia of
scienter through well-timed insider stock sales. In the current
climate, there are a number of ways in which a company can
position itself to best defend against a potential securities
fraud claim in the wake of a data breach or disclosed security
vulnerability and minimize liability, including:
* Thoroughly assess the current state of the company's
information security and privacy environment, and review how that
environment is described internally as compared to the company's
public descriptions of its information security environment, and
determine whether updated or supplemental disclosures would
better describe the company's current systems;
* Review the company's risk disclosures concerning data
security and potential unintended disclosure of sensitive
personal or other secured information, and modify and/or enhance
those disclosures in the future as appropriate (i.e., through
greater specificity or cautionary language) to increase the
likelihood that a court examining those disclosures will apply
doctrines that shield them from fraud liability;
* Give consideration to what, if any, data security-related
disclosure obligations the company might be subject now or in the
event of a breach, including identifying, as may be appropriate,
a threshold severity of breach needed to trigger disclosure --
not just to the public, but to regulators or other constituents;
* Plan ahead and develop procedures for mitigating and
reacting to a potential breach, including escalation criteria and
a clear decision-making protocol for whether and in what fashion
to disclose a breach or identified vulnerability
Winston & Strawn LLP will continue to monitor this space and
provide updates. In the meantime, companies should undertake
efforts to assess their privacy and data security programs,
and to ensure alignment among individuals managing the companies'
data privacy, information security, legal/disclosure, and media
relations functions.
* Ohio Mulls Class Action Against Fracking Companies
----------------------------------------------------
Kallanish Energy reports that Ohio Democratic gubernatorial
candidate Dennis Kucinich has unveiled proposals designed to end
oil and gas drilling in Ohio -- an industry which has delivered
more than $50 billion in economic impact to the state.
The liberal former congressman and presidential candidate said
that as governor, he would use eminent domain to acquire and
close all existing conventional and unconventional oil and gas
wells in the state, the Cleveland Plain Dealer newspaper
reported.
Kucinich pledged to block any new drilling permits and order a
statewide injection-well ban.
In addition, Kucinich would direct the Ohio State Highway Patrol
to stop, inspect, and turn away vehicles found with fracking
waste. The state would offer free health screenings to Ohioans
living near fracking sites and collect data with an eye toward
filing a class-action lawsuit against fracking companies on the
scale of the multi-billion-dollar legal settlement states reach
with tobacco companies two decades ago.
"If the governor can't take a stand for the health and safety of
this state, then why even run?" he asked, the Plain Dealer
reported.
Kucinich said he would work to ensure that landowners who have
leased land for drilling would receive a separation fee and all
royalties they are due. As for the jobs that would be lost from
the end of Ohio's oil and gas industry, Kucinich said Ohio would
be in a position to "catch a wave" of alternative-energy
development.
Mike Chadsey, a spokesman for the Ohio Oil and Gas Association,
said in a statement Kucinich is "still out of touch," given the
billions invested in and thousands of people working for Ohio's
oil and gas industry.
Indeed, a Cleveland State University professor last October
revealed roughly $54.7 billion was invested in the Utica Shale
play in Ohio just between 2012 and 2016, Kallanish Energy
reports.
That estimate came from Andrew Thomas of Cleveland State, in a
presentation at Utica Summit V in North Canton, Ohio.
The investment, mostly in eastern Ohio, was divided into
upstream, $42.7 billion, midstream, $8.6 billion, and downstream
$3.4 billion. [GN]
* SEC Aims to Ban Frivolous Shareholder Litigation
--------------------------------------------------
Paul Ebeling, writing for Live Trading News, reports that in its
determination to reverse a 20-year decline in US stock listings,
the SEC may soon offer companies an extreme incentive to go
public, and that is the ability to bar "aggrieved" shareholders
from suing.
The Securities and Exchange Commission (SEC) in its long history
has never allowed companies to sell shares in public markets,
while also letting them ban investors from seeking big financial
damages through class-action lawsuits.
That is because the agency has considered the right to sue a
crucial shareholder protection against fraud and other securities
violations.
But, now as US President Donald Trump's pro-business agenda runs
through Washington, the SEC is laying the groundwork for a
possible policy shift.
The commission, according to sources, has privately signaled that
it is open to considering whether companies should be able to
force investors to settle disputes through arbitration, an often
closed-door process that can limit the bad publicity and high
legal costs triggered by aggressive and often frivolous
litigation.
A change to the SEC's position would be the most significant move
yet by Chairman Jay Clayton to make going public more appealing,
which he's laid out as one of his highest priorities since taking
over Wall Street's top regulator last year.
Further it would advance The Trump Administration's goal of
dismantling government policies that it blames for hurting
economic growth.
SEC spokeswoman Judith Burns declined to comment.
Chairman Clayton, a former M&A lawyer who worked on Alibaba Group
Holding Ltd.'s (NYSE:ABA) record US IPO, is trying to turn around
a trend that's been in place since the early 2000's.
The best year for US listings was Y 1996 when 949 companies sold
shares, according to the data. In Y 2014 just 450 companies went
public.
In Y 2017, there were only 237 US IPOs, compared with more than
2,000 on foreign markets.
The SEC staff is said to be encouraging companies to come forward
with proposals that would require shareholders to use arbitration
to resolve shareholder grievances. That would allow the
regulator to review whether the plans pass muster.
This is a Key reversal, as 1 of the major inhibitors that has
concerned companies as they think about going public is the risk
of frivolous shareholder litigation. The notion that such action
could eliminate that risk is significant.
Last October, The Trump Administration weighed in when it
recommended that the SEC consider letting companies and
shareholders use arbitration to settle disputes.
In a report, US Treasury Secretary Steven Mnuchin and his
counselor Craig Phillips said the change could be a way to
"reduce costs of securities litigation for issuers in a way that
protects investors' rights and interests."
Chairman Clayton has not commented publicly on the matter since
taking over SEC last May. He has, however, taken several steps
aimed at bolstering the attractiveness of going public.
Last June, he announced that the SEC would let all companies that
are preparing to IPO file documents confidentially to the agency
laying out the proposed structures of their share sales.
The objective was to let companies work out any kinks without
alerting the broader market to their plans to eventually sell
shares.
Previously, only small businesses could submit their IPO
documents confidentially to the SEC.
Chairman Clayton has tapped William Hinman, a former Simpson
Thacher partner based in Silicon Valley who also worked on
Alibaba's share sale, to lead the SEC unit that oversees
corporate disclosures. Mr. Hinman's division, which reviews the
filings that companies must submit ahead of IPOs, would play a
Key role in deciding whether to allow firms to include mandatory
arbitration clauses in their registration documents, according my
source.
Notably, if the SEC allowed just company to prohibit lawsuits,
all others would follow.
The Council of Institutional Investors warned in Y 2013 that
forced arbitration represents "a potential threat to principles
of sound corporate governance that balance the rights of share-
owners against the responsibility of corporate managers to run
the business."
The US Chamber of Commerce, the nation's biggest business lobby,
has said that class-action lawsuits are devastating for the
economy because they impose huge costs on companies. The Chamber
also contends that the main beneficiaries are plaintiff's
lawyers, with individual shareholders rarely pocketing much money
at all. Those arguments are gaining traction.
Last year, GOP lawmakers killed a regulation that would have
restricted companies from including mandatory arbitration clauses
in contracts for credit cards and other financial products.
In July, SEC Republican Commissioner Michael Piwowar signaled
that the agency's views on arbitration clauses may be changing.
"For shareholder lawsuits, companies can come to us to ask for
relief to put in mandatory arbitration into their charter," he
said at an event at the conservative Heritage Foundation in
Washington. He added, "I would encourage companies to come and
talk to us about that."
MAGA
Have a terrific week. [GN]
Asbestos Litigation
ASBESTOS UPDATE: PI Claims vs. Rockwell Dismissed in "Lineberger"
-----------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Rockwell Automation, Inc., incorrectly named and sued
as "Rockwell Automation, Inc. (successor in interest to Allen-
Bradley) f/k/a Rockwell International Corp. from the case Tommy
William Lineberger and spouse Marcella Wilson Lineberger,
Plaintiffs, v. CBS Corporation, et al., Defendants, Civil Case
No. 1:16-cv-00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/yc85ljz4 from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. OCC Dismissed in "Lineberger"
------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Occidental Chemical Corporation, incorrectly sued
herein as Occidental Chemical Corporation f/k/a Hookers Chemical
Co. (successor to Durez Corporation) from the case Tommy William
Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v.
CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-
00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/y7wexlev from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims v General Cable Junked in "Lineberger"
-----------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant General Cable Corporation from the case Tommy William
Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v.
CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-
00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/y8o6pqr3 from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Sears Dismissed in "Lineberger"
--------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Sears Roebuck and Co. from the case Tommy William
Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v.
CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-
00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/yazaxfx2 from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Durez Dismissed in "Lineberger"
--------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Durez Corporation from the case Tommy William
Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v.
CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-
00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/ycxryre6 from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Pfizer Dismissed in "Lineberger"
---------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Pfizer, Inc. from the case Tommy William Lineberger and
spouse Marcella Wilson Lineberger, Plaintiffs, v. CBS
Corporation, et al., Defendants, Civil Case No. 1:16-cv-00390-MR-
DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 31, 2018, is
available at https://tinyurl.com/ycectjxy from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Vanderbilt Junked in "Lineberger"
----------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Vanderbilt Minerals, LLC (successor by merger to R.T.
Vanderbilt Company, Inc. and incorrectly identified as successor
in interest to International Talc Co.) from the case Tommy
William Lineberger and spouse Marcella Wilson Lineberger,
Plaintiffs, v. CBS Corporation, et al., Defendants, Civil Case
No. 1:16-cv-00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 30, 2018, is
available at https://tinyurl.com/yb7aaggh from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Durez Corporation & Occidental Chemical Corporation, formerly
known as Hookers Chemical Co. as successor to Durez Corporation,
Defendants, represented by:
John S. Slosson, Esq.
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: jack.slosson@nelsonmullins.com
tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
General Cable Industries, Inc., successor-in-interest to other
Carol Cable Co., Defendant, represented by:
Stephanie G. Flynn, Esq.
Smith Moore Leatherwood LLP, pro hac vice
Suite 1100, 2 W. Washington Street
Greenville SC 29601
Telephone: (864) 751-7600
Facsimile: (864) 751-7800
Email: stephanie.flynn@smithmoorelaw.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Pfizer, Inc., Defendant, represented by:
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Rockwell Automation, Inc., successor-in-interest to other Allen-
Bradley formerly known as Rockwell International Corp.,
Defendant, represented by:
Sarena Monique Holder, Esq.
Tucker Ellis LLP, pro hac vice
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Direct: 216.696.5696
Fax: 216.592.5009
Email: sarena.holder@tuckerellis.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Sears, Roebuck and Co., Defendant, represented by:
Kelly B. Jones, Esq.
Womble Bond Dickinson
555 Fayetteville Street, Suite 1100
Raleigh, NC, US 27601
Phone: 919.755.2151
Email: kelly.jones@wbd-us.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Schneider Junked in "Lineberger"
---------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Schneider Electric USA, Inc., f/k/a Square D Company
from the case Tommy William Lineberger and spouse Marcella Wilson
Lineberger, Plaintiffs, v. CBS Corporation, et al., Defendants,
Civil Case No. 1:16-cv-00390-MR-DLH, (W.D. N.C.), without
prejudice.
A full-text copy of the Order dated January 30, 2018, is
available at https://tinyurl.com/y7usf6hg from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Durez Corporation & Occidental Chemical Corporation, formerly
known as Hookers Chemical Co. as successor to Durez Corporation,
Defendants, represented by:
John S. Slosson, Esq.
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: jack.slosson@nelsonmullins.com
tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
General Cable Industries, Inc., successor-in-interest to other
Carol Cable Co., Defendant, represented by:
Stephanie G. Flynn, Esq.
Smith Moore Leatherwood LLP, pro hac vice
Suite 1100, 2 W. Washington Street
Greenville SC 29601
Telephone: (864) 751-7600
Facsimile: (864) 751-7800
Email: stephanie.flynn@smithmoorelaw.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Pfizer, Inc., Defendant, represented by:
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Rockwell Automation, Inc., successor-in-interest to other Allen-
Bradley formerly known as Rockwell International Corp.,
Defendant, represented by:
Sarena Monique Holder, Esq.
Tucker Ellis LLP, pro hac vice
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Direct: 216.696.5696
Fax: 216.592.5009
Email: sarena.holder@tuckerellis.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Sears, Roebuck and Co., Defendant, represented by:
Kelly B. Jones, Esq.
Womble Bond Dickinson
555 Fayetteville Street, Suite 1100
Raleigh, NC, US 27601
Phone: 919.755.2151
Email: kelly.jones@wbd-us.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Eaton Dismissed in "Lineberger"
--------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Eaton Corporation from the case Tommy William
Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v.
CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-
00390-MR-DLH, (W.D. N.C.), without prejudice.
A full-text copy of the Order dated January 30, 2018, is
available at https://tinyurl.com/ycpqk9ut from Leagle.com.
Tommy William Lineberger, and spouse & Marcella Wilson
Lineberger, Plaintiffs, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger
to CBS Corporation f/k/a Westinghouse Electric Corporation) and
also as successor in-interest to BF Sturtevant, Defendant,
represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
CNA Holdings, Inc., formerly known as Celanese Corporation
formerly known as Hoechst Celanese Corporation & Graybar Electric
Co, Defendants, represented by:
Stephen B. Williamson, Esq.
Van Winkle, Buck, Wall, Starnes & Davis, P.A.
11 North Market Street Suite 300
Asheville, North Carolina 28801
Phone: (828) 258-2991
Fax: (925) 828-5623
Cooper Industries, LLC, successor-in-interest to Cooper
Industries, Inc. (successor-in-interest to Crouse-Hinds Company),
Defendant, represented by:
William P. Early, Esq.
Pierce Herns Sloan & Wilson, LLC
321 E Bay Street
Charleston, SC 29401
Phone: 843-722-7733
Durez Corporation & Occidental Chemical Corporation, formerly
known as Hookers Chemical Co. as successor to Durez Corporation,
Defendants, represented by:
John S. Slosson, Esq.
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: jack.slosson@nelsonmullins.com
tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
General Cable Industries, Inc., successor-in-interest to other
Carol Cable Co., Defendant, represented by:
Stephanie G. Flynn, Esq.
Smith Moore Leatherwood LLP, pro hac vice
Suite 1100, 2 W. Washington Street
Greenville SC 29601
Telephone: (864) 751-7600
Facsimile: (864) 751-7800
Email: stephanie.flynn@smithmoorelaw.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Georgia Pacific LLC, formerly known as Georgia Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
International Paper Company, Defendant, represented by:
Mark Andrew Leach, Esq.
Orbock Ruark & Dillard
1590 Westbrook Plaza Dr., Suite 102
Winston-Salem, NC 27103
Tel: 336-760-8848
Fax: 336-760-5903
-- and --
Mary Clift Abdalla, Esq.
Forman Watkins & Krutz LLP, pro hac vice
210 East Capitol Street, Suite 2200
Jackson, Mississippi 39201-2375
Phone: 601-973-5967
Fax: 601-960-8613
Email: mary.abdalla@formanwatkins.com
Pfizer, Inc., Defendant, represented by:
Tracy Edward Tomlin, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: tracy.tomlin@nelsonmullins.com
bill.starr@nelsonmullins.com
Plastics Engineering Company, doing business as PLENCO,
Defendant, represented by:
Amy C. Drayton, Esq.
Dean and Gibson, Attorneys At Law, PLLC
301 S McDowell St # 900,
Charlotte, NC 28204
Phone: 704-372-2700
Email: adrayton@deanandgibson.com
Rockwell Automation, Inc., successor-in-interest to other Allen-
Bradley formerly known as Rockwell International Corp.,
Defendant, represented by:
Sarena Monique Holder, Esq.
Tucker Ellis LLP, pro hac vice
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Direct: 216.696.5696
Fax: 216.592.5009
Email: sarena.holder@tuckerellis.com
-- and --
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Sears, Roebuck and Co., Defendant, represented by:
Kelly B. Jones, Esq.
Womble Bond Dickinson
555 Fayetteville Street, Suite 1100
Raleigh, NC, US 27601
Phone: 919.755.2151
Email: kelly.jones@wbd-us.com
Tarkett, Inc., Defendant, represented by:
John T. Holden, Esq.
Dickie, McCamey & Chilcoat P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211-5453
Tel: 800-634-8441
Direct: 704-998-5184
Fax: 888-811-7144
Email: jholden@dmclaw.com
ASBESTOS UPDATE: PI Claims vs. Vanderbilt Dismissed in "Mullinax"
-----------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina granted the parties' Joint Motion to
Dismiss and dismissed all of the Plaintiffs' claims against the
Defendant Vanderbilt Materials, LLC (successor by merger to R.T.
Vanderbilt Company, Inc. and incorrectly identified as successor
in interest to International Talc Co.) from the case Robert A.
Mullinax, Individually, as Executor of the Estate of Jack Junior
Waugh, Deceased, Plaintiff, v. Advance Auto Parts, Inc., et al.,
Defendants, Civil Case No. 1:16-cv-00310-MR-DLH, (W.D. N.C.),
without prejudice.
A full-text copy of the Order dated January 30, 2018, is
available at https://tinyurl.com/yarcmqh5 from Leagle.com.
Robert A. Mullinax, Individually as Executor of the Estate of
Jack Junior Waugh, Plaintiff, represented by:
Sabrina G. Stone, Esq.
Dean Omar Branham, LLP, pro hac vice
302 N Market Street, Suite 300
Dallas, Texas 75202
Phone: 214-722-5990
Email: sstone@dobllp.com
-- and --
William M. Graham, Esq.
Wallace & Graham
525 N. Main St.
Salisbury, NC 28144
Phone: (704) 633-5244 ext. 143
Advance Auto Parts, Inc., CertainTeed Corporation, Dana Companies
LLC, Daniel International Corporation, formerly known as Daniel
Construction Company, Inc., Fluor Constructors International,
formerly known as Fluor Corporation, Fluor Constructors
International, Inc., Fluor Daniel Services Corporation, Fluor
Enterprises, Inc. & Union Carbide Corporation, Defendants,
represented by:
Christopher Barton Major, Esq.
Moffatt G. McDonald, Esq.
Scott E. Frick , Esq.
W. David Conner, Esq.
Haynsworth, Sinkler, Boyd P.A., pro hac vice
1 North Main Street, 2nd Floor
Greenville, SC 29601-2772
P.O. Box 2048 (29602-2048)
Phone: 864.240.3200
Fax: 864.240.3300
Email: cmajor@hsblawfirm.com
mmcdonald@hsblawfirm.com
sfrick@hsblawfirm.com
dconner@hsblawfirm.com
Air & Liquid Systems Corporation, individually and as successor-
in-interest to other Buffalo Pumps, Blackmer Pump Company, Deere
& Company, Goulds Pumps, Inc., Grinnell, LLC, doing business as
Grinnell Corporation, Pfizer, Inc., Viad Corporation, formerly
known as The Dial Corporation, Whirlpool Corporation & Yuba Heat
Transfer, LLC, Defendants, represented by:
Tracy Edward Tomlin, Esq.
Travis Andrew Bustamante, Esq.
William M. Starr, Esq.
Nelson, Mullins, Riley & Scarborough, LLP
One Wells Fargo Center, 23rd Floor
301 South College Street
Charlotte, NC 28202
Email: tracy.tomlin@nelsonmullins.com
travis.bustamante@nelsonmullins.com
bill.starr@nelsonmullins.com
Autozone, Inc., Defendant, represented by:
Timothy Peck, Esq.
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro NC 27401
Telephone: (336) 378-5200
Facsimile: (336) 378-5400
Email: tim.peck@smithmoorelaw.com
Bechtel Corporation, Defendant, represented by:
Farah S. Nicol, pro hac vice
Polsinelli PC
2049 Century Park East
Suite 2900
Los Angeles, California 90067
Tel: 310.203.5301
Email: fnicol@polsinelli.com
-- and --
Colleen Mary Crowley, Esq.
Polsinelli, PC
555 Fayetteville Street Suite 720
Raleigh, North Carolina 27601
Tel: 919.835.3402
Email: ccrowley@polsinelli.com
Borg-Warner Morse TEC, Inc., Successor in interest to other Borg-
Warner Corporation, Defendant, represented by:
David L. Levy, Esq.
Hedrick Gardner Kincheloe & Garofalo LLP
6000 Fairview Road, Suite 1000
Charlotte, NC 28210
Phone: (704) 319-5426
Fax: (704) 602-8178
Email: dlevy@hedrickgardner.com
BW/IP, Inc., and its wholly owned subsidiary other Byron Jackson
Pumps, Covil Corporation & Flowserve US Inc., individually and as
successor to Byron Jackson Pump Company, Defendants, represented
by:
James M. Dedman, IV, Esq.
Gallivan, White, & Boyd, P.A.
One Morrocroft Centre
6805 Morrison Blvd., Suite 200
Charlotte, NC 28211
Phone: 704-227-1944
Fax: 704-362-4850
Email: jdedman@gwblawfirm.com
Crane Co., Defendant, represented by:
Marla Tun Reschly, Esq.
Rebecca L. Gauthier, Esq.
K&L Gates
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, North Carolina 28202
Tel: 704.331.7417
Fax: 704.353.3117
Email: marla.reschly@klgates.com
rebecca.gauthier@klgates.com
Ford Motor Company, Defendant, represented by:
Christopher Ray Kiger, Esq.
Kirk Gibson Warner, Esq.
Addie K.S. Ries, Esq.
Smith Anderson
150 Fayetteville Street
Suite 2300
Raleigh, North Carolina 27601
Tel: 919.821.6743
Fax: 919.821.6800
Email: ckiger@smithlaw.com
kwarner@smithlaw.com
aries@smithlaw.com
General Electric Company, Defendant, represented by:
Jennifer M. Techman, Esq.
Evert Weathersby Houff
3455 Peachtree Road NE
Suite 1550
Atlanta, GA 30326
Direct: 678.651.1238
Phone: 678.651.1200
Fax: 678.651.1201
Email: jmtechman@ewhlaw.com
Genuine Parts Company, doing business as Rayloc also known as
NAPA, Defendant, represented by:
Shannon Strickland Frankel, Esq.
David Gerald Williams, Esq.
Young Moore & Henderson, P.A.
3101 Glenwood Ave. Suite 200
Raleigh, N.C. 27612
Phone: 919-782-6860
Fax: 919-782-6753
Email: Shannon.Frankel@youngmoorelaw.com
David.Williams@youngmoorelaw.com
-- and --
Heather B. Adams, Esq.
Alston & Bird LLP
Georgia-Pacific LLC, formerly known as Georgia-Pacific
Corporation, Defendant, represented by:
Kenneth Kyre, Jr., Esq.
Pinto Coates Kyre & Bowers, PLLC
3203 Brassfield Road
Greensboro, NC 27410
Phone: (336) 282-8848
Fax: (336) 282-8409
Email: kkyre@pckb-law.com
Honeywell International, Inc., f/k/a Allied-Products Liability
Signal, Inc., (sued as successor-in-interest to Bendix
Corporation), Defendant, represented by:
H. Lee Davis, Jr., Esq.
Davis & Hamrick, L.L.P.
635 West Fourth Street
Winston-Salem, North Carolina 27101
Telephone: (336) 464-9780
Email: ldavis@davisandhamrick.com
O'Reilly Automotive Stores, Inc., Defendant, represented by:
Eric T. Hawkins, Esq.
Hawkins, Parnell, Thackston & Young
303 Peachtree Street, NE
Suite 4000
Atlanta, GA 30308-3243
Tel: 404.614.7400
Fax: 404.614.7500
Email: ehawkins@hptylaw.com
Pneumo Abex, LLC, successor in interest to other Abex
Corporation, Defendant, represented by:
Timothy W. Bouch, Esq.
Leath Bouch Crawford & von Keller
Sequoia Ventures, Inc., formerly known as Bechtel Corporation,
Defendant, represented by:
Colleen Mary Crowley, Esq.
Polsinelli, PC
555 Fayetteville Street, Suite 720
Raleigh, North Carolina 27601
Tel: 919.835.3402
Email: ccrowley@polsinelli.com
Uniroyal, Inc., formerly known as United States Rubber Company,
Inc., Defendant, represented by:
Moffatt G. McDonald, Esq.
Haynsworth, Sinkler, Boyd P.A.
1 North Main Street, 2nd Floor
Greenville, SC 29601-2772
P.O. Box 2048 (29602-2048)
Phone: 864.240.3200
Fax: 864.240.3300
Email: mmcdonald@hsblawfirm.com
Warren Pumps, LLC, Defendant, represented by:
Joshua H. Bennett, Esq.
Bennett & Guthrie, P.L.L.C.
1560 Westbrook Plaza Drive
Winston-Salem, North Carolina 27103
Telephone: 336-765-3121
Facsimile: 336-765-8622
Email: jbennett@bennett-guthrie.com
William Powell Company, Defendant, represented by:
David B. Oakley, Esq.
Poole Brooke Plumlee PC.
4705 Columbus Street, Suite 100
Virginia Beach, VA 23462-6749
Direct Line: (757) 552-6035
Email: doakley@pbp-attorneys.com
Zenith Electronics, LLC, Defendant, represented by:
E. Elaine Shofner, Esq.
Hawkins Parnell Thackston & Young LLP
303 Peachtree Street, NE, Suite 4000
Atlanta, GA 30308-3243
Tel: 404.614.7400
Fax: 404.614.7500
Email: eshofner@hptylaw.com
ASBESTOS UPDATE: Boeing's Witness Can Proceed After Discovery
-------------------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California has entered a Stipulation and Order,
approving the stipulation between Defendant The Boeing Company
and Plaintiffs in the case styled Joseph Thrash and Chez Thrash,
Plaintiffs, v. Cirrus Enterprises, LLC, et al., Defendants., Case
No. 3:17-cv-01501-JST, (N.D. Cal.).
The parties stipulate that due to scheduling conflicts, the
deposition of Boeing's 30(b)(6) witness, Nolan Leatherman, can go
forward after the discovery deadline currently set in this
matter.
Counsel for Boeing represents that each defendant in this matter
(Goodyear Aerospace Corporation; Honeywell International, Inc.;
Rohr, Inc.; Lockheed Martin Corporation; Cirrus Enterprises LLC;
Henkel Corporation; IMO Industries; and United Technologies
Corporation) has been made aware of this proposed stipulation and
each has concurred in the filing's content and have authorized
the filing.
A full-text copy of the Stipulation and Order dated January 30,
2018, is available at https://tinyurl.com/y9exztf2 from
Leagle.com.
Joseph Thrash & Chez Thrash, Plaintiffs, represented by:
Benno Behnam Ashrafi, Esq.
Robert Allen Green, Esq.
Tyler Robert Stock, Esq.
Weitz & Luxenburg, P.C.
1880 Century Park East, Suite 700
Los Angeles, CA 90067
Phone: (310) 247-0921
Fax: (310) 786-9927
Cirrus Enterprises, LLC, individually and as successor-in-
interest to E.V. Roberts and Associates Inc., Defendant,
represented by:
Edward Eldon Hartley, Esq.
Barry Nathan Endick, Esq.
Hassard Bonnington LLP
275 Battery Street, Suite 1600
San Francisco, CA 94111
Phone: 415.288.9800
Fax: 415.288.9801
Asbestos Fax: 415.288.9802
Email: eeh@hassard.com
bne@hassard.com
The Boeing Company, individually and as successor by merger to
McDonnell Douglas Corporation, successor by merger with Douglas
Aircraft Company, Defendant, represented by:
Dustin Clark Beckley, Esq.
Brent Marshall Karren, Esq.
Freddy Israel Fonseca, Esq.
Manion Gaynor & Manning LLP
400 Spectrum Center Drive
Suite 1450
Irvine, CA 92618
Phone: 949 892 4668
Fax: 949 892 4701
Email: dbeckley@mgmlaw.com
bkarren@mgmlaw.com
ffonseca@mgmlaw.com
Lockheed Martin Corporation, Defendant, represented by:
Brian Thomas Clark, Esq.
Deborah Maria Parker, Esq.
Guy P. Glazier, Esq.
Laura Patricia Yee, Esq.
Glazier Yee LLP
707 Wilshire Boulevard, Suite 2025
Los Angeles, California 90017
Phone: (213) 312-9200
Fax: (213) 312-9201
Email: clark@glazieryee.com
parker@glazieryee.com
glazier@glazieryee.com
yee@glazieryee.com
United Technologies Corporation, Defendant, represented by:
Ferlin Peregrino Ruiz, Esq.
Tucker Ellis LLP
One Market Plaza
Steuart Tower, Suite 700
San Francisco, CA 94105
Direct: 415.617.2222
Fax: 415.617.2409
Email: ferlin.ruiz@tuckerellis.com
The Goodyear Tire & Rubber Company, Defendant, represented by:
Michael J. Pietrykowski, Esq.
Melissa Rose Badgett, Esq.
Gordon & Rees LLP
1111 Broadway, Suite 1700
Oakland, CA 94607
Tel: (510) 463-8685
Fax: (415) 262-3783
Email: mpietrykowski@grsm.com
mbadgett@grsm.com
-- and --
Megan Feeney Clark, Esq.
Severson & Werson, APC
One Embarcadero Center
Suite 2600
San Francisco, CA 94111
Phone: (415) 677-5504
Email: mfc@severson.com
Honeywell International Inc., formerly known as AlliedSignal
Inc., Successor in Interest to the Bendix Corporation, Defendant,
represented by:
Bo W. Kim, Esq.
David T. Biderman, Esq.
Perkins Coie LLP.
1888 Century Park East, Suite 1700
Los Angeles, CA 90067-1721
Tel: 310.788.3255
Fax: 310.843.1276
Email: BKim@perkinscoie.com
DBiderman@perkinscoie.com
Rohr, Inc., Defendant, represented by:
David Michael Glaspy, Esq.
Manion Gaynor & Manning LLP
100 Pringle Avenue, Suite 750
Walnut Creek, CA 94596
Phone: 925 947 1300
Fax: 925 947 1594
Email: dglaspy@mgmlaw.com
Henkel Corporation, individually and as s-i-i to Dexter Corp.,
Dexter Hysol Aerospace LLC, Defendant, represented by:
Allison Elizabeth Mullings, Esq.
Florence Anne McClain-Meza,
Lewis Brisbois Bisgaard & Smith LLP.
333 Bush Street, Suite 1100
San Francisco, CA 94104
Phone: 415.438.6626
Fax: 415.434.0882
Email: Allison.Mullings@lewisbrisbois.com
Florence.McClain@lewisbrisbois.com
IMO Industries Inc., Defendant, represented by:
Bobbie Rae Bailey, Esq.
Frederick W. Gatt, Esq.
Ketul Dilip Patel, Esq.
Leader & Berkon LLP
660 South Figueroa Street
Suite 1150
Los Angeles, CA 90017
Tel: 213-234-1750
Fax: 213-234-1747
Email: bbailey@leaderberkon.com
fgatt@leaderberkon.com
kpatel@leaderberkon.com
ASBESTOS ALERT: Abatement in Rockland Place's Facility Ongoing
--------------------------------------------------------------
Rockland Place Apartments, LP, continues its asbestos abatement
activities at the Spring Gate Apartments in Rockland,
Massachusetts, according to First Hartford Corporation's Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended October 31, 2017. First Hartford is the
sole general partner of Rockland Place.
First Hartford states, "Following a site inspection of asbestos
abatement activities being conducted at the Spring Gate
Apartments in Rockland, Massachusetts (Facility) on April 14,
2017, the Massachusetts Department of Environmental Protection
(MassDEP) by letter dated April 21, 2017 requested that Rockland
Place Apartments, LP (Company) temporarily cease and desist from
any additional asbestos removal, abatement and/or handling
activities at the Facility. Upon receipt of the MassDEP letter,
the Company engaged MassDEP in discussions regarding the
abatement project. Following submission to and approval by
MassDEP of a work plan addressing the issues raised in MassDEP's
April 21 letter, MassDEP permitted the asbestos abatement work to
go forward. There have been no further enforcement actions taken
by MassDEP.
"By letters dated May 15, May 16 and May 30, 2017, three
attorneys representing tenants in three units at the Facility
notified the Company and/or its management company, FHRC
Management Corporation, of claims related to environmental
conditions at the Facility. The first of these letters alleges
that the tenant and her family have been exposed to and have been
living in an apartment containing asbestos for many years. The
second letter claims that the tenant and her three minor children
have suffered injuries believed to be caused by the presence of
mold and asbestos in the apartment. The final letter asserts
claims with respect to the tenant and her three minor children
involving the presence and remediation of asbestos including
violation of a tenant's quiet enjoyment, breach of the warranty
of habitability, causation of emotional distress and the use of
unfair and deceptive practices under M.G.L. c. 93A.
"The first two letters made no specific monetary demand; the
third letter demanded US$312,600. All three claims were tendered
to the Company's insurer, which agreed to respond under a
reservation of rights.
"On July 14, 2017, counsel retained by the insurer provided a
timely response to the third letter, adamantly denying the
Company's liability pursuant to M.G.L. c. 93A or for any of the
other claims.
"By letter dated July 27, 2017, the insurer acknowledged receipt
of the three claims, at the same time stating however that as no
lawsuit had arisen, it did not have a duty to defend, but
nonetheless would continue to investigate.
"At this time, the Company cannot assess the likelihood of an
unfavorable outcome or provide any estimate of the amount or
range of any potential loss."
A full-text copy of the Form 10-Q is available at
https://is.gd/J3nZeM
ASBESTOS UPDATE: Asbestos Exposure Summary Key Elements of Claim
----------------------------------------------------------------
Aaron Munz of Asbestos.com reported that one of the key elements
of a successful VA Disability Compensation claim or Dependency
and Indemnity Compensation (DIC) claim for an asbestos-related
illness is the asbestos exposure summary.
After a veteran is diagnosed with an asbestos-related disease and
a doctor or other medical professional has provided a nexus
letter, the next step is supplying exposure evidence.
It is essential to provide information about how the veteran was
exposed to asbestos during their military service and describe
potential civilian work exposure before and after active duty.
Asbestos-related diseases are different from many service-
connected disabilities where an injury or event occurs while a
person is enlisted and is documented on service medical records.
Because of the long latency period associated with mesothelioma
and other asbestos-related illnesses -- typically between 20 to
50 years -- veterans are not diagnosed and do not have documented
symptoms while on active duty.
As a result, veterans must provide evidence to the U.S.
Department of Veterans Affairs (VA) to demonstrate they had more
exposure to asbestos in the military than before or after
service.
A well-written and researched exposure summary can be an
important part of this evidence.
In an exposure summary, a veteran supports a claim by providing
information about where, when and how they were exposed to
asbestos.
An asbestos exposure summary should include:
-- Information about their assigned duties
-- Specific asbestos-containing materials or equipment the
veteran worked with directly
-- A description of airborne asbestos particles the veteran
inhaled or ingested
Many veterans I have spoken with over the past three years assume
the VA will know how they were exposed based on their service
records or DD-214.
While the VA acknowledges some military occupational specialties
have a higher risk of asbestos exposure machinists, boiler
technicians, mechanics, electricians and HVAC technicians the
veteran must provide evidence that demonstrates more exposure in
service than in their civilian careers.
I encourage veterans to write summaries as if the VA rating
officer has no knowledge of their job duties or asbestos-
containing products.
This is especially important for veterans who worked outside
their assigned military occupation specialty code or were exposed
to asbestos in what is considered low-exposure jobs.
VA-Accredited Claims Agents Can Help
As a VA-accredited claims agent, I work with veterans to
understand how they were exposed to asbestos during service and
write summaries that can be submitted as part of their VA claims.
I've had the opportunity to work with hundreds of veterans and
have helped write more than 100 exposure summaries.
Some of the asbestos-related VA claims I have assisted with
include:
-- Restrictive lung diseases such as asbestosis
-- Mesothelioma
-- Lung cancer
-- Cancers of the bronchus, gastrointestinal tract, larynx,
pharynx and urogenital system
VA-Accredited Claims Agents at The Mesothelioma Center can help
gather evidence for VA claims and connect veterans diagnosed with
asbestos-related diseases to specialty treatment centers in
Boston and Los Angeles or civilian medical centers.
We can also assist veterans with additional financial resources,
connect them with emotional support services and provide
literature for learning more about their specific diagnosis. We
are here to help the brave men and women who served our country.
ASBESTOS UPDATE: Seattle Hotel Owner Fined for Asbestos Hazard
--------------------------------------------------------------
Joyce Famakinwa of Business Insurance reported that a Seattle-
based hotel owner has been cited for multiple egregious safety
and health violations and faces $355,000 in fines for exposing
workers to asbestos hazards.
Raj Nariya, the owner of the Seattle Pacific Hotel, hired
untrained employees of a roofing contractor for asbestos removal
during a hotel remodeling project instead of the certified
asbestos abatement contractor who discovered that much of the
ceiling was originally constructed with cement asbestos board,
according to a statement by the Washington State Department of
Labor and Industries. Mr. Nariya did not inform these untrained
workers that the ceiling contained asbestos, according to the
statement.
The department began an investigation last July and immediately
issued a stop-work order, according to the statement. The
investigation uncovered 12 willful workplace health violations,
including exposing workers to asbestos, failing to provide
respiratory protection, leaving asbestos debris on site and other
safety and health issues. Mr. Nariya was also cited for an
additional willful-general violation for not taking a pre-removal
air sample before removing the asbestos materials, according to
the statement.
"It's unconscionable that anyone would knowingly expose untrained
and unprotected workers to asbestos," Anne Soiza, the
department's assistant director for the Division of Occupational
Safety and Health, said in the statement. "It's an extremely
hazardous material that's notorious for causing cancer and other
serious health issues."
Raj Nariya and the Seattle Pacific Hotel could not be immediately
reached for comment.
ASBESTOS UPDATE: Roof Leak Leads to Asbestos Problem in School
--------------------------------------------------------------
WYTV reported that cleanup of a roof problem at St. Christine
School in Youngstown is complete. While the leak didn't affect
the church, it's kept students and teachers out of class for over
a week.
Freezing and expansion not only forms potholes, it can also
affect roofs. The temperature change split a rubber roof membrane
on top of the K-8 building, so water came into four classrooms
and one section of hallway.
It also created another problem.
"Because of the age of the school, there's asbestos," Rev. John
Keehner said. "The asbestos was contained and even when it's wet,
it's contained but as soon as it dries, it becomes a hazard."
That's when it becomes a powder and can be breathed in.
No teacher, student or administrator has been allowed in the
building while crews cleaned up the asbestos.
"The asbestos in those four classrooms and hallway has been
abated. We are waiting for results from air quality tests," Rev.
Keehner said.
Those tests are expected to come back. The cleanup company
believes St. Christine will pass and school could resume.
St. Christine has missed four nonweather-related days and was
within state law for the number of hours in class. Now it has to
consider ways to make up the missed time.
"At this point, we have one day today, one day tomorrow that will
need to be made up, and the parents are aware of that because we
discussed that at parent meeting," Rev. Keehner said.
Insurance will pay for fixing the damage inside the school. The
parish is going to have to pay to fix the roof, which will cost
$80,000.
ASBESTOS UPDATE: Demolition of Asbestos House Face Challenges
-------------------------------------------------------------
Roger Bell of Roanoke Rapids Daily Herald reported that the race
is on to get the house at 106 East 11th St. demolished as it
still presents a danger to public safety. However, a few
challenges remain prior to knocking it down.
Kelly Lasky, Roanoke Rapids planning and development director,
said the city has yet to receive confirmation the house, which
was placed under a demolition order by City Council, has been
completely disconnected from utilities. A contractor has yet to
be selected, though the city is free to negotiate without
soliciting bids due to the low value of the contract. Lasky has
said previously she expects the total cost of demolition and
removal to come up between $10,000 and $13,000.
The home's proximity to other houses and to power lines present
challenges as well, but Lasky is sure those will be overcome, and
finally, the property cannot be adequately assessed as an
asbestos threat due to its dilapidated condition.
Lasky said the city believes the asbestos to be located in the
kitchen and bathroom flooring, but because it's not safe to
check, the entire structure has to be treated as an asbestos
threat.
"It's not safe to go in there and determine where the asbestos is
located," Lasky said. "Normally you have to do asbestos abatement
and removal before you can get a demolition permit, but in this
case, because it's not safe to enter the structure because of the
condition of the floor, we have to treat the entire structure as
an asbestos threat."
According to the Mesothelioma Cancer Alliance, asbestos is known
to be a cause of mesothelioma, a rare and deadly cancer that can
develop in the linings of the lungs, abdomen and heart. The group
pushes to raise awareness of the dangers of asbestos.
The group's website says microscopic asbestos fibers, which are
designed to resist heat, fire and electricity, can become
airborne and inhaled. The particles cling to tissues in the lungs
and other areas of the respiratory system, and can cause
inflammation which can lead to mesothelioma, lung cancer, or a
degenerative respiratory condition called asbestosis, during
which scars form plaque on the surface of the lung's lining.
Asbestosis can be a precursor to the onset of mesothelioma.
Lasky said demolition of the house may require the contractor to
keep the entire house saturated while demolishing it to keep the
asbestos fibers from becoming airborne.
"If the fibers become airborne," Lasky said, "it becomes a public
health issue."
In addition, the removed asbestos has to be kept wet, bagged and
taken to a landfill that disposes of asbestos products, Lasky
said.
As for a timeframe, Lasky is hopeful everything can be resolved
and the structure can be demolished in the next couple of weeks.
"We want to get it down as soon as possible," Lasky said.
ASBESTOS UPDATE: Sparta Woman Blames Asbestos for Mesothelioma
--------------------------------------------------------------
Noddy A. Fernandez of The Madison-St. Claire Record reported that
a Sparta woman alleges she was diagnosed with mesothelioma
because of exposure to asbestos during her career.
Glenda Smith and Robert Smith filed a complaint on Jan. 12 in the
St. Clair County Circuit Court against ABB Inc., Aurora Pump Co.,
Borg-Warner Morse Tec LLC, et al. alleging negligence.
According to the complaint, the plaintiffs allege that between
1978 and 1993, Glenda Smith was exposed to asbestos during her
career from products she was working with or around that were
allegedly manufactured by the defendants. She also alleges she
was secondarily exposed to asbestos containing products through
her father, who worked for some time as a laborer at Cole Milling
Co., and from her uncles.
As a result, the suit states Glenda Smith became aware that she
had developed mesothelioma on Nov. 30, 2016.
The plaintiffs allege the defendants failed to provide any or
adequate warnings to persons working with or around the products
of the dangers of inhaling, ingesting or otherwise absorbing the
asbestos fibers contained in them and included asbestos fibers in
products when adequate substitutes were available.
The plaintiffs seek judgment for a sum of more than $50,000,
which will fairly and reasonably compensate for the injuries.
They are represented by Randy L. Gori of Gori, Julian &
Associates PC in Edwardsville.
St. Clair County Circuit Court case number 18-L-27
ASBESTOS UPDATE: Man Seeks Damages From Armstromg for Exposure
--------------------------------------------------------------
Noddy A. Fernandez of Madison -- St. Claire Record reported that
a couple claims they have been injured by the husband's exposure
to asbestos during his career.
Eugene Downer and Cheryl Downer filed a complaint on Jan. 11 in
the St. Clair County Circuit Court against Armstrong Pumps Inc.,
Aurora Pump Co., BMW Constructions Inc., et al. alleging
negligence.
According to the complaint, during Eugene Downer's career from
1957 and 2003, he was exposed to and inhaled, ingested or
otherwise absorbed large amounts of asbestos fibers emanating
from certain products he was working with and around which were
manufactured, sold, distributed or installed by the defendants.
As a result, Eugene Downer alleges he became aware in May 2017
that he had developed lung cancer and his wife Cheryl Downer
alleges she lost the companionship, society and services of her
husband.
The plaintiffs alleges the defendants failed to provide any or
adequate warnings to persons working with or around the products
of the dangers of inhaling, ingesting or otherwise absorbing the
asbestos fibers contained in them and used asbestos when adequate
substitutes were available.
The plaintiffs seek judgment for a sum of more than $50,000,
which will fairly and reasonably compensate for the injuries.
They are represented by Randy L. Gori of Gori, Julian &
Associates, PC in Edwardsville.
St. Clair County Circuit Court case number 18-L-23
ASBESTOS UPDATE: Developers Appeal $1.47MM Court Ruling
-------------------------------------------------------
Pittsburgh Post-Gazette reported that the would-be developers of
the former Westinghouse Research and Technology Park in Churchill
are appealing a county ruling that they can afford to pay
penalties totaling $1.47 million for the unpermitted removal and
disposal of asbestos.
The appeal, filed Jan. 16 in Allegheny County Common Pleas Court
on behalf of Ramesh and Vikas Jain, asks that the Dec. 20 ruling
by Allegheny County Health Department hearing officer Max Slater
be set aside and that a new penalty reduction hearing be held .
Mr. Slater, following two days of hearings in August that were
closed at the Jains' request, found that the Jains owned nine
companies and had assets of between $13 million and $14 million.
His decision put the amount of penalty the Jains could
conservatively afford to pay at $1.23 million.
The Jains' appeal, filed by attorneys David and Maurice Nernberg,
also alleges that Mr. Slater should have recused himself from the
penalty reduction hearing because in October he dismissed charges
in a companion case brought by the health department against
Raymond Sida, who worked for the Jains on the Churchill
redevelopment project. Mr. Sida testified the Jains tried to
bribe him and set him up to be the "fall guy" for the asbestos
removal project.
The father-and-son developers, who live in Mt. Lebanon, have
denied the charges. Their appeal also challenged the
constitutionality of state and county laws requiring prepayment
of fines before an appeal on the merits of the case can move
forward.
Ryan Scarpino, a health department spokesman, said in a statement
that the department doesn't comment on lawsuits or pending
litigation. According to Mr. Slater's decision on the Jains'
penalty reduction appeal, Pennsylvania courts have long upheld
the validity of prepayment and bond requirements in
administrative cases involving challenges of actions by public
agencies enforcing environmental health regulations.
The penalty amount -- said by the health department to be the
largest it's ever levied in an asbestos case -- was contained in
a June 2 emergency order that alleged more than 130,000 square
feet of asbestos containing floor tile and pipe insulation was
illegally removed from multiple buildings on the 135-acre former
Westinghouse property.
According to the order, the Jains did not obtain obtain required
county permits to handle or remove asbestos, did not provide
their workers -- all Guatemalan nationals -- with protective
clothing or breathing masks, and took no precautions to prevent
asbestos dust from becoming airborne outside the buildings.
Testing of floor tile material found it contained up to 65
percent amosite asbestos, which can cause cancer.
The appeal to Common Pleas Court does not yet have a hearing
date. The legal action will likely delay the Jain's appeal to the
health department on the merits of the case.
ASBESTOS UPDATE: Church Urges Gov't to Replace Asbestos Roof
------------------------------------------------------------
Oswald Niyonzima of KT NEWS reported that the Roman Catholic
church of Rwanda has requested the government to fund replacement
of asbestos roof covers if the country wants to phase out this
hazardous construction material.
There was 1.6 million square meters of asbestos roofs since 2009
when the Government of Rwanda decided to completely eradicate
asbestos due to serious health hazards it pauses to the public.
Gisele Nkwaya, RHA Engineer and Asbestos Eradication Project
Coordinator told KT Press that ever since, 51% of asbestos has
been removed despite the deadline that was set for December 2016.
She said the slow pace is attributed to the fact that owners of
the houses seem to have no means to execute.
"The project was delayed because property owners do not have the
financial capacity to replace them," said Nkwaya.
A study carried out in 2013 by Experco International Ltd, a
Canadian Firm, shows that the whole project would cost around
Rwf16 billion ($23,277,956) including approximately Rwf11 billion
($15,848,089) for publicly owned buildings and Rwf5 billion
($7,429,867) for private buildings.
The Catholic Church, however, suggests that government is not
doing enough to help them execute the project.
"We are almost done with replacing asbestos covers on our
buildings. 80% of these roofs have already been replaced and we
are set to have been done by the end of next year," Mgr Smaragde
Mbonyintege, Bishop of Kabgayi Diocese, told KT Press.
Mbonyintege said that they still have problems with the buildings
they share with the government such as hospitals and health
centers.
"We have almost phased out with our schools, churches, and
convents, but we still have a big problem within the institutions
we share with the government; the government is going slow."
Also requesting the government to contribute is Presbyterian
Church in Rwanda (EPR) which owns Remera-Rukoma district Hospital
in Kamonyi district.
"Well, the church does not have means and it is expensive! We are
still waiting for the government support," Dr Theogene Jaribu,
Director of Remara-Rukoma Hospital told KT Press.
The cost of removing, dumping asbestos and replacing it with
decent iron sheets is Rwf 15,000 per square meter.
Dr Jaribu said that they were promised that the government will
help, but he does not have any idea of when it will be done.
"We were told that it will be done province by province and they
started with the Eastern Province. We expect that they will also
come to us when time for Southern Province comes," he said.
Eng. Nkwaya told KT Press that they want to set a new target with
property owners.
"We are planning a consultative meeting with property owners to
set a new deadline."
More than 107,000 people from across the world die every year
from asbestos-related lung cancer, mesothelioma and asbestosis
resulting from exposure at work while thousands of deaths are
attributed to exposure to asbestos in homes.
ASBESTOS UPDATE: Buckhannon Bars Asbestos Dumping at Station
------------------------------------------------------------
Katie Kuba, writing for The Record Delta, reported that
Buckhannon City Council is trying to put an end to people putting
hazardous material in its waste transfer station.
At its meeting, council approved on second and final reading
ordinance Ordinance No. 423, which bans individuals and
contractors from disposing of asbestos-laden materials at the
waste transfer station on Mud Lick Road and any other city
facilities.
Individuals or companies cited and found guilty of disposing of
asbestos -- widely recognized as a public health hazard -- will
be required to pay a $250 to $500 fine on the first offense and a
flat $500 fine on the second offense.
In addition, the person or contractor will be responsible for
paying restitution to the city of Buckhannon for the cost of
remediating the asbestos. Anyone convicted or cited will not be
eligible for a building or demolition permit for one year and
will have any current permits revoked, city attorney Tom O'Neill
explained prior to the vote.
"As discussed previously, the genesis of this ordinance [is]
there were two incidents out at the transfer station in which
asbestos was dumped or attempted to be dumped, resulting in, in
one case, a couple thousand dollars of cost to the city," O'Neil
said.
Mayor David McCauley said the clean-up cost was about $3,700 or
$3,800, but the city has recouped that money.
O'Neill explained the ordinance criminalizes the disposal or
attempted disposal of asbestos-containing materials, provides for
restitution "and further provides that contractor or individuals
who are cited or found guilty under this ordinance are ineligible
for the issuance of building permits for the period of a year and
it permits the suspension of any outstanding building permits."
Councilman David Thomas pointed out that council is concerned not
only about the cleanup cost, but also about public health and
safety.
"Besides the monetary issue, there's safety," Thomas remarked.
McCauley noted the dumping of asbestos results in the city having
to shut down its waste collection operations while employees comb
through materials to remove the asbestos.
"It's a real pain in the tail, absolutely," the mayor said.
Thomas made a motion to approve on second and final reading the
ordinance, which was seconded by councilman Robbie Skinner prior
to passing unanimously.
The ordinance will go into effect 30 days from passage, meaning
Feb. 17.
In other city news, councilman CJ Rylands encouraged city police
to monitor whether vehicles on Main Street were yielding the
right-of-way to pedestrians.
Rylands' question came on the heels of police chief Matt Gregory
presenting his monthly report for December 2017.
"When I'm looking at these traffic citations, the listing of
them, I don't see anything like . . . failure to yield to
pedestrian," Rylands observed.
Gregory replied that he hadn't listed every single possible
traffic citation -- just the ones that officers most commonly
issue.
"I don't have every single traffic violation," Gregory said.
"Just the ones that are commonly cited, but if I need to have a
category on certain months, I'll certainly add it to the grid."
Rylands replied, "I'd be glad to see failure to yield to
pedestrians citations. The vulnerable party is the pedestrian,
and [if I'm trying to cross the street and] it's raining or
snowing and I'm thinking, 'Hey, you're in a heated car, what's
the problem?'
"Every customer at every downtown business is a pedestrian and
when you go to New England, culturally, they are trained,"
Rylands continued. "And when you step on the curb on Portland or
any small town in New England, they stop. We haven't made that a
priority and there's still a mindset that the roads are for cars,
so anything we could do to modify that."
McCauley said he, too, has noticed drivers' reluctance to yield
to pedestrians after stopping at the stop signs of four-way
intersections.
Skinner said it's probably difficult for police to monitor the
interaction between cars and pedestrians on Main Street.
"Where are you going to sit on Main Street so you can see them?"
Skinner asked.
Gregory said officers on bike patrol during spring, summer and
early fall are sometimes able to park at the intersections on
Main Street.
"I will say in the warmer months, our bike patrol does sit in
various intersections on Main Street and if they do actually give
a citations, they may try to write a warning," Gregory said. "Our
warnings have increased tremendously this year.
"If they do write a citation, more than likely, it would be
failure to stop at a stop sign, not failure to yield right-of-way
(to pedestrians), so just because you're not seeing that
particular category, doesn't mean that area isn't being
monitored," the police chief added.
ASBESTOS UPDATE: SOLAs Urges Asbestos Removal, Ban on Ships
-----------------------------------------------------------
Technical Review Middle East reported that regulations under the
International Convention for the Safety of Life at Sea (SOLAS)
has stated that if asbestos is found onboard a ship built after
July 2002, then the vessel's flag registry, along with its
classification society, issues a non-extendable exemption
certificate, providing the owner with a three-year window to
remove the asbestos.
"Any ship built before 2002, may contain asbestos but must have a
hazardous materials' register and management plan in place to
cover any maintenance or repair work involving asbestos,"
Chillingworth said.
"It's possible to correct this by ensuring that all new vessels
have an approved asbestos survey before they are delivered to
operators, with significant logistical challenges ahead," he
added.
The amount of asbestos found onboard depends on several factors
including where the ship was built. "In our experience, ships
built in the Far East and Turkey, have a high percentage of items
containing asbestos. Ships can also be contaminated through items
brought onboard by the owners, despite assurances that they are
asbestos free," he explained.
"A proactive prudent approach can prevent potential litigation
for claimed exposure to asbestos from the ship's crew, protecting
ship owners. It can also enhance the true value of the ship and
eliminates any potential issues if asbestos was found during a
pre-purchase survey and, ultimately, protects the crew and anyone
else working on the ship," Chillingworth concluded.
ASBESTOS UPDATE: Canada Asbestos Ban to Take Effect by 2019
-----------------------------------------------------------
Automotive News Canada reported that Canada's long-awaited ban on
asbestos in brake shoes and other products will start sometime in
2019, according to proposed regulations released Jan. 5.
The federal government 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.
It is expected that automotive stakeholders would comply with the
proposed regulations by switching from imports of friction
materials containing asbestos to asbestos-free friction
materials, such as ceramic brake pads or materials with synthetic
fibers, the government said.
Using average import data from 2013 to 2016 for friction
materials containing asbestos, the government estimates that
333,000 brake pads containing asbestos are imported on an annual
basis.
"Assuming that there is a $5 incremental difference in price
between brake pads containing asbestos and asbestos-free brake
pads, it is expected that the automotive industry would carry
operating costs of approximately $21 million over the time frame
of analysis," according to a government report.
The government said the auto industry has indicated that
automotive mechanics and their employers may not be aware that
asbestos could be contained in brake pads and may not be taking
the necessary precautions needed when working with products
containing asbestos.
The government estimates administrative costs could reach $34
million for government and the auto and construction sectors over
a 17-year period. However, preventing just five cases of lung
cancer or mesothelioma a year would provide a net social benefit,
it said.
Fulfilling a promise
The rules fulfill a Liberal Party 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 new rules replace looser regulations that allowed brake shoes
and other products containing the cancer-causing mineral to slip
into Canada from Russia, China and other countries that still
mine asbestos.
The government said 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 still may be found
in a variety of products, including cement pipes, industrial
furnaces and heating systems, building insulation, automotive
brake pads and clutches.
Stockpiles to be destroyed
The use or sale of any asbestos-containing products that exist in
inventories but which 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 also is 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 tons of asbestos residue around
former mine sites also will 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," Ms. McKenna said in a statement.
ASBESTOS UPDATE: Electrician Not Warned of Asbestos Hazard
----------------------------------------------------------
Bury Free Press reported that Christopher Abrey, 80, said in a
statement made before his death he had never been warned by
employers about the dangers of asbestos nor been provided with a
mask.
The inquest at Suffolk Coroners Court in Ipswich heard that Mr
Abrey died at his home in Raven Close, Mildenhall in December
last year nine months after he was diagnosed with mesothelioma.
A consultant at the West Suffolk Hospital who examined Mr Abrey
decided he was not fit enough to undergo a course of
chemotherapy.
The inquest was told that while working for two electrical
contractors and a dairy company as an electrician, Mr Abrey had
come into contact with asbestos-lagged pipes alongside wiring.
In his statement, Mr Abrey said he had to brush against that
lagging to gain access to where he needed to work and believed he
was exposed to fibres. Suffolk area coroner Nigel Parsley
recorded a conclusion Mr Abrey died of an industrial disease.
ASBESTOS UPDATE: Firms Fined for Exposing Workers to Asbestos
-------------------------------------------------------------
Robin Johnson of Derby Telegraph reported that two firms have
been fined after admitting exposing workers to asbestos during a
refurbishment project in Derby.
Southern Derbyshire Magistrates' Court heard how untrained
labourers were allowed to remove asbestos insulating board
ceiling panels in a store room in a building in St Peter's
Churchyard.
The building was being converted from offices to apartments.
An investigation brought by the Health and Safety Executive found
that M&S Developments (Bemrose Court) were the principal
contractor for the site and Adam Campbell (operating as Kynersley
Management Services) was the site manager.
The court heard that before work took place, an asbestos
refurbishment survey indicated that the lower ground floor store
room contained an asbestos ceiling.
But in January last year, during the refurbishment, the ceiling
was accidentally damaged and the site manager instructed two
young labourers to remove approximately four to six square metres
of it.
According to the HSE, the work should have been completed by a
licensed asbestos removal contractor under fully controlled
conditions.
But its investigation found that suitable asbestos control
measures were not in place and the workers involved were not
trained in asbestos removal.
A licensed asbestos removal contractor was eventually brought in
to clean the area after the HSE became involved.
Both M&S Developments (Bemrose Court) and Kynersley Management
Services pleaded guilty to breaching the Health and Safety at
Work Act 1974.
M&S Developments (Bemrose Court) was fined GBP9,000 and ordered
to pay costs of GBP3,336.
Kynersley Management Services was fined GBP20,000 and ordered to
pay costs of GBP1,531.66.
Mr Campbell also pleaded guilty to breaching the act in his role
as a director of Kynersley. He was given a community order to
carry out 120 hours' unpaid work and was also ordered to pay
GBP1,531.66 costs.
Speaking after the hearing, HSE inspector Andrew Bowker said:
"This incident could so easily have been avoided by the duty
holders simply carrying out correct asbestos control measures and
safe working practices.
"Companies and individual site managers should be aware that HSE
will not hesitate to take appropriate enforcement action
including prosecution against those that fall below the required
standard for managing asbestos containing materials during
refurbishment work.
"Most types of asbestos-containing material work require a
licensed removal contractor with suitably trained and licensed
workers."
ASBESTOS UPDATE: Asbestos Confirmed at Former Rubbish Dump
----------------------------------------------------------
Newcastle Herald reported that Hunter Water has confirmed
asbestos has been discoverd in the former Stockton rubbish dump
exposed by beach erosion, with a long-term plan to contain the
spill still in development.
Contractors will begin their work to seal off the tip in a bid to
halt the spill of garbage into the sea.
Beachgoers have reported a quantity of plastic wrappers bearing
imperial measurements, indicating they are more than four decades
old, washing up on the beach.
A Hunter Water spokeswoman said testing "returned a single sample
confirming the presence of friable asbestos".
"Due to the inherent hazards of disturbing friable asbestos,
workers on site will be wearing full PPE equipment for their
safety," she said.
"There is no risk to surrounding residents as a result of these
works, however, Hunter Water again asks for the public's
cooperation in staying away from the site until rectification
works are complete."
"We expect these initial works to be completed in a few days,"
she said.
"The installation of the geo-fabric cover will be inspected and
maintained daily by Hunter Water until further sand dune
stabilisation commences in mid-February with specialist equipment
currently being manufactured interstate."
ASBESTOS UPDATE: Asbestos to be Removed from Maryborough Building
-----------------------------------------------------------------
Blake Antrobus of Fraser Coast Chronicle reported that electrical
issues and asbestos in Maryborough's council administration
building will be addressed after councillors voted to approve the
refurbishment.
Problems detected during construction work in December 2017
prompted calls for an overhaul of the building.
The motion was carried unanimously by councillors at the meeting.
Experts will now undertake a feasibility assessment on the
administration building to determine the scope of the works.
While the extent of costs is unknown, council documents reveal
the costs for the asbestos removal and the refurbishment "will be
significant."
Infrastructure councillor Denis Chapman said the last thing the
council wanted to do was put their workers under a health risk.
"A lot of old buildings in Maryborough have got asbestos in them,
and if it's disturbed it needs to be removed," Cr Chapman said.
"The report will give us an idea of quotes and the extent of the
work."
"It's our own building, it's an asset that we've got, and
sometimes they need to have money put into them."
A temporary customer service centre next to the Friendlies
Chemist on Adelaide St has been set up in the interim.
ASBESTOS UPDATE: $3.3MM Work to Replace Asbestos Pipe Begins
------------------------------------------------------------
Pat Healey of Timaru Herald reported that work on a $3.3 million
project to replace 9.1km of asbetos-affected water mains
supplying Temuka will begin, the Timaru District Council
confirmed.
The asbestos cement pipe at the centre of an asbestos
contamination scare will be replaced with a new, larger-diametre
high density polythylene pipe. The work is expected to take six
weeks.
Replacing the water main between Temuka and its water source at
Orari has been tipped as a permanent solution ahead of the
restoration of normal water usage in the town.
Temuka's temporary water filtration plant, of seve banks of
filters, was used to clean the town's potentially asbestos-
affected water ahead of a pipe replacement programme.
The council unanimously approved the $3.3 million spend with
urgency after asbestos fibres were found in parts of the water
supply from November.
The substance clogging some household water filters was initially
thought to be pollen. Subsequent tests into December confirmed it
was asbestos, there due to the "progressive internal failure of
the current pipe".
A team works to install a temporary filtration plant for Temuka
aqfter an asbestos scare in mid-December.
The pipe supply contract has been awarded to Asmuss Water
Systems. The first load of pipes will arrive, a week ahead of
schedule, to enable welding work to begin in advance of
construction.
The contracts to install the pipe have been awarded to Aoraki
Earthworks, Rooney Earthmoving and Fulton Hogan, the council
confirmed.
They will start work on February 7 at three separate construction
sites for approximately six weeks.
Council infrastructure group manager Ashley Harper said awarding
three contracts would ensure pace and a high.
"Different parts of this job require specific skills and
resourcing, that's why we've split it into three jobs which will
run concurrently.
"This ensures if issues crop up at one site, the other two can
continue working."
The new, larger diameter pipe would be more flexible and
earthquake resilient, and would double the supply capacity to the
town, he said.
The council will discuss plans for a reservoir for Temuka, as
part of the Long Term Plan process.
"The replacement of the water main between the town and its water
source at Orari will be a permanent solution to the issue,
enabling the removal of the temporary filtration plant and
restoration of normal water usage in the town," Harper said.
ASBESTOS UPDATE: Learners Protest Against Asbestos Exposure
-----------------------------------------------------------
Jacques Julius of Politicsweb reported that on January 2018, I
together with DA Gauteng Shadow MEC for Education, Khume
Ramulifho MPL will lead a protest at Randfontein Secondary School
in Toekomsrus and will hand over a Memorandum of Demands to the
representative of the Gauteng Education Department on behalf of
the community.
Instead of eradicating the asbestos school building the Gauteng
Department of Education and by extension the Department of
Infrastructure Development simply built a brick wall around it.
The asbestos material is still exposed on the inside of classes
with some panels even broken, openly exposing learners to this
hazardous material.
Asbestos as building material was already banned in 2008.
Building around an asbestos building is extremely hazardous to
the health of learners and teachers at this school.
If inhaled learners and teachers may develop asbestosis - a lung
disease caused by the inhalation of asbestos fibers.
It is grossly negligent of the department to not fast-track the
process of eradicating asbestos schools.
Gauteng Education MEC Panyaza Lesufi is aware of the dangers, yet
the situation is still left unattended.
The Department of Education already missed the deadline of 29
November 2016 to eradicate all asbestos school buildings in
Gauteng.
The DA demands that MEC Lesufi visit the school within seven days
so that he can provide the community, learners and teachers with
answers as to why this school was not earmarked to be entirely
rebuilt.
MEC Lesufi must immediately act to address this situation and
provide the community with feedback.
The DA believes that learners and teachers deserve a safe,
dignified and conducive learning environment.
ASBESTOS UPDATE: Pullium Couple Sue Pumps Maker for Exposure
------------------------------------------------------------
Lhalie Castillo of Madison -- St. Claire Record reported that a
man who worked for various employers in the Peoria area during
his career alleges he was exposed to asbestos and developed
cancer as a result.
Robert Pullium and Patsy Pullium filed a complaint on Jan. 17 in
the St. Clair County Circuit Court against Armstrong Pumps Inc.,
Continental Grain Co., Rust International Inc., et al. alleging
negligence.
According to the complaint, the plaintiffs allege that at various
times during plaintiff Robert Pullium's employment from 1955 to
1982 at various locations in Peoria, he was exposed to and
inhaled or ingested asbestos fibers emanating from certain
products manufactured, sold, distributed or installed by
defendants.
The suit states that on or about Sept. 23, 2016, he first became
aware that he developed lung cancer, an asbestos-induced disease,
and that the disease was wrongfully caused. Plaintiff Patsy
Pullium alleges she was deprived of the society and services of
her husband.
The plaintiffs hold Armstrong Pumps Inc., Continental Grain Co.,
Rust International Inc., et al. responsible because the
defendants allegedly intentionally included asbestos fibers in
their products when adequate substitutes were available and
failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing
asbestos fibers.
The plaintiffs seek compensatory and punitive damages of more
than $50,000 for each of them. They are represented by Randy L.
Gori of Gori, Julian & Associates PC in Edwardsville.
St. Clair County Circuit Court case number 18-L-33
ASBESTOS UPDATE: Hempstead School Closed After Asbestos Find
------------------------------------------------------------
Scott Eidler of NewsDay reported that a music classroom at
Hempstead High School was closed off for environmental
remediation after flooding affected the room's ceiling tiles and
"slight asbestos" was discovered, Acting Superintendent Regina
Armstrong said.
A problem with a radiator in an adjacent garage area led to
flooding that spread to the ceiling above the classroom.
Maintenance workers were repairing ceiling tiles when they
noticed wrapping of some of the insulated pipes' joints, she said
in an interview.
The district called in the environmental remediation firm J.C.
Broderick & Associates of Hauppauge, which found "slight
asbestos" in the pipework, Armstrong said.
Initial air quality tests passed state and federal guidelines for
airborne asbestos. More tests were scheduled.
"No staff or student was exposed to asbestos," Armstrong said.
Armstrong said the room was being sanitized, with instruments
wiped down, as a precaution. Band uniforms are being
professionally dry-cleaned.
The impact on students was limited because of an altered schedule
during administration of state Regents tests. A class in that
room scheduled will be held in the auditorium.
ASBESTOS UPDATE: House Owner Fined $4.5K for Exposing Workers
-------------------------------------------------------------
Dave Flessner of Chattanooga Rimes Free Press reported that State
regulators have slapped the owners of The Read House with $4,500
in fines for failing to adequately protect workers and guests
from asbestos exposure during the ongoing renovation of the
downtown hotel.
The Tennessee Occupational Safety and Health Administration
(TOSHA), which launched a probe last fall into complaints that
construction work was being done improperly, disclosed its
findings and penalties against the hotel owners.
In response to an Open Records request by the Times Free Press,
TOSHA documents show the hotel was cited for 12 violations, 11 of
which were categorized as serious. The hotel is being fined a
total of $4,500 for three of the violations, and the others do
not include a fine.
TOSHA said workers were not adequately protected and supervised
for demolition and construction work at the 92-year-old hotel,
which was built on the site of the historic Crutchfield House
that dates back to the Civil War.
The 241-room hotel, like many older buildings, used asbestos for
insulation. Asbestos is the primary cause of mesothelioma cancer
and is banned in more than 50 countries.
The state order requires the Read House to post notice of the
violations and to make corrective actions for each of the
violations.
In 2016, the Avocet Hospitality Group bought the Read House with
plans to renovate and upgrade the 10-story inn. The Starbucks
Coffee shop was renovated and other improvements have been made,
but a TOSHA inspection in October found numerous violations of
state regulations and controls required for asbestos removal.
ASBESTOS UPDATE: Perry County School Floors Have Asbestos
---------------------------------------------------------
Jasmine Adams of Randfontein Herald reported that Perry County
School District 32 will be replacing asbestos-ridden tiles on the
second floor of the Old Senior High School in February.
According to Kate Martin, communications director, the section of
floor has been closed off to students and staff until the tiles
are taken care of on February 15 and 16.
These are the original tiles from when the school first began in
1938 and this is all part of the school's asbestos management
plan.
The tiles were not detached from the floor, one tile had some
"give" in it, and Martin said there is no risk to staff or
students.
Once the tiles are taken up, the original concrete floor will be
left. After school is out, any additional work on the tiles will
be done.
Martin said this was not a surprise, they've been managing the
tiles since the '80s.
ASBESTOS UPDATE: Asbestos Slows Down Woodville Mall Demolition
--------------------------------------------------------------
WTOL.com reported that the Woodville Mall is Northwood is being
torn down, slowly but surely.
Crews say asbestos is being removed out of the buildings, which
is slowing down the demolition process.
Tear-down is expected to be completed by the end of March, and
the city is asking for suggestions about what to do with the more
than 100 acres of land.
"Everybody considers this the anchor of Woodville Road. If we can
develop this in a nice way with a little bit of commercial, this
is a good start to redevelop Woodville Road," said Bob Anderson,
Northwood Administrator.
Northwood residents can give their input at the city council
chambers.
ASBESTOS UPDATE: Asbestos Found in Long Island High School
----------------------------------------------------------
NBC New York reported that a small amount of asbestos was
discovered in a classroom in a Long Island high school, officials
say.
Hempstead's acting superintendent says a letter was posted on the
school district website information parents that work crews found
a small amount of the cancer-causing substance in a high school
music room during routine maintenance.
The asbestos was removed, and air-quality tests passed the New
York state and federal guidelines for airborne substances.
The music room was placed off limits to students.
PTA mom Victoria Culbreath said she sent her son to school
without knowing about the discovery of the asbestos.
"When we send our children to school, we expect them to be safe
and so if you think they're not safe, then you need to notify
us," she said.
The acting superintendent says parents were called, the high
school is safe and that it was an isolated incident.
Woman Found Dead on NYC Sidewalk ID'd as Mystery Deepens
Three weeks ago, Hempstead High School and two other schools were
closed after pipes burst in the cold. At the time, parents
criticized the district's oversight of school maintenance, saying
the buildings are old and the facilities are a big concern.
ASBESTOS UPDATE: Heavy Machinery May Disturb Asbestos
-----------------------------------------------------
Jim O'Rourk of Daily Telegraph reported that the use of heavy
machinery during demolition and construction work at Manly Vale
Public School has raised concerns that asbestos on the site will
be disturbed.
On the eve of the new school year neighbouring residents say they
are worried that asbestos in the ground could be released into
the environment by a large excavator.
A school asbestos management plan, commissioned by the State
Government in 2016, said asbestos cement fragments may be present
in "buried fill" in parts of the school.
But education authorities say there is no risk to students or the
public.
A letter to residents in December, from contractors Lahey
Constructions, confirmed that asbestos removal was set to start
on January 8. And in a newsletter to parents, school principal
Tina Lee wrote that during January, asbestos will be removed from
the site to allow for work to eventually make room for 1,000
students.
"Please do not allow your children to come up to the school
during this time," Ms Lee said.
A resident took photographs of excavation equipment tearing away
vegetation to expose the soil near one of the school's
boundaries. The resident said she was told by the contractors the
asbestos would be removed by hand.
"It was not by hand, and it was windy with no attempt to hose
down the material as it was disturbed and then they were taking
samples after disturbing it," the resident said.
Lahey Constructions advised residents that the material had been
classified as bonded and non-friable, therefore not airborne.
"The remediation activity poses no risk to public safety," the
contractor said.
The Education Department said the safety of students and
teachers, as well as the school's neighbours, was its highest
priority.
"The department has a rigorous system of maintenance and
monitoring asbestos at schools," a spokesman said.
"The processes used in managing school sites affected by asbestos
(fibro fragments) were developed with stakeholders including NSW
Health, Safe Work NSW and Public Works, with supporting
independent health hygienists."
The school's Parents & Citizen's committee president, James
Fewtrell, said no parents had approached him with concerns about
the asbestos removal process.
ASBESTOS UPDATE: Former Employer Pays Woman's Cancer Treatment
--------------------------------------------------------------
BBC News reported that a woman with cancer caused by asbestos
exposure is having life-saving private treatment in what has been
called a "first-of-its-kind" settlement.
Pamela Stubberfield, 74, said "she wouldn't be here" without the
drugs paid for by ex-employer BOC.
She was exposed to asbestos in her job in the early-1960s and
diagnosed with mesothelioma in 2016.
The cancer can take decades to develop, but kills about 90% of
patients within five years of diagnosis.
Mrs Stubberfield, from Wantage, Oxfordshire, was working as
laboratory technician for BOC for three weeks after leaving
school when she came into contact with asbestos.
"I just knew that I had been exposed but I thought it had been a
fairly brief period and that I had been lucky", Mrs Stubberfield
said.
Mesothelioma sufferers can make compensation claims against a
liable employer, but the process can be complex - especially if
the company has since gone out of business.
Mrs Stubberfield's solicitors Fieldfisher said this case was
unique because it was the first time an insurer had agreed to pay
directly for treatment indefinitely, providing it was
appropriate.
'Game changer' drug
She is being treated with an immunotherapy drug called
Pembrolizumab that is not available on the NHS for mesothelioma.
Her consultant, Dr Peter Szlosarek, said the drug was a "game
changer" for certain patients and worked by interfering with
signals from tumour cells which stop the body from attacking
them.
Without it, he said the cancer could have killed her within four
to six months of diagnosis in September 2016.
Mrs Stubberfield said her tumours have since reduced in size, and
now believes the treatment can "cure" her.
BOC said it was "very sorry" she developed her condition but was
pleased she is receiving ongoing treatment funded by its
insurers.
"We hope that her treatment continues to be successful," it
added.
ASBESTOS UPDATE: Risk of Exposure in Demolition Low
---------------------------------------------------
Roger Bell of Roanoke Rapids Daily Herald reported that the risk
to the public from asbestos exposure during the demolition of a
building near Roanoke Rapids City Hall was low, said a leading
official.
Roanoke Rapids Planning and Development Director Kelly Lasky said
during the demolition of 106 East 11th St., asbestos containing
materials -- ACM -- were found in vinyl flooring in the
structure.
"The asbestos containing materials within the structure were non-
friable, which means it cannot be easily ground by hand into a
powder substance," Lasky said in an email exchange. "The non-
friable vinyl flooring generally emits low levels of airborne
fibers when removed."
Lasky said the contractor could have disposed of the flooring in
one of two ways. Placing plastic around it, or saturating the
vinyl in water to prevent the asbestos from becoming airborne.
"Despite high winds, the risk of ACM exposure to the general
public was expected to be very low and not of specific concern of
hazard," Lasky said.
The home was found to be structurally unsound and dilapidated on
Nov. 16 during an administrative inspection hearing. During the
hearing Lasky said the home represented a danger to the community
and placed a high priority on its demolition.
City Council issued a demolition order Jan. 16. Equipment was
moved to the site and demolished the next day. The removal began
two days after.
ASBESTOS UPDATE: Asbestos Removal in Auburn Schine Theater Done
---------------------------------------------------------------
David Wilcox of News 12 Long Island reported that removal of the
asbestos and other hazardous materials inside the Auburn Schine
Theater is now complete, clearing the way for its restoration.
The Cayuga County Arts Council, which owns the 1938 movie
theater, posted photos of its stripped-down interior on the
council's Facebook page.
The work was completed in mid-January and the absence of
hazardous materials in the theater was confirmed shortly
thereafter, council communications chair Michelle Milewski said.
All of its seating has been removed and its brick and ironwork
exposed. The next step in the theater's restoration is uncertain,
Milewski said, but she named its HVAC and South Street marquee as
priorities.
"With a project of this magnitude, priorities can change after
each step is complete," she said. "What may have been a top
priority before abatement began may be pushed back down the
timeline. That being said, the building is still structurally
sound, asbestos-free and primed for restoration. We're
enthusiastic about any and all steps forward."
The arts council is in the process of transferring ownership of
the Schine to an LLC it will co-own with Bowers Development, of
Syracuse. The transfer will require the approval of the state
Office of Parks, Recreation and Historic Preservation. The state
holds a preservation covenant on the property until July 25,
2036, due to funds it has awarded the project dating back to
1996.
"We're working with the state authorities to lift the covenants,"
Milewski said. "Although progress is being made, nothing is
finalized yet."
Bowers contracted Sessler Environmental Services, of Rochester,
to remove the theater's hazardous materials. The work had to be
completed by the end of January because the $800,000 that funded
it, which came from the city of Auburn's Community Development
Block Grant accounts, had to be spent down by then. The city
allocatedthe money to the Schine project in June after learning
it had to be spent down due to a new rule from the Department of
Housing and Urban Development, Office of Planning and Economic
Development Director Jennifer Haines told The Citizen.
A $1.2 million state grant, awarded in December, will support
further work on the Schine. Bowers has given the project a $6
million price tag and an October 2019 completion date. Bowers and
the council have said they plan to reopen the renovated theater
as a convention center that can host live entertainment,
weddings, trade shows and more events.
ASBESTOS UPDATE: Asbestos Found in Sewage Pond
----------------------------------------------
Newcastle Star reported that Hunter Water has confirmed asbestos
has been found in the former council rubbish dump exposed by
erosion on Stockton beach and a disused sewage pond on the site
is at risk of falling into the sea.
An assessment revealed that one of three decommissioned and
emptied sewage ponds is now just 10 metres from the high-tide
mark, as the ocean continues to erode the coastline.
Hunter Water's spokeswoman said a long-term plan for the troubled
site was still in development. Contractors using heavy machinery
have begun temporary work to seal off the tip using geo-fabric.
Large volumes of plastic bags and bottles could still be seen
floating in the water south of the tip. Beachgoers reported
having plastic bags wrapped around their legs as they got out of
the water and wildlife groups feared an influx of sick sea life
in the coming weeks.
Hunter Wildlife Rescue spokeswoman Audrey Koosman said the area
was heavily populated with turtles, penguins, sea birds and fish.
A Hunter Water spokeswoman said five tests conducted at the tip
site returned a sample "confirming the presence of friable
asbestos". Air monitoring in the area has not detected asbestos.
Further samples were taken from the landfill testing for a range
of organic pollutants and heavy metals, as well as the stability
of the material.
"The purpose of this testing is to determine where the
appropriate disposal location would be for the material, should
it be taken off site," the spokeswoman said.
"There is no risk to surrounding residents as a result of these
works, however, Hunter Water again asks for the public's
cooperation in staying away from the site until rectification
works are complete."
Signs and temporary fencing installed will remain in place. Geo-
fabric sand containers, or bags, are being manufactured
interstate and will be used as a defensive barrier against the
erosion.
Initial works involve four excavators and a geo-fabric covering
to contain the waste.
ASBESTOS UPDATE: Hartland Landfill Has New Rules for Asbestos
-------------------------------------------------------------
CBC News reported that the Hartland Landfill in Victoria is
bringing in new rules for renovation waste to keep asbestos out
of the site.
As of March 31, all waste from home renovations and demolitions
must be pre-approved before being dropped off.
Keeping asbestos out of the landfill and away from workers is the
primary reason behind the changes, according to the Capital
Regional District.
Tom Watkins, manager of environmental resource management policy
and planning with the Capital Region, told On the Island that DIY
home renovators need to keep themselves, and those working at the
landfill, safe.
Asbestos threat
Watkins recommends that anyone planning to renovate a home built
before 1990 should have a professional check for asbestos before
starting a project.
"We are asking people to protect themselves and their family by
having a qualified professional conduct a proper inspection of
their house," Watkins said.
"Once you start cutting into things like flooring, you're running
a significant risk of inhaling asbestos fibres."
Asbestos can be found in drywall, floor tile, plaster and cement
panels. If inhaled, its fibres can cause cancer and lung
scarring.
According to WorksafeBC, asbestos is is the leading cause of
death in the construction industry.
It can also be an issue for those working at waste disposal
sites, said Watkins.
"Imagine someone cutting up some flooring, throwing it in the
back of their station wagon and driving it up to the landfill,
flipping the tailgate open and having a big cloud of dust come
out, in the face of our workers and themselves, and potentially
their children," he said.
New rules for disposal
The new rules around waste disposal will require residents to
complete an online application and provide asbestos-free test
results before disposing of renovation or demolition material at
Hartland.
The Hartland Landfill will still accept materials containing
asbestos, but only if properly packaged and with an appointment.
ASBESTOS UPDATE: Inhalation of Asbestos Poses Public Danger
-----------------------------------------------------------
Ben Aulakh of The Timaru Herald reported that investigations into
the asbestos contamination of Temuka's water supply has confirmed
the chemical would only have posed a danger if it had been
inhaled, public health officials have said.
On December 6 the Timaru District Council confirmed asbestos had
been found in the town's water supply, leading to alternative
drinking water having to be provided.
A $60,000 alternative treatment plant also had to be installed to
bypass a section of asbestos cement at the centre of the public
health scare, while the town's water system had to be flushed
through to remove all traces of the chemic.
Community and Public Health (CPH) officials talked to members of
the South Canterbury District Health Board (SCDHB) for more than
an hour-and-a-half about the the current state of the region's
water supplies.
During the presentation, SCDHB board member Paul Annear asked how
dangerous the asbestos in the water had been to the public, and
if officials were happy with the process around the issue going
forward,.
CPH water assessor Denise Tully said South Canterbury medical
officer of health Dr Daniel Williams had provided the necessary
information at the time of the scare.
On the day the contamination was revealed, Williams said asbestos
was hazardous when it was dry and inhaled, however asbestos
fibres in drinking water didn't pose a hazard for people drinking
the water or using it for washing or showering.
Tully said the Ministry of Health had also sought extra
information from the Institute of Environmental Science and
Research, "because this was something we hadn't really seen
before".
"They were all satisfied that the risk from asbestos is from
inhalation."
ully said that a "lot of work" had been done around the time of
the contamination, and that CPH had been "pretty happy with the
response".
"We certainly now know that Timaru [District Council] (TDC) had
got a plan, we are actually going to see a filtration plant they
have put in ... to try and alleviate the problem right now.
TDC had needed to "reshuffle their priorities" since the
incident, however CPH was "pretty happy" with how the issue was
dealt with, Tully told the meeting.
TDC announced that work on a $3.3 million project to replace
9.1km of asbetos-affected water mains supplying Temuka is set to
start.
The asbestos piping would be replaced with a new, larger-diameter
high density polythylene pipe, during six weeks of work.
The pipe supply contract has been awarded to Asmuss Water
Systems. The first load of pipes would arrive a week ahead of
schedule, to enable welding work to begin in advance of
construction.
The contracts to install the pipe had been awarded to Aoraki
Earthworks, Rooney Earthmoving and Fulton Hogan.
At the time of the incident Williams said asbestos had been
commonly used in water pipes, therefore it wasn't unusual to find
some asbestos in water supplies.
The new, larger diameter pipe would be more flexible and
earthquake resilient, and would double the supply capacity to the
town.
The council would discuss plans for a reservoir for Temuka, as
part of the Long Term Plan process.
ASBESTOS UPDATE: Activist Wants Asbestos Report Released
--------------------------------------------------------
The News International reported that trade unionists have
demanded that a report made on the use of asbestos in the country
on the directives of the Supreme Court some years ago should be
made public in order to initiate debate on the hazardous
substance in the Parliament and other forums.
Speaking at a seminar at National Trade Union Federation's
office, the organisation's deputy general secretary Nasir Mansoor
said that almost all developed countries had banned the use of
asbestos in various sectors because of its health hazards and had
switched to alternatives.
"We lag much behind in this aspect and asbestos continues to
affect the lives of workers associated with the work it is used
in," he said. According to Mansoor, a few years ago the Supreme
Court had tasked Professor Noor Jehan [a geologist from Khyber-
Pakhunkhwa] to conduct a study on asbestos, but nothing else has
been heard on the matter since then. He demanded that the report
be released to initiate dialogue on the matter.
Asbestos is a silicate mineral that is mined in abundance in KP.
It is used in building construction, pipes, boilers, fire-proof
products, textile, cement and automobile industries in the
country. It is also found in decommissioned ships that are
dismantled in Gadani though now it is not being used in
shipbuilding anymore.
At the meeting, labour leader Riaz Abbasi said asbestos is highly
dangerous for human health. Its invisible particles when inhaled
cause lung disease and cancers and also damage the oesophagus.
Sharing statistics from the World Health Organization, Abbasi
said that annually 90 to 100,000 people die because of it. He
said that in 2006, the International Labour Organization had
appealed to its member countries to ban the use of this material
but in Pakistan it is still mined and used.
"Despite the fact that there are alternative materials available,
for their monetary gains, profiteers have been putting human
lives at risk," he said. Citing an unnamed report, he added that
601 people died in KP between 1995 to 2003 because of asbestos
inhalation and poisoning.
Zehra Khan of Home Based Women Workers Federation said that there
is no health and safety law in the country which prohibits its
use and there is no mechanism to compensate families for the
deaths caused by it.
"Though there is mention of some diseases in chapter III of the
Factories Act, but that does not mention asbestos," she said. "It
should be specifically mentioned in the health and safety bill
passed by the Sindh Assembly." The seminar participants demanded
an immediate ban on the mining and use of the asbestos and urged
that the ILO defined mechanism should be employed to destroy the
available material and control its effects where it has been
used.
ASBESTOS UPDATE: Macau College Suspends Class After Asbestos Find
-----------------------------------------------------------------
Macau Daily Times reported that several parents have refused to
bring their children to school following the discovery of
asbestos in the vicinity of the Macau Anglican College in Taipa.
A rooftop being demolished in the area was discovered to have
been filled with the toxic material.
After receiving multiple complaints from parents, the
Environmental Protection Bureau (DSPA) suspended the unlicensed
demolition works being carried out at a plot of land at Avenida
Padre Tom†s Pereira da Taipa.
The roof sheeting was made of asbestos, which can cause serious
chronic respiratory disease. Inhaled asbestos fibers can
aggravate lung tissue.
Nearly 50 percent of students missed classes due to parents'
concern over the area's air quality. Classes will be suspended.
Parents told the Times that they have kept their children at home
until tests have been carried out to ensure the school's safety.
According to a parent who asked to remain anonymous, the
principal, Robert Alexander, had informed all parents of the
school's request for DSPA to cease demolition works and provide a
date for the safe removal of the harmful material.
"All was fine until the owner removed the sheeting overnight
before the government could attend. Much to our horror as
parents, we were [. . . ] faced with the potential risk of
asbestos contamination," one parent lamented.
"For me, I don't want to put my kids at unnecessary risk [ . . .]
until we don't have a clear idea from the government and the
school on exactly what is happening," another parent said.
In an email to parents dated January 22, Alexander announced that
the school had requested the site owner to refrain from further
works for the rest of the week and during school hours.
In another email dated January 27, he informed the parents that
the removal of asbestos roof sheeting had been suspended on
January 19 and rescheduled for January 27.
On January 26, the DSPA notified the school that the owner had
been informed to stop the removal of the sheeting.
As cited in the email, the school had instructed its cleaning
company to start the pressure cleaning of all open areas, and
that windows and doors had been kept closed.
The school suspended its usual outdoor activities.
However, parents are still dissatisfied with the actions of the
school and the government, believing that the school should have
been closed until completing safety tests, and that the site
owner should be investigated for putting the public in danger.
"I have been told that the government is looking into the site.
Why now and not before [when] they've had all weekend?" said one
parent.
"The items may be long gone and disposed of elsewhere, possibly
contaminating a new area, and if some debris remains then the
risk to our children at school remains. As a parent I want
action and investigation, not business as usual."
The concerned citizen said the government had acted "just a
little too late" in the removal of hazardous waste, stressing
that children had been attending school while unaware of the
hazardous chemical.
The same parent added that the school's winter concerts, Open Day
and football training sessions had also been pushed through
despite the danger.
"The site owner has a lot to answer [for] and this is where the
government and agencies can set an example to others for careless
disregard for safety," the parent said.
Alexander informed the Times last night that the DSPA had
contacted a Hong Kong company to conduct air quality tests.
Testing has begun and the results will be available tomorrow.
"In the meantime, the school has decided to suspend classes for
two days until such time that we receive a report about the air
quality in the school," said the principal.
The school will still post homework for its students through e-
learning platforms so as not to disrupt their learning.
The Education and Youth Affairs Bureau (DSEJ) has provided the
school with air purifiers and anti-pollution masks.
The DSEJ said it was only alerted to the situation and claimed
that it took "temporary measures together with the school."
According to DSEJ head Kong Chi Meng, the school has been ordered
to conduct cleaning procedures over the next two days. Kong
expressed hopes that the school will suspend outdoor activities
until it receives an update on the air quality.
In a phone call to radio show Macao Forum, Kong said that the
bureau had sent engineers to the school.
The DSPA and the Land, Public Works and Transport Bureau also
issued a joint statement that the unlicensed demolition works
have been suspended.
ASBESTOS UPDATE: Asbestos Removal From Pilgrim's Pride Site
-----------------------------------------------------------
Marian Accardi of The Decatur Daily reported that Athens
officials closed on the purchase of the former Pilgrim's Pride
property, and now the city is moving ahead with plans to remove
asbestos at the site.
The Athens City Council tonight authorized Mayor Ronnie Marks to
enter into a contract with Hardiman Remediation, of Ardmore, for
asbestos remediation of the buildings on the property. The
$87,500 for the remediation work will come from the city's
contingency fund.
"They will totally remediate and dispose of (the asbestos),"
Marks said. When the remediation work is completed, "we'll come
back to the council for the demolition" contract, he said.
The purchase price for the nearly 32-acre parcel at Pryor Street
and Sussex Drive was $550,000. The estimated cost of the
Pilgrim's Pride cleanup project, including the land purchase, is
about $1.18 million.
Marks said the city received a quitclaim deed for the property
after the closing.
Marks said he has met with developers that are interested in the
west side of the site "as we progress. I think we have some
opportunities there. Let's get (the site) cleaned up."
Council President Chris Seibert thanked those who have been
involved in the Pilgrim's Pride effort.
"It will make a 50-year impact" on the city, he said.
Marks told council members that plans are to go to the bond
market on Feb. 27 and 28 for funds to pay for projects including
the Pilgrim's Pride project and a new recreation center. The
estimated cost of all the projects will be "in the $20 million
range," Marks said.
The council also set a public hearing for March 12 on a proposed
residential development, called the Links at Canebrake, to the
south of the existing Canebrake subdivision on Lindsay Lane.
ASBESTOS UPDATE: Asbestos Holdup High School Demolition
-------------------------------------------------------
David Kaplan of KULR-TV reported that right now people living in
old Sweet Grass County are facing a hold up when it comes to
tearing down the old county high school.
The building caught fire back in October, in what investigators
called, "human caused".. And now volunteers are working on
demolition...But currently, work is at a stand still.
After decades of use students and teachers moved to a newer
school in 1981.
Mimi Cramer, class of 64', says, "I think many of us had a great
experience. It was depressing to drive by and see the feral cats
and pigeons."
Jami Moody, Committee Member of the Old High School SGHS Project,
says the Department of Environmental Quality is requiring
asbestos testing be done before the building is demolished.
"Right now we're currently trying to do some testing to decide
whether the fire that occurred in October of 2017 changed the
nature of asbestos in the building, Moody says.
"If the whole building is considered asbestos containing material
it probably has increased the cost of this project
exponentially."
She says that cost could come from truck load after truck load of
waste throughout the building being sent to the nearest hazardous
dump site in Billings.
Moody says hopefully the asbestos testing will finish in the next
couple of weeks, but there's no timetable for the rest of the
demolition.
ASBESTOS UPDATE: Attys Paint Alternate Theories in Asbestos Talc
----------------------------------------------------------------
Charles Toutant of Law.com reported that at opening statements in
a Middlesex County court for the second suit linking Johnson &
Johnson's talc products to mesothelioma, the company offered
several alternate theories for the source of the asbestos that
caused the plaintiff's illness.
Stephen Lanzo III, 46, said in his suit that he was a lifelong
user of Johnson's Baby Powder and was diagnosed with the deadly
disease two years ago. His suit said the product is the only
possible source of the asbestos that caused his illness. While
mesothelioma is often associated with shipyard workers or other
industrial jobs, Lanzo is a nonsmoker who never worked in an
occupation that could expose him to asbestos.
But counsel for Johnson & Johnson told jurors that the home in
Montclair where Lanzo grew up received an abatement in 2002 for
basement pipes wrapped in asbestos, and the plaintiff's brother
testified that he would swing from those pipes as a youngster,
which might have dislodged some of the fibers. What's more, the
elementary, middle and high schools Lanzo attended in Montclair
all have undergone multiple rounds of asbestos abatement, said
Robert Brock of Kirkland & Ellis in Washington, who represents
Johnson & Johnson. In addition, Lanzo has lived most of his life
in northern New Jersey, except for a period where he lived in
Northern California, and both those places have a high rate of
natural exposure to asbestos, said Brock.
"There are ample opportunities for exposure to occur for Mr.
Lanzo or for anyone living in those areas," Brock said.
The seven women and two men on the jury will be called upon to
wade through voluminous scientific testimony. Johnson & Johnson
maintains that the company's talc products have never contained
asbestos, while the plaintiff's counsel argues that the talc mine
in Vermont that was a longtime source of the company's Johnson's
Baby Powder was known to contain asbestos since the early 1970s.
Lanzo's lawyer, Moshe Maimon of Levy Konigsberg in New York, said
that when Johnson & Johnson learned its talc contained asbestos,
it tried unsuccessfully to remove it from their powder. The
company also considered making its baby powder from corn starch,
but decided not to, he said. They could have placed a warning
label on its products containing asbestos, but failed to do so,
he said. Instead, they decided to inform the public that the
asbestos in talc was something else, he said.
"The evidence will be that J&J had better choices. They could
have informed the public of what they knew and left the choice to
individuals," said Maimon.
J&J's Brock said Lanzo needed to prove that the company's talc
contained substantial asbestos, that Lanzo was exposed to that
asbestos and that asbestos from the talc caused Lanzo's illness.
"The plaintiffs will not meet his proofs on those issues, Brock
said.
Maimon appeared to be concerned that the trial venue of New
Brunswick is also the headquarters of Johnson & Johnson, which is
an important part of the region's economy. He said it was
important to acknowledge "what this case is not about. It's not
about baby shampoo. It's not about band aids. It's not about
Tylenol. It's not about Robert Wood Johnson Hospital. It's not
about the many fine people that work at J&J. It's about the
actions and decisions of a small group of people at J&J and what
they did."
Brock followed that with a brief history of the company, which
was founded in 1886, then added, "It's just beyond believable
that the good people at J&J would ever sell a product that
contained asbestos," he said.
Johnson & Johnson already has one victory under its belt in
litigation linking the company's talc products to mesothelioma.
The first case, brought by plaintiff Tina Herford, ended in a
defense verdict in November 2017 in Los Angeles Superior Court.
The company has also seen more than 5,000 suits by women who
claimed they developed ovarian cancer from using J&J talc
products for feminine hygiene.
In 2016, plaintiffs obtained three verdicts against the company--
$55 million, $70 million and $72 million--in suits linking talc
to ovarian cancer. In 2017, J&J saw one defense verdict in talc
litigation, and two verdicts for plaintiffs--$110 million and
$417 million. Two of the ovarian cancer verdicts, for $72 million
and $417 million, have been reversed.
ASBESTOS UPDATE: Asbestos Identified at Fiji Police Quarters
------------------------------------------------------------
Simione Haravanua of Fiji Times Online reported that asbestos
containing materials (ACMs) was recently identified at one of the
Fiji Police quarters at Nasova by the National Occupational
Health and Safety (OHS) Service of the Ministry of Employment,
Productivity and Industrial Relations.
The ACMs were identified in the cement board used on the
building's walls and ceilings installed several decades ago.
They currently remain intact and do not pose any immediate risk
to the health and safety of other occupants from surrounding
police quarters.
Plans are underway for the safe removal of Asbestos-containing
material.
The removal will begin once an official asbestos removal control
plan is endorsed by OHS.
ASBESTOS UPDATE: Removal of Asbestos in Albury Sites Begins
-----------------------------------------------------------
Janet Howie of The Border Mail reported that contractors will
start, weather permitting, to eliminate loose-fill asbestos from
the first of four Albury properties known to contain the
dangerous insulation material.
The North Albury house in Stephen Street, bought by the
government under its voluntary purchase and demolition program,
will be covered in airtight plastic before the asbestos is
removed.
Member for Albury Greg Aplin said the process would not bring
safety concerns or risks for neighbours.
"It's entirely controlled, it is fully enclosed in this thick
white plastic encapsulation," he said.
"Then the vacuuming will occur, as experts move into the house
and little by little move from the roof cavity into the wall
linings, into the floor linings.
"Every part has to be demolished inside in order for the loose-
fill to be extracted safely."
Demolitions have already occurred in Holbrook, where 38 houses
have tested positive to loose-fill asbestos.
Mr Aplin said 15 Holbrook landowners would share in $88,000 from
Greater Hume's extra funding assistance announced by the NSW
government more than eight months ago.
All applications were approved in full in this first round of
funding, with $140,000 remaining in the community assistance
package.
"Accountability is all important," Mr Aplin said.
"I have been through the applications with the council's general
manager and some people haven't completed them with the necessary
quotes.
"This needs to be part and parcel of the process, that's all been
done now and ticked off, thank goodness."
Greater Hume mayor Heather Wilton welcomed confirmation of the
successful applications, but, when asked, said it was unfortunate
the process had taken so long.
"It's a government dealing with government, red tape, it can be
difficult but we're here and this announcement is very good and
we are very pleased," she said.
Cr Wilton said the affected residents would be grateful for the
extra support.
"They have been hurting," she said.
"People are moving on, they are either building, they are going
into a rented property or they are purchasing another property
and they will use this money to very good effect."
ASBESTOS UPDATE: Faculty Seek Transparency on Asbestos Exposure
---------------------------------------------------------------
Markets Insider reported that it has been nearly one year since
high-risk asbestos abatement projects in the Medical Sciences
Building (MSB) led to serious asbestos contamination and exposure
to asbestos in the MSB.
On January 31, 2018, at noon,at University CollegeRoom 152, a
broad coalition of employee and student groups, whose members
were impacted by these asbestos abatement breaches will host a
panel to discuss how these failures occurred and what questions
remain outstanding. A lively discussion will take place in
response to the questions: Has the University's senior
administration reported fully enough about what went wrong? Why
aren't members of the U of T community as safe as they could be?
"We still have many unanswered questions about last year's
asbestos abatement project and exposure at U of T, and with
current asbestos abatements ongoing campus-wide our members have
serious concerns," states Pamela Arancibia, Chair of CUPE 3902.
Titled "Asbestos on Campus, One Year Later: What have we learned?
What questions remain?," the panel is jointly co-sponsored by
CUPE 3902, the University of Toronto Faculty Association (UTFA),
USW 1998, CUPE 3261, Arts and Science Students' Union (ASSU),
Association of Part-Time Undergraduate Students (APUS), IBEW 353,
LiUNA 183, the Scarborough Students' Union, and the University of
Toronto Graduate Students' Union.
Guests include:
-- Melisa Bayon, Political Action and Outreach Director,
Ontario Federation of Labour
-- Natasha Luckhardt, Program Development Officer, Workers
Health & Safety Centre
-- Pamela Arancibia, PhD student, University of Toronto, and
Chair, CUPE 3902
-- Pat Brubaker, Professor, University of Toronto, Departments
of Physiology and Medicine
Also, Mark Lai, President, ECOH, UTFA's Advisors on Environmental
Health and Safety, will provide information about Asbestos
Testing Protocols.
The Canadian Union of Public Employees, Local 3902 is a labour
union local representing sessional lecturers, teaching
assistants, postdoctoral fellows and other contract academic
staff at the University of Toronto, Canada.
ASBESTOS UPDATE: Library Opens After Shutdown Due to Asbestos
-------------------------------------------------------------
Nathaly Pesantez of Sunnyside Post reported that the Woodside
Library is set to reopen after shutting down for several weeks
due to emergency floor repairs and exposed asbestos tiles at the
site.
The library at 54-22 Skillman Ave. will open on Feb. 3 from 10
a.m. to 5 p.m. after undergoing work to replace the asbestos
floor tiles under the library's carpeting. The tiles were
inadvertently exposed after the carpet tiles above went through a
cleaning early January.
Air quality tests taken at the library after the tiles were
exposed came back with negative results with respect to asbestos.
The library closed on Jan. 3, however, as a safety precaution.
Repair work began on Jan. 25, according to Queens Library
spokesperson Elisabeth de Bourbon, after the library developed a
time frame and cost estimate for the repairs. The repairs are
expected to take a week to complete, and will be followed by a
precautionary air quality testing, de Bourbon said.
The mobile library bus dispatched to Roosevelt Avenue near the
Woodside Library since Jan. 17 will continue to provide library
service on January 31 and February 2 from 10 a.m. to 5 p.m.
The total cost of the repairs is under $10,000, the Queens
Library said.
ASBESTOS UPDATE: No Asbestos in J&J Talc, Jury Told
---------------------------------------------------
Bill Wichert of Law360 reported that Imerys Talc America Inc. and
its predecessors have not sold asbestos-containing talc to
Johnson & Johnson, an attorney and a corporate representative for
the talc supplier said during a New Jersey state trial over
claims that the pharmaceutical giant's talcum powder products
caused a man to develop mesothelioma.
Testimony began in Stephen Lanzo III's lawsuit against Johnson &
Johnson, Imerys and a related defendant, with one of Lanzo's
attorneys, Joseph Satterley of Kazan McClain Satterley &
Greenwood, questioning Imerys representative Patrick Downey.
ASBESTOS UPDATE: $88K Sent to Homeowners Affected by Asbestos
-------------------------------------------------------------
The Eastern Riverina Chronicle reported that the NSW Government
will deliver $88,000 from its Community Assistance Package for 15
applications from Holbrook homeowners affected by loose-fill
asbestos insulation.
Member for Albury Greg Aplin said 38 homes tested positive across
the Greater Hume Shire. "I visited Holbrook homeowners last year
with Better Regulation Minister Matt Kean and in recognition of
the unique position residents were in, additional financial
support was approved," Mr Aplin said.
"The loose-fill asbestos program provides certainty, safety and
support to NSW communities."
"We are removing this dangerous product from the community, and
doing everything we can to ensure people are not financially
disadvantaged." Mr Aplin said all applications for assistance
were approved in full as part of this first round of funding.
ASBESTOS UPDATE: Ex-Manager Sues Company for Asbestos Lung Cancer
-----------------------------------------------------------------
Lhalie Castillo of Madison -- St. Claire Record reported that a
man formerly employed as a construction manager alleges his lung
cancer was caused by exposure to asbestos while on the job.
Marvin Sickels and Ruby Sickels filed a complaint on Jan. 22 in
the St. Clair County Circuit Court against Ameron International
Corp., Borg-Warner Morse TEC LLC, General Electric Co. alleging
negligence.
According to the complaint, at various times during plaintiff
Marvin Sickels' work as a construction manager from 1955 to 2001,
he was exposed to and inhaled or ingested asbestos fibers
emanating from certain products manufactured, sold, distributed
or installed by defendants. The plaintiffs allege that on or
about Sept. 27, 2017, Marvin Sickels first became aware that he
developed lung cancer, an asbestos-induced disease, and that the
disease was wrongfully caused.
The plaintiffs hold Ameron International Corp., Borg-Warner Morse
TEC LLC, General Electric Co., and others responsible because the
defendants allegedly negligently included asbestos fibers in
their products when adequate substitutes were available and
failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing
asbestos fibers.
The plaintiffs seek compensatory damages of more than $50,000.
They are represented by Randy L. Gori of Gori, Julian &
Associates PC in Edwardsville.
St. Clair County Circuit Court case number 18-L-39
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA.
Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A.
Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche
Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G.
Patalinghug, and Peter A. Chapman, Editors.
Copyright 2018. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Peter A.
Chapman at 215-945-7000.
* * * End of Transmission * * *