/raid1/www/Hosts/bankrupt/CAR_Public/180420.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 20, 2018, Vol. 20, No. 80
Headlines
1A CONTRACTING: Faces "Argueta" Suit in E.D. New York
AD ASTRA: Can Compel Arbitration in "Doyle" FDCPA Suit
ADVANCED MICRO: "Hatamian" Securities Suit Final Judgment Entered
ADVANCED MICRO: $7.4MM Attorneys' Fee Awarded in "Hatamian" Suit
ADVANCED MICRO: Court Approves "Hatamian" Suit Plan of Allocation
ADVANCED MICRO: Court Enters Amended Final Judgment in "Hatamian"
AEGIS SENIOR: Faces Consumer Fraud Class Action in Washington
AIRCRAFT SERVICE: Faces "Carrillo" Suit in N.D. California
AJ BOGGS: Shared Medical Records Info, Class Action Says
ALLERGAN INC: May 30 Derivatives Settlement Fairness Hearing Set
AMERICAN AIRLINES: Court Certifies Class in "Ferreras" FLSA Suit
AMERICAN DG: Court Narrows Claims in "Vardakas" Securities Suit
AMERICAN PIPE: Reed Smith Attorney Discusses Tolling Issue
ARCH COAL: Stiffs Workers for Overtime, Class Action Claims
BANCONE LLC: Faces "Aucacama" Suit in S.D. New York
BLENDTEC: Faces "Callegari" Suit in D. Utah
BLUE BUFFALO: Investors Sue Over $8-Bil. Merger
BLUE LIGHT: Court Narrows Claims in "Knutson" TCPA Suit
BMW: Siskinds LLP Files Class Action Over Emissions
BROOKDALE SENIOR: Two Residents Join ADA Class Action
CABLE TECHNOLOGY: Sued Over Failure to Properly Pay Employees
CALIFORNIA TANK: Faces "Garcia" Suit in Cal. Superior Court
CANNAVEST CORP: Must Face Securities Class Action
CAPITAL ONE: Charges Bank Fees on its Own ATMs, Class Action Says
CEMEX SAB: May 15 Class Action Lead Plaintiff Motion Deadline Set
CERTIFIED CREDIT: Faces "Mushaeva" Suit in E.D. Pennsylvania
CHINA GARDEN: Faces "Lin" Suit in E.D. New York
CITIZENS FOR RAUNER: Faces Class Action Over Unlawful Robocalls
COCO LIN INC: Faces "Wang" Suit in E.D. New York
COGENTIX MEDICAL: Faces "Franchi" Suit Over Laborie Merger Plans
COINCHECK: Faces Another Class Action Over Crypto Exchange Hack
COLONY NORTHSTAR: Sued in Cal. Over Misleading Financial Reports
COLORADO: Court Recommends Denial of "Sutton" Class Certification
CONNECTICUT: April 23 Evidentiary Hearing in IDEA Suit
CORIZON HEALTH: "Stafford" Class of Prisoners with HCV Certified
CRUISIN CHUBBYS: Court Certifies "Jones" Class of Exotic Dancers
CUSTARD INSURANCE: Faces "Wadler" Suit in California Super. Ct.
DCN AUTOMOTIVE: Panel Tosses Class Action Over Fraud Claims
DESTINATION XL: Faces "Olsen" Suit in E.D. New York
DEVILLE ASSET: Faces "Heard" Suit in N.D. Texas
DONALD TRUMP: Judge Signs Off on $25 Million Settlement
DOUBLE DOWN: Faces "Benson" Class Suit Over Illegal Casino Games
DRIFTWOOD HOSPITALITY: Faces "Colburn" Suit in Maryland Ct.
ELSA LA REINA: Faces "Santos" Suit in New Jersey
EMBRAER SA: Judge Tosses FCPA-Related Class Action
ENHANCED RECOVERY: Faces "Sharon" Suit in E.D. New York
FACEBOOK INC: Faces Class Action in N.Y. Over Cambridge Analytica
FACEBOOK INC: Urged to Reconsider Harvesting of Facial Data
FIRST PENN-PACIFIC: Faces "Iwanski" Suit in E.D. Pennsylvania
FOODLINER INC: Must Produce Contact Info of "Austin" Class
FRIENDLUM INC: Court Denies Bid to Stay "Sandoval" TCPA Suit
GEORGIA: Magistrate Recommends Dismissal of "Myers"
GETTY IMAGES: Court Narrows Claims in "Passelaigue"
GIRARD, OH: Miles Black Files Class Action
GOLDMAN SACHS: Judge Certifies Gender Discrimination Class Action
GRJH INC: Court Won't Revoke Rule 68 Offer in "Labarca"
HALIFAX HEALTH: Court Narrows Claims in MSPA Suit
HAUTE RESTAURANT: Faces "Acoff" Suit in E.D. Pennsylvania
HCP INC: Court Denies Bid for Particularized Discovery
HEALTHCARE REVENUE: Faces "Mushaeva" Suit in E.D. Pennsylvania
HOMETOWN RESTORATION: Sued in New York Over Failure to Pay OT
HOT TOPIC: Faces "Soukhaphonh" Suit in S.D. New York
HUMMUS & PITA: Faces "Olsen" Suit in S.D. New York
HUNT'S POINT: Court Denies Class Certification Bid in "Sanchez"
ILLUSIONS INC: Court Won't Set Aside Default Judgment in "Brooks"
IMPAX LABS: Final Judgment in Family Medicine Suit Entered
INMOTION ENTERTAINMENT: Faces "Henry" Suit in Cal. Super Ct.
INTEL CORP: Asian Woman Files Lawsuit Over Pay Disparity
JPMORGAN CHASE: Court Grants Final OK of $1.5MM Class Settlement
KAISER FOUNDATION: Court Narrows Claims in "Adan" Suit
KIND LLC: Non-GMO Claim Stayed Until Aug. 15
KINDRED HEALTHCARE: Filing Due of "Cashon" Settlement Bid
KINDRED HEALTHCARE: April 19 "Cashon" Deal Approval Hearing
KORYODANG BAKERY: "Alvarado" Suit Seeks to Recover Unpaid Wages
KRISPY KREME: Faces "Agajanyan" Over Product Misrepresentation
LA TORTILLA: Faces "McAllister" Suit in California Superior Ct.
LIBERTY MUTUAL: Settlement in "Moyle" Has Final Approval
LITTLE SAIGON CUISINE: Faces "Liu" Suit in E.D. New York
LONGFIN CORP: Investigates Potential Securities Class Action
MACARONI JOES: Doesn't Properly Pay Employees, "Bailey" Suit Says
MASTEC NETWORK: Faces "Zepeda" Suit in C.D. California
MCDONALD'S: Judge Dismisses Calss "Extra Value Meal" Action
MDL 2516: $54MM Indirect Purchasers Deal Has Preliminary Approval
MDL 2804: Dunbar Votes to Join Class Action Over Opioid Crisis
MEDICAL REIMBURSEMENTS: Wins Partial Summary Judgment in "Hoops"
MEDTRONIC INC: Wins Partial Summary Judgment in Securities Suit
MICHAEL P. MORTON: Faces "Ortez" Suit in D. Delaware
MICHIGAN: "Hill" Suit Brought Before 6th Cir.
MJ CHRISTENSEN: Court Certifies Class, Subclass in "Fisher" Suit
MONTANA: June 8 Final OK Hearing on Prison Conditions Suit Deal
MULLEN & IANNARONE: Faces "Moreo" Suit in E.D. New York
NATIONAL RECOVERY: Court Reluctantly Certifies Class in "O'Dell"
NEW JERSEY: Courts Sued for Putting Off Trials in Older Cases
NORTH CAROLINA: N.C. Reverses Dismissal of Abrons Suit
NUDIE JEANS: Faces "Fischler" Suit in E.D. New York
OVERSTOCK.COM INC: Says Stockholders' Class Action "Frivolous"
PATTERSON COS: May 29 Lead Plaintiff Motion Deadline Set
PAUL M. ZAGARIS INC: Summary Judgment in Hanover Suit Affirmed
PORTFOLIO RECOVERY: Faces "Bishop" Suit in E.D. New York
PREMTECH LLC: Has Sent Unsolicited Messages, "Barnett" Suit Says
PROCTER & GAMBLE: Loses Bid to Dismiss DACA Discrimination Suit
SAKS INC: Faces "Sacklow" Suit in M.D. Tennessee
SAMSUNG ELECTRONICS: Judge Tosses Overheating Phones Class Action
SAMSUNG ELECTRONICS: Sued Over Galaxy Covers
SANTA BARBARA COUNTY, CA: Protective Order Issued in "Murray"
SANTANDER BANK: Bid to Dismiss 2nd Amended "Sanchez" Suit Denied
SAS INSTITUTE: Ct. Narrows Claims in "Cahoo" Tort Negligence Suit
SEARS ROEBUCK: Ct. Partly Allows 579 Late Claims in Washer Suit
SUSHI AI: Servers File Class Action Over Tip-Sharing Policy
SOUTHWEST AIRLINES: Court Dismisses "Doyle" Class Claims
SPENCER GIFTS: "Chapel" Class Suit Removed to N.D. New York
STAPLES GROUP: Faces "Zybtsev" Suit in E.D. New York
STEAK N SHAKE: Ct. Denies Bid to Depose of "Drake" Class Members
STOP & SHOP: Faces "Louis" Suit in E.D. New York
SUNRISE SENIOR: Reply Date to 1st Amended "Heredia" Extended
QUEST TRANSPORTATION: Faces "Young" Suit in E.D. Arkansas
TIGER BRANDS: First Court Date Expected in Next Three Months
TODISCO SERVICES: Pierce Atwood Attorney Discusses Court Ruling
TOKAI PHARMA: April 20 Lead Plaintiff Bid Filing Deadline
TOTAL CARD: Faces "Clements" Suit in N.D. Alabama
TRUECAR INC: Kaplan Fox Files Securities Class Action in Calif.
UNITED STATES: May Appeal Illegal Immigrant Minors' Abortion Case
UNITED STATES: Veteran to Pursue Honorable Discharge Class Action
UNITED STATES: Judge Allows Men to Challenge Male-Only Draft
UNIVERSAL TAX: Averts Class Action Over Software Glitches
UNIVERSITY HOSPITALS: 117 Suits Filed Over Clinic Malfunction
WALMART: Retailers Face Class Action from Accused Shoplifters
WEST COAST: Shippers Face Gender Discrimination Complaint
WILSHIRE COMMERCIAL: Bid to Deny "Freeman" Class Cert. Premature
WILSHIRE COMMERCIAL: Court Stays "Freeman" Pending "Resh" Ruling
ZIMMERMANN (USA): Faces "Fischler" Suit in S.D. New York
ZULILY INC: Court Enters Final Judgment in Securities Suit
Asbestos Litigation
ASBESTOS UPDATE: Ingersoll-Rand Still Faces Claims at Dec. 31
ASBESTOS UPDATE: Ingersoll-Rand Has $605M Liabilities at Dec.31
ASBESTOS UPDATE: Diamond Offshore Still Defends Suits at Dec. 31
ASBESTOS UPDATE: Owens-Illinois Defends 1,330 Claims at Dec. 31
ASBESTOS UPDATE: Ct. Won't Strike Expert Reports in "MacQueen"
ASBESTOS UPDATE: Zurich to Pay Polar-Mohr Settlement in "Huwe"
ASBESTOS UPDATE: Humana ERISA Claims Not Subject to Dismissal
ASBESTOS UPDATE: Union Pacific Must Produce Docs in "Fitzpatrick"
ASBESTOS UPDATE: 5th Cir. Affirms Remand of "Legendre"
ASBESTOS UPDATE: Lead Attys Must Show Cause for Non-Appearance
ASBESTOS UPDATE: Claims vs. Warren Pumps Dismissed in "Johnson"
ASBESTOS UPDATE: Superior Court to Set Trial in "Fox"
ASBESTOS UPDATE: Claims vs. Buffalo Pumps Dismissed in "Airey"
ASBESTOS UPDATE: Plaintiffs to Pay Expenses of Weyerhaeuser Atty
ASBESTOS UPDATE: Modification of NYCAL CMO Affirmed
ASBESTOS UPDATE: Honeywell Joinder Stricken from "Doolin"
ASBESTOS UPDATE: Summary Judgment in Favor of Conrail Affirmed
ASBESTOS UPDATE: No Asbestos Risks After Glasgow Nightclub Fire
ASBESTOS UPDATE: Vintage Maserati Denied Entry Over Asbestos Test
ASBESTOS UPDATE: Asbestos in Istanbul Bldgs Risk Lives
ASBESTOS UPDATE: ADAO Applauds Senate for Passing 14th Resolution
ASBESTOS UPDATE: Asbestos Stops Otis Hotel Renovation Works
ASBESTOS UPDATE: Grand Island Exec Gets Probation Over Asbestos
ASBESTOS UPDATE: Asbestos Warning Raised in Woodley Schools
ASBESTOS UPDATE: Suit vs. Shipyard Co. Remanded to State Court
ASBESTOS UPDATE: ACI Conference to Explore Disease Claims
ASBESTOS UPDATE: Directors Facing Sentence Over Asbestos Disposal
ASBESTOS UPDATE: Burnley Man Dies Following Asbestos Exposure
ASBESTOS UPDATE: Pestello Couple Sues Honeywell, et al.
ASBESTOS UPDATE: NSW Gov't to Spend $10MM on Asbestos Clean-Up
ASBESTOS UPDATE: Asbestos Filings Fell in 2017, KCIC Report Says
ASBESTOS UPDATE: Salem Co. Fined $340K for Asbestos Violations
ASBESTOS UPDATE: New Asbestos Rules Survive Defense Challenge
ASBESTOS UPDATE: Asbestos Found in Southland Beach
ASBESTOS UPDATE: Asbestos Discovered at Wangaratta Fire Station
ASBESTOS UPDATE: 44,000-Tonnes Asbestos Dumping Probed
ASBESTOS UPDATE: Insurers Prevail Over Ex-Asbestos Distributor
ASBESTOS UPDATE: Proposed Bill Creates More Requirements
ASBESTOS UPDATE: OH High Ct. to Weigh on Cumulative Exposure
ASBESTOS UPDATE: Asbestos in Makeup Reignites Fears
ASBESTOS UPDATE: City Employees Fears Asbestos in Buildings
ASBESTOS UPDATE: Dutch Inspector Finds Asbestos in Claire's
ASBESTOS UPDATE: Iselin's School 18 Closed Again Due to Asbestos
ASBESTOS UPDATE: Jury Clears Ameron in Asbestos Cancer Death
ASBESTOS UPDATE: Asbestos Co. Fails to Dodge Mesothelioma Trial
ASBESTOS UPDATE: Unlicensed Colorado Contractor Under Probe
ASBESTOS UPDATE: New Jersey School Closed Due to Asbestos
ASBESTOS UPDATE: Special Oxford School to Close Over Asbestos
ASBESTOS UPDATE: Mass. Asbestos Removal Co. Owes Union $700K
ASBESTOS UPDATE: Worker Dies After Years of Asbestos Exposure
ASBESTOS UPDATE: Millport's DA Hall Closes After Asbestos Find
*********
1A CONTRACTING: Faces "Argueta" Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against 1A Contracting Inc.
The case is styled as Jose Argueta, individually and on behalf of
all other persons similarly situated who were employed by 1A
CONTRACTING, INC., and any other entities affiliated with,
controlling, or controlled by 1A CONTRACTING, INC., Plaintiff v.
1A Contracting Inc. and any other entities affiliated with,
controlling, or controlled by 1A CONTRACTING, INC. and David
Doerbecker, individually, Defendants, Case No. 1:18-cv-02155 (E.D.
N.Y., April 11, 2018).
1A Contracting is a Residential/Commercial Construction company
that specializes in Home Remodeling, Repairs and Installations.
[BN]
The Plaintiff appears PRO SE.
AD ASTRA: Can Compel Arbitration in "Doyle" FDCPA Suit
------------------------------------------------------
In the case, MEGHAN DOYLE, ON BEHALF OF HERSELF AND ALL OTHERS
SIMILARLY SITUATED, Plaintiff, v. AD ASTRA RECOVERY SERVICES,
INC., Defendant, Case No. 1:17-cv-05233-NLH-AMD (D. N.J.), Judge
Noel L. Hillman of the U.S. District Court for the District of New
Jersey granted the Defendant's motion to compel arbitration of the
Plaintiff's claims.
On Nov. 10, 2015, Plaintiff Doyle, and Rapid Cash entered into an
agreement for an unsecured high interest1 installment loan for
$1,500 that was assigned account number ****899. Her obligation
was sent into default, and after Rapid Cash had exhausted its
internal collection efforts, her obligation was referred to an
outside collection agency, Defendant, Ad Astra Recovery Services,
Inc., to undertake collection efforts.
On March 17, 2017, the Plaintiff sent a letter to Ad Astra
disputing the debt. Her letter referenced account number ****899
and asked for a breakdown of the balance allegedly owed by her.
The Plaintiff maintains that because Ad Astra has failed to report
the debt as disputed, Ad Astra has violated various provisions of
the Fair Debt Collection Practices Act ("FDCPA").
Plaintiff has filed a putative class action complaint against Ad
Astra seeking damages, as well as declaratory and injunctive
relief, arising from its alleged FDCPA violation, which prohibits
debt collectors from engaging in abusive, deceptive and unfair
practices. More specifically, she alleges that Ad Astra violated
Secs. 1692e(8) and 1692e(10) of the FDCPA by communicating or
threatening to communicate to any person credit information which
is known or which should be known to be false, including the
failure to communicate that a debt is disputed, and using false,
deceptive or misleading representations or means in connection
with its collection efforts.
Ad Astra has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
and to compel arbitration pursuant to the "Rapid Cash Unsecured
High Interest Installment Loan Agreement and Disclosure
Statement." The Plaintiff has opposed Ad Astra's motion, arguing
that the motion should be denied because the agreement does not
apply to the Plaintiff's FDCPA claims. The Plaintiff's argument
is premised on assigned "special meanings" and specific
definitions stated in the agreement, as well as language in the
arbitration and class action waivers that she contends is
conflicting. Plaintiff also argues that the entire agreement is
invalid and unenforceable.
Judge Hillman holds that the agreement clearly intends, and fully
explains to the borrower, that any claims that arise from the
agreement against Rapid Cash or its related party Ad Astra can be
subject to arbitration. The enforcement of the arbitration
provision does not eliminate the Plaintiff's FDCPA claim against
Ad Astra -- it simply changes the forum for its resolution and
prevents her from pursuing a class action.
He says the Plaintiff had options if she wished to preserve a
potential FDCPA class action that could arise from the type of
loan she took out with Rapid Cash. She could have found a lender
whose agreement did not contain similar language as Rapid Cash's,
or she could have followed the procedures to reject the
arbitration provision. Because the Plaintiff chose neither of
those options, she is bound by the terms of the agreement,
including the requirement to arbitrate her claims against Ad
Astra. Consequently, the Plaintiff's complaint must be dismissed
in favor of arbitration.
A full-text copy of the Court's March 6, 2018 Opinion is available
at https://is.gd/YPaBpP from Leagle.com.
MEGHAN DOYLE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by BENJAMIN JARRET WOLF, Jones,
Wolf & Kapasi, LLC & JOSEPH K. JONES, Jones, Wolf & Kapasi, LLC.
AD ASTRA RECOVERY SERVICES, INC., Defendant, represented by
MICHAEL I. METZ-TOPODAS -- mmetz-topodas@cohenseglias.com -- COHEN
SEGLIAS PALLAS GREENHALL & FURMAN PC & GARY JOHN REPKE, JR. --
grepke@cohenseglias.com -- COHEN SEGLIAS PALLAS GREENHALL & FURMAN
PC.
ADVANCED MICRO: "Hatamian" Securities Suit Final Judgment Entered
-----------------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California, Oakland Division, entered final
judgment the case, BABAK HATAMIAN and LUSSA DENNJ SALVATORE,
individually and on behalf of all others similarly situated,
Plaintiffs, v. ADVANCED MICRO DEVICES, INC., RORY P. READ, THOMAS
J. SEIFERT, RICHARD A. BERGMAN, AND LISA T. SU, Defendants, Case
No. 4:14-cv-00226-YGR (N.D. Cal.).
By Order entered March 16, 2016, the Court certified a Class of
all persons and entities that, during the period from April 4,
2011 through October 18, 2012, inclusive, purchased or otherwise
acquired shares of the publicly traded common stock of AMD.
As of Oct. 9, 2017, Class Representatives Arkansas Teacher
Retirement System and KBC Asset Management NV, on behalf of
themselves and each of the members of the certified Class, on the
one hand, and the Defendants, on the other hand, entered into a
Stipulation and Agreement of Settlement in the Action.
Pursuant to the Preliminary Approval Order, the Court scheduled a
hearing for Feb. 27, 2018, at 2:00 p.m. Also pursuant to the
Preliminary Approval Order, the Court ordered that the Notice of
Proposed Class Action Settlement and Motion for Attorneys' Fees
and Expenses and a Proof of Claim and Release form, be mailed by
first-class mail, postage prepaid, on or before 10 business days
after the date of entry of the Preliminary Approval Order to all
potential Class Members who could be identified through reasonable
effort; and that a Summary Notice of Proposed Class Action
Settlement and Motion for Attorneys' Fees and Expenses be
published in Investor's Business Daily and transmitted over PR
Newswire within 14 calendar days of the Notice Date.
The Settlement Notice and the Summary Notice advised potential
Class Members of the date, time, place, and purpose of the
Settlement Hearing. It further advised that any objections to the
Settlement were required to be filed with the Court and served on
counsel for the Parties such that they were postmarked by Feb. 6,
2018, that new requests for exclusion from the Class were to be
postmarked by Feb. 6, 2018, and that any requests to opt-back into
the Class were to be postmarked by Feb. 6, 2018.
On Jan. 23, 2018, the Class Representatives moved for final
approval of the Settlement, as set forth in the Preliminary
Approval Order. The Settlement Hearing was duly held before the
Court on Feb. 27, 2018.
Judge Rogers has duly considered the Class Representatives'
motion, the affidavits, declarations, memoranda of law submitted
in support thereof, the Stipulation, and all of the submissions
and arguments presented with respect to the proposed Settlement.
She entered the Final Order and Judgment and incorporated and made
a part thereof: (i) the Stipulation filed with the Court on Oct.
9, 2017; and (ii) the Settlement Notice, which was filed with the
Court on Jan. 23, 2018.
Without further order of the Court, the Judge says the Parties may
agree to reasonable extensions of time to carry out any of the
provisions of the Stipulation. She directed the Parties to
consummate the Stipulation and to perform its terms. A separate
order will be entered regarding the Class Counsel's motion for an
award of attorneys' fees and payment of expenses. A separate
order will be entered regarding the Plan of Allocation set forth
in the Notice. Such orders will in no way disturb or affect this
Judgment and will be considered separate from the Judgment.
There is no just reason for delay in the entry of the Judgment and
immediate entry by the Clerk of the Court is expressly directed.
A full-text copy of the Court's March 2, 2018 Final Order and
Judgment is available at https://is.gd/ZXoxGP from Leagle.com.
Babak Hatamian & Lussu Dennj Salvatore, Plaintiffs, represented by
Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser
Heimann & Bernstein, LLP & Sharon Maine Lee -- slee@lchb.com --
Lieff Cabraser Heimann Bernstein.
Advanced Micro Devices, Inc., Rory P. Read, Thomas J. Seifert,
Lisa T. Su & Richard A. Bergman, Defendants, represented by
Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP --
Jason C. Hegt, Esq. -- jason.hegt@lw.com -- Matthew Rawlinson,
Esq. -- matt.rawlinson@lw.com -- and -- Melanie Marilyn Blunschi,
Esq. -- melante.blunschi@lw.com -- LATHAM & WATKINS LLP.
KBC Asset Management NV, Movant, represented by Carol C. Villegas
-- cvillegas@labaton.com -- Labaton Sucharow LLP, Michael J
Pendell -- mpendell@motleyrice.com -- Motley Rice LLC, Sharon
Maine Lee -- slee@lchb.com -- Lieff Cabraser Heimann Bernstein,
William S. Norton -- bnorton@motleyrice.com -- Motley Rice LLC,
James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC,
Joy Ann Kruse -- jkruse@lchb.com -- Lieff Cabraser Heimann &
Bernstein, LLP, Katherine Collinge Lubin, Lieff Cabraser Heimann &
Bernstein, LLP, Max Nikolaus Gruetzmacher --
mgruetzmacher@motleyrice.com -- Motley Rice LLC, Meredith B.
Miller -- mbmiller@motleyrice.com -- Motley Rice LLC, William H.
Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC & Jonathan
Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP.
Oklahoma Firefighters Pension and Retirement System, Movant,
represented by Michael M. Goldberg, Goldberg Law PC.
Arkansas Teacher Retirement System, Movant, represented by Alec T
Coquin -- acoquin@labaton.com -- Labaton Sucharow LLP, Carol C.
Villegas, Labaton Sucharow LLP, Jonathan Gardner, Labaton Sucharow
LLP, Paul J Scarlato, Labaton Sucharow LLP, Sharon Maine Lee,
Lieff Cabraser Heimann Bernstein, Yah E. Demann --
ydemann@labaton.com -- Labaton Sucharow LLP, Katherine Collinge
Lubin, Lieff Cabraser Heimann & Bernstein, LLP, Nicole Catherine
Lavallee -- nlavallee@bermandevalerio.com -- Berman DeValerio &
William S. Norton, Motley Rice LLC.
Christopher Hamilton & David Hamilton, Movants, represented by
Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert
Jonckheer & Kolbe LLP.
Jake Ha, Movant, Jake Ha, Movant, represented by Avraham Noam
Wagner -- avi@thewagnerfirm.com -- The Wagner Firm & Kara M Wolke
-- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP.
ADVANCED MICRO: $7.4MM Attorneys' Fee Awarded in "Hatamian" Suit
----------------------------------------------------------------
In the case, BABAK HATAMIAN and LUSSA DENNJ SALVATORE,
individually and on behalf of all others similarly situated,
Plaintiffs, v. ADVANCED MICRO DEVICES, INC., RORY P. READ, THOMAS
J. SEIFERT, RICHARD A. BERGMAN, AND LISA T. SU, Defendants, Case
No. 4:14-cv-00226-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of
the U.S. District Court for the Northern District of California,
Oakland Division, granted the award of attorneys' fees and
expenses requested.
On Feb. 27, 2018, a hearing was held before the Court to
determine, among other things, whether and in what amount to award
(1) the Plaintiffs' counsel in the consolidated securities class
action fees and litigation expenses directly relating to their
representation of the Class; and (2) the Class Representatives
their costs and expenses (including lost wages), pursuant to the
Private Securities Litigation Reform Act of 1995 ("PSLRA").
Having considered all matters submitted to her at the hearing and
otherwise, Judge Rogers awarded the class Counsel, on behalf of
all of the Plaintiffs' counsel, attorneys' fees in the amount of
$7,375,000 plus interest at the same rate earned by the Settlement
Fund (or 25% of the Settlement Fund, which includes interest
earned thereon), and payment of litigation expenses in the amount
of $2,812,817.52. The award of attorneys' fees and litigation
expenses may be paid to the Class Counsel from the Settlement Fund
immediately upon entry of the Order, subject to the terms,
conditions, and obligations of the Stipulation.
In accordance with the PSLRA, the Judge awarded the Class
Representative Arkansas Teacher Retirement System $8,348.25 for
its costs and expenses directly related to its representation of
the Class, and KBC Asset Management NV $14,875 for its costs and
expenses directly related to its representation of the Class. Any
appeal or challenge affecting the Court's approval of any
attorneys' fee, expense application, or award of costs and
expenses to the Class Representatives in the Action will in no way
disturb or affect the finality of the Judgment entered with
respect to the Settlement.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/Jx5zbY from Leagle.com.
Babak Hatamian & Lussu Dennj Salvatore, Plaintiffs, represented by
Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser
Heimann & Bernstein, LLP & Sharon Maine Lee -- slee@lchb.com --
Lieff Cabraser Heimann Bernstein.
Advanced Micro Devices, Inc., Rory P. Read, Thomas J. Seifert,
Lisa T. Su & Richard A. Bergman, Defendants, represented by
Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP --
Jason C. Hegt, Esq. -- jason.hegt@lw.com -- Matthew Rawlinson,
Esq. -- matt.rawlinson@lw.com -- and -- Melanie Marilyn Blunschi,
Esq. -- melante.blunschi@lw.com -- LATHAM & WATKINS LLP.
KBC Asset Management NV, Movant, represented by Carol C. Villegas
-- cvillegas@labaton.com -- Labaton Sucharow LLP, Michael J
Pendell -- mpendell@motleyrice.com -- Motley Rice LLC, Sharon
Maine Lee -- slee@lchb.com -- Lieff Cabraser Heimann Bernstein,
William S. Norton -- bnorton@motleyrice.com -- Motley Rice LLC,
James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC,
Joy Ann Kruse -- jkruse@lchb.com -- Lieff Cabraser Heimann &
Bernstein, LLP, Katherine Collinge Lubin, Lieff Cabraser Heimann &
Bernstein, LLP, Max Nikolaus Gruetzmacher --
mgruetzmacher@motleyrice.com -- Motley Rice LLC, Meredith B.
Miller -- mbmiller@motleyrice.com -- Motley Rice LLC, William H.
Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC & Jonathan
Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP.
Oklahoma Firefighters Pension and Retirement System, Movant,
represented by Michael M. Goldberg, Goldberg Law PC.
Arkansas Teacher Retirement System, Movant, represented by Alec T
Coquin -- acoquin@labaton.com -- Labaton Sucharow LLP, Carol C.
Villegas, Labaton Sucharow LLP, Jonathan Gardner, Labaton Sucharow
LLP, Paul J Scarlato, Labaton Sucharow LLP, Sharon Maine Lee,
Lieff Cabraser Heimann Bernstein, Yah E. Demann --
ydemann@labaton.com -- Labaton Sucharow LLP, Katherine Collinge
Lubin, Lieff Cabraser Heimann & Bernstein, LLP, Nicole Catherine
Lavallee -- nlavallee@bermandevalerio.com -- Berman DeValerio &
William S. Norton, Motley Rice LLC.
Christopher Hamilton & David Hamilton, Movants, represented by
Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert
Jonckheer & Kolbe LLP.
Jake Ha, Movant, Jake Ha, Movant, represented by Avraham Noam
Wagner -- avi@thewagnerfirm.com -- The Wagner Firm & Kara M Wolke
-- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP.
ADVANCED MICRO: Court Approves "Hatamian" Suit Plan of Allocation
-----------------------------------------------------------------
In the case, BABAK HATAMIAN and LUSSA DENNJ SALVATORE,
individually and on behalf of all others similarly situated,
Plaintiffs, v. ADVANCED MICRO DEVICES, INC., RORY P. READ, THOMAS
J. SEIFERT, RICHARD A. BERGMAN, AND LISA T. SU, Defendants, Case
No. 4:14-cv-00226-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of
the U.S. District Court for the Northern District of California,
Oakland Division, granted the motion of the Class Representatives
Arkansas Teacher Retirement System and KBC Asset Management NV, on
behalf of themselves and the Class, for final approval of the
proposed class action Settlement and approval of the proposed Plan
of Allocation
Judge Rogers' Order incorporates by reference the definitions in
the Stipulation and Agreement of Settlement, dated as of Oct. 9,
2017. There were no objections to the proposed Plan of
Allocation. She finds and concludes that the Plan of Allocation
is, in all respects, fair and reasonable.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/mQfVsF from Leagle.com.
Babak Hatamian & Lussu Dennj Salvatore, Plaintiffs, represented by
Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser
Heimann & Bernstein, LLP & Sharon Maine Lee -- slee@lchb.com --
Lieff Cabraser Heimann Bernstein.
Advanced Micro Devices, Inc., Rory P. Read, Thomas J. Seifert,
Lisa T. Su & Richard A. Bergman, Defendants, represented by
Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP --
Jason C. Hegt, Esq. -- jason.hegt@lw.com -- Matthew Rawlinson,
Esq. -- matt.rawlinson@lw.com -- and -- Melanie Marilyn Blunschi,
Esq. -- melante.blunschi@lw.com -- LATHAM & WATKINS LLP.
KBC Asset Management NV, Movant, represented by Carol C. Villegas
-- cvillegas@labaton.com -- Labaton Sucharow LLP, Michael J
Pendell -- mpendell@motleyrice.com -- Motley Rice LLC, Sharon
Maine Lee -- slee@lchb.com -- Lieff Cabraser Heimann Bernstein,
William S. Norton -- bnorton@motleyrice.com -- Motley Rice LLC,
James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC,
Joy Ann Kruse -- jkruse@lchb.com -- Lieff Cabraser Heimann &
Bernstein, LLP, Katherine Collinge Lubin, Lieff Cabraser Heimann &
Bernstein, LLP, Max Nikolaus Gruetzmacher --
mgruetzmacher@motleyrice.com -- Motley Rice LLC, Meredith B.
Miller -- mbmiller@motleyrice.com -- Motley Rice LLC, William H.
Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC & Jonathan
Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP.
Oklahoma Firefighters Pension and Retirement System, Movant,
represented by Michael M. Goldberg, Goldberg Law PC.
Arkansas Teacher Retirement System, Movant, represented by Alec T
Coquin -- acoquin@labaton.com -- Labaton Sucharow LLP, Carol C.
Villegas, Labaton Sucharow LLP, Jonathan Gardner, Labaton Sucharow
LLP, Paul J Scarlato, Labaton Sucharow LLP, Sharon Maine Lee,
Lieff Cabraser Heimann Bernstein, Yah E. Demann --
ydemann@labaton.com -- Labaton Sucharow LLP, Katherine Collinge
Lubin, Lieff Cabraser Heimann & Bernstein, LLP, Nicole Catherine
Lavallee -- nlavallee@bermandevalerio.com -- Berman DeValerio &
William S. Norton, Motley Rice LLC.
Christopher Hamilton & David Hamilton, Movants, represented by
Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert
Jonckheer & Kolbe LLP.
Jake Ha, Movant, Jake Ha, Movant, represented by Avraham Noam
Wagner -- avi@thewagnerfirm.com -- The Wagner Firm & Kara M Wolke
-- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP.
ADVANCED MICRO: Court Enters Amended Final Judgment in "Hatamian"
-----------------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California, Oakland Division, entered an
amended final order and judgment in the case, BABAK HATAMIAN and
LUSSA DENNJ SALVATORE, individually and on behalf of all others
similarly situated, Plaintiffs, v. ADVANCED MICRO DEVICES, INC.,
RORY P. READ, THOMAS J. SEIFERT, RICHARD A. BERGMAN, AND LISA T.
SU, Defendants, Case No. 4:14-cv-00226-YGR (N.D. Cal.).
By Order entered March 16, 2016, the Court certified a Class of
all persons and entities that, during the period from April 4,
2011 through October 18, 2012, inclusive, purchased or otherwise
acquired shares of the publicly traded common stock of AMD.
As of Oct. 9, 2017, Class Representatives Arkansas Teacher
Retirement System and KBC Asset Management NV, on behalf of
themselves and each of the members of the certified Class, on the
one hand, and the Defendants, on the other hand, entered into a
Stipulation and Agreement of Settlement in the Action.
Pursuant to the Preliminary Approval Order, the Court scheduled a
hearing for Feb. 27, 2018, at 2:00 p.m. Also pursuant to the
Preliminary Approval Order, the Court ordered that the Notice of
Proposed Class Action Settlement and Motion for Attorneys' Fees
and Expenses and a Proof of Claim and Release form, be mailed by
first-class mail, postage prepaid, on or before 10 business days
after the date of entry of the Preliminary Approval Order to all
potential Class Members who could be identified through reasonable
effort; and that a Summary Notice of Proposed Class Action
Settlement and Motion for Attorneys' Fees and Expenses be
published in Investor's Business Daily and transmitted over PR
Newswire within 14 calendar days of the Notice Date.
The Settlement Notice and the Summary Notice advised potential
Class Members of the date, time, place, and purpose of the
Settlement Hearing. It further advised that any objections to the
Settlement were required to be filed with the Court and served on
counsel for the Parties such that they were postmarked by Feb. 6,
2018, that new requests for exclusion from the Class were to be
postmarked by Feb. 6, 2018, and that any requests to opt-back into
the Class were to be postmarked by Feb. 6, 2018.
On Jan. 23, 2018, the Class Representatives moved for final
approval of the Settlement, as set forth in the Preliminary
Approval Order. The Settlement Hearing was duly held before the
Court on Feb. 27, 2018.
Judge Rogers has duly considered the Class Representatives'
motion, the affidavits, declarations, memoranda of law submitted
in support thereof, the Stipulation, and all of the submissions
and arguments presented with respect to the proposed Settlement.
She entered the Final Order and Judgment and incorporated and made
a part thereof: (i) the Stipulation filed with the Court on Oct.
9, 2017; and (ii) the Settlement Notice, which was filed with the
Court on Jan. 23, 2018. She dismissed in its entirety, with
prejudice, and without costs to any Party, except as otherwise
provided in the Stipulation, the Corrected Amended Class Action
Complaint for Violations of the Federal Securities Laws filed on
June 11, 2014.
Without further order of the Court, the Judge says the Parties may
agree to reasonable extensions of time to carry out any of the
provisions of the Stipulation. She directed the Parties to
consummate the Stipulation and to perform its terms. A separate
order will be entered regarding the Class Counsel's motion for an
award of attorneys' fees and payment of expenses. A separate
order will be entered regarding the Plan of Allocation set forth
in the Notice. Such orders will in no way disturb or affect the
Judgment and will be considered separate from the Judgment.
There is no just reason for delay in the entry of the Judgment and
immediate entry by the Clerk of the Court is expressly directed.
A full-text copy of the Court's March 6, 2018 Final Order and
Judgment is available at https://is.gd/X1LqYa from Leagle.com.
Babak Hatamian & Lussu Dennj Salvatore, Plaintiffs, represented by
Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser
Heimann & Bernstein, LLP & Sharon Maine Lee -- slee@lchb.com --
Lieff Cabraser Heimann Bernstein.
Advanced Micro Devices, Inc., Rory P. Read, Thomas J. Seifert,
Lisa T. Su & Richard A. Bergman, Defendants, represented by
Patrick
Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP -- Jason C.
Hegt, Esq. -- jason.hegt@lw.com -- Matthew Rawlinson, Esq. --
matt.rawlinson@lw.com -- and -- Melanie Marilyn Blunschi, Esq. --
melante.blunschi@lw.com -- LATHAM & WATKINS LLP.
KBC Asset Management NV, Movant, represented by Carol C. Villegas
-- cvillegas@labaton.com -- Labaton Sucharow LLP, Michael J
Pendell -- mpendell@motleyrice.com -- Motley Rice LLC, Sharon
Maine Lee -- slee@lchb.com -- Lieff Cabraser Heimann Bernstein,
William S. Norton -- bnorton@motleyrice.com -- Motley Rice LLC,
James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC,
Joy Ann Kruse -- jkruse@lchb.com -- Lieff Cabraser Heimann &
Bernstein, LLP, Katherine Collinge Lubin, Lieff Cabraser Heimann &
Bernstein, LLP, Max Nikolaus Gruetzmacher --
mgruetzmacher@motleyrice.com -- Motley Rice LLC, Meredith B.
Miller -- mbmiller@motleyrice.com -- Motley Rice LLC, William H.
Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC & Jonathan
Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP.
Oklahoma Firefighters Pension and Retirement System, Movant,
represented by Michael M. Goldberg, Goldberg Law PC.
Arkansas Teacher Retirement System, Movant, represented by Alec T
Coquin -- acoquin@labaton.com -- Labaton Sucharow LLP, Carol C.
Villegas, Labaton Sucharow LLP, Jonathan Gardner, Labaton Sucharow
LLP, Paul J Scarlato, Labaton Sucharow LLP, Sharon Maine Lee,
Lieff Cabraser Heimann Bernstein, Yah E. Demann --
ydemann@labaton.com -- Labaton Sucharow LLP, Katherine Collinge
Lubin, Lieff Cabraser Heimann & Bernstein, LLP, Nicole Catherine
Lavallee -- nlavallee@bermandevalerio.com -- Berman DeValerio &
William S. Norton, Motley Rice LLC.
Christopher Hamilton & David Hamilton, Movants, represented by
Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert
Jonckheer & Kolbe LLP.
Jake Ha, Movant, Jake Ha, Movant, represented by Avraham Noam
Wagner -- avi@thewagnerfirm.com -- The Wagner Firm & Kara M Wolke
-- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP.
AEGIS SENIOR: Faces Consumer Fraud Class Action in Washington
-------------------------------------------------------------
Raechel Dawson, writing for Bellevue Reporter, reports that a
multi-law firm, class action lawsuit claims Bellevue-based Aegis
Senior Communities has been misleading residents and families at
its 14 assisted living facilities in Washington state for years.
Filed in King County Superior Court on March 8 by Zwerling,
Schachter & Zwerling, LLP and three other law firms, plaintiff
John T. Shanahan accuses Aegis of violating the Consumer
Protection Act and financial exploitation of vulnerable adults
laws. He claims the senior assisted living facility did this by
failing to disclose they allegedly do not use their resident
assessment point system to set staffing at its facilities.
Instead, he claims, Aegis hires staff based on budgets and profit
margins.
Because of this, John Shanahan and the law firms believe Aegis has
low staffing numbers and therefore provides less care to those who
need it the most.
Aegis vehemently denies these claims.
An Aegis spokesperson emailed the following statement from the
company: "Aegis Living provides exceptional and loving care to the
residents we serve. One of the ways we accomplish this is by
staffing our communities to meet the needs of our residents and
their families -- including parents of our own employees. In that
regard, we have consistently received awards for being the Best
Family Owned Business, Best Retirement Facility, and Corporate
Citizenship. It should be known that this meritless lawsuit was
spearheaded by California class action lawyers conspiring with one
another to replicate claims. They've filed six identical lawsuits
against various elder care providers in California and Washington.
The false allegations made by these attorneys are insulting to our
company's culture, insulting to our employees who work so hard for
our residents; and we are committed to defending this case every
step of the way."
According to court documents, John Shanahan is the son of late-
Maxine M. Shanahan, as well as representative of her estate after
she died in August 2015. Maxine Shanahan was a resident of Aegis
of Bellevue from January 2013 through March 2014.
In the initial contract she signed with Aegis back then, Maxine
Shanahan paid a community fee of $8,000 and a daily services fees
totalling $207.84 each day ($6,235 a month).
In the contract, she was promised a higher level of care when she
experienced a higher level of need and this was based on a point
system.
"Simply put, John T. Shanahan reasonably understood that if his
mother's care needs increased, Aegis staff would spend more time
assisting her," the lawsuit states. "As a result, her assessment
points would increase."
But while Maxine Shanahan's points increased (as well as the bill)
as she declined in health, the lawsuit states "Aegis did not make
corresponding adjustments to and increases in the staff time
devoted to Ms. Shanahan's care or adjust its facility staffing
levels despite the provisions in each individualized service
plan."
According to court documents, her family "found her on multiple
occasions in linen and adult diapers soiled with urine and feces.
Her teeth, hair and nails were often left unclean" and she even
required hospitalization after doctors discovered she was
dehydrated.
"On numerous other occasions, Ms. Shanahan's family members found
her unattended on the floor tangled in her bedding," the lawsuit
continues. "She had sustained numerous unattended falls at Aegis,
resulting in lacerations and bruises throughout her body."
And, despite Aegis charging the woman for nutritional oversight,
she lost six pounds in a three-week period, the lawsuit claims.
In a March 2015 case, Terrence A. Ervin with Aegis allegedly
testified in a deposition that although Aegis used its resident
assessment software to determine care points and fees, "it did not
use that software to determine staffing levels or in developing
the staffing budget for each facility at the corporate level,"
court documents state.
"Selecting an assisted living facility is extremely stressful, and
people are not in a position to discover the risk of harm they may
face," attorney Kathryn Stebner said in a news release. "The
plaintiff brought this case wanting Aegis to adequately disclose
the facts about its resident assessments and staffing practices so
residents and families can make informed decisions before entering
Aegis's facilities."
The class action was filed on behalf of all persons who reside or
have resided in Aegis's assisted living facilities in Washington
during the last four years. The class is estimated to include
thousands of elders and other vulnerable adults.
The plaintiff will seek damages and a court order requiring Aegis
to disclose how it makes staffing decisions and other remedial
measures. [GN]
AIRCRAFT SERVICE: Faces "Carrillo" Suit in N.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Aircraft Service
International, Inc. The case is styled as Eufrocino Pablo
Carrillo, individually and on behalf of those similarly situated,
Plaintiff v. Aircraft Service International, Inc., a Delaware
Corporation, Menzies Aviation (USA) Inc., a Delaware Corporation
and Does 1-10, inclusive, Defendants, Case No. 3:18-cv-02208 (N.D.
Cal., April 13, 2018).
Aircraft Service International Group, Inc. provides commercial
aviation services to major airlines, airports, oil companies, and
other partners worldwide. Its services include into-plane fueling,
ramp service, cabin cleaning, customer service, deicing, fuel
facility maintenance, GSE maintenance, baggage system maintenance,
and janitorial services.[BN]
The Plaintiff appears PRO SE.
AJ BOGGS: Shared Medical Records Info, Class Action Says
--------------------------------------------------------
Robert Kahn, writing for Courthouse News, reports that a class
action claims A.J. Boggs & Co., which administered California's
AIDS Drug Assistance Program, allowed unauthorized third parties
to learn the HIV-positive status of 93 program participants, in
S.F. Superior Court.
The case is A. DOE, individually and on behalf of all others
similarly situated, Plaintiff(s), v. A.J. BOGGS & COMPANY,
Defendant, Case No. CGC-18-565456.
Attorneys for Plaintiff:
Lawrence S. Gordon, Esq.
COZEN O'CONNOR
101 Montgomery Street, Suite 1400
San Francisco, CA 94104
Tel: 415.644.0914
Fax: 415.644.0978
-- and --
Antony Pinggera, Esq.
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
4221 Wilshire Boulevard, Suite 280
Los Angeles, CA 90010
Tel: 213.382.7600
Email: apinggera@lambdalegal.org
-- and --
Scott Schoettes, Esq.
Jamie A. Gliksberg, Esq.
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
105 West Adams, 26th Floor
Chicago, IL 60603-6208
Tel: 312.663.4413
Email: sschoettes@lambdalegal.com
jgliksberg@lambdalegal.com
ALLERGAN INC: May 30 Derivatives Settlement Fairness Hearing Set
----------------------------------------------------------------
Entwistle & Cappucci LLP on April 2 issued the following statement
pursuant to Court Order regarding the In re Allergan Proxy
Violation Derivatives Litigation Settlement.
To: All persons and entities who transacted in derivative
securities that are price-interdependent with Allergan, Inc. (AGN)
publicly traded common stock ("Allergan Derivatives") from
February 25, 2014 through April 21, 2014, inclusive.
This Summary Notice is given pursuant to Rule 23 of the Federal
Rules of Civil Procedure and an Order of the United States
District Court for the Central District of California ("Court"),
dated March 19, 2018. The purpose of this Summary Publication
Notice is to inform you of the proposed settlement of the above-
entitled class action ("Action") against Defendants Pershing
Square Capital Management, L.P., PS Management GP, LLC, William
Ackman, PS Fund 1, LLC, Pershing Square, L.P., Pershing Square II,
L.P., Pershing Square GP, LLC, Pershing Square Holdings, Ltd.,
Michael Pearson, Valeant Pharmaceuticals International, and
Valeant Pharmaceuticals International, Inc. (collectively, "the
Defendants").
A settlement hearing will be held before the Honorable David O.
Carter, United States District Judge, at the Ronald Reagan Federal
Building and United States Courthouse, 411 West Fourth Street,
Courtroom 9D, Santa Ana, California 92701-4516, at 7:30 a.m. on
May 30, 2018 in order to: (1) determine whether the Court should
grant certification to the Settlement Class pursuant to Rules
23(a) and (b)(3) of the Federal Rules of Civil Procedure; (2)
determine whether the proposed Settlement consisting of
$40,000,000 in cash should be approved as fair, reasonable, and
adequate to the Class and the proposed Final Judgment entered; (3)
determine whether the proposed Plan of Allocation for the proceeds
of the Settlement is fair and reasonable, and should be approved
by the Court; (4) determine whether the applications by
Plaintiffs' Lead Counsel for an award of attorneys' fees equal to
or up to one-fourth of the Settlement Fund and reimbursement of
their litigation expenses should be approved; and (5) rule upon
such other matters as the Court may deem appropriate.
If you transacted in derivative securities that are price-
interdependent with Allergan, Inc. publicly traded common stock
from February 25, 2014 through April 21, 2014, both dates
inclusive, and are not otherwise excluded from the Class, you are
a Class Member. Class Members will be bound by the Final Judgment
of the Court. If you are a Class Member, in order to share in the
distribution of the Net Settlement Fund, you must submit a Proof
of Claim postmarked no later than July 31, 2018 establishing that
you are entitled to recovery. If you are a Class Member and need
a Proof of Claim, copies may be obtained by telephoning the Claims
Administrator at 1-800-349-5116 or by downloading the form on the
Internet at: www.allerganderivativessettlement.com.
If you do not wish to be included in the Class, you do not wish to
participate in the Settlement and you do not wish to receive a
distribution from the Net Settlement Fund, you may request to be
excluded, in the manner set forth in the full Notice of Proposed
Settlement and Motion for Attorneys' Fees and Expenses ("Notice"),
no later than May 9, 2018. If you are a Class member and do not
timely and validly request exclusion from the Class, and you wish
to object to the Settlement, the Plan of Allocation, and/or
Plaintiffs' Lead Counsel's application for an award of attorneys'
fees and/or reimbursement of expenses, you may submit a written
objection. You also may, but are not required to, appear at the
Final Approval Hearing. You must file and serve your written
objection, in the manner specifically set forth in the Notice, no
later than May 9, 2018.
This Summary Notice is only a summary of information regarding the
Action and the Settlement. You are urged to obtain a copy of the
full, detailed Notice, which includes, among other things, a
description of: (1) the litigation in the Action prior to the
Settlement; (2) the terms of the proposed Settlement; (3) the
benefits of the Settlement to the Class; (4) the Plan of
Allocation for the proceeds of the Settlement; (5) the rights of
Class members; (6) the release of claims against Defendants; (7)
the application for an award of attorneys' fees and expenses; and
(8) additional details concerning the Final Approval Hearing,
excluding oneself from the Class and/or objecting to the
Settlement, the Plan of Allocation, and/or the application for
attorneys' fees and/or reimbursement of expenses, including the
procedures that MUST be followed for Class members to request
exclusion from the Class or to object to the Settlement, the Plan
of Allocation and/or application for attorneys' fees and/or
reimbursement of expenses.
A copy of the full Notice may be accessed at:
www.allerganderivativessettlement.com, and for additional
information, you may contact Garden City Group, LLC, the Claims
Administrator, at the following address:
Allergan Proxy Violation Derivatives Litigation Settlement
c/o GCG
P.O. Box 10556
Dublin, OH 43017-5116
PLEASE DO NOT CONTACT THE COURT OR DEFENDANTS' COUNSEL REGARDING
THIS NOTICE.
Dated: April 2, 2018
Honorable David O. Carter
United States District Judge [GN]
AMERICAN AIRLINES: Court Certifies Class in "Ferreras" FLSA Suit
----------------------------------------------------------------
In the case, DANIEL FERRERAS, et al., Plaintiffs, v. AMERICAN
AIRLINES, INC., Defendant, Civil Action No. 16-2427 (JLL)(D.
N.J.), Judge Jose L. Linares of the U.S. District Court for the
District of New Jersey (i) granted the Plaintiffs' motion for
class certification; and (ii) denied American's cross-motion for
summary judgment without prejudice.
American has a timekeeping system that records the hours that its
employees work and links those hours to their pay. The system
automatically pays the employees for their scheduled shifts if
they are clocked in, and accounts for a 30-minute meal break for
full-time shifts. The system also has pre-programmed "grace
periods," where an employee may clock into the system before a
shift starts, and may stay after the shift ends before clocking
out.
The Plaintiffs allege that American, as a matter of company
policy, regularly violates the New Jersey Wage and Hour Law by
denying them compensation for work performed: (1) before and after
their scheduled shifts, even if they clock in early or clock out
late to finish their work; (2) during their unpaid meal periods;
and (3) before clocking in for their shifts, and after clocking
out for their shifts.
The named Plaintiffs are all employed by American at Newark
Liberty International Airport as hourly-paid: (1) Fleet Service
Clerks, who load bags and freight into airplanes, unload the same
off of airplanes, operate towlines to pull aircraft into and out
of hangars, and assist with water and lavatory services; or (2)
Aircraft Maintenance Technicians, who perform repairs and service
updates on aircraft systems.
This is a putative class action brought by the named employee
Plaintiffs against the Defendant. Pending before the Court is the
motion by the named Plaintiffs pursuant to Federal Rule of Civil
Procedure 23(a) and Rule 23(b)(3) to certify three subclasses
compromised of current and former hourly-paid and non-exempt
hourly American employees who worked at Newark Liberty
International Airport at any time from April 29, 2014 through the
present, who were allegedly denied compensation for work
performed: (1) before and after their scheduled shifts while on
the clock; (2) during their unpaid meal periods; and (3) before
clocking in for their scheduled shifts, and after clocking out for
their scheduled shifts. American opposes the motion to certify.
Also pending before the Court is American's cross-motion pursuant
to Rule 56 for summary judgment in its favor as to the claims
asserted by the named plaintiff Edwin Gonzalez alone. The
Plaintiffs oppose American's cross-motion for summary judgment.
Judge Linares finds that the Plaintiffs have met the requirement
of Rule 23(a). In addition, in viewing the evidence in the light
most favorable to Gonzalez at this preliminary juncture, the Judge
finds the cross-motion for summary judgment to be premature, as
Gonzalez's assertions concerning American's alleged failure to
fairly compensate him is sufficient to raise a genuine issue of
fact in response to American's arguments. Therefore, he will deny
American's cross-motion for summary judgment. However, the Judge
will deny that cross-motion without prejudice to American to move
again for summary judgment when appropriate, i.e., at the
conclusion of discovery in the action.
For the reasons he stated, Judge Linares (i) granted the
Plaintiffs' motion for class certification; and (ii) denied
American's cross-motion for summary judgment without prejudice.
A full-text copy of the Court's March 6, 2018 Opinion is available
at https://is.gd/4JcTDr from Leagle.com.
DANIEL FERRERAS, EDWIN GONZALEZ, On behald of themselves and all
others similarly situated, DOUG BILLITZ, RUEBEN RAMIREZ, RAMON
COCA, CHRISTOPHER FAUST, MASOUD ZABIHIALAM, SCOTT ELLENTUCK &
DENIS LIPPENS, Plaintiffs, represented by CHESTER R. OSTROWSKI --
costrowski@mclaughlinstern.com -- McLAUGHLIN & STERN LLP & BRADLEY
JASON BARTOLOMEO -- bbartolomeo@mclaughlinstern.com -- McLAUGHLIN
& STERN, LLP.
AMERICAN AIRLINES, INC., Defendant, represented by JEFFREY IRA
KOHN -- jkohn@omm.com -- O'MELVENY & MEYERS, LLP.
COMMUNICATIONS WORKERS OF AMERICA,AFL-CIO, Amicus, represented by
JUDIANN CHARTIER, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO.
Airline Fleet Service Employee Association TWU/IAM, Airline
Mechanic and Related Employee Association TWU/IAM & Airline Stores
Employee Association TWU/IAM, Amicuss, represented by BENNET DANN
ZUROFSKY -- bzurofsky@zurofskylaw.com
AMERICAN DG: Court Narrows Claims in "Vardakas" Securities Suit
---------------------------------------------------------------
Judge Leo T. Sorokin of the U.S. District Court for the District
of Massachusetts granted in part and denied in part the
Defendants' Motion to Dismiss the case, LEE VARDAKAS, Individually
and on Behalf of All Others Similarly Situated, Plaintiff, v.
AMERICAN DG ENERGY INC., JOHN N. HATSOPOULOS, GEORGE N.
HATSOPOULOS, et. al., Defendants, Case No. 17-cv-10247-LTS (D.
Mass.).
On Feb. 15, 2017, Vardakas commenced the class action, essentially
alleging the merger between Defendants American DG and Tecogen was
the result of a conflicted sales process, which undervalued the
common stock of American DG, and that the Defendants disseminated
a misleading Form S-4 Registration Statement containing material
omissions in order to convince American DG's unaffiliated
shareholders to vote in favor of the unfair transaction.
On April 21, 2017, William Chase May and Vardakas jointly moved to
appoint May as the Lead Plaintiff in the action, and on May 2,
2017, the Court granted their motion. Thereafter, on June 19,
2017, May filed an amended class action complaint ("Complaint"),
identifying May as the Lead Plaintiff.
May alleges three kinds of material omissions in the proxy
statement disseminated by American DG to its shareholders:
omissions concerning (1) the events and processes leading up to
the merger; (2) the inputs and considerations of American DG and
Tecogen's financial analysists in forming fairness opinions; (3)
information regarding American DG's Unfavorable Contract Liability
("UCL").
The Complaint alleges five counts against the Defendants all
arising from the proposed (now consummated) merger of American DG
and Tecogen. First, the Complaint alleges all the Defendants
violated Section 14(a) of the Exchange Act of 1934, and Rule 14a-9
promulgated thereunder, by preparing, reviewing, and disseminating
an incomplete and misleading proxy statement to shareholders
(Count I). Second, it alleges the Director and Officer Defendants
violated Section 20(a) of the Exchange Act by exercising control
over American DG and Tecogen during which time American DG and
Tecogen violated the Exchange Act (Count II). Third, it claims
that the Director and Officer Defendants, as well as John and
George Hatsopoulos, breached their common law fiduciary duties
owed to American DG shareholders by virtue of their positions as
directors and officers, and as control group, respectively (Counts
III and IV). Finally, the Complaint alleges George Hatsopoulos,
Tecogen, and Merger Sub are liable for aiding and abetting the
Director and Office Defendants in breaching their common law
fiduciary duties (Count V).
On July 19, 2017, the Defendants filed a motion to dismiss the
amended complaint.
Judge Sorokin finds that May (i) has not adequately alleged that
any of the omissions from the Proxy concerning the merger process
were material omissions; (ii) has not plausibly alleged a material
omission as to the Cassel inputs; (ii) has failed to plausibly
allege that the omission rendered the Proxy false or misleading;
and (iv) offers no explanation as to why the omission concerning
the financial advisors' valuation analysis rendered the proxy
misleading nor why the omitted fact would be of significance to
shareholders.
Because May has not stated a plausible Section 14(a) claim, the
Judge will allow the motion to dismiss as to Count I as to all
parties. She finds that first, the omitted facts are not
materially misleading simply because they might be helpful.
Second, although May speculates that the contracts might "expire
in a relatively short time," May does not allege that they in fact
do. Id. May's suppositions are insufficient. May has not alleged
facts supporting the conclusion that the contracts in fact expired
in the near future or that omission of the expiration dates was
otherwise misleading or material to shareholders.
As May has failed to sufficiently allege a claim under Section
14(a), he has not alleged a predicate violation. Accordingly, May
has not alleged a viable Section 20(a) claim, and the Judge will
allow the Defendants' motion to dismiss as to Count II.
Finally, as to Counts III through V of the Complaint that allege
claims for breach of fiduciary duty under Massachusetts state law,
the Judge says the Court will exercise supplemental jurisdiction
over May's state law claims and will deny the Defendants' motion
to dismiss as to Counts III, IV, and V.
Based on the forgoing, Judge Sorokin allowed the Defendants'
Motion to Dismiss as to Counts I and II; and denied as to Counts
III, IV, and V. The Defendants will answer by March 12, 2018.
The clerk will schedule a Rule 16 conference.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/rkJsa2 from Leagle.com.
Lee Vardakas, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Carl L. Stine --
cstine@wolfpopper.com -- Wolf Popper LLP, pro hac vice, Jason M.
Leviton -- jason@blockesq.com -- Block & Leviton LLP & Nathaniel
L. Orenstein -- NOrenstein@bermantabacco.com -- Berman Tabacco.
American DG Energy, Inc., John N. Hatsopoulos, George N.
Hatsopoulos, Benjamin Locke, Charles T. Maxwell, Deanne M.
Petersen, Christine M. Klaskin, John Rowe, Joan Giacinti & Elias
Samaras, Defendants, represented by Andrew T. Solomon --
ASolomon@solomoncramer.com -- Solomon & Cramer, LLP, pro hac vice
& Paul E. Summit -- psummit@sandw.com -- Sullivan & Worcester LLP.
Tecogen Inc. & Tecogen Adge Acquisition Corp., Defendants,
represented by Andrew T. Solomon, Solomon & Cramer, LLP & Paul E.
Summit, Sullivan & Worcester LLP.
Cassel Salpeter & Co., LLC, Defendant, represented by David G.
Thomas -- thomasda@gtlaw.com -- Greenberg Traurig, LLP.
William Chase May, Movant, represented by Nathaniel L. Orenstein,
Berman Tabacco.
AMERICAN PIPE: Reed Smith Attorney Discusses Tolling Issue
----------------------------------------------------------
James Beck, Esq. -- jmbeck@reedsmith.com -- of Reed Smith, in an
article for JDSupra, wrote that "We've always been against the
concept of class action tolling: that merely by filing a class
action -- the class action does not have to have any merit -- a
class action lawyer magically stops the running of the statute of
limitations for everybody in the class. To us, this gives Fed. R.
Civ. P. 23 a substantive effect, which violates the Rules Enabling
Act. It also confers an automatic one-way benefit on putative
class members, although in other circumstances the class action
lawyers perpetrating this sleight of hand will cheerfully tell
courts that 'no class exists before certification.'"
"The Supreme Court first allowed class action tolling in American
Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), an antitrust
case, ostensibly to 'further[] the purposes of litigative
efficiency and economy,' so that no 'protective litigation' (by
plaintiffs fearing their own claims would be time barred) would
clog up the federal courts. Id. at 553-54. The impact on
defendants would be minimal, suggested the majority, because
'[d]uring the pendency of the [certification] determination . . .,
which is to be made 'as soon as practicable after the commencement
of an action,' potential class members are mere passive
beneficiaries.' Id. at 552 (quoting former Rule 23(c)(1)).
"We had hopes that this rule, being 'specifically grounded in
policies of judicial administration,' Smith v. Bayer Corp., 564
U.S. 299, 314 n.10 (2011), would be abolished after its
encouragement of inequitable gamesmanship became clear, and once
other, less prejudicial methods of judicial administration to
address protective filings -- such as the inactive dockets widely
used in asbestos litigation -- were invented. However, the Court
dodged abolition in California Public Employees' Retirement System
v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017), holding only that
American Pipe did not apply to statutes of repose . Id. at 2052-
53. The Court did, however, point out that concern about
protective filings was much 'overstated.' Id. at 2054 ("courts,
furthermore, have ample means and methods to administer their
dockets and to ensure that any additional filings proceed in an
orderly fashion").
In any event, all of the Supreme Court's class action tolling
cases, American Pipe, supra, Crown, Cork & Seal Co. v. Parker, 462
U.S. 345 (1983), and Chardon v. Soto, 462 U.S. 650 (1983),
involved successive suits in the same jurisdiction -- federal-
question cases brought in federal court. So-called "cross-
jurisdictional" class action tolling, is much worse, and has
intruded at times directly into our sandbox (although thankfully,
class action have largely gone extinct in personal injury cases).
"As we said in an earlier post:
"Cross-jurisdictional" tolling, on the other hand, refers to
allowing a failed class action filed in jurisdiction 'A' to toll
the statute of limitations on an individual action later filed by
a putative class member in jurisdiction 'B.' In a lot of cases
that means a state court action filed after a failed federal court
class action. In other cases it means filing an individual action
in one state after class certification is denied in a different
state. In either case, the policy of avoidance of protective
filings doesn't work. In fact, the opposite is true. A liberal
tolling rule only invites more suits to be filed in the
jurisdiction that has it. Thus, even on its own terms, cross-
jurisdictional tolling based upon meritless class actions doesn't
make sense.
"Thus, going back to the Bone Screw litigation, we have vehemently
criticized cross-jurisdictional class action tolling. Back then
plaintiffs asserted that statutes of limitations all over the
country were tolled by a baseless class action, In re Orthopedic
Bone Screw Products Liability Litigation, 1995 WL 273597 (E.D. Pa.
Feb. 22, 1995), in which certification was denied and no appeal
even attempted. Even this relatively quick adjudication took
almost 14 months (from 12/30/93, when the class action was filed
until denial of certification on 2/22/95). We litigated cross-
jurisdictional tolling to favorable results in Maestas v. Sofamor
Danek Group, 33 S.W.3d 805, 808-09 (Tenn. 2000), and Wade v. Danek
Medical, Inc., 182 F.3d 281, 287-88 (4th Cir. 1999), while also
appearing as amicus curiae in Portwood v. Ford Motor Co., 701
N.E.2d 1102, 1104 (Ill. 1998). Given that cross-jurisdictional
class action tolling inherently involves litigation in one state
attempting to toll the statute of limitations in another state,
this issue can also be framed as one implicating states-rights,
and where one of the courts is federal, federalism.
"Over time most states have recoiled from cross-jurisdictional
class action tolling. Largely because of our Bone Screw
experience, we maintain a scorecard on the issue. According to
our list, 35 jurisdictions (Alabama, Alaska, Arizona, Arkansas,
California, Colorado, DC, Florida, Idaho, Illinois, Iowa, Kansas,
Kentucky, Louisiana, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, Nebraska, New Mexico, New York,
North Carolina, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South
Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming)
reject cross-jurisdictional class action tolling; one state
(Michigan) allows it where the original class was certified; and
six or seven states (Delaware, Hawaii, Montana, New Jersey, Ohio,
West Virginia, and maybe Connecticut) allow tolling even for
meritless, out-of-state class actions. We do no credit a couple
of LIBOR decisions in which that court blatantly ignored state
law.
"One of the states that does recognize cross-jurisdictional class
action tolling is Delaware. See Blanco v. AMVAC Chemical Corp.,
67 A.3d 392, 398-398 (Del. 2013). A recent Delaware Supreme Court
decision throws into sharp relief why such tolling is a bad idea,
and offensive not only to the statute of limitations, but also to
the very judicial efficiency considerations that such tolling
purports to further. See Marquinez v. Dow Chemical Co., ___ A.3d
___, 2018 WL 1324178 (Del. March 15, 2018). Marquinez is a poster
child for delay -- the very sort of stale and desultory litigation
that is why statutes of limitations exist in the first place.
'The plaintiff-appellants ('the plaintiffs') worked on banana
plantations in Costa Rica, Ecuador and Panama at various times in
the 1970s and 1980s.' The first purported class action wasn't
filed until 1993, in Texas. Marquinez, 2018 WL 1324178, at *2.
Then the following things happened:
Removal to federal court on the basis of the Foreign Sovereign
Immunities Act (one defendant was owned by a foreign government).
MDL consolidation in federal court.
Dismissal on forum non conveniens in 1995, with a "return
jurisdiction" caveat -- if any foreign country ruled no
jurisdiction, then plaintiffs could come back to Texas.
The forum non conveniens ruling denied as moot all pending
motions, including class certification.
Id. at *1-2. That's two years of post-litigation delay -- between
1993 and 1995 class certification was never ruled upon. Don't
forget that the '1970s and 1980s' claims were already at least 13
years old before the initial suit was filed.
"Plaintiffs really didn't want to be in federal court -- a sure
sign of substantively weak litigation. They appealed the exercise
of Foreign Sovereign Immunities jurisdiction all the way to the
United States Supreme Court. Id. at *2. that appeal took until
2001. Id. Then the plaintiffs, accompanied by their lawyers,
reluctantly went home. '[T]hey were unable to prosecute their
claims in other countries' so they returned to Texas, where they
sought to resurrect their claims under the "return jurisdiction"
caveat. Id. While that was going on, the Supreme Court rejected
Foreign Sovereign Immunities jurisdiction in another case
involving identical litigation in another state. See Dole Food
Co. v. Patrickson, 538 U.S. 468 (2003).
So in 2003 -- ten years after the original class action was filed,
and between 23 and 33 years after the actual events claimed in the
suit, the case was remanded to Texas state court. Then the
following things happened:
Defendants sought to have the case thrown out due to plaintiffs'
failure to comply with prerequisites to their exercise of "return
jurisdiction" rights.
The "return jurisdiction" provision, along with the entire forum
non conveniens ruling, was declared void for want of subject
matter jurisdiction.
Plaintiffs again moved for class certification, this time under
Texas state law.
"Defendants removed to federal court a second time, under CAFA.
CAFA removal failed because the litigation pre-dated CAFA.
Marquinez, 2018 WL 1324178, at *2-3. Finally, '[o]n June 3, 2010,
class certification was denied in Texas state court.' Id. at *3.
At this point plaintiffs had had enough of Texas. They started
creating satellite litigation. In mid 2011 one plaintiff filed an
individual action in Delaware state court and others filed a class
action in federal court in Louisiana. Id.
Finally, less than a week before two years elapsed after the Texas
denial of class certification -- on May 31, and June 2, 2012 --
two new class actions were filed in Delaware federal court. Id.
But . . .
Plaintiffs had screwed up, or so it appeared. The identical suit
being already pending for a year in Louisiana, the Delaware
federal court dismissed the Delaware action under the "first filed
rule." Id. That was appealed, and eventually reversed by the
Third Circuit sitting en banc. See Chavez v. Dole Food Co., 836
F.3d 205 (3d Cir. 2016) (en banc).
While that was going on, the remaining plaintiffs (those not
already litigating in Louisiana (after fleeing Texas)) were
dismissed on the statute of limitations. The District Court in
Delaware "holding that class action tolling stopped in July 1995
when [the original court] dismissed the case for forum non
conveniens." Id. That was in 2014. Those plaintiffs appealed.
The Third Circuit punted the matter, on certification, to the
Delaware Supreme Court.
As in Blanco, the Delaware Supreme Court seemed unduly frightened
by the prospect of "placeholder" suits:
If members of a putative class cannot rely on the class action
tolling exception to toll the statute of limitations, they will be
forced to file "placeholder" lawsuits to preserve their claims.
This would result in wasteful and duplicative litigation.
Marquinez, 2018 WL 1324178, at *4 (quoting Blanco, 67 A.3d at
395).
Did the court not look at its own description of this litigation's
ridiculously long procedural history? Between 1993 when the
action was first filed, and denial of class certification in mid-
2010 not a single "placeholder" suit was filed in Delaware state
or federal court. That was despite plaintiffs' extended lack of
success in advancing the litigation.
Although nowhere mentioned in Marquinez, the Delaware statute of
limitations for tort cases is two years. 10 Del. C. Sec 8119.
Making a mockery of that legislative judgment, Marquinez held that
the pendency of a meritless class action can toll the statute of
limitations for many multiples of that two-year period -- here 17
years, or 8-1/2 times the statutory period -- because a "clear and
unambiguous" rule is necessary:
[A] clear and unambiguous rule avoids uncertainty over the
starting and ending dates for statutes of limitation in cross-
jurisdictional class action tolling cases. Thus, we adopt a rule
that furthers the certainty interest -- cross-jurisdictional class
action tolling ends only when a sister trial court has clearly,
unambiguously, and finally denied class action status.
Marquinez, 2018 WL 1324178, at *5.
"The mind boggles. Seventeen years hardly corresponds to the
assumption in American Pipe that class certification will be
decided 'as soon as practicable after the commencement of an
action,' and indeed those words don't even appear in Rule 23 any
longer. Justice Stewart, who wrote American Pipe, would no doubt
be appalled. Seventeen years is more than half the time of
Justice Stewart's tenure on the Supreme Court.
"The Delaware statute itself imposed a 'clear and unambiguous'
rule -- two years. Is the Delaware Supreme Court going to abolish
the discovery rule, fraudulent concealment and all the other
factbound doctrines that toll the statute of limitations in
certain situations, and thus have created uncertainty? Defendants
argue for 'clear and unambiguous' rules all the time (e.g.,
product identification, affirmative prescriber warning causation
testimony, relative risk of two). Why here, in a situation that
is certain to make Delaware the dumping ground for Latin American
toxic tort litigation.
"And is this rule even 'clear and unambiguous'? The Texas
plaintiffs never appealed the 2010 class certification denial.
What if they had? Does 'sister trial court' then morph into an
further need for certainty, tolling the statute of limitations
until the first state's denial has been 'clearly, unambiguously,
and finally' been affirmed on appeal?
"Marquinez demonstrates why courts should never start down the
slippery slope of cross-jurisdictional class action tolling.
Right after proclaiming its 'clear and unambiguous' rule, the
decision plunges into the minutiae of the Texas litigation,
spending seven paragraphs parsing through what the Texas court's
'return jurisdiction' language -- in an order void for lack of
subject matter jurisdiction -- must have meant. Marquinez, 2018
WL 1324178, at *6-7. In so doing Marquinez ended up disagreeing
with two other courts also forced into that exercise by
plaintiffs' satellite litigation. Id. at *8-9 ('respectfully
disagree[ing] with the Fifth Circuit's and the Hawai'i Supreme
Court's application of class action tolling'). If Delaware had
rejected cross-jurisdictional class action tolling in the first
place, none of that Talmudic exercise would have been necessary.
"Judicial efficiency is hardly furthered by forcing the courts of
one state to comb through the proceedings of litigation filed
elsewhere in an effort to figure out when exactly plaintiffs
should not be required to rely on an arguably meritless class
action filing for fear that it won't be certified. As Marquinez
demonstrates, that exercise itself can lead to disparate results.
And now what happens? The litigants get to engage in the costly,
and probably impossible, task of piecing together what happened in
the forests and fields of Latin America 40-some years ago when
Nixon was president and we though Watergate was as bad as things
could get. There are some cases where no litigation is the
correct answer. If the courts of these plaintiffs' home countries
weren't willing to entertain this litigation, there is no good
reason for Delaware, or any other state, to become the dumping
ground for the Third World's unwanted lawsuits. Like Justice
Stewart, we know a bad result when we see it.
"Maybe it doesn't matter. Maybe, between Bauman and BMS, would-be
non-resident class-action plaintiffs won't be able obtain personal
jurisdiction to file the same lawsuit over and over again in
different jurisdictions (here, at least Texas, Louisiana, and
Hawai'i before Delaware). Maybe courts will resort to forum non
conveniens to throw these Latin American cases out for good. See
Aranada v. Philip Morris, USA, Inc., ___ A.3d ___, 2018 WL 1415215
(Del. March 22, 2018) (similar overseas chemical exposure case
pitched for inconvenience, even though another forum not
available). Maybe the Supreme Court will again re-examine
American Pipe, and at least do away with piling meritless class
actions on top of other meritless class actions.
But conversely, Bauman and BMS also mean that Delaware, as the
'home' of many large corporations, will be assuming outsized
importance in the litigation landscape. Delaware courts are going
to have enough to do without being required to sift through the
detritus of other jurisdictions' failed class action litigation."
Finally, there's a message here for any other jurisdiction
considering cross-jurisdictional class action tolling -- don't go
there. Don't go anywhere near there. [GN]
ARCH COAL: Stiffs Workers for Overtime, Class Action Claims
-----------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reports that
Arch Coal workers claim in a federal class action in West Virginia
that the company stiffs them for overtime, saying they must "work
for free.
The case is ORMAND R. BROOKS, individually and on behalf of others
similarly situated, Plaintiff, v. ARCH COAL, INC., Defendant,
Civil Action No. 5:18-cv-00523 (S.D.W.Va.).
Plaintiff's attorneys:
Mark Goldner, Esq.
Maria W. Hughes, Esq.
HUGHES & GOLDNER, PLLC
10 Hale Street, Second Floor
Charleston, WV 25301
TEL: (304) 400-4816
FAX: (304) 205-7729
Email: mark@wvemploymentrights.com
maria@wvemploymentrights.com
BANCONE LLC: Faces "Aucacama" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Bancone LLC. The
case is styled as Jorge Manuel Aucacama, individually and on
behalf of others similarly situated, Plaintiff v. Bancone LLC
doing business as: PetrarcaCucina e Vino, Leonardo Pulito and
Antoinette Pulito, Defendant, Case No. 1:18-cv-03245 (S.D. N.Y.,
April 13, 2018).
PetrarcaCucina e Vino is a modern, casual restaurant and wine bar
with a creative Italian menu featuring pizza, pasta & omelets.[BN]
The Plaintiff appears PRO SE.
BLENDTEC: Faces "Callegari" Suit in D. Utah
--------------------------------------------
A class action lawsuit has been filed against Blendtec. The case
is styled as Alejandro Callegari, individually and on behalf of
all others similarly situated, Plaintiff v. Blendtec, Defendant,
Case No. 2:18-cv-00308-EJF (D. Utah, April 13, 2018).
Blendtec is a company that sells professional and home
blenders.[BN]
The Plaintiff is represented by:
Jon V. Harper, Esq.
HARPER LAW PLC
PO BOX 581468
SALT LAKE CITY, UT 84158
Tel: (801) 910-4357
Email: jharper@jonharperlaw.com
- and -
M. Denise Dalton, Esq.
HARPER LAW PLC
68 S MAIN ST STE 800
SALT LAKE CITY, UT 84101
Tel: (801) 910-4358
BLUE BUFFALO: Investors Sue Over $8-Bil. Merger
-----------------------------------------------
Courthouse News Service, reports that an $8 billion merger with
General Mills, investors in Blue Buffalo Pet Products claim in a
federal class action that the low-ball offer was approved because
it includes unfair benefits to company insiders.
The case is WILLIAM SHUMAKER, individually and on behalf of all
others similarly situated, Plaintiff, v. BLUE BUFFALO PET
PRODUCTS, INC., WILLIAM BISHOP, BILLY BISHOP, PHILIPPE AMOUYAL,
EVREN BILIMER, RAYMOND DEBBANE, MICHAEL A. ECK, FRANCES FREI,
AFLALO GUIMARAES, AMY SCHULMAN, GENERAL MILLS, INC., and BRAVO
MERGER CORP., Defendants, Case 3:18-cv-00535-MPS (D. Conn.).
Attorneys for Plaintiff:
Nicole A. Veno, Esq.
LAW OFFICE OF NICOLE A. VENO, LLC
573 Hopmeadow Street
Simsbury, CT 06070
Telephone: (860) 474-4024
Facsimile: (860) 717-3207
Email: nveno@venolaw.com
-- and --
Evan J. Smith, Esq.
Marc L. Ackerman, Esq.
BRODSKY & SMITH, LLC
Two Bala Plaza, Ste. 510
Bala Cynwyd, PA 19004
Phone: (610) 667-6200
Facsimile (610) 667-9029
Email: esmith@brodskysmith.com
mackerman@brodskysmith.com
BLUE LIGHT: Court Narrows Claims in "Knutson" TCPA Suit
-------------------------------------------------------
In the case, ERIK KNUTSON, Plaintiff, v. BLUE LIGHT SECURITY,
INC., Defendant, Case No. 17cv134-LAB (JMA)(S.D. Cal.), Judge
Larry Alan Burns of the U.S. District Court for the Southern
District of California granted in part and denied in part the
Defendant's Motion to Dismiss, and denied as moot its motion to
stay.
Knutson filed the putative class action, bringing claims under the
Telephone Consumer Protection Act. He alleged that the Defendant
used an auto-dialer to place an unsolicited call to his cell
phone, for which he was charged. The parties filed two joint
motions for an extension of time for the Defendant to answer.
Before the Court ruled on those, however, Blue Light filed a
motion to dismiss the complaint or stay the case. The joint
motions are granted, Blue Light's motion to stay or dismiss is
accepted as filed.
Blue Light has moved to dismiss for lack of jurisdiction and for
failure to state a claim, or in the alternative, to stay pending a
decision by the D.C. Circuit that could clarify the law. Its
motion is supported by a request for judicial notice of court
records.
Knutson opposes notice, arguing that the documents cannot be
considered, because doing so would amount to making findings of
fact that have no place in ruling on a Rule 12(b)(6) motion. But
adjudicative facts, including court records, can be judicially
noticed. The one exhibit that cannot properly be judicially
noticed is Exhibit I, which is an online ad for Knutson's real
estate business. The Judge granted the request as to the judicial
records, but denied as to Exhibit I.
Judge Burns finds that the issue of whether Blue Light's call was
auto-dialed is not amenable to resolution on a motion to dismiss.
Although the Court did not rely on Exhibit I when making its
rulings, the Judge says Knutson should consider this exhibit when
and if he decides to amend. Assuming that Knutson in fact did
invite the public to call him about real estate matters, he should
consider whether he can allege an absence of the requisite
consent. He mentions this, not in order to forecast its likely
holding, but to encourage the parties to consider this issue
earlier rather than later.
The Judge also finds that the issue of whether Blue Light's call
to Knutson was auto-dialed might surface again later -- for
example, if Knutson amends and relies on a provision that applies
to calls either auto-dialed or using an artificial or recorded
voice, such as Section 64.1200(a)(2). He says that could be an
issue here, because the call described in the complaint did not
appear to use an artificial or recorded voice, which would mean
Knutson would have to proceed on the theory that the call was
auto-dialed.
Judge Burns concludes that although Knutson has no claim under the
provisions he cites, he cannot say with certainty that the
Plaintiff has no claim under some other provision, or that he
could not amend successfully if given the opportunity. He
therefore granted in part the Motion to Dismiss and dismissed with
leave to amend the complaint.
The Judge notes that if Knutson believes he can successfully
amend, he should seek leave by ex parte application (without
obtaining a hearing date) for leave to amend that complies with
Civil Local Rule 15.1. His application must be filed within 28
calendar days of the date this order is issued. If Knutson files
such an application, Blue Light may file an opposition within 14
calendar days of the date that application is filed. No reply
should be filed without leave. The Judge will set a hearing if
appropriate; otherwise, the matter will be deemed submitted on the
papers. He denied as moot the motion to stay.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/puuiXS from Leagle.com.
Erik Knutson, Individually and on behalf of All Others Similarly
Situated, Plaintiff, represented by Abbas Kazerounian, Kazerounian
Law Group, APC, Joshua B. Swigart -- josh@westcoastlitigation.com
-- Hyde & Swigart, Kevin Lemieux -- kevin@lawyerkevin.com -- The
Law Office of Kevin Lemieux, APC & Jason A. Ibey, Kazerouni Law
Group, APC.
Blue Light Security, Inc., Defendant, represented by Ryan Landis -
- rlandis@polsinelli.com -- Polsinelli LLP & Zuzana S. Ikels --
zikels@polsinelli.com -- Polsinelli LLP.
BMW: Siskinds LLP Files Class Action Over Emissions
---------------------------------------------------
On March 27, 2018 Siskinds LLP filed a proposed national class
action against BMW and Bosch regarding certain BMW vehicles
equipped with Advanced Diesel with BluePerformance engine
technology.
The proposed action alleges that BMW equipped affected vehicles
with software that allows them to defeat emissions testing. Bosch
is alleged to have developed this software and supplied it to BMW.
The action alleges that under common driving conditions, the
vehicles emit levels of pollutants that are far higher than
advertised and allowed by law.
The action seeks to advance claims on behalf of all individuals or
businesses in Canada who purchased or leased a 2009-2013 BMW X5 or
BMW 335d 2009-2011 vehicle equipped with Advanced Diesel with
BluePerformance engine technology.
If you purchased or leased one of these vehicles, please contact
Siskinds LLP by phone at 1(800) 461-6166 x 4228 or by email at
laura-marie.paynter@siskinds.com.
Siskinds LLP is working with leading U.S. class actions firm,
Hagens Berman Sobol Shapiro LLP, to prosecute these claims. Hagens
Berman filed a proposed class action on behalf of American owners
and lessees with the United States District Court for the District
of New Jersey.
About Siskinds LLP
Siskinds -- https://siskinds.com -- is a full-service law firm
headquartered in London, Ontario and is Canada's leading class
actions firm. It was the first law firm to secure certification
of a class proceeding under the Class Proceedings Act, 1992. [GN]
BROOKDALE SENIOR: Two Residents Join ADA Class Action
-----------------------------------------------------
Jondi Gumz, writing for Santa Cruz Sentinel, reports that two
residents of Brookdale Senior Living Scotts Valley have joined a
lawsuit filed in federal court in San Francisco alleging the
company based in Brentwood, Tennessee, committed elder financial
abuse through understaffing that makes it impossible to provide
services residents were promised and have paid for.
The lawsuit, which names seven plaintiffs, seeks class action
status for 5,000-plus residents in Brookdale's 89 assisted living
facilities in California and at least $45 million in damages,
$9,000 for each affected resident.
The lawsuit alleges Brookdale, a publicly traded company that is
the largest provider of assisted living for senior citizens in the
U.S., violated the Americans with Disabilities Act by failing to
make its facilities readily accessible by individuals with
disabilities.
Bernie Jestrabek-Hart, 72, of Scotts Valley, is one of the
plaintiffs. The other Scotts Valley plaintiff is Patricia
Lindstrom, 81, whose husband Art died in February of a heart
attack.
The lawsuit alleges Brookdale staffing is based on predetermined
labor budgets and desired profit margins, with permission from
corporate headquarters required for deviation. This creates a
disincentive for executive directors at a facility to request
increased staffing "because they are not eligible for bonuses
unless they meet earnings targets," according to the lawsuit.
Gay Crosthwait Grunfeld -- ggrunfeld@rbgg.com -- of Rosen Bien
Galvan & Grunfeld, one of three law firms representing plaintiffs,
contends the incidents detailed in the initial lawsuit filed in
July are symptoms of a systematic problem at Brookdale facilities.
Ms. Jestrabek-Hart read about the lawsuit and contacted the law
firm to share her story.
Brookdale spokeswoman Heather Hunter said, "We believe this
lawsuit is without merit. We are not able speak directly to
specifics, but we are defending ourselves vigorously."
In February, Brookdale Senior Living reported a net loss of $572
million for 2017 on $4.75 billion in revenue, compared with a net
loss of $405 million on $4.98 billion in revenue for 2017.
Brookdale Scotts Valley, licensed for 220 beds at 100 Lockwood
Lane, was called Oak Tree Villa before Brookdale took over.
Ms. Jestrabek-Hart, who uses a wheelchair, came to Brookdale
Scotts Valley in October 2015 and is paying $4,477 per month plus
$834 per month for assistance with dressing and showering.
Fees have risen 21 percent and 11 percent respectively since she
moved in, compared to the 2016 consumer price index was 3.4
percent, according to the lawsuit.
A metal sculptor for 30 years, Ms. Jestrabek-Hart overcame polio
and ran an equestrian facility in Idaho. In 2012, she switched to
fabric creations after surgeries to fuse her back and replace her
shoulders. She's dealt with arthritis and fractured toes on her
right foot.
She expected she would get help showering four times a week as per
her contract and that she would be able to take the Brookdale
shuttle bus to doctor's visits and social outings, as the company
website stated.
After she moved in, she learned transportation was limited --
Monday and Thursday 10 a.m. to 4 p.m. -- and she was told her
motorized wheelchair was too heavy -- which had not been an
obstacle at her prior assisted living residence in San Jose.
She said she calls Para Cruz, and pays for the service herself.
According to the lawsuit, the fees have risen due to the cost of
providing services but Ms. Jestrabek-Hart said there are not
enough staff.
She was one of several residents stranded on the first floor for
three hours, unable to reach her room on the second floor, when
the power went out. She was unable to use to her CPAP machine,
prescribed for sleep apnea; there was only one generator-powered
outlet in another wing, inaccessible to her.
She has waited two to three hours for a staffer to help her
shower, sometimes falling asleep before assistance arrives, and
she has waited 90 minutes to an hour in the morning and evening
for help dressing and undressing. She's been told only one staff
member is on duty to meet the needs of 150 residents.
She once fell out of her wheelchair onto the floor of the laundry
room, enclosed by a heavy hard-to-open door and lacking emergency
pull cords, with no way to summon help; by chance someone walked
in and assisted her.
She notified the facility, but nothing has changed.
Ms. Lindstrom and her husband came to Brookdale Senior Living in
November 2015, attracted by "nutritious meals and snacks planned
by a registered dietician," as one of the forms said.
Her husband had diabetes, heart disease and cognitive impairment.
They paid $5,900 per month for a two-bedroom unit plus $400 per
month as a second-resident fee, before moving to a smaller studio
for $4,295 per month plus the $400 per month second-resident fee.
Ms. Lindstrom found there was no dietician on staff and too few
staff to pay attention to individual dietary needs. The menus,
determined in Tennessee, were starchy, mashed potatoes, baked
potatoes and root vegetables, lots of canned foods rather than
fresh, and "sugar, not just in desserts," she said.
In three months, her husband gained 20 pounds, she said.
"His blood sugar was high repeatedly," she said. "That meant his
brain didn't work right."
In April 2017, the state Department of Social Services, which
licenses residential care facilities for the elderly, issued a
$10,000 penalty to Brookdale Senior Living Scotts Valley after an
investigation into a fall by elderly man on Feb. 21, 2016 and
discovered the next day.
The man was hospitalized in the intensive care unit for
dehydration and rhabdomyoloysis, which is when damaged muscle
issue breaks down.
The state found the man had not received food or water for 24
hours, concluding "staff failed to provide."
Ms. Jestrabek-Hart is serving her second one-year stint as
president of the resident's council. She sent letters last fall
to then-CEO Andy Smith and in March to the new CEO, Cindy Baier,
describing issues such as not enough staffing, transportation
problems for those with electric wheelchairs and uneven sidewalks
due to tree roots creating trip hazards.
State law requires residential facilities to respond in writing
within 14 days to any written concerns or recommendations
submitted by a family council representing residents, but
Ms. Jestrabek-Hart did not get a response to her letters.
She said the new executive director, May Sunglao, who started in
August, made some improvements, such as painting the sidewalk trip
hazards yellow so they are easier to see and taking care of the
lawn.
"Our staff is wonderful. They work very hard trying to do what's
right," said Ms. Jestrabek-Hart.
If the lawsuit should be successful, she would like to see more
staff.
At the front desk is a notice saying seven positions are
available.
Ms. Baier, who became CEO Feb. 28, told McKnight's Senior Living
that the Brookdale plans to increase total compensation costs 5.5
percent to 6 percent, improving salaries and wages to boost
employee retention. [GN]
CABLE TECHNOLOGY: Sued Over Failure to Properly Pay Employees
-------------------------------------------------------------
Robert Carter, on behalf of himself and all others similarly
situated v. Cable Technology Communications, LLC; Southern Cable
Services, LLC; and Thanh Nguyen, Case No. 2:18-cv-00571-UJB-RDP
(N.D. Al., April 9, 2018), is brought against the Defendants for
failure to pay overtime and minimum wages pursuant to the Fair
Labor Standards Act.
The Defendants operate in unison to provide local cable
installation services to various third party cable companies. [BN]
The Plaintiff is represented by:
Jody Forester Jackson, Esq.
JACKSON+JACKSON
2100 Southbridge Parkway Suite 650
Birmingham, AL 35209
Telephone: (205) 414-7467
Facsimile: (888) 988-6499
E-mail: jjackson@jackson-law.net
CALIFORNIA TANK: Faces "Garcia" Suit in Cal. Superior Court
-----------------------------------------------------------
A class action lawsuit has been filed against California Tank
Lines Inc. The case is styled as Gabriel Garcia, on behalf of
himself and on behalf of all persons similarly situated, Plaintiff
v. California Tank Lines Inc and Does 1-50, Defendants, Case No.
34-2018-00230817-CU-OE-GDS (Cal. Super. Ct., April 12, 2018).
California Tank Lines, Inc. was founded in 1946. The company's
line of business includes providing trucking transportation
services.[BN]
The Plaintiff is represented by:
Jean-Claude Lapuyade, Esq.
JCL Law Firm, APC
10200 Willow Creek Rd, Ste 150
San Diego, CA 92131
Tel: (619) 599-8292
Fax: (619) 599-8291
Email: jlapuyade@jcl-lawfirm.com
CANNAVEST CORP: Must Face Securities Class Action
-------------------------------------------------
Dean Seal, writing for Law360, reports that a New York federal
judge on March 31 found there was merit to a securities class
action accusing a hemp oil company of significantly overstating
its goodwill and sales in early 2013, though he granted some
dismissals for individuals affiliated with the company and
dismissed market manipulation claims against all the defendants.
U.S. District Judge Paul G. Gardephe said in his order that
CannaVest Corp. would have to face investor claims that it made
material misstatements and omissions affecting the company's share
price.
The case is In re: CannaVest Corp. Securities Litigation
Case No. 1:14-cv-02900 (S.D.N.Y.). The case is assigned to Judge
Paul G. Gardephe. The case was filed April 23, 2014. [GN]
CAPITAL ONE: Charges Bank Fees on its Own ATMs, Class Action Says
-----------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reports that a
federal class action claims Capital One bank charges fees on
balance inquiries on its own ATMs, though it promises they are
free, and charges two fees on balance inquiries and cash
withdrawals on out-of-network ATMs.
Attorneys for Plaintiff:
Todd D. Carpenter, Esq.
Brittany C. Casola, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1350 Columbia Street, Suite 603
San Diego, CA 92101
Telephone: 619.762.1900
Facsimile: 619.756.6991
Email: tcarpenter@carlsonlynch.com
bcasola@carlsonlynch.com
-- and --
Edwin J. Kilpela, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: 412.322.9243
Facsimile: 412.231.0246
Email: ekilpela@carlsonlynch.com
CEMEX SAB: May 15 Class Action Lead Plaintiff Motion Deadline Set
-----------------------------------------------------------------
The Law Offices of Vincent Wong on April 2 disclosed that a class
action lawsuit has been commenced in the United States District
Court for the Southern District of New York on behalf of investors
who purchased CEMEX, S.A.B. de C.V. ("CEMEX") (NYSE: CX)
securities between August 14, 2014 and March 13, 2018.
Click here to learn about the case: http://www.wongesq.com/pslra-
c/cemex?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) CEMEX executives had engaged in an
unlawful bribery scheme in connection with the Company's business
dealings in Colombia; (ii) discovery of the foregoing conduct
would likely subject the Company to heightened regulatory scrutiny
and potential criminal sanctions; (iii) the Company lacked
adequate internal controls over financial reporting; and (iv) as a
result, CEMEX's public statements were materially false and
misleading at all relevant times.
If you suffered a loss in CEMEX you have until May 15, 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-
c/cemex?wire=2.
Vincent Wong, Esq. is an experienced attorney that has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. [GN]
CERTIFIED CREDIT: Faces "Mushaeva" Suit in E.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Certified Credit &
Collection Bureau, Inc. The case is styled as Irina Mushaeva, on
behalf of herself and all others similarly situated, Plaintiff v.
Certified Credit & Collection Bureau, Inc. also known as:
Certified Credit & Collection Bureau, Inc. and Does 1 through 10,
inclusive, Defendants, Case No. 2:18-cv-01540-JD (E.D. Penn.,
April 12, 2018).
Certified Credit and Collection Bureau is a debt collection
agency.[BN]
The Plaintiff is represented by:
ARKADY ERIC RAYZ, Esq.
KALIKHMAN & RAYZ LLC
1051 COUNTY LINE ROAD, SUITE A
HUNTINGDON VALLEY, PA 19006
Tel: (215) 364-5030
Fax: (215) 364-5029
Email: erayz@kalraylaw.com
CHINA GARDEN: Faces "Lin" Suit in E.D. New York
------------------------------------------------
A class action lawsuit has been filed against China Garden of 88
Inc. The case is styled as Ming Rong Lin, individually and on
behalf of all other employees similarly situated, Plaintiff v.
China Garden of 88 Inc. as assignee of d/b/a China Garden y,
"John" (first name unknown) Chen and Tong Run You, Defendants,
Case No. 1:18-cv-02160 (E.D. N.Y., April 11, 2018).
China Garden of 88 Inc. is a privately held company in Sunnyside,
NY and is a single location business, categorized under China and
glassware stores.[BN]
The Plaintiff appears PRO SE.
CITIZENS FOR RAUNER: Faces Class Action Over Unlawful Robocalls
---------------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that an
Illinois man has brought a class action lawsuit against Illinois
Gov. Bruce Rauner's campaign committee, alleging the committee
violated federal telephone consumer protection law by making
"pernicious" and unsolicited robocalls to state residents'
cellular phones, urging them to vote for Mr. Rauner.
Peter Garvey filed suit March 23 in Cook County Circuit Court
against Citizens for Rauner Inc., alleging the organization
breached the federal Telephone Consumer Protection Act. The suit
was filed on Mr. Garvey's behalf by Chicago lawyer John Sawin.
The Rauner committee is chaired by Lesley Sweeney, of Chicago.
Mr. Rauner, a Republican, has been governor since 2015. He
defeated challenger Jeanne Ives in the March 20 primary and is to
face Democratic nominee J.B. Pritzker in the Nov. 6 general
election.
The TCPA law prohibits unsolicited, automated and prerecorded
phone calls. However, Mr. Garvey alleges that is exactly what
Mr. Rauner's campaign has been doing since last year, in a
"misguided effort to solicit support" for Mr. Rauner's candidacy.
Mr. Garvey said he received such calls on his wireless phone.
According to Mr. Garvey, a typical message from March this year
stated:
"Hi, this is Bruce Rauner. I'm callin' to ask for your vote in
the primary election. Illinois is worth fightin' for and with
real reform together we can bring back Illinois and provide the
future our children deserve. Please join me in the fight against
Mike Madigan and his special interest allies. I'm askin' for your
vote on March 20. Paid for by Citizens for Rauner."
Mr. Garvey characterized such messages as a "completely
unsolicited advertisement for services." He further said he did
not consent to receive such calls, as required by the TCPA.
Mr. Garvey said he believes there are "hundreds or likely
thousands" of people who were recipients of such calls, and
Mr. Rauner's committee should pay each person a minimum of $1,500
per call. Mr. Garvey further wants a judge to bar the committee
from making any more calls.
Circuit Judge Thomas R. Allen is presiding over the case. A
Democrat, Judge Allen served as alderman in Chicago's 38th Ward
for 17 years before becoming a judge in 2010.
The first court hearing is set for July 23. [GN]
COCO LIN INC: Faces "Wang" Suit in E.D. New York
------------------------------------------------
A class action lawsuit has been filed against Coco Lin Inc. The
case is styled as Minghui Wang, individually and on behalf of all
other employees similarly situated, Plaintiff v. Coco Lin Inc.
d/b/a Coco Lin Vegetarian Restaurant and Ai-Zhen Lin, Defendants,
Case No. 1:18-cv-02127 (E.D. N.Y., April 10, 2018).
The Defendants are engaged in the restaurant business.[BN]
The Plaintiff appears PRO SE.
COGENTIX MEDICAL: Faces "Franchi" Suit Over Laborie Merger Plans
----------------------------------------------------------------
Adam Franchi, individually and on behalf of all others similarly
situated v. Cogentix Medical, Inc., URI Geiger, James A. D'Orta,
Darin Hammers, Cheryl Pegus, Lewis C. Pell, Nachum Shamir, Kenneth
A. Samet, Howard Zauberman, Laborie Medical Technologies Canada
ULC, LM US Parent, Inc., and Camden Merger Sub, Inc., Case No.
2018-0258 (Del. Chan. Ct., April 6, 2018), stems from a proposed
transaction announced on March 12, 2018, pursuant to which
Cogentix Medical, Inc. will be acquired by affiliates of Laborie
Medical Technologies Canada ULC for $3.85 per share in cash.
According to the complaint, Cogentix filed a Schedule 14D-9
Solicitation/Recommendation Statement with the U.S. Securities and
Exchange Commission, which recommends that Cogentix stockholders
tender their shares in the Tender Offer. However, the
Recommendation Statement omits or misrepresents material
information concerning, among other things: (i) failure to
disclose information relating to party A's confidentiality
agreement; (ii) failure to disclose information relating to the
board's decision to reject party a's higher cash offer; (iii)
failure to disclose information relating to the tender agreements;
and (iv) failure to disclose information relating to Duff &
Phelps' potential conflict of interest. The failure to adequately
disclose such material information constitutes a violation of the
Exchange Act as stockholders need such information in order to
cast a fully-informed vote in connection with the Proposed
Transaction. The Complaint says the Proposed Transaction will
unlawfully divest Cogentix's public stockholders of the Company's
valuable assets without fully disclosing all material information
concerning the Proposed Transaction to Company stockholders. To
remedy the Defendants' Exchange Act violations, the Plaintiff
seeks to enjoin the stockholder vote on the Proposed Transaction
unless and until such problems are remedied.
Cogentix Medical, Inc. operates a global medical device company
designs, develops, manufactures, and markets a robust line of high
performance fiberoptic and video endoscopy products under the
PrimeSight brand that are used across multiple surgical
specialties in diagnostic and treatment procedures. [BN]
The Plaintiff is represented by:
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
Gina M. Serra, Esq.
Jeremy J. Riley, Esq
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Telephone: (302) 295-5310
E-mail: sdr@rl-legal.com
bdl@rl-legal.com
gms@rl-legal.com
jjr@rl-legal.com
COINCHECK: Faces Another Class Action Over Crypto Exchange Hack
---------------------------------------------------------------
Molly Jane Zuckerman, writing for Coin Telegraph, reports that
another class action lawsuit for around 82 mln yen (around
$771,000) has been filed against the hacked Japanese exchange
Coincheck.
Coincheck was hacked in Jan. 26 and over $530 mln in NEM was taken
from its hot wallet storage. The exchange froze withdrawals of
all cryptocurrencies in the aftermath of the hack, allowing
withdrawals and sales of certain coins to begin again in mid-
March.
Two known lawsuits have already been filed against Coincheck by
lawyer Hiromu Mochizuki, the first involving 10 crypto traders who
sued over the freezing of crypto withdrawals, The second Coincheck
lawsuit filed by the same lawyer involves 132 plaintiffs,
reportedly suing for 228 mln yen (around $2 mln) in damages.
The Japanese law firm ITJ, which is responsible for this most
recent lawsuit involving 15 plaintiffs, has a notice about filing
for Coincheck damages on the front page of their website. The
firm states that they will "request damages" against Coincheck for
the "cryptocurrencies' price before the incident minus the price
that plaintiffs actually could withdraw."
Coincheck began offering refunds in Japanese yen to customers
affected by the hack on March 13 at the fixed rate of around 88.5
yen (around $0.83) to one NEM coin.
ITJ's Coincheck damages page, which was written before Coincheck
began allowing certain withdrawals on March 13, states that there
are three important price points in deciding the amount to be
refunded: the first at 11:58 on Jan. 26 when Coincheck "restricted
the deposit" of NEM, the price at 16:37 on Jan. 26 when Coincheck
temporarily suspended both crypto and fiat withdrawals, and the
price when the hack was initially covered by the media.
These price points are for plaintiffs who were at one point unable
to withdraw their holdings to figure out how to claim their losses
based on the prices at the time they were actually able to
withdraw.
CT Japan reports that Japan Rashinban defense counsel also has a
legal team working on filing damages for those affected by the
Coincheck hack. The Japanese law firm Aussens also already filed
three other lawsuits against Coincheck, the first on Feb. 26, the
second on March 14, and the third on March 28, all at the Tokyo
District Court.
Following the hack, Japan's Financial Service Agency (FSA) began
on-site inspections of the country's 15 unregistered crypto
exchanges, filing business improvement notices to seven (including
Coincheck) and temporarily halting activities at two more. [GN]
COLONY NORTHSTAR: Sued in Cal. Over Misleading Financial Reports
----------------------------------------------------------------
Brian Barry, Individually and on behalf of all others similarly
situated v. Colony Northstar, Inc., Richard B. Saltzman, Darren J.
Tangen, Neale Redington, and David T. Hamamoto, Case No. 2:18-cv-
02888 (C.D. Cal., April 6, 2018), alleges that the Defendants made
false and misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects.
Colony Northstar, Inc. owns and operates a global real estate and
investment management firm incorporated in Maryland. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 S. Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
COLORADO: Court Recommends Denial of "Sutton" Class Certification
-----------------------------------------------------------------
In the case, JOSHUA LAMONT SUTTON, Plaintiff, v. COLORADO
DEPARTMENT OF CORRECTIONS (CDOC), VAUGHN, Mrs., BOLTON, Mrs.,
GRANT, Mrs., HEALY, Mrs., O'BRIAN, Mrs., GEBHART, Mr., JASON
LENGERICH, BRUNELL, Mr., GILLIS, Mr., SCAMPA, Mrs., LAGUE, Mr.,
WOOD, Mrs., LORENZE, Mrs., LONG, Mr., FOWLER, Mr., JIMERSON, Mr.,
OWENS, Mr., and LISAC, Mr., Defendants, Civil Action No. 17-cv-
00605-RM-MJW (D. Colo.), Magistrate Judge Michael J. Watanabe of
the U.S. District Court for the District of Colorado recommended
that the Plaintiff's Declared Motion for Class Action
Certification - Due to Pending Motion for Counsel be denied.
The case is before the Court pursuant to an Order Referring Case
entered by Judge Raymond P. Moore on March 13, 2017. Now before
the Court is the Plaintiff's Declared Motion for Class Action
Certification - Due to Pending Motion for Counsel, to which the
Defendants filed a response. Judge Moore referred the subject
motion to the undersigned Magistrate Judge on Jan. 9, 2018.
The Court has carefully considered the motion and has taken
judicial notice of the Court's file and has considered the
applicable Federal Rules of Civil Procedure and case law. The
facts of the case were set forth in the Magistrate Judge's Feb.
28, 2018 Report and Recommendation on the Defendants' motion to
dismiss and the Plaintiff's motion to amend.
The Plaintiff seeks to certify a class action regarding the
allegedly unconstitutional housing conditions at the Buena Vista
Correctional Complex. The Magistrate Judge finds that the
Plaintiff has not met his burden under Rule 23. Indeed, he failed
to establish the first prerequisite. Because the Plaintiff has
not met the very first threshold requirement, the Magistrate
declines to consider whether he has established the commonality,
typicality, and representational requirements. Wherefore, he
recommended that the Plaintiff's Declared Motion for Class Action
Certification - Due to Pending Motion for Counsel be denied.
Pursuant to 28 U.S.C. Section 636(b)(1)(C) and Fed. R. Civ. P.
72(b)(2), the Magistrate Judge notes that the parties have 14 days
after service of the recommendation to serve and file specific
written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another
party's objections within 14 days after being served with a copy.
The District Judge needs not consider frivolous, conclusive, or
general objections. A party's failure to file and serve such
written, specific objections waives de novo review of the
recommendation by the District Judge, and also waives appellate
review of both factual and legal questions.
A full-text copy of the Court's March 6, 2018 Report and
Recommendation is available at https://is.gd/3gb70v from
Leagle.com.
Joshua Lamont Sutton, Plaintiff, pro se.
Colorado Department of Corrections, Vaughn, Mrs., Bolton, Mrs.,
Grant, Mrs., Healy, Mrs., O'Brian, Mrs., Gebhart, Mr., (and the
above previous five are also known as "Group 1" or "G2"), Jason
Lengerich, Brunell, Mr., Gillis, Mr., Scanga, Mrs., LaGue, Mr.,
(and the two above are also known as "Group 2" or "G2"), Wood,
Mrs., Lorenze, Mrs., Long, Mr., Fowler, Mr., Jimerson, Mr., Owens,
Mr., (and the three above are also known as "Group 3" or "G3") &
Lisac, Mr., Defendants, represented by Jennifer Susan Huss,
Colorado Attorney General's Office.
CONNECTICUT: April 23 Evidentiary Hearing in IDEA Suit
------------------------------------------------------
Judge Charles S. Haight, Jr., of the U.S. District Court for the
District of Connecticut has entered an order setting an
evidentiary hearing for April 23, 2018 at 10:30 a.m. to explore
whether the Plaintiff has standing to proceed with the case, D.J.,
through his parent O.W., on behalf of a class of those similarly
situated, Plaintiff, v. CONNECTICUT STATE BOARD OF EDUCATION,
Defendants, Case No. 3:16-cv-01197 (CSH) (D. Conn.).
Plaintiff D.J. brings the purported class action through his
parent O.W. against the Connecticut State Board of Education,
alleging a violation of the Individuals with Disabilities
Education Act ("IDEA"), and seeking declaratory and injunctive
relief, and compensatory damages. The Plaintiff has filed a
motion to certify a class, and a motion for summary judgment. The
Defendant has cross-moved for summary judgment. However, before
the Court may consider those pending motions, it must resolve the
threshold question of standing.
Consistent with the Court's obligation to do so, Judge Haight
considers sua sponte whether Plaintiff D.J. has standing to
commence and prosecute the action, either individually or as the
representative of the purported class.
The Complaint alleges that D.J. is an individual with intellectual
disabilities who turned 21 years old on May 29, 2016. D.J. and
co-Plaintiff O.W., his parent and guardian, bring this purported
class action to establish the rights of Plaintiff D.J. and the
class he seeks to represent to a free appropriate public education
("FAPE") under the IDEA.
In the case at bar, the Plaintiff filed a Complaint on July 15,
2016, alleging that D.J. has not received a high school diploma.
The Plaintiff further alleges that until the end of the school
year in which he turned 21, D.J. received a free appropriate
public education pursuant to the IDEA at the Hartford Public High
School Law and Government Academy.
The Plaintiff seeks to certify a class pursuant to Rule 23(b) of
the Federal Rules of Civil Procedure of all individuals who would
have otherwise qualified to continue receiving a FAPE but for
turning 21, because they have not or had not yet earned a regular
high school diploma. The Plaintiff seeks a declaration that the
Connecticut laws which terminate the entitlement of Connecticut
students receiving a FAPE under the IDEA at the end of the school
year in which the student turns 21 are inconsistent with the IDEA,
because they apply only to special education students and not to
non-special education students.
The Plaintiff's Complaint satisfied his burden of establishing at
the pleading stage that he had standing to pursue his claims.
However, that point is irrelevant now, however, for the case is
beyond the pleading stage. The Plaintiff has filed a motion for
class certification, and a motion for summary judgment. In
support of the summary judgment motion, the Plaintiff appended an
affidavit, authored by Plaintiff O.W., D.J.'s parent. The
affidavit states, inter alia, that D.J. earned a diploma from
Hartford Public High School in or about 2013. However, he
continued to receive educational and related services from
Hartford Public High School until or about June 30, 2016.
On the basis of this sworn statement, the Defendant challenged the
Plaintiff's motions for class certification and for summary
judgment, arguing that a receipt of a high school diploma renders
the Plaintiff's claims moot. It also filed its own motion for
summary judgment, arguing, inter alia, that, as a high school
graduate, the Plaintiff's claims are moot and that the Defendant
is therefore entitled to summary judgment.
Although Defendant framed this issue as one of mootness, the
careful reader will have noted that the controversial diploma was
issued or offered -- the present record is not clear on that point
-- in 2013: Three years prior to the filing of the Plaintiff's
Complaint, and three years before the Plaintiff turned 21. Thus,
the present issue is not whether the Plaintiff's claims for relief
became moot during the pendency of this lawsuit, but rather,
whether the Plaintiff had standing to bring the action in the
first instance, because standing is determined as of the time of
the complaint, whereas mootness is evaluated throughout the
pendency of the litigation.
In these circumstances, the Plaintiffs submitted a second
affidavit from O.W. in reply to the motion for class
certification. Judge Haight finds that such information is
insufficient to satisfy the inquiry as to whether the Plaintiff
has standing to bring the lawsuit. He says the present record
does not reveal whether the diploma offered to the Plaintiff was a
regular high school diploma, as that phrase is used in Section
300.102(a)(3) of the IDEA regulations, or whether the document
tendered was some different or lesser instrument.
If D.J. had attained the necessary credits to entitle him to a
regular high school diploma, and the school officials made it
plain at the time that this sort of diploma was being awarded to
D.J., then queried whether D.J. would continue to be eligible for
a FAPE under the IDEA, notwithstanding the refusal of O.W., acting
as D.J.'s parent and guardian, to accept a regular diploma on
D.J.'s behalf. Moreover, the Judge finds that if it appears that
D.J. earned and was awarded or offered a regular high school
diploma prior to reaching 21 years of age, queried whether the
Plaintiff can show that the law he challenges caused him to suffer
an injury in fact, fairly traceable to Defendant, that is likely
to be redressed by a favorable judicial decision. An inability to
make that showing would effectively close the door to the
courthouse for the Plaintiff.
For the reasons stated, the Judge holds it is apparent that an
evidentiary hearing is necessary to explore whether the Plaintiff
has standing to proceed with this interesting and important
action. The Plaintiff bears the burden of proof on the
constitutional issue of his standing to sue.
Judge Haight says that the Counsel for the Plaintiff must consider
in the first instance whether a basis exists for an assertion of
standing consistent with the provisions of Rule 11 of the Federal
Rules of Civil Procedure. If there is to be an evidentiary
hearing, the counsel for the parties is directed to confer in a
good faith effort to stipulate to facts that are relevant and
undisputed. If disputed issues of fact emerge, the Court will
upon application make an order for pre-hearing discovery limited
to those issues. Since a party's standing to sue is
jurisdictional in nature, an order by the Court dismissing the
action for lack of standing would be without prejudice to the
underlying merits of the case.
A hearing on the case, consistent with the Memorandum and Order,
will take place on April 23, 2018 beginning at 10:30 a.m. and
continuing from day to day until the hearing is completed.
A full-text copy of the Court's March 23, 2018 Memorandum and
Order is available at https://is.gd/4H1quB from Leagle.com.
D. J., through his parent O.W., on behalf of a class of those
similarly situated, Plaintiff, represented by Jason H. Kim --
jkim@schneiderwallace.com -- Schneider Wallace Cottrell Konecky
Wotkyns LLP, pro hac vice, Nancy B. Alisberg --
nancy.alisberg@disrightsct.org -- Disability Rights Connecticut &
Sonja Deyoe -- sld@the-straight-shooter.com -- Law Offices of
Sonja L. Deyoe.
Connecticut State Board of Education, Defendant, represented by
Darren P. Cunningham, Attorney General's Office & Ralph E. Urban,
Attorney General's Office.
CORIZON HEALTH: "Stafford" Class of Prisoners with HCV Certified
----------------------------------------------------------------
In the case, MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH,
Plaintiffs, v. ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.,
MONICA GIPSON, R.N., PAUL TALBOT, M.D., MICHAEL PERSON, M.D.,
HOUMAN KIANI, M.D., CORIZON HEALTH, INC., CORIZON, LLC, WEXFORD OF
INDIANA, LLC, Defendants, Case No. 1:17-cv-00289-JMS-MJD (), Judge
Jane Magnus-Stinson of the U.S. District Court for the Southern
District of Indiana, Indianapolis Division, granted the
Plaintiffs' Motion for Class Certification.
The named Plaintiffs are individuals who are incarcerated at
Pendleton Correctional Facility and who have been diagnosed with
chronic HCV. They allege that in October 2013, the FDA approved
new "breakthrough" direct-acting antiviral drugs that can cure HCV
in only 12 weeks with daily oral medication, at a 95% cure rate.
A panel of experts known as the HCV Guidance Panel provides
guidelines that represent the standard of care within the medical
community for treating HCV. The Panel recommends treatment for
all patients with chronic HCV, except those with short life
expectancies that cannot be remediated by treatment,
transplantation, or other directed therapy. Chronic HCV does not
self-correct: individuals are infected for life unless their HCV
is treated with medication.
The Plaintiffs allege that IDOC screens all inmates for HCV
infection, and is therefore aware of each inmate who suffers from
the illness, and who poses a risk of infecting other inmates and
individuals in the general population following release. They
allege that they all tested positive for HCV while incarcerated
within an IDOC facility. They also allege that the Defendants
have denied their requests for treatment of their HCV infections.
The Plaintiffs allege that because of the short-term costs of
treating HCV-positive inmates in the DOC system, Defendants
Corizon and Wexford have deliberately instituted policies of
rationing anti-HCV medication, to a small number of inmates,
failing to comply with the standard of care for HCV. They claim
that as a result of their failure to treat HCV-positive inmates
appropriately, the Defendants have exposed named Plaintiffs and
other HCV-positive inmates to significant harm, and placed the
entire prison population and the general public at greatly
increased risk of serious harm and injury from HCV infection by
spreading the infection throughout the prison population and
beyond.
The Plaintiffs filed their initial Complaint in the Court on Jan.
27, 2017, raising claims on behalf of themselves and those
similarly situated. The operative First Amended Complaint alleges
that the Defendants have violated the Eighth Amendment to the
United States Constitution, the Americans with Disabilities Act
("ADA"), and the Rehabilitation Act by failing to provide the
named Plaintiffs and putative class members with treatment for
their HCV. The First Amended Complaint seeks monetary damages on
behalf of the named Plaintiffs and prospective injunctive and
declaratory relief against the State Defendants and Wexford on the
behalf of the class.
Presently pending before the Court is the Plaintiffs' Motion for
Class Certification, in which they seek to certify a class
regarding only their claims for declaratory and injunctive relief
against the state Defendants and Wexford.
Specifically, the Plaintiffs propose the class definition all
persons who are now, or will in the future be, in the custody of
IDOC, diagnosed with chronic HCV, and wish to receive standard of
care treatment for their illness but are being denied it.
The State Defendants argue that the membership in the proposed
class is not ascertainable by the Court because: (1) discerning
which individuals "wish" to receive standard-of-care treatment
requires a subjective analysis of each individual's state of mind;
and (2) determining which individuals have been denied standard-
of-care treatment will require the Court and medical experts to
"carefully review the medical records of each and every offender
with chronic HCV. In response, the Plaintiffs argue that the
proposed class definition is sufficient, because the class may be
ascertained by reference to wholly objective criteria. In the
alternative, however, they propose a modified definition that
alleviates any concerns raised by the Defendants: All current and
future prisoners in IDOC custody who have been diagnosed, or will
be diagnosed, with chronic HCV.
Judge Magnus-Stinson finds that where, as here, a proposed class
satisfies all the prerequisites of Federal Rule of Civil Procedure
23(a), a class certification is appropriate if the class qualifies
as one of the types listed under subsection (b) of Rule 23. The
Plaintiffs argue, and the Court agrees, that the proposed class
fits within Fed. R. Civ. P. 23(b)(2), in that, based on the
allegations in the First Amended Complaint, the party opposing the
class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
The State Defendants oppose the conclusion, generally reiterating
their arguments regarding the individualized nature of HCV
treatment. For the reasons she described, the Judge rejects those
arguments. Because the action seeks injunctive relief to prevent
future allegedly illegal deprivations of civil rights, it is a
prime example of a proper class under Rule 23(b)(2).
Judge Magnus-Stinson therefore granted the Plaintiffs' Motion for
Class Certification, modifying the class definition to include all
current and future prisoners in IDOC custody who have been
diagnosed, or will be diagnosed, with chronic HCV. Moreover, she
designated Michael Ray Stafford, Charles Smith, and Douglas Smith
as the representatives for the class action pursuant to Rule 23;
and Mark W. Sniderman and Robert A. Katz as the lead class counsel
pursuant to Fed. R. Civ. P. 23(g).
A full-text copy of the Court's March 2, 2018 Amended Order is
available at https://is.gd/nYXjtw from Leagle.com.
MICHAEL RAY STAFFORD, CHARLES SMITH & DOUGLAS SMITH, Plaintiffs,
represented by Mark W. Sniderman, SNIDERMAN NGUYEN LLP & Robert A.
Katz -- rokatz@iupui.edu -- INDIANA UNIVERSITY MCKINNEY SCHOOL OF
LAW, pro hac vice.
ROBERT E. CARTER, JR. & MONICA GIPSON, R.N., Defendants,
represented by Aleksandrina Penkova Pratt, INDIANA ATTORNEY
GENERAL, Benjamin Myron Lane Jones, INDIANA ATTORNEY GENERAL,
Jonathan Paul Nagy, INDIANA ATTORNEY GENERAL & Kelly Suzanne
Thompson, INDIANA ATTORNEY GENERAL.
MICHAEL MITCHEFF, M.D., Defendant, represented by Aleksandrina
Penkova Pratt, INDIANA ATTORNEY GENERAL, Benjamin Myron Lane Jones
, INDIANA ATTORNEY GENERAL, Douglass R. Bitner, KATZ KORIN
CUNNINGHAM, P.C., Jonathan Paul Nagy, INDIANA ATTORNEY GENERAL &
Kelly Suzanne Thompson, INDIANA ATTORNEY GENERAL.
PAUL TALBOT, M.D., Defendant, represented by Carrie L. Kinsella --
Carrie.Kinsella@jacksonlewis.com -- JACKSON LEWIS P.C., pro hac
vice, Douglass R. Bitner, KATZ KORIN CUNNINGHAM, P.C., Jarrod
Alvin Malone, KATZ KORIN CUNNINGHAM, P.C., Jessica L. Liss --
Jessica.Liss@jacksonlewis.com -- JACKSON LEWIS P.C., pro hac vice,
Melissa K. Taft -- Melissa.Taft@jacksonlewis.com -- JACKSON LEWIS
PC & Scott James Preston -- Scott.Preston@jacksonlewis.com --
JACKSON LEWIS PC.
MICHAEL PERSON, M.D. & HOUMAN KIANI, M.D., Defendants, represented
by Carrie L. Kinsella, JACKSON LEWIS P.C., pro hac vice, Douglass
R. Bitner, KATZ KORIN CUNNINGHAM, P.C., Jessica L. Liss, JACKSON
LEWIS P.C., pro hac vice, Melissa K. Taft, JACKSON LEWIS PC &
Scott James Preston, JACKSON LEWIS PC.
CORIZON HEALTH, INC., Defendant, represented by Carrie L.
Kinsella, JACKSON LEWIS P.C., pro hac vice, Jessica L. Liss,
JACKSON LEWIS P.C., pro hac vice, Melissa K. Taft JACKSON LEWIS
PC, Scott James Preston, JACKSON LEWIS PC & William R. Lunsford --
lpotter@maynardcooper.com -- MAYNARD COOPER & GALE PC, pro hac
vice.
CORIZON, LLC, Defendant, represented by Carrie L. Kinsella,
JACKSON LEWIS P.C., Douglass R. Bitner, KATZ KORIN CUNNINGHAM,
P.C., Jessica L. Liss, JACKSON LEWIS P.C., Melissa K. Taft ,
JACKSON LEWIS PC, Scott James Preston, JACKSON LEWIS PC & William
R. Lunsford, MAYNARD COOPER & GALE PC.
WEXFORD OF INDIANA, LLC, Defendant, represented by Douglass R.
Bitner, KATZ KORIN CUNNINGHAM, P.C. & Jarrod Alvin Malone, KATZ
KORIN CUNNINGHAM, P.C..
CRUISIN CHUBBYS: Court Certifies "Jones" Class of Exotic Dancers
----------------------------------------------------------------
In the case, TERIANA JONES and BETHANY MORRISEY, on behalf of
themselves and a class of employees and/or former employees
similarly situated, Plaintiffs, v. CRUISIN' CHUBBYS GENTLEMEN'S
CLUB, EDGE OF THE DELLS, INC., TIMOTHY ENTERPRISES, LLC, KENNY'S
FUTURE, LLC, LIVING ON THE EDGE CAMPGROUND & GO-KARTS, INC., PTB,
INC., SOUTHERN HEIGHTS, LLC, TIMOTHY D. ROBERTS, KENNETH C.
ROBERTS, and LANTZ RAY ROBERTS f/k/a THOMAS LANTZ DOUGLAS,
Defendants, Case No. 17-cv-125-jdp (W.D. Wis.), Judge James D.
Peterson of the U.S. District Court for the Western District of
Wisconsin (i) granted the Plaintiffs' motion to dismiss Jane Roe
#5; (ii) granted the Plaintiffs' motion for class certification;
and (iii) denied the Defendants' motion for decertification.
Jones and Morrisey were both exotic dancers at Defendant Cruisin'
Chubbys Gentlemen's Club. They contend that the Defendants were
their joint employer under both state and federal labor laws, but
that the Defendants classified them incorrectly as independent
contractors, and, as a result, violated legal requirements to pay
them a minimum wage and the higher rate for working overtime. The
Plaintiffs also contend that the Defendants violated state and
federal law by retaining a portion of the tips the dancers
received. They seek to represent a collective action under the
Fair Labor Standards Act ("FLSA") and a class action under state
law. The Court previously approved the parties' stipulation for
conditional certification of the Plaintiffs' FLSA claims.
Two related motions are before the Court: (1) the Plaintiffs'
motion to certify a class under Rule 23 as to their state law
claims; and (2) the Defendants' motion to decertify the collective
action under 29 U.S.C. Section 216(b) as to the Plaintiffs' FLSA
claims. The Plaintiffs also move to dismiss the claim of "Jane
Roe #5," another dancer who earlier had filed a notice of consent
to join the lawsuit.
As the Plaintiffs' motion to dismiss Jane Roe #5 is unopposed,
Judge Peterson granted it. As for the parties' dueling
certification motions, he granted the Plaintiffs' motion and
denied the Defendants'. He explains that the case for
certification of the Plaintiffs' claims is relatively
straightforward, as shown by the myriad decisions around the
country certifying classes of dancers challenging their
classification as independent contractors rather than employees.
Although the Defendants deny that they are classifying their
dancers incorrectly, none of the evidence cited by either side
suggests that they classify each dancer differently, only that
there is a factual dispute about how all the dancers are
classified. Because that dispute can be resolved as to the entire
class, it makes sense to decide in one lawsuit the dancers'
employment status. There will be individualized questions
regarding damages, but that is not a ground for denying the motion
for class certification in light of the evidence that liability
can be decided jointly.
In sum, the Judge is persuaded that class certification is
appropriate under both Rule 23(b)(3) and Sec 216(b). The
Plaintiffs meet all the requirements of Rule 23(a): the class is
sufficiently numerous; the class claims share common questions;
the claims of the named representatives are typical of the class;
and the named Plaintiffs as well as class counsel are adequate.
And they have satisfied the requirements in Rule 23(b)(3) to show
that common questions predominate for the purpose of determining
liability and that a class action is a superior method of
resolving liability.
Accordingly, he certified the class of any individual who worked
as an exotic dancer at Cruisin' Chubbys Gentlemen's Club from Feb.
22, 2014, to the present.
He appointed the law firm of Moen Sheehan Meyer Ltd. as the class
counsel. The Plaintiffs may have until March 14, 2018, to file a
proposed class notice. The Defendants may have until March 21,
2018, to file a response.
A full-text copy of the Court's March 6, 2018 Opinion and Order is
available at https://is.gd/zKHF4m from Leagle.com.
Teriana Jones, On behalf of herself and a class of employees
and/or former employees similarly situated & Bethany Morrisey, On
behalf of herself and a class of employees and/or former employees
similarly situated, Plaintiffs, represented by Justin William
Peterson -- jpeterson@msm-law.com -- Moen Sheehan Meyer Ltd. &
Paul A. Kinne -- kinne@gcwlawyers.com -- Gingras, Cates & Luebke,
S.C.
Edge of the Dells, Inc., Timothy Enterprises, LLC, Kenny's Future,
LLC, Living on the Edge Campground & Go-Karts, Inc., PTB, Inc.,
Timothy D. Roberts, Kenneth C. Roberts, Lantz Ray Roberts,
formerly known as, Cruisin' Chubbies Gentlemen's Club & Southern
Heights, LLC, Defendants, represented by Anthony J. Steffek --
asteffek@dkattorneys.com -- Davis & Kuelthau, S.C. & Laurie E.
Meyer -- laurie.meyer@dkattorneys.com -- Davis & Kuelthau, s.c.
CUSTARD INSURANCE: Faces "Wadler" Suit in California Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against Custard Insurance
Adjusters, Inc. The case is styled as Perry Wadler, an individual
and on behalf of himself and others similarly situated aggrieved,
Plaintiff v. Custard Insurance Adjusters, Inc. an Indiana
Corporation and Does 1 to 100 inclusive, Defendant, Case No.
CGC18565724 (Cal. Super. Ct., April 12, 2018).
Custard Insurance Adjusters, Inc. operates as a loss adjusting
company in the United States. The company offers claims and risk
management services, including commercial transportation,
property, third party administration, personal and commercial
automobile, general liability, workers compensation,
hazardous/environmental claim, professional liability, inland and
wet marine, and product liability services.[BN]
The Plaintiff is represented by:
Matthew J. Matern, Esq.
Matern Law Group, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Tel: 310-531-1900
Email: info@maternlawgroup.com
DCN AUTOMOTIVE: Panel Tosses Class Action Over Fraud Claims
-----------------------------------------------------------
Bill Wichert, writing for Law360, reports that the New Jersey
Appellate Division on April 2 knocked down a putative class action
against a car dealership over claims the business sold vehicles at
higher base prices than the amounts advertised and engaged in
other fraudulent practices, saying a customer had agreed to
arbitrate his claims individually.
The three-judge appellate panel upended a trial court ruling last
June that had denied DCN Automotive LLC's motion to dismiss the
lawsuit and to compel Larry L. Haynes to arbitrate his consumer
fraud and related claims. [GN]
DESTINATION XL: Faces "Olsen" Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Destination XL
Group, Inc. The case is styled as Thomas J. Olsen, individually
and on behalf of all other persons similarly situated, Plaintiff
v. Destination XL Group, Inc., Defendant, Case No. 1:18-cv-02220
(E.D. N.Y., April 15, 2018).
Destination XL Group, Inc. is the largest specialty retailer of
men's big and tall apparel, with operations throughout the United
States and in London, England.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
DEVILLE ASSET: Faces "Heard" Suit in N.D. Texas
-----------------------------------------------
A class action lawsuit has been filed against DeVille Asset
Management, Ltd. The case is styled as Quianna Heard a/k/a Quiana
L. Heard, individually and on behalf of all others similarly
situated, Plaintiff v. DeVille Asset Management, Ltd. and John
Does 1-25, Defendants, Case No. 4:18-cv-00278-A (N.D. Tex., April
11, 2018).
DeVille Asset Management specializes in the acquisition of
defaulted account receivable portfolios from consumer credit
originators such as major banks, retailers, credit unions, utility
providers, and municipalities. It generates revenues primarily
through the purchase, collection and sale of performing and non-
performing consumer receivables that have typically been
delinquent 90 days by the credit grantors or not considered to be
prime receivables.[BN]
The Plaintiff is represented by:
Jonathan David Kandelshein, Esq.
The Law Offices of Jonathan Kandelshein
18208 Preston Rd, Suite D-9 #256
Dallas, TX 75252
Tel: (469) 677-7863
Fax: (972) 380-8118
Email: Jonathan.kandelshein@gmail.com
DONALD TRUMP: Judge Signs Off on $25 Million Settlement
-------------------------------------------------------
Courthouse News Service reports that a federal judge on April 9
signed off at last on the $25 million settlement of class actions
against President Donald Trump and his now-defunct Trump
University real estate, putting a bow on consumer fraud claims
that dogged the president since 2010.
DOUBLE DOWN: Faces "Benson" Class Suit Over Illegal Casino Games
----------------------------------------------------------------
Adrienne Benson, individually and on behalf of all others
similarly situated v. Double Down Interactive, LLC and
International Game Technology, Case No. 2:18-cv-00525 (W.D. Wash.,
April 9, 2018), seeks to enjoin the Defendants' operation of
illegal online casino games.
The Defendants own and operate video game development companies in
the so-called "casual games" industry -- that is, computer games
designed to appeal to a mass audience of casual gamers. [BN]
The Plaintiff is represented by:
Janissa A. Strabuk, Esq.
Cecily C. Shiel, Esq.
TOUSLEY BRAIN STEPHENS, PLLC
1700 Seventh Avenue, Suite 2200
Seattle, WA 98101-4416
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: jstrabuk@tousley.com
cshiel@tousley.com
- and -
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, Suite 1400
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-6378
E-mail: brichman@edelson.com
- and -
Rafey Balabanian, Esq.
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, CA 94107
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
E-mail: rbalabanian@edelson.com
DRIFTWOOD HOSPITALITY: Faces "Colburn" Suit in Maryland Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Driftwood
Hospitality Management. The case is styled as Gaynell C. Colburn,
individually and on behalf of others similarly situated, Plaintiff
v. Driftwood Hospitality Management, Defendant, Case No. 1:18-cv-
01030-MJG (D. Md., April 10, 2018).
Driftwood Hospitality Management, LLC is a hotel management
company that acquires, develops, repositions, renovates, and
operates hotels in business travel, convention markets, and resort
destinations in the United States and Costa Rica.[BN]
The Plaintiff is represented by:
E David Hoskins, Esq.
The Law Offices of E David Hoskins LLC
16 E. Lombard Street, Suite 400
Baltimore, MD 21202
Tel: (410) 662-6500
Fax: (410) 662-7800
Email: davidhoskins@hoskinslaw.com
- and -
Kathleen Hyland, Esq.
Hyland Law Firm, LLC
16 E Lombard Street, Suite 400
Baltimore, MD 21202
Tel: (410) 777-5396
Fax: (410) 777-8237
Email: kat@lawhyland.com
- and -
R Bruce Carlson, Jr., Esq.
Carlson Lynch Sweet & Kilpela, LLP
1133 Penn Avenue
Pittsburgh, PA 15222
Tel: (412) 749-1677
Fax: (412) 749-1686
Email: bcarlson@carlsonlynch.com
ELSA LA REINA: Faces "Santos" Suit in New Jersey
------------------------------------------------
A class action lawsuit has been filed against Elsa La Reina Del
Chicharron #5, Inc. The case is styled as Antonio Jose Santos and
Antonio Urias, on behalf of themselves and all other persons
similarly situated, Plaintiffs v. Elsa La Reina Del Chicharron #5,
Inc. doing business as: Elsa La Reina Del Chicharron, Elsa Mejia
and Teddy Mejia, Defendants, Case No. 2:18-cv-06646 (D. N.J.,
April 13, 2018).
Elsa Queen of Chicharron, started the business of food as a hobby
into a cellar and by the high demand and acceptance of Creole
food, decided in 1999 to create the business known today as The
Queen of Chicharron, Elsa. Her beginnings were in the premises
located at 4840 Broadway. At first it only sold the fried pork and
cassava, but now has a range of Dominican dishes.[BN]
The Plaintiffs appear PRO SE.
EMBRAER SA: Judge Tosses FCPA-Related Class Action
--------------------------------------------------
Dunstan Prial, writing for Law360, reports that a New York federal
judge has dismissed a proposed securities fraud class action suit
brought against Brazilian aerospace conglomerate Embraer SA
alleging the company hid a "brazen and sprawling" corruption
scheme, finding that Embraer disclosed everything it legally
needed to in connection with an ongoing investigation into
potential Foreign Corrupt Practices Act violations.
The ruling issued on March 30 by U.S. District Judge Richard M.
Berman dismissed with prejudice the claims of lead plaintiff, the
Employees Retirement System of the city of Providence, Rhode
Island. [GN]
ENHANCED RECOVERY: Faces "Sharon" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Enhanced Recovery
Company, LLC. The case is styled as Ella Sharon, on behalf of
herself and all other similarly situated consumers, Plaintiff v.
Enhanced Recovery Company, LLC, Defendant, Case No. 1:18-cv-02139
(E.D. N.Y., April 10, 2018).
Enhanced Recovery Company LLC provides business process
outsourcing services that include recovery, outsourcing, and
market research primarily for Fortune 500 companies in the United
States and internationally.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
Adam J. Fishbein, P.C.
735 Central Avenue
Woodmere, NY 11598
Tel: (516) 668-6945
Email: fishbeinadamj@gmail.com
FACEBOOK INC: Faces Class Action in N.Y. Over Cambridge Analytica
-----------------------------------------------------------------
Colby Hamilton, writing for Law.com, reports that the wave of
federal litigation over Facebook users' information being
purloined by a political consultancy firm working for the Trump
2016 presidential campaign arrived in New York on April 2.
The lawsuit joins actions in California and New Jersey related to
reports that some 50 million Facebook users had their private
personal information accessed by the firm Cambridge Analytica. The
firm used a personality quiz to induce 270,000 Facebook users to
provide not only access to their own personal information on the
site, but also to their friends.
The class action lawsuit filed in the U.S. District Court for the
Southern District of New York on behalf of state residents accuses
Cambridge Analytica of deceptive business, false advertising, and
"blatant disregard and misuse of sensitive, personal data"
belonging to the class members.
According to the complaint, the firm made million of dollars off
users' personal information "without their permission," and the
damages are ongoing. The information acquired from Facebook users
"remains in Defendant's possession, without adequate protection,
and is also in the hands of those who obtained it for political
and commercial value, without class members' consent," the
complaint said.
Both the plaintiffs, Sarah Ortiz and Victor Mallh, say they were
targeted with political ads during the 2016 presidential election.
The complaint says it seeks to find out whether Cambridge
Analytica obtained personal information improperly by
misrepresenting the terms it presented to users, as well as
Facebook's own privacy policy. The claims are being brought under
New York's General Business Law.
Gardy & Notis attorney Meagan Farmer -- mfarmer@gardylaw.com -- is
lead counsel for the plaintiffs. She did not respond to a request
for comment.
A representative for Cambridge Analytica could not be reached.
[GN]
FACEBOOK INC: Urged to Reconsider Harvesting of Facial Data
-----------------------------------------------------------
Nihcolas Iovino, writing for Courthouse News Service, reports that
as it faces an onslaught of fresh criticism over its handling of
private data, a federal judge urged Facebook on March 29 to look
long and hard at its practice of harvesting facial data from
online photos.
"With everything going on in the world, maybe it's time for
Facebook to look at all of its privacy practices and not just
those in the news," U.S. District Judge James Donato said in court
March 29 after urging the social network to try settling a three-
year-old privacy class action.
At a hearing on class certification and dueling summary judgment
motions, Facebook argued it can't be held liable on claims it
collected users' facial data without consent because the
plaintiffs suffered no concrete harm.
The plaintiffs claim Facebook's scanning and storing of facial
data for its "Photo Tag Suggest" function violates the Illinois
Biometric Information Privacy Act (BIPA), enacted in 2008. Under
BIPA, companies are required to obtain consent before collecting
or disclosing biometric data, such as retina scans, fingerprints,
voiceprints, hand scans, or facial geometry.
"The Illinois Legislature says when they said 'aggrieved,' it
means something more than taking biometric identifiers without
notice and consent," Facebook lawyer Laruen Goldman, Esq. --
lrgoldman@mayerbrown.com -- declared in court March 29.
Donato appeared inclined to reject that argument, as he did last
month when he ruled the unauthorized collection of biometric
facial data could cause "intangible harm" by depriving people of
control over their private data.
Goldman argued a recent ruling by an Illinois appeals court
confirmed individuals must suffer concrete harm to seek damages
for BIPA violations. In its December 2017 ruling Rosenbach v. Six
Flags, the Illinois Appellate Court dismissed a suit over Six
Flags scanning the thumbprint of a minor for a season pass without
his parents' permission. The court found the minor was not an
"aggrieved" person as required under the law because he suffered
no concrete injury.
But Donato said that ruling was "tied to the facts of the Six
Flags case," which differs from this case where the plaintiffs
allege loss of control over their private data, not a mere
violation of the Illinois law.
"That kind of kicks Rosenbach to the curb, doesn't it," Donato
asked.
Facebook further contends that users agreed to be bound by its
data policy, which states Facebook is "able to suggest that your
friend tag you in a picture by comparing your friend's pictures to
information we've put together from your profile pictures and the
other photos in which you've been tagged."
The policy further states: "We store data for as long it is
necessary to provide products and services to you and others,
including those described above."
However, the plaintiffs say Facebook never obtained a written
release from users before it started harvesting their data. They
claim Facebook failed to provide a retention schedule that details
when it will destroy the biometric data, as required under the
law.
At the end of March 29's hearing, Donato urged both sides to try
settling the case before a jury trial kicks off July 9.
Donato said he would ask U.S. Magistrate Judge Donna Ryu in
Oakland to schedule settlement conference dates within the next 30
to 60 days. Donato also ordered both sides to bring client
representatives to those meetings with "full authority to settle
on the spot."
A hearing on motions to exclude expert testimony and second-phase
summary judgment motions was scheduled for May 3.
March 29's hearing came less than two weeks after The New York
Times revealed that United Kingdom-based data firm Cambridge
Analytica improperly obtained the private data of 50 million
Facebook users and used it to help political clients, including
President Donald Trump's 2016 campaign.
After the scandal was made public, Facebook lost more than $50
billion in market value and was hit with at least six shareholder
class actions accusing the social media giant of hiding problems
of protecting user data from investors.
The company has also been hit with at least eight class actions
over the last nine days for failing to protect user data, and one
by Android users who say Facebook collected text log and phone
call data from their phones without permission.
Co-founded in 2004 by Harvard dropout Mark Zuckerberg, the Menlo
Park-based social network had 1.4 billion active daily users as of
December 2017 and was valued at $407.3 billion as of May 2017,
according to Facebook and Forbes.
Earlier this week, Zuckerberg -- currently Facebook's CEO --
agreed to testify before a U.S. Senate committee on the Cambridge
Analytica data-mining scandal, but he declined to appear before a
United Kingdom parliamentary committee on the use or misuse of
social media to influence elections, including the 2016 Brexit
vote to leave the European Union.
FIRST PENN-PACIFIC: Faces "Iwanski" Suit in E.D. Pennsylvania
-------------------------------------------------------------
A class action lawsuit has been filed against First Penn-Pacific
Life Insurance Company. The case is styled as Thomas Iwanski, on
behalf of himself and all others similarly situated, Plaintiff v.
First Penn-Pacific Life Insurance Company, Defendant, Case No.
2:18-cv-01573-GAM (E.D. Penn., April 13, 2018).
First Penn-Pacific Life Insurance Company offers term life
insurance and linked benefits policies.[BN]
The Plaintiff is represented by:
DOUGLAS E. ROBERTS, Esq.
PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI
1818 MARKET ST SUITE 3402
PHILADELPHIA, PA 19103
Tel: (215) 988-1431
Email: der@pietragallo.com
FOODLINER INC: Must Produce Contact Info of "Austin" Class
----------------------------------------------------------
In the case, RONDA AUSTIN, et al., Plaintiffs, v. FOODLINER, INC.,
Defendant, Case No. 16-cv-07185-HSG (DMR)(N.D. Cal.), Magistrate
Judge Donna M. Ryu of the U.S. District Court for the Northern
District of California granted the Plaintiffs' motion to compel
the Defendant to produce contact information for the putative
class members.
The Plaintiffs filed the wage and hour putative class action
against Foodliner, a trucking business that transports liquid and
dry cargo throughout California. They are former truck drivers
who seek to represent a California class of current and former
non-exempt truck drivers who were employed by Foodliner during the
putative class period, Nov. 3, 2012, to the present.
The Plaintiffs allege that Foodliner committed various California
Labor Code violations, including the failure to pay minimum wages,
permit rest periods, and provide adequate wage statements. They
seek damages, injunctive relief, declaratory relief, equitable
relief, and penalties under the Private Attorneys General Act.
On Aug. 29, 2017, the Plaintiffs served their first set of special
interrogatories on Foodliner. At issue here is Special
Interrogatory No. 1, which requests the disclosure of the putative
class member contact information, including last known address,
telephone numbers (i.e., home and cellular), and any email address
on file.
On Jan. 5, 2018, the parties filed a joint discovery letter in
which the Plaintiffs move to compel the production of the putative
class member contact information pursuant to a protective order.
Foodliner objects, arguing that a protective order does not
adequately address privacy interests in the contact information.
It requests that the information only be disclosed after the
putative class members are provided with a written notice
informing them of the lawsuit and giving them an opportunity to
opt-out of contact by the Plaintiffs' counsel, also known as a
"Belaire-West" notice.
Magistrate Judge Ryu finds that a protective order will adequately
address the privacy concerns of the putative class members by
limiting the distribution and usage of the contact information. A
Belaire-West notice is unnecessary under these circumstances.
However, mindful of the putative class members' privacy rights,
the Magistrate orders the Plaintiffs' counsel to inform each
contacted putative class member that he or she has the right not
to talk to counsel and, upon a declination, the counsel will
immediately terminate the conversation and will not contact that
individual again. She says the Plaintiffs' counsel must also
inform each contactee that the court compelled Foodliner to
disclose employee contact information, and that the contact
information was provided solely for the lawsuit and cannot be
distributed for other uses.
In conclusion, Magistrate Judge Ryu granted Plaintiffs' motion to
compel. Foodliner is ordered to produce each putative class
members' last known address, telephone numbers, and any email
address pursuant to a protective order. As ordered at the
hearing, the parties must file a stipulated proposed protective
order for the Court's approval by no later than March 1, 2018.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/GIV9eN from Leagle.com.
Ronda Austin, Christopher Corduck, Ernest Dial, Billy Wayne Gibson
& Bobby G. Smith, on behalf of themselves and all others similarly
situated, Plaintiffs, represented by Hunter Pyle --
hpyle@ssrplaw.com -- Hunter Pyle Law & Chad A. Saunders --
csaunders@ssrplaw.com -- Sundeen Salinas & Pyle.
Foodliner, Inc., Defendant, represented by Mollie Michelle Burks -
- mburks@grsm.com -- Gordon & Rees Scully Mansukhani, LLP, John
Paul Briscoe -- jbriscoe@mayallaw.com -- Burton Employment law &
Nicholas A. Deming -- ndeming@grsm.com -- Gordon & Rees.
FRIENDLUM INC: Court Denies Bid to Stay "Sandoval" TCPA Suit
------------------------------------------------------------
Judge Michael M. Anello of the U.S. District Court for the
Southern District of California denied the Defendant's motion to
stay the case, RENE SANDOVAL, individually and on behalf of all
others similarly situated, Plaintiff, v. FRIENDLUM, INC., d/b/a
DIRECT HOME ENERGY SOLUTIONS, Defendant, Case No. 17cv1917-MMA
(BGS)(S.D. Cal.).
The Plaintiff filed a class action complaint on Sept. 20, 2017
against the Defendant Friendlum, alleging negligent and willful
violations of the Telephone Consumer Protect Act ("TCPA"). The
Plaintiff, a California resident, received a series of calls on
his cellular telephone on or about Sept. 6, 2017. Specifically,
the Plaintiff claims that at approximately 2:54 pm, on or about
Sept. 6, 2017, he received a call from the Defendant, in which the
Defendant utilized an automatic telephone dialing system ("ATDS")
using an artificial or prerecorded voice as prohibited by 47
U.S.C. Section 227(b)(1)(A). The Plaintiff answered the call and
said "hello" approximately five times before someone named Eddie
introduced himself from Direct Home Energy Solutions. The
Plaintiff asked Eddie how he obtained his cellular telephone
number, to which Eddie responded he didn't know, that it was auto-
dialed.
Approximately 12 minutes later, at 3:06 p.m., the Plaintiff missed
a call from an unknown number. He called the number back,
believing it may be a work-related call. A woman named Jessica
answered the phone and indicated she was calling from Direct Home
Energy Solutions. Jessica requested him make an appointment to
discuss home energy solutions, but he told Jessica that he was not
interested and not to call him again. After Plaintiff informed
Jessica not to call him anymore, he received three more calls from
her, one right after the other.
The Plaintiff claims that the ATDS utilized by the defendant has
the capacity to store or produce telephone numbers to be called,
using a random or sequential number generator. However, at no
time did the Plaintiff provide prior express consent for the
Defendant to call his cellular telephone.
Based upon these allegations, the Plaintiff filed the class action
on behalf of all persons who received at least one call using an
ATDS and/or an artificial prerecorded voice from Defendant between
the date of the filing of this action and the four years
preceding, where such calls were placed for marketing purposes, to
non-customers of the Defendant, at the time of the calls. The
Plaintiff seeks damages, injunctive relief, and any other
available legal or equitable remedies.
The Defendant moves to stay the case pending the U.S. Court of
Appeals for the District of Columbia Circuit's decision in ACA
International v. Federal Communications Commission, in which the
D.C. Circuit has been asked to review various aspects of an order
issued by the Federal Communications Commission. The Plaintiff
filed an opposition, to which the Defendant replied.
The Defendant also requests that the Court takes judicial notice
of six documents (Exhibits A-F) in support of its motion to stay.
The Plaintiff did not file an opposition to Defendant's request
for judicial notice.
To the extent the Defendant seeks to establish the existence of
Exhibits A-F, Judge Anello granted the Defendant's request for
judicial notice. However, to the extent it seeks to provide
supplemental authority for the Court's consideration, such a
request is misguided.
The Judge is unpersuaded that a stay pending the D.C. Circuit's
ruling in ACA International promotes judicial economy in the case.
While the Defendant generally contends that the imminence of a
decision in ACA International warrants a stay, it is far from
guaranteed that a final result in ACA International is imminently
forthcoming. He also finds that the Defendant has not shown that
a stay would promote judicial economy.
In arguing that the Defendant will suffer hardship if the Court
denies the instant motion, The Judge finds the Defendant relies
exclusively on the cost and burden of defending the lawsuit, and
that the Defendant has not made out a clear case of hardship or
inequity.
Finally, Judge Anello finds that a stay would result in the
potential of prejudicing the Plaintiff with regards to delayed
discovery. First, fa stay may result in uncertainty for an
indefinite period of time if the parties appeal the D.C. Circuit's
decision to the Supreme Court. Second, as the Plaintiff notes, if
the Court grants a stay in this case, he may struggle to obtain
call logs from third-party carriers with retention periods lasting
as short as six months. Because any decision issued by the D.C.
Circuit is likely to be appealed, the Plaintiff may be unable to
obtain the relevant evidence in pursuing the case. Accordingly,
because he finds that a stay may result in prejudice to the
Plaintiff, the factor does not favor the Defendant.
In sum, in weighing the relevant factors, Judge Anello finds that
a stay in the case is inappropriate. The Defendant has not shown
this is one of those "rare" circumstances where a party in one
case must stand aside while a litigant in another settles the rule
of law that will define the rights of both. Based on the
foregoing, he denied the Defendant's motion to stay pending the
D.C. Circuit's ruling in ACA International.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/2QhBVL from Leagle.com.
Rene Sandoval, Individually and on behalf of All Others Similarly
Situated, Plaintiff, represented by Abbas Kazerounian ,
Kazerounian Law Group, APC, Joshua B. Swigart --
Josh@westcoastlitigation.com -- Hyde & Swigart, Kevin Lemieux --
kevin@westcoastlitigation.com -- The Law Office of Kevin Lemieux,
APC, Veronica Cruz Serrano -- veronica@kazlg.com -- Kazerouni Law
Group, APC, Emily C. Beecham -- emily@kazlg.com -- Kazerouni Law
Group, APC & Mona Amini -- mona@kazlg.com -- Kazerouni Law Group,
APC.
Friendlum, Inc., doing business as Direct Home Energy Solutions,
Defendant, represented by Alyssa Milman White --
alyssa@angelowhitelaw.com -- Angelo & White & David J. Kaminski --
kaminskid@cmtlaw.com -- Carlson and Messer.
GEORGIA: Magistrate Recommends Dismissal of "Myers"
---------------------------------------------------
Magistrate Judge G.R. Smith of the United States District Court
for Southern District of Georgia, Savannah Division, recommended
that the case captioned MICHAEL MEYERS, Plaintiff, v. SHERIFF JOHN
WILCHER, et al., Defendants, No. CV 417-208 (S.D. Ga.), should be
dismissed without prejudice for lack of prosecution because
plaintiff Michael Meyers has failed to comply with the February
16, deadline for paying his filing fee.
A full-text copy of the Magistrate's March 1, 2018 Report and
Recommendation is available at https://tinyurl.com/yagqjxyr from
Leagle.com.
Michael Myers, Class Action Chatham County Detainees, Plaintiff,
pro se.
GETTY IMAGES: Court Narrows Claims in "Passelaigue"
---------------------------------------------------
The United States District Court for the Southern District of New
York granted in part and denied in part Defendant's Motion to
Dismiss the case captioned ELODIE PASSELAIGUE, on behalf of
herself and all other persons similarly situated, Plaintiff, v.
GETTY IMAGES (US), INC., BILL DIODATO PHOTOGRAPHY, LLC, and BILL
DIODATO, Defendants, No. 16-CV-1362 (VSB)(S.D.N.Y.).
Plaintiff Elodie Passelaigue, a professional fashion model, brings
claims under the Lanham Act, 15 U.S.C. Section 1051, Washington
State law, and New York State law against Defendants Getty Images
(US), Inc., Bill Diodato Photography, LLC, and Bill Diodato,
relating to their alleged unlawful licensing and sale of images of
Plaintiff that were eventually used to advertise synthetic beauty
products. Passelaigue brought this action by filing a complaint,
alleging claims for (1) misappropriation of likeness under New
York Civil Rights Law Section 51; (2) deceptive acts and practices
pursuant to New York General Business Law Section 349; (3) unfair
competition under New York law; (4) negligence; (5) fraud; (6)
Washington common law misappropriation of likeness; (7) violating
the Washington consumer protection act; and (8) false advertising,
false representation, false designation, unfair competition, and
false endorsement and association under the Lanham Act.
The Defendants argue that all of the Plaintiff's claims must be
dismissed because she signed the Release, and that allegations of
doctoring the Release are merely speculative. In response, the
Plaintiff asserts that she signed the Release after the 2004
Clinique photo shoot, and that a number of handwritten terms were
not present on the Release when she signed it.
The Court finds the Plaintiff's allegations plausible, and
supported by the fact that the alleged execution date and
description of the 2004 Clinique photo shoot are handwritten in
what appears to be handwriting different from the Plaintiff's. It
is only because of the handwritten terms the alleged doctoring
that the 2009 Spiegel photo shoot comes within the ambit of the
Release. As a result, the Plaintiff has plausibly alleged that
the Release does not apply to the photographs from the 2009
Spiegel photo shoot.
In New York a plaintiff alleging fraud must show by clear and
convincing evidence that the defendant knowingly or recklessly
misrepresented a material fact, intending to induce the
plaintiff's reliance, and that the plaintiff relied on the
misrepresentation and suffered damages as a result.
Here, the Plaintiff claims that Diodato orally promised her that
he would only use her photographs in his portfolio and on his
website. She then signed a two-paragraph Release.
Because the alleged misrepresentations conflict with the terms of
the Release, "there can be no reasonable reliance as a matter of
law." If the Plaintiff read the one page Model Release, she would
have known that the agreement provided for unrestricted use of her
appearance, including for sale with a stock agency, and that the
images may be included in stock files. Having failed to read the
Release, the Plaintiff could not have reasonably relied on
Diodato's statements to the contrary.
Therefore, the Plaintiff's argument that she was fraudulently
induced to enter the contract is without merit.
The Plaintiff also argues that the Release is voidable because,
for a high-end fashion model, the limitation of $500 in damages,
as well as the prohibition on any objection to unflattering,
embarrassing, or otherwise objectionable uses, are unconscionable
terms.
An unconscionable contract has been defined as one which is so
grossly unreasonable as to be unenforceable because of an absence
of meaningful choice on the part of one of the parties together
with contract terms which are unreasonably favorable to the other
party. An unconscionable agreement is unenforceable.
The Release is short one page and afforded the Plaintiff with the
opportunity to easily disprove Diodato's alleged oral promises
that he would only use the photographs for his portfolio.
There are no allegations that suggest that (1) the Plaintiff's
bargaining power, experience, and/or education were limited, or
(2) the Plaintiff was under any sort of duress or pressure to sign
the Release without reading it, and she admits that she signed it
as a professional courtesy.
In other words, there are no allegations that Diodato did anything
so as to effectively deprive the Plaintiff of a meaningful choice.
Under the circumstances, the Release was not procedurally
unconscionable. Therefore, the Plaintiff's argument that the
Release was unconscionable fails.
The Plaintiff's claims as they relate to the 2004 Clinique photo
shoot are dismissed, and the Defendants' motion to dismiss the
Plaintiff's complaint is granted as to the claims relating to the
2004 Clinique photo shoot.
The Plaintiff's fraud claim must also be dismissed, namely because
the Plaintiff fails to allege reasonable reliance on Diodato's
statements in the face of a plain and unambiguous written
agreement. Therefore, the Defendants' motion to dismiss the
Plaintiff's fraud claim is granted.
To state a claim under Section 51 of the New York Civil Rights
Law, a plaintiff must allege (i) usage of plaintiff's name,
portrait, picture, or voice, (ii) within the state of New York,
(iii) for purposes of advertising or trade, (iv) without
plaintiff's written consent.
The Defendants argue that the photographs were not used for
purposes of advertising or trade under Section 51 because they
were merely making the images themselves available for license.
Here, the Plaintiff alleges that the sale of images was not in
fact for use in a manner lawful under Section 51 by virtue of the
fact she did not knowingly authorize their use, and she has also
adequately alleged that the Defendants' sale of the images
themselves was for purposes of advertising or trade.
The Defendants also argue that their use was not for purposes of
advertising or trade because the photographs were constitutionally
protected acts of expression.
However, not all photographs are expressive works, and not all
expressive works are entitled to protection. The photographs here
are entirely commercial in nature. They were commissioned by
companies seeking to use them in advertising campaigns, and any
artistic expression added by Diodato as the photographer was
incidental.
Therefore, the Defendants' motion to dismiss the Plaintiff's
Section 51 claim is granted as to the 2004 Clinique photo shoot,
and denied as to the 2009 Spiegel images.
The Plaintiff appears to allege that the Defendants violated the
Lanham Act by (1) misrepresenting that Getty had the right to
license or sell photographs of the Plaintiff; (2) using the
fictitious name of Adrianna Williams as the name of the
photographer, which was likely to cause confusion as to the origin
of the images; and (3) contributing to Allergan's use of the
Plaintiff's image in a way that falsely associates her with
synthetic cosmetic products.
Section 43(a)(1) of the Lanham Act provides in pertinent part:
"Any person who, on or in connection with any goods or services
uses in commerce any false or misleading description of fact, or
false or misleading representation of fact, which (A) is likely to
cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of
his or her goods, services, or commercial activities by another
person, or (B) in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or
geographic origin of his or her or another person's goods,
services, or commercial activities, shall be liable in a civil
action by any person who believes that he or she is or is likely
to be damaged by such act."
While celebrity is not necessarily required for consumer
confusion, the misappropriation of a completely anonymous face
could not form the basis for a false endorsement claim, because
consumers would not infer that an unknown model was 'endorsing' a
product, as opposed to lending her image to a company for a fee.
Here, however, the Plaintiff alleges that she is an
internationally-renowned fashion model, which, if true, might
establish that her mark is strong enough to cause a likelihood of
consumer confusion. Therefore, assuming, that the Plaintiff is an
internationally-renowned fashion model, she has pleaded a
likelihood of consumer confusion.
In addition to her claims of direct trademark infringement, the
Plaintiff raises claims of contributory infringement. the
Plaintiff has not, however, sufficiently alleged that the
Defendants intentionally induced non-party Allergan to violate the
Lanham Act.
To be liable for contributory Lanham Act violations, a plaintiff
must plead facts demonstrating that the defendant intentionally
induced the infringing party to engage in the infringing behavior.
The Plaintiff alleges that Diodato was aware that, by selling the
images to Getty, that Getty would use the images commercially,
advertising them for sale or license to others, such as Allergan
and that Getty knew or should have known that professional models
such as the plaintiff would not have agreed to convey rights to
their images to Diodato, Getty, or ultimately one of Getty's
clients.
The Plaintiff also alleges that Getty should have known how
Allergan would use the image because it licensed Ms. Passelaigue's
image for use by Allergan. These are insufficient to allege
intentional inducement.
The Plaintiffs' claims as to the 2004 Clinique photo shoot are
dismissed. Thus, only the Plaintiffs' claims as to the images from
the 2009 Spiegel photo shoot remain at issue. Although the
Defendants' motion to dismiss the Plaintiff's Lanham Act claim is
denied only as to the 2009 Spiegel images, because the Court finds
that the Plaintiff has not sufficiently pleaded any Lanham Act
claims relating to the Defendants' contributory liability, any
claims relating to the Defendants' contributory liability under
the Lanham Act are dismissed.
Unfair Competition under New York law is subject to the same
analysis as a Lanham Act claim, except that it also requires bad
faith.
If true, the Plaintiff's allegations in the Complaint that Diodato
and Getty were responsible for the unauthorized use of her image
by Allergan to advertise Botox and other synthetic cosmetic
products would show bad faith on the part of the Defendants.
Because the Plaintiff adequately alleges bad faith, she has
sufficiently pleaded unfair competition under New York law for the
same reasons.
The Plaintiffs' claims as to the 2004 Clinique photo shoot are
dismissed, and only the Plaintiffs' claims as to the images from
the 2009 Spiegel photo shoot remain at issue. Therefore, the
Defendants' motion to dismiss the Plaintiff's unfair competition
claim is denied only as to the 2009 Spiegel photo shoot.
The Plaintiff alleges that the Defendants breached their duty of
care to obtain valid consent before using her photograph for
commercial purposes. However, the Defendants correctly point out
that New York Civil Rights Law Sections 50 and 51 preempt common
law claims based on a right of privacy or publicity, such as the
Plaintiff's negligence claim here. Therefore, the Defendants'
motion to dismiss the Plaintiff's negligence claim is granted, and
that claim is dismissed.
Section 349 of New York's General Business Law makes unlawful
deceptive acts or practices in the conduct of any business, trade
or commerce or in the furnishing of any service in the State of
New York. N.Y. Gen. Bus. Law Section 349(a). To state a prima
facie claim under Section 349, a plaintiff must allege that the
defendant [i] engaged in consumer-oriented conduct; [ii] that the
conduct was materially misleading; and [iii] that the plaintiff
suffered injury as a result of the allegedly deceptive act or
practice.
Nowhere does the Plaintiff provide evidence of how the alleged
misrepresentation actually targeted or harmed consumers. Indeed,
the only consumer discussed, Allergan, is alleged to have itself
infringed on the Plaintiff's image. These allegations both
separately and viewed together are insufficient to state a claim
under Section 349. Because the Plaintiff makes only conclusory
allegations of impact on consumers at large, her Section 349 claim
must be dismissed.
Therefore, the Defendants' motion to dismiss the Plaintiffs'
deceptive practices claim is granted.
As the Defendants acknowledge, motions to strike class allegations
at the motion to dismiss stage are disfavored because it requires
a reviewing court to preemptively terminate the class aspects of
litigation before plaintiffs are permitted to complete the
discovery to which they would otherwise be entitled on questions
relevant to class certification.
The Plaintiff has plausibly alleged claims under Section 51, the
Lanham Act, and New York's Unfair Competition Law related to the
photographs taken at the 2009 Spiegel photo shoot. She also raises
plausible class allegations related to the same claims. The
Defendants' arguments challenging the class are more properly
considered at the motion for class certification stage.
Therefore, the Defendants' motion to strike the class allegations
is denied.
The Defendants' motion to dismiss is granted in part and denied in
part. The Defendants' motion is granted as to all counts with
regard to the photographs taken at the 2004 Clinique photo shoot.
The Defendants' motion is denied as to Counts 1, 3, 8, and 9 with
regard to the photographs taken at the 2009 Spiegel photo shoot.
With respect to Counts 8 and 9, however, the claims for
contributory negligence under the Lanham Act are dismissed.
Further, Counts 2, 4, 5, 6, and 7 of the Complaint are dismissed.
Lastly, the Defendants' motion to strike the class allegations is
denied.
A full-text copy of the District Court's March 1, 2018 Opinion and
Order is available at https://tinyurl.com/yd5bmbra from
Leagle.com.
Elodie Passelaigue, on behalf of herself and all others similarly
situated, Plaintiff, represented by John Joseph Fitzgerald, IV,
Mayer Brown, LLP, Melanie Rae Persinger --
melanie@jackfitzgeraldlaw.com -- The Law Office of Jack
Fitzgerald, pro hac vice, Trevor Flynn --
trevor@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC, pro hac vice & Thomas A. Canova, Thomas A. Canova,
Getty Images (US), Inc., Bill Diodato Photography, LLC & Bill
Diodato, Defendants, represented by Nancy Evelyn Wolff --
nwolff@cdas.com -- Cowan, DeBaets, Abrahams & Sheppard LLP & Scott
Jonathan Sholder -- ssholder@cdas.com -- Cowan, DeBaets, Abrahams
& Sheppard LLP.
GIRARD, OH: Miles Black Files Class Action
------------------------------------------
A class action lawsuit has been filed against City of Girard,
Ohio. The case is styled as Miles Black, Melissa Black and
Lorraine Morris, individually and on behalf of those similarly
situated, Plaintiffs v. City of Girard, Ohio, Defendant, Case No.
4:18-cv-00844-BYP (N.D. Ohio, April 13, 2018).
Girard is a city in Trumbull County, Ohio, United States.[BN]
The Plaintiffs are represented by:
Brian D. Flick, Esq.
Dann Law Firm - Cleveland
P.O. Box 6031040
Cleveland, OH 44103
Tel: (513) 645-3488
Fax: (216) 363-0536
Email: bflick@dannlaw.com
- and -
Michael A. Smith , Jr., Esq.
Dann Law Firm - Cleveland
P.O. Box 6031040
Cleveland, OH 44103
Tel: (216) 452-1024
Fax: (216) 373-0536
Email: msmith@dannlaw.com
- and -
Marc E. Dann, Esq.
Dann Law Firm - Cleveland
P.O. Box 6031040
Cleveland, OH 44103
Tel: (216) 373-0539
Fax: (216) 373-0536
Email: mdann@dannlaw.com
GOLDMAN SACHS: Judge Certifies Gender Discrimination Class Action
-----------------------------------------------------------------
Adam Klasfeld, writing for Courthouse News Service, reported that
a federal judge has paved the way for high-ranking women at
Goldman Sachs to fight the bank on long-running gender-
discrimination claims as a class.
Though lead plaintiff H. Cristina Chen-Oster first filed the suit
in 2010, accusing a manager of sexual assault, her attorney Adam
Klein, of the firm Outten Golden, noted in a phone interview that
the allegations date back even further, to 2005.
Ms. Chen-Oster had been a vice president of the securities
division of Goldman Sachs at the time. Together with colleagues
Shanna Orlich, Lisa Parisi, Allison Gamba and Mary De Luis, they
painted the bank as a boy's club, where holiday parties featured
female escorts "wearing short black skirts, strapless tops, and
Santa hats."
Ms. Chen-Oster's bid to represent similarly situated employees
took a hit in 2011, however, after the Supreme Court decertified
the enormous class action Wal-Mart v. Dukes.
Though this 5-4 ruling raised the bar for plaintiffs to show
commonality, U.S. District Judge Analisa Torres found that
Ms. Chen-Oster and her former colleagues had met that burden
enough to force a trial as a single class.
"It would be nonsensical to disaggregate the claims into hundreds
or thousands of individual proceedings," the 49-page ruling.
"Doing so would only waste 'time, effort, and expense' and
increase the likelihood of conflicting outcomes for plaintiffs."
Though dated March 30, the ruling was only made public on
April 2.
"She was absolutely thrilled," attorney Klein said of
Ms. Chen-Oster.
"I think it's great to have a resolution," Mr. Klein added.
While the question of whether Goldman Sachs ran a "boy's club"
will have to wait another day, Judge Torres set the stage for a
trial on disparate-impact and disparate-treatment discrimination.
She noted that the boys' club question would likely require the
court "to make individualized inquiries into each incident of
sexual assault, sexual harassment, stereotyping, impunity for male
misconduct, and retaliation, to properly consider Goldman Sachs'
defenses."
"As a result, the balance between common and individual issues
would shift," Judge Torres added. "Individual issues would
predominate. . . . The court concludes, therefore, that plaintiffs
have not satisfied the predominance requirements on their 'boy's
club' disparate treatment claim."
Attorney Klein noted that the trial could begin as early as next
year.
"We are pleased that the judge agreed with our position that are
clients should be entitled to go to trial on the class claims in
the case," he said.
Goldman Sachs attorney Neal Mollen -- nealmollen@paulhastings.com
-- from the Washington-based firm Paul Hastings, did not
immediately respond to a request for comment. [GN]
GRJH INC: Court Won't Revoke Rule 68 Offer in "Labarca"
-------------------------------------------------------
The United States District Court for the Northern District of New
York denied Defendant's Motion to Revoke or Rescind Their Rule 68
Offer or, in the Alternative to Amend, Alter or Revoke the
Judgment in the case captioned VINCENT J. LABARCA, on behalf of
themselves and all others similarly situated, and TRISHA A. FLINT,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. GRJH, INC., doing business as Cobble Pond Farms;
JAMES METZ, individually; ALICIA H. METZ, individually; and LAUREN
H. SIMONS, individually, Defendants, No. 6:16-cv-826 (MAD/TWD)
(N.D.N.Y.).
The Plaintiffs commenced the action seeking declaratory and
monetary relief to redress alleged deprivations of their rights
under the Fair Labor Standards Act (FLSA), and New York Labor Law
Section 190.
The Complaint contains three causes of action, alleging primarily
the failure to pay the Plaintiffs no less than one and one-half
times their regular pay rate for hours worked in excess of forty
hours in a workweek, in violation of the FLSA and New York Labor
Law.
Settlement negotiations continued with the assistance of the
mediator. The Offer of Judgment served on the Plaintiffs stated,
in relevant part, as follows:
"The defendants hereby make an Offer of Judgment, pursuant to
Rule 68 of the Federal Rules of Civil Procedure, to the
Plaintiffs, Vincent J. LaBarca and Trisha A. Flint, on behalf of
themselves and all others similarly situated, in the amount of
$70,000.00, with costs as set forth in 28 U.S.C. Section 1920,
accrued to date, which Judgment shall be payable as follows:
-- $17,500.00 with costs pursuant to 28 U.S.C. Section 1920,
accrued to date, within 30 days of service of written notice
accepting the offer;
-- $17,500.00 payable within three (3) months of the initial
payment;
-- $17,500.00 payable within six (6) months of the initial
payment; and
-- $17,500.00 payable within nine (9) months of the initial
payment."
Defendant Metz contacted Ms. Lloyd to request that she contact Ms.
Burger and/or the Court to request that entry of Judgment on the
Rule 68 Offer of Judgment be held in abeyance pending Defendants'
final payment, at which time both the Judgment and Satisfaction
piece could be filed. When asked, Ms. Burger indicated that the
proposed delayed filing of the Judgment was not possible under
Rule 68. Later that day, Ms. Lloyd filed a letter motion with the
Court seeking the delayed entry of judgment, which Plaintiffs
vehemently objected.
The Court denied Defendants' letter requesting asking the Court to
delay filing the Judgment and entered Judgment and closed the
case. Ms. Lloyd filed a letter with the Court requesting a
telephone conference to discuss the issue of attorney's fees and
that the Court delay entering judgment until after the conference.
Although Judgment had already been entered, a telephone conference
was scheduled for June 29, 2017. On June 28, 2017, Plaintiffs
filed motions for attorney's fees and costs. During the telephone
conference
The Court granted Defendants request to file a motion to revoke or
rescind, which was filed on July 12, 2017 and is currently pending
before the Court.
Defendants make several arguments in support of the relief they
seek. First, Defendants contend that because Plaintiffs' complaint
contains claims for attorney's fees and costs pursuant to 29
U.S.C. Section 216(b) as part of the substantive relief sought
therein, such fees and costs are included within Defendants' Rule
68 Offer of Judgment and their offer was not ambiguous.
Next, Defendants argue that Plaintiffs' Notice of Acceptance was,
in fact, a counteroffer not recognized or authorized by Rule 68
and was not accepted or agreed to by Defendants; therefore, the
Judgment entered thereon is void and should be stricken.
Rule 68 Offer of Judgment
Federal Rule of Civil Procedure 68 provides that: at least 14 days
before the date set for trial, a party defending against a claim
may serve on an opposing party an offer to allow judgment on
specified terms, with the costs then accrued. If, within fourteen
days, the opposing party accepts the offer in writing, either side
may file the offer and notice of acceptance, and the clerk must
then enter judgment. If the opposing party does not accept the
offer, it must pay the costs incurred after the offer was made if
it does not obtain a judgment more favorable than the unaccepted
offer.
In their motion, Defendants first contend that because Plaintiffs'
Complaint contains claims for attorney's fees and costs pursuant
to 29 U.S.C. Section 216(b) as part of the substantive relief
sought therein, such fees and costs are included within
Defendants' Rule 68 Offer of Judgment and their Offer was not
ambiguous.3 Defendants rely primarily on Nordby v. Anchor Hocking
Packaging Co., 199 F.3d 390 (7th Cir. 1999), in support of its
position that its Rule 68 Offer was not ambiguous even though it
did not expressly state that the offer encompassed attorney's
fees.
Although Plaintiffs complaint did request attorney's fees as part
of its requested relief, the inclusion of this request did not
serve to transform the action into one that principally sought
recovery of attorney's fees and costs. Indeed, even the court in
Nordby considered that it might reach a different outcome in this
circumstance: We might have a different case if instead of seeking
an award of attorneys' fees specified in one of the counts, the
plaintiffs were seeking an award of fees under a statute or rule
or common law principle not cited in any of the counts of the
complaint.
The Court finds that, here, the Defendants' Rule 68 Offer is
silent as to the issue of attorney's fees and this silence must be
construed against them. Nusom v. Comh Woodburn, Inc., 122 F.3d
830, 833-34 (9th Cir. 1997), holds that although the usual rules
of contract construction apply to a Rule 68 offer of judgment,
Rule 68 offers differ from contracts with respect to attorney fees
as to them, any waiver or limitation must be clear and unambiguous
Since attorney's fees are available to the prevailing party under
the FLSA and such fees are defined separately from costs under 29
U.S.C. Section 216. As such, the Court concludes that attorney's
fees were not included in the Offer of Judgment and Plaintiffs are
entitled to claim attorney's fees.
Motion to Vacate
The Defendants contend that the Plaintiffs' Notice of Acceptance
and the June 15, 2017 Judgment entered thereon should be altered,
amended, or stricken as they contain material omissions and
mistakes which alter the terms of Defendants' Rule 68 Offer.
The Defendants argue that they are entitled to relief under Rules
59(e), 60(a) and 60(b) of the Federal Rules of Civil Procedure.
Rule 59(e)
Rule 59(e) was added to the Federal Rules of Civil Procedure in
1946. Its draftsmen had a clear and narrow aim. According to the
accompanying Advisory Committee Report, the Rule was adopted to
make clear that the district court possesses the power to rectify
its own mistakes in the period immediately following the entry of
judgment.
By contrast, a request for attorney's fees under a statutory fee
shifting provision that awards attorney's fees to a prevailing
party raises legal issues collateral to the main cause of action
issues to which Rule 59(e) was never intended to apply.
Similarly, the Court has declined to apply Rule 59(e) to requests
for costs. Buchanan v. Stanships, Inc., 485 U.S. 265, 267 (1988).
In light of this authority, the Court finds that Rule 59(e) is
inapplicable to the present matter.
Rule 60(a)
Rule 60(a) provides that the court may correct a clerical mistake
or a mistake arising from oversight or omission whenever one is
found in a judgment, order, or other part of the record. A motion
under Rule 60(a) is available only to correct a judgment for the
purpose of reflecting accurately a decision that the court
actually made.
Since the Defendants' motion is not asking the Court to amend the
judgment to accurately reflect a decision rendered by the Court,
they are not entitled to relief under Rule 60(a).
Rule 60(b)
Rule 60(b) of the Federal Rules of Civil Procedure sets forth six
grounds upon which the Court can grant relief from a judgment: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation or misconduct by an opposing
party; (4) the judgement is void; (5) the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that
justifies relief. Rule 60(b) is a mechanism for extraordinary
judicial relief' invoked only if the moving party demonstrates
'exceptional circumstances.'
The Court finds that the Defendants have failed to satisfy their
burden under Rule 60(b)(6). This subsection, commonly referred to
as the catchall provision, permits a court to reopen a judgment
for any other reason that justifies relief. Although Rule 60(b)
generally vests wide discretion in courts, the Supreme Court has
held that relief under Rule 60(b)(6) is available only in
'extraordinary circumstances. In determining whether extraordinary
circumstances are present, a court may consider a wide range of
factors. These may include, in an appropriate case, the risk of
injustice to the parties' and 'the risk of undermining the
public's confidence in the judicial process.
Nothing about the facts of this case presents such extraordinary
circumstances to warrant relief under Rule 60(b)(6). Based on
this, the Court denies the Defendants' motion insofar as it seeks
to vacate the Judgment through Rule 60(b).
Counteroffer
The Defendants argue that they are entitled to relief because the
Offer of Judgment was made to Plaintiffs, Vincent J. LaBarca and
Trisha A. Flint, on behalf of themselves and all others similarly
situated, yet the Notice of Acceptance only accepted the Offer on
behalf of LaBarca and Flint. As such, the Defendants contend that
this constituted an impermissible counteroffer, not recognized or
authorized by Rule 68.
Contrary to the Defendants' assertions, the Notice of Acceptance
properly accepted the Rule 68 Offer. In their Complaint,
Plaintiffs made both collective action and class action
allegations pursuant to the FLSA and Rule 23 of the Federal Rules
of Civil Procedure.
Since the Plaintiffs did not make a motion for class certification
pursuant to Rule 23, there can be no class. Any unnamed class
members are not part of this action and cannot be bound by any
decision of this Court. As such, the Plaintiffs could only accept
the Rule 68 Offer on behalf of themselves because the Court had
not certified a class.
Revocation
In their motions, the Defendants also contend that they should be
permitted to revoke and rescind the Offer and Notice of Acceptance
because the Offer was intended to resolve all claims, including
attorney's fees, and because the Acceptance did not apply to other
individuals similarly situated.
While it is true that courts, in certain circumstances, have
permitted the revocation of a Rule 68 offer, such revocation has
generally been made or attempted prior to the acceptance of the
offer. Further, the majority of courts to have addressed the
issue have held that revocation of a Rule 68 offer, especially
once accepted, is either inappropriate or entirely unavailable.
The Court agrees with the majority of cases to have addressed this
issue and finds that Defendants may not now rescind their Rule 68
Offer. Accordingly, the Court denies the Defendants' motion to
revoke or rescind.
Authority to Make Offer
The Defendants rely on Kleine v. City of New York, 547 F.Supp.2d
315 (S.D.N.Y. 2008), in support of their argument that Ms. Lloyd
lacked authority to make an offer of judgment to resolve anything
less than all of the claims for relief set forth in the complaint,
including all claims for attorney's fees.
Here, however, Ms. Lloyd did have actual and apparent authority to
settle this case by way of the Rule 68 Offer of Judgment. The
problem facing Defendants is that the Offer of Judgment does not
legally mean what they want it to mean.
Accordingly, the Court denies the Defendants' motion on this
ground.
Application for Attorney's fees and Bill of Costs
Putting aside the block-billing issues with these entries for the
moment, the Court has considerable reservations regarding the
amount of time spent researching Rule 68 offers of judgment. Most
troubling is the entry from June 9, 2017, in which Ms. Burger
specifically notes that she was researching issues surrounding
Rule 68 offers and attorney fee application. This entry and the
amount of time spent researching and discussing Rule 68 offers
with other members of her firm leads the Court to believe that Ms.
Burger realized that the offer was meant to include attorney's
fees and be a global settlement offer. The Court is unable to see
any other reason for spending such an inordinate amount of time
researching this issue.
In light of the concerns the Court has expressed, the Court is
denying without prejudice the Plaintiff's motions for attorney's
fees and taxation of costs. The Court makes no decision regarding
the merits of these motions; they are simply being denied so that
counsel may supplement their submissions to address the Court's
concerns.
After carefully reviewing the entire record in this matter, the
parties' submissions and the applicable law, the Court:
-- orders that the Defendants' motion to revoke or rescind
their Rule 68 Offer, or, in the alternative, to amend, alter, or
revoke the Judgment is denied; and
-- orders that Plaintiffs' motions for attorney's fees and for
bill of costs are denied without prejudice.
A full-text copy of the District Court's March 1, 2018 Memorandum
Decision and Order is available at https://tinyurl.com/yatx4ycb
from Leagle.com.
Vincent J. Labarca, on behalf of themselves and all others
similarly situated & Trisha A. Flint, on behalf of themselves and
all others similarly situated, Plaintiffs, represented by Sarah J.
Burger, Ianniello Anderson P.C., 805 Route 146, Clifton Park, NY
12065
GRJH, Inc., doing business as, James Metz, individually, Alicia H.
Metz, individually & Lauren H. Simons, individually, Defendants,
represented by Jeanne M. Gonsalves Lloyd, Friedman, Hirschen Law
Firm, 100 Great oaks Boulevard, Ste. 124. Albany, NY 12203.
HALIFAX HEALTH: Court Narrows Claims in MSPA Suit
-------------------------------------------------
Judge Gregory A. Presnell of the U.S. District Court for the
Middle District of Florida, Orlando Division, granted in part and
denied in part the Defendant's Motion to Dismiss the case, MSPA
CLAIMS 1, LLC, Plaintiff, v. HALIFAX HEALTH, INC, Defendant, Case
No. 6:17-cv-1790-Orl-31DCI (M.D. Fla.).
MSPAC is the assignee of Florida Healthcare Plus, Inc. ("FHPI"), a
Medicare Advantage Organization ("MAO"). In May of 2013, one of
FHPI's enrollees -- whose name is being kept confidential --
received medical items and services at the hospital operated by
Halifax. Halifax billed and received payment for those items and
services from both FHPI and from 21st Century Preferred Insurance
Co., which was primarily liable. 21st Century, which was the
enrollee's no-fault PIP insurer, paid $10,000 to Halifax on Nov.
6, 2013. FHPI paid the full amount of its enrollee's charges --
$31,722.23 -- to Halifax on Dec. 16, 2013, rather than the
$21,722.23 remaining after 21st Century's payment. On May 12,
2014, Halifax sent a reimbursement check to MSPAC for $9,750.
On Jan. 3, 2017, MSPAC filed the suit in the Circuit Court of the
Eleventh Judicial Circuit, in and for Miami-Dade County, Florida.
On Feb. 23, 2017, the case was removed to the U.S. District Court
for the Southern District of Florida. On Oct. 16, 2017, pursuant
to Halifax's motion, the case was transferred to the Court.
In Count I of the Complaint, MSPAC asserts a claim under 42 U.S.C.
Section 1395y(b)(3)(A), the Medicare Secondary Payer ("MSP") Act's
private cause of action, alleging that Halifax violated the Act by
failing to reimburse it within 60 days of FHPI's payment. MSPAC
seeks to recover double the amount that it was entitled to receive
in reimbursement -- i.e., $20,000 -- subject to a set-off for the
$9,750 eventually paid by Halifax. Based on these same
allegations, MSPAC also asserts a claim under the Florida
Deceptive and Unfair Trade Practices Act ("FDUTPA")(Count II) and
one for unjust enrichment (Count III). By way of the instant
motion, Halifax seeks dismissal of all three counts.
Judge Presnell finds that the issue in the case is not FHPI's
right to reimbursement; the issue is whether FHPI's assignee can
pursue that right via the MSP Act's private right of action. By
its terms, the Judge says that right of action only applies to
primary plans. MSPAC offers no argument as to why it should also
apply to entities, such as Halifax, that receive payment from
primary plans. Hence, Count I will therefore be dismissed.
The Judge rejects Halifax's argument that MSPAC's state law claims
for reimbursement in counts II and III are preempted because the
MSP Act governs the reimbursement of overpayments. He finds that
Halifax does not cite to any case law so holding or provide any
other support for this contention. The Court's research has not
uncovered any cases holding that the MSP Act preempts any state
law claims for reimbursement.
The Plaintiff has alleged that Halifax double billed FHPI and 21st
Century for the services provided -- as opposed to, for example,
an allegation that Halifax engaged in improper practices while
attempting to collect someone else's debt. As such, the Judge
finds that Halifax's alleged conduct falls within the FDUTPA
definition of "trade or commerce." The motion will be denied as
to Count II.
Finally, as to MSPAC's allegation that Halifax billed and received
payment from both FHPI and from 21st Century for the treatment
provided to FHPI's enrollee, Judge Presnell finds that MSPAC never
explicitly alleges that Halifax billed FHPI for the entire cost of
the treatment even after 21st Century paid the first $10,000. In
analyzing whether MSPAC stated a claim under FDUTPA, which
requires unfair or deceptive conduct, he drew an inference from
these allegations that FHPI was a victim of double billing.
However, in the absence of that inference, MSPAC's allegations can
be read as simply asserting that FHPI made a mistaken overpayment
for which Halifax has refused to make a full reimbursement. Such
allegations state a claim for unjust enrichment. Accordingly the
motion will be denied as to Count III.
In consideration of this, Judge Presnell granted in part and
denied in part the Defendant's Motion to Dismiss. He dismissed
with prejudice Count I, and denied the Motion in all other
respects.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/983TVj from Leagle.com.
MSPA Claims 1, LLC, a Florida limited liability company, as
assignee of Florida Healthcare Plus, on behalf of itself and all
others similarly situated Medicare Advantage Organizations in the
State of Florida, Plaintiff, represented by Alan H. Rolnick --
arolnick@riveromestre.com -- Rivero Mestre, LLP, Frank Carlos
Quesada -- fquesada@msprecovery.com -- MSP Recovery Law Firm,
Jorge A. Mestre -- jmestre@riveromestre.com -- Rivero Mestre, LLP
& Andres Rivero -- arivero@riveromestre.com -- Rivero Mestre, LLP.
Halifax Health, Inc, a Florida non-profit Corporation doing
business as Halifax Medical Center, Defendant, represented by
Cory W. Eichhorn -- Cory.Eichhorn@hklaw.com -- Holland & Knight,
LLP, Lawrence Joseph Hamilton, II -- larry.hamilton@hklaw.com --
Holland & Knight, LLP & Michael Manuel Gropper --
michael.gropper@hklaw.com -- Holland & Knight, LLP.
HAUTE RESTAURANT: Faces "Acoff" Suit in E.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against Haute Restaurant &
Lounge, Inc. The case is styled as Aaron Acoff, on behalf of
himself and similarly situated employees, Plaintiff v. Haute
Restaurant & Lounge, Inc., Defendant, Case No. 2:18-cv-01562-TJS
(E.D. Penn., April 13, 2018).
Haute Restaurant & Lounge is an upscale restaurant located inside
the Academy House and next door to the Legendary Academy of Music
in heart of center city Philadelphia.[BN]
The Plaintiff is represented by:
PETER D. WINEBRAKE, Esq.
WINEBRAKE & SANTILLO, LLC
Twining Office Center, Suite 211
715 Twining Road
Dresher, PA 19025
Tel: (215) 884-2491
Fax: (215) 884-2492
Email: pwinebrake@winebrakelaw.com
HCP INC: Court Denies Bid for Particularized Discovery
------------------------------------------------------
The United States District Court for the Northern District of
Ohio, Western Division, denied Plaintiffs' motion to order
particularized discovery in the case captioned Boynton Beach
Firefighters' Pension Fund, Plaintiff, v. HCP, Inc., et al.,
Defendants, Case No. 3:16-cv-1106 (N.D. Ohio).
On May 9, 2016, the Boynton Beach Firefighters' Pension Fund filed
a proposed class action complaint against Defendants HCP, Inc.;
HCR ManorCare, Inc.; Lauralee Martin; Timothy Schoen; Paul A.
Ormond; and Steven M. Cavanaugh. This case arises in part from
allegations which formed the basis of another lawsuit. See United
States ex rel. Ribik v. HCR ManorCare Inc., No. 1:09-cv-13 (E.D.
Va.). The Ribik parties completed discovery and briefed the matter
of summary judgment, submitting evidence for these motions under
seal. The Ribik defendants also filed a motion for sanctions for
expert discovery violations, which was granted. The court
subsequently excluded the report of the expert at issue in the
sanctions matter. Then on November 17, 2017, the government moved
to dismiss its claims with prejudice. The court granted the motion
on November 27, 2017.
On November 28, 2017, the Court appointed Societe Generale
Securities Services GmbH and the City of Birmingham Retirement and
Relief System as Lead Plaintiffs in this case. The Lead
Plaintiffs filed their consolidated complaint on February 28,
2018, and the Court ordered the Defendants to file their motions
to dismiss by March 30, 2018, with responses and replies to
follow.
The Lead Plaintiffs now seek discovery of the sealed evidence
submitted relative to the summary judgment filings in Ribik. They
first contacted the HCR defendants and asked them to turn over
these documents, offering to treat all such evidence as
confidential and offering to pay for production. The Defendants
refused. The Lead Plaintiffs now seek an order requiring the HCR
Defendants to produce the desired documents. The Defendants
oppose.
The Private Securities Litigation Reform Act imposes a stay on
discovery during the pendency of motions to dismiss, unless the
court find that particularized discovery is necessary to preserve
evidence or to prevent undue prejudice to the party requesting
discovery.
Here, no motions to dismiss have been filed, but the Defendants
have expressed their intent to do so after the Lead Plaintiffs
file the consolidated complaint.
Having found the discovery stay applies, the Court turns to the
question of whether the discovery the Lead Plaintiffs seek falls
under the exception to the stay. The Lead Plaintiffs claim the
discovery they seek qualifies under the exception, as it is both
particularized and is necessary to prevent undue prejudice. Next,
the Lead Plaintiffs claim they are entitled to the requested
evidence in the interest of avoiding unfair prejudice.
This Court do not agree that this unfairly prejudices the Lead
Plaintiffs at this point in the litigation. The Lead Plaintiffs
seek to address Defendant's Ribik-based assertions, but the time
for that is not now. The Lead Plaintiffs only recently filed their
consolidated complaint, and there are currently no motions pending
in which the Lead Plaintiffs are required to respond to the
Defendants' allegations.
The evidence at issue here does not fit that bill. So the Court
finds there is no risk of unfair prejudice and deny the Lead
Plaintiffs' motion at this time.
A full-text copy of the District Court's March 1, 2018 Memorandum
Opinion is available at https://tinyurl.com/y7djmcsu from
Leagle.com.
Boynton Beach Firefighters' Pension Fund, on behalf of itself and
all others similarly situated, Plaintiff, represented by Scott D.
Simpkins -- sdsimp@climacolaw.com -- Climaco, Wilcox, Peca,
Tarantino & Garofoli, Avi Josefson -- avi@blbglaw.com --
Bernstein, Litowitz, Berger & Grossman, Gerald H. Silk --
jerry@blbglaw.com -- Bernstein, Litowitz, Berger & Grossman, Jack
Landskroner -- jack@lgmlegal.com -- Landskroner Grieco Merriman,
John R. Climaco -- jrclim@climacolaw.com -- Climaco, Wilcox, Peca,
Tarantino & Garofoli & Rebecca E. Boon -- Rebecca.Boon@blbglaw.com
-- Bernstein, Litowitz, Berger & Grossman.
HCP, Inc., Lauralee E. Martin, originally named as Lauralee Martin
& Timothy Schoen, Defendants, represented by Audra J. Soloway --
asoloway@paulweiss.com -- Paul, Weiss, Rifkind, Wharton &
Garrison, Daniel J. Kramer -- dkramer@paulweiss.com -- Paul,
Weiss, Rifkind, Wharton & Garrison & James A. King --
jking@porterwright.com -- Porter, Wright, Morris & Arthur.
HEALTHCARE REVENUE: Faces "Mushaeva" Suit in E.D. Pennsylvania
--------------------------------------------------------------
A class action lawsuit has been filed against Healthcare Revenue
Recovery Group, LLC. The case is styled as Irina Mushaeva, on
behalf of herself and all others similarly situated, Plaintiff v.
Healthcare Revenue Recovery Group, LLC and Does 1 through 10,
Defendants, Case No. 2:18-cv-01539-PBT (E.D. Penn., April 12,
2018).
Healthcare Revenue Recovery Group is a debt collection agency,
specializing in the collection of medical debt.[BN]
The Plaintiff is represented by:
ARKADY ERIC RAYZ, Esq.
KALIKHMAN & RAYZ LLC
1051 COUNTY LINE ROAD, SUITE A
HUNTINGDON VALLEY, PA 19006
Tel: (215) 364-5030
Fax: (215) 364-5029
Email: erayz@kalraylaw.com
HOMETOWN RESTORATION: Sued in New York Over Failure to Pay OT
-------------------------------------------------------------
Segundo Alfredo Zaruma Angamarca, individually and on behalf of
others similarly situated v. Hometown Restoration, LLC (d/b/a
Hometown Restoration, LLC), Thomas A. Keith, and Daniel Doe, Case
No. 1:18-cv-03058-AJN (S.D.N.Y., April 6, 2018), is brought
against the Defendants for failure to pay overtime wages in
violation of the Fair Labor Standards Act.
The Defendants own and operate construction company located at 46
Lafayette Avenue, New Rochelle, NY 10801. [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, PC
60 East 42nd Street, Suite 2540
New York, NY 10165
Telephone: (212) 317-1200
E-mail: Michael@Faillacelaw.com
HOT TOPIC: Faces "Soukhaphonh" Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Hot Topic, Inc. The
case is styled as Diana Soukhaphonh, individually and on behalf of
all others similarly situated, Plaintiff v. Hot Topic, Inc.,
Defendant, Impact Mobile USA, Inc., Movant, Case No. 1:18-mc-00138
(S.D. N.Y., April 10, 2018).
Hot Topic is an American retail chain specializing in
counterculture-related clothing and accessories, as well as
licensed music.[BN]
The Plaintiff appears PRO SE.
The Movant appears PRO SE.
HUMMUS & PITA: Faces "Olsen" Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against The Hummus & Pita
Company LLC. The case is styled as Thomas J. Olsen, individually
and on behalf of all other persons similarly situated, Plaintiff
v. The Hummus & Pita Company LLC, Defendant, Case No. 1:18-cv-
03280 (S.D. N.Y., April 15, 2018).
The Hummus & Pita Co. offers Falafel cuisine restaurant near
Greenwich Avenue NY.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
HUNT'S POINT: Court Denies Class Certification Bid in "Sanchez"
---------------------------------------------------------------
The United States District Court for the Southern District of New
York denied Plaintiff's Motion for Class Certification in the case
captioned VENUS SANCHEZ on behalf of herself, all others similarly
situated, and the Proposed New York Rule 23 Class, Plaintiff, v.
HUNT'S POINT TRIANGLE, INC., WILLIAM HANGAN, JOHN DOE and JANE
DOE, Defendants, No. 15 CV 03787-LTS (S.D.N.Y.).
The Plaintiff moves for default judgment against the Defendants
pursuant to Federal Rule of Civil Procedure 55(b)(2). The
Plaintiff also seeks conditional certification of her FLSA claims
as a collective action pursuant to 29 U.S.C. Section 216(b) and
certification of a class action pursuant to Federal Rule of Civil
Procedure 23.
The Plaintiff brings this action on behalf of herself and
similarly situated current and former employees (Covered
Employees), against Hunt's Point Triangle, Inc. (Hunt's Point),
William Hangan (Hangan), John Doe, and Jane Doe (Defendants),
asserting claims for failure to pay minimum and overtime wages
pursuant to the Fair Labor Standards Act (FLSA), New York Labor
Law (NYLL), and New York Codes, Rules and Regulations (NYCRR) and
for requiring kickbacks and failure to pay the required spread of
hours payment under NYLL.
When determining whether to grant a motion for default judgment,
courts in this circuit consider three factors: 1) whether the
defendant's default was willful; 2) whether defendant has a
meritorious defense to plaintiff's claims; and 3) the level of
prejudice the non-defaulting party would suffer as a result of the
denial of the motion for default judgment.
Despite the Court order to provide evidence along with the motion
for default judgment, Sanchez relies only on the conclusory
allegations and recitals of the elements of the statutory claims
in her Complaint to support her motion.
Sanchez requests judgment for failure to pay minimum and overtime
wages but has not proffered any recollections, estimates, or
evidence of the hours she worked or the wages she received. There
is nothing from which the Court can draw a just and reasonable
inference about the amount and extent of her work. Therefore, the
facts alleged in the Complaint do not plausibly demonstrate a
violation of FLSA.
Accordingly, the Court denies with prejudice the Plaintiff's
default judgment motion as to her federal claims.
Having dismissed the Plaintiff's FLSA claims, the Court declines
to exercise supplemental jurisdiction of the Plaintiff's state law
claims. The Plaintiff's request for certification of a class
pursuant to Federal Rule of Civil Procedure 23 is denied.
The Plaintiff's motion for default judgment is denied, her federal
claims are dismissed with prejudice, her motion for class
certification is denied, and the Court declines to exercise
supplemental jurisdiction of the state law claims. The Clerk of
Court is directed to enter judgment accordingly and close the
case.
A full-text copy of the District Court's March 1, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/y9udmt9j
from Leagle.com.
Venus Sanchez, on behalf of herself, all others similarly
situated, and the Proposed New York Rule 23 Class, Plaintiff,
represented by George Theodore Peters -- G.Peters@myattys1.com --
Law Office of George T. Peters.
ILLUSIONS INC: Court Won't Set Aside Default Judgment in "Brooks"
-----------------------------------------------------------------
The United States District Court for the Southern District of
Mississippi, Western Division, denied Defendant's Motions to Set
Aside Default and Motion for Relief From Sanctions in the case
captioned ASHLEY BROOKS, et al., Plaintiffs, v. ILLUSIONS, INC.,
et al., Defendants, Civil Action No. 5:16-CV-31-KS-MTP (S.D.
Miss.).
Plaintiffs Rachel Leblanc, Ashley Brooks, and Brian Sharp, on
behalf of themselves and all other similarly situated individuals,
filed this action under the Fair Labor Standards Act (FLSA)
against Defendants Illusions, Inc., and Thomas Walsh. Illusions
is a Mississippi corporation, and Walsh is its director,
president, and registered agent.
The Court issued an Order directing the Defendants to provide to
the Plaintiff, in usable electronic form, the names, addresses,
email addresses, social media handles/identifiers, and phone
numbers of all members of the prospective class within ten (10)
days. After the Defendants failed to comply with this Order, the
Plaintiffs filed a Motion for Contempt.
The Court granted the Plaintiffs' Motion for Contempt, holding the
Defendants in civil contempt for failure to comply with the
Court's previous Order.
The Defendants filed the current Motion for Relief, seeking relief
from default and sanctions pursuant to Federal Rule of Civil
Procedure 60(b) and blaming their previous misconduct on the
deficiencies of their previous attorney.
Under Federal Rule of Civil Procedure 55, the court may set aside
an entry of default for good cause, and it may set aside a final
default judgment under Rule 60(b).
The Court finds that the Defendants have not shown that the
Plaintiffs would not be prejudiced if the default were set aside.
This Court has previously held that expending time and resources
in the litigation while the opposing side neglected it was itself
slightly prejudicial. Furthermore, the Defendants' neglect,
whether through their own willful conduct or their former
attorney's, has prevented the Plaintiffs from having access to
information vital to their case which the Court has already ruled
that they were entitled to.
The Defendants were ordered to give the Plaintiffs information as
to potential members of their class in November 2016, nearly a
year and a half ago. The Defendants have made no representation
that they are now willing to give over that information as
required by the Court's original Order, which is not before the
Court for reconsideration. Additionally, because of the statute of
limitations under the FLSA is not tolled for a class action
complaint, the delay in this litigation caused by the Defendants',
or their attorney-agent's, willful conduct most certainly has
already prejudiced the Plaintiffs and setting aside the default
would only exacerbate the prejudice.
Motion for Relief
First, Defendants have cited no authority which suggests that a
party's lack of involvement in their litigation and their
delegation and deference to their attorney is excusable neglect
which is cause for relief under Rule 60(b)(1).
Second, because the sanctions and attorneys' fees in this case
were based on the Defendants' failure to comply with the Court's
Order requiring certain identifying information being turned over
to the Plaintiffs, the Court does not believe it is manifestly
unjust to hold the Defendants to these awards when this
information has not been turned over and the Defendants have made
no representation that they are willing to turn it over. Rule
60(b)(6) has been interpreted by the Fifth Circuit to make
available those grounds which equity has long recognized as a
basis of relief.
A full-text copy of the District Court's March 1, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/ycecbqj5
from Leagle.com.
Ashley Brooks, Brian Sharp & Rachel Leblanc, on behalf of
themselves and all others similarly situated, Plaintiffs,
represented by Joel F. Dillard, JOEL F. DILLARD, PA. 405 Tombigbee
St. Jackson MS 39201
Illusions, Inc & Thomas Walsh, CEO/President of Illusions, Inc.,
Defendants, represented by Michael Verdier Cory, Jr., DANKS,
MILLER & CORY, South Lamar Street Jackson, MS 39201
IMPAX LABS: Final Judgment in Family Medicine Suit Entered
----------------------------------------------------------
In the case, FAMILY MEDICINE PHARMACY LLC, Plaintiff, v. IMPAX
LABORATORIES, INC., Defendant, Civil Action No. 17-0053-WS-MU
(S.D. Ala.), Judge William H. Steele of the U.S. District Court
for the Southern District of Alabama, Southern Division, granted
both the Plaintiff's Unopposed Motion for Final Approval of Class
Action Settlement and Entry of Final Judgment, and the Plaintiff's
Motion for Award of Attorneys' Fees, Expenses and Incentive
Payments for Class Representatives.
On Sept. 29, 2017, Judge Steele entered an Order granting
preliminary approval of the parties' settlement. This settlement
is memorialized in a 41-page Settlement Agreement and Release
attached to the Plaintiff's Memorandum in Support of Motion for
Preliminary Approval of Class Action Settlement. On March 6,
2018, the Court held a fairness hearing.
Having considered the Settlement Agreement, the Plaintiff's
Memorandum Brief of Points and Authorities, the Motions and
exhibits thereto, the Preliminary Approval Order, and the
arguments and evidence presented at the Fairness Hearing, Judge
Steele granted final approval of the Settlement Agreement.
The class that was conditionally certified in the Preliminary
Approval Order is now finally certified, solely for purposes of
the Settlement, pursuant to Rule 23(a) and 23(b)(3) of the Federal
Rules of Civil Procedure, to-wit: All individuals and/or entities
who or which received one or more unsolicited advertisements via
facsimile from Defendant between Dec. 1, 2013 and the date of
entry of the Preliminary Approval Order, which was Sept. 29, 2017.
The Judge designated Family Medicine as the Class Representative
of the Settlement Class; and James H. McFerrin of McFerrin Law
Firm LLC in Birmingham, Alabama, and Diandra S. Debrosse
Zimmermann of Zarzaur Mujumdar & Debrosse in Birmingham, Alabama,
as the Settlement Class Counsel.
He approved, as to form and content, the Class Action Fairness Act
("CAFA") Notice that was served on appropriate authorities on
Sept. 11, 2017. The Plaintiff has made an adequate showing that
the Attorney General of the United States and the state attorneys
general have been notified of the Settlement Agreement in
accordance with CAFA's requirements as set forth at 28 U.S.C.
Section 1715(b).
In accordance with the terms of the Settlement Agreement, the
Judge directed the Defendants to pay $4,815,700 for the Settlement
Amount, less Pre-Effective Date Administration Costs already paid
and plus settlement administration costs up to $75,000, by wire
transfer into the Escrow Account within 14 business days after the
Effective Date. The money remaining from the Settlement Amount,
including any accrued interest therein, after payment of
administration fees, approved attorney's fees, approved incentive
award, and taxes and tax-related costs, will be distributed to
class members. The distribution of the Distributable Settlement
Fund will be performed in accordance with the Settlement
Agreement, the Order, and any further order of the Court.
Judge Steele awarded the Settlement Class Counsel the requested
amount of $1.6 million as attorney's fees. He also awarded the
Settlement Class Counsel reimbursement of $1,450 in expenses they
reasonably and necessarily incurred in prosecuting the action. He
granted the Settlement Class Counsel's request for an incentive
award to the Class Representative and awards $20,000 to Family
Medicine Pharmacy, LLC. The payments will be made from the
Settlement Amount within 30 days after the Effective Date.
A full-text copy of the Court's March 6, 2018 Final Judgment and
Order is available at https://is.gd/jLsNRj from Leagle.com.
Family Medicine Pharmacy, LLC, Plaintiff, represented by Diandra
Debrosse Zimmermann -- fuli@zarzaur.com -- & James H. McFerrin,
The McFerrin Law Firm.
Impax Laboratories, Inc., a California Corporation, Defendant,
represented by Anush Emelianova -- aemelianova@kslaw.com -- King &
Spalding, LLP, pro hac vice, Sidney Stewart Haskins, II --
shaskins@kslaw.com -- King & Spalding, LLP, pro hac vice, Zachary
A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding, LLP, pro
hac vice & M. Warren Butler -- wbutler@starneslaw.com -- Starnes
Davis Florie LLP.
INMOTION ENTERTAINMENT: Faces "Henry" Suit in Cal. Super Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Inmotion
Entertainment Group, LLC. The case is styled as William Henry, an
individual, on behalf of himself and on behalf of all persons
similarly situated, Plaintiff v. Inmotion Entertainment Group,
LLC, a limited liability company, Defendant, Case No. CGC18565643
(Cal. Super. Ct., April 10, 2018).
InMotion Entertainment Group, LLC operates as an airport retailer
for entertainment products and electronics.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Blumenthal, Nordrehaug & Bhowmik
2255 Calle Clara
La Jolla, CA 92037
Tel: (858) 551-1223
Fax: (858) 551-1232
Email: norm@bamlawca.com
INTEL CORP: Asian Woman Files Lawsuit Over Pay Disparity
--------------------------------------------------------
Ethan Baron, writing for Mercury News, reports that when Cristina
Wong, after a dozen years and three promotions at Intel,
discovered her male peers were making considerably more money than
she was, she asked her manager if she was the least-paid member of
the firm's Sales Marketing Group, she said in a new lawsuit
against the iconic Santa Clara semiconductor maker.
"He responded that she was at least making more than the intern,"
the suit said.
Her manager then confirmed that her "pay disparity was
significant," Ms. Wong, an Asian woman, alleged in the suit filed
on March 30 in San Francisco federal court.
But though her superior reportedly agreed she wasn't being paid
equitably, Intel terminated her less than three months later,
Ms. Wong claimed.
Intel did not immediately respond to a request for comment.
Ms. Wong said in the suit that after talking to her manager she
was directed to address the issue via the company's online
employee-concerns hotline. Hotline staff promised to investigate,
the suit said.
"Wong was told that Intel was aware of her pay disparity,"
according to the suit.
"Wong was informed that she was being paid at least $40,000 less
than the minimum compensation for her grade level, and that her
peers were being paid at least $50,000 more than her."
No action was taken to correct the purported disparity, and her
complaint about discrimination was a primary reason Intel fired
her, the suit said.
"After raising the issue of her pay disparity, on October 12,
2017, Ms. Wong was informed that her last day at Intel would be
December 31, 2017," the suit said.
Ms. Wong is seeking unspecified damages.
Her legal action follows that of four women suing Google and
seeking class-action status over alleged gender discrimination in
pay. Google denies it pays women less than men. [GN]
JPMORGAN CHASE: Court Grants Final OK of $1.5MM Class Settlement
----------------------------------------------------------------
The United States District Court for the Northern District of
California granted final approval of the class action settlement,
the request for attorneys' fees and costs in the case captioned
GLENN PACHECO, Plaintiff, v. JPMORGAN CHASE BANK, N.A, Defendant,
Case No. 3:15-cv-05689-JD (N.D. Cal.).
The final settlement proposes that Chase pay $1.5 million into a
non-reversionary settlement fund that will be apportioned pro
rata. Class members will receive their checks automatically, and
uncollected cash amounts will be allocated towards a second
distribution. The settlement fund represents a gross recovery of
118% and a net recovery of 86% after accounting for proposed
attorneys' fees and expenses. In addition, the defendant will
forgo collection of any remaining balance on the settlement class
loans.
For the reasons set out in the Court's preliminary approval order,
the Court finds the proposed final settlement is fair, adequate,
reasonable, and satisfies the requirements of Federal Rules of
Civil Procedure 23(a) and (b)(3).
Class counsel also seeks $4,068 for litigation expenses and $9,400
for the settlement administrator's expenses. Consequently, they
are approved.
A full-text copy of the District Court's March 1, 2018 Order is
available at https://tinyurl.com/y7qkeqjj from Leagle.com.
Glenn Pacheo, Plaintiff, represented by Tiffany Rochelle Norman -
tiffany@trnlaw.com -- TRN Law Associates, Thomas Eric Loeser --
toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Peter B.
Fredman -- peter@peterfredmanlaw.com. -- Law Office of Peter
Fredman.
JPMorgan Chase Bank, N.A, Defendant, represented by Julia B.
Strickland -- jstrickland@stroock.com -- Stroock & Stroock & Lavan
LLP & Cristina Anastassia Guido -- cguido@stroock.com -- Stroock &
Stroock & Lavan LLP.
KAISER FOUNDATION: Court Narrows Claims in "Adan" Suit
------------------------------------------------------
Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California granted in part and denied in part
the Defendant's motion to dismiss the case, JACQUELINE ADAN,
Plaintiff, v. KAISER FOUNDATION HEALTH PLAN, INC., Defendant, Case
No. 17-cv-01076-HSG (N.D. Cal.).
The Defendant is California's largest health plan, and provides
coverage for approximately 8 million California residents,
including the Plaintiff. The Plaintiff was and is covered by a
group policy issued by Defendant to her private employer. The
policy is an employee benefit plan within the meaning of ERISA. A
document called the Evidence of Coverage ("EOC") sets forth the
terms and condition of plan members' coverage.
The Plaintiff was previously "morbidly obese," and so embarked on
an aggressive weight loss program and lost a massive amount of
weight. As a result, she was left with disfiguring excess skin
hanging from her arms, legs, and torso. Her case centers on her
attempts to obtain from the Defendant coverage of surgery that
would remove her excess skin. She asserts that under California
law, the Defendant is required to cover plastic surgery when it is
meant to improve function or to create a normal appearance, to the
extent possible.
The Defendant's guidelines have deemed excess skin surgery
cosmetic and excluded from coverage, with one exception: a
panniculectomy (a removal of excess skin and fat from the lower
abdomen) but only if the amount of hanging skin is extreme and
causing functional problems. In keeping with these guidelines,
the Defendant's surgeons have refused to authorize excess skin
surgery if doing so will only create a normal appearance.
The Plaintiff first attempted to address her excess skin issues in
April 2015, when she met with her primary care physician under the
Defendant's health plan, Dr. Yap. Dr. Yap informed her that
excess skin surgery was "cosmetic" and therefore not covered, and
referred her to the Defendant's cosmetic department, where she
would pay out-of-pocket for any services she received. The
Plaintiff alleges that the Defendant did not provide her with
written or electronic notice regarding Dr. Yap's denial of her
request for excess skin surgery.
In July 2015, the Plaintiff met with Dr. Salim at the Defendant's
San Francisco location, following Dr. Yap's referral. She sought
a type of excess skin surgery known as a "circumferential body
lift." Dr. Salim informed her that neither he nor any of the
Defendant's practitioners performed that type of surgery. She
next requested authorization to go outside of Kaiser's physician
network to obtain the surgery. The Defendant denied her request
on April 21, 2016.
Through Dr. Yap, the Plaintiff again requested authorization to go
outside of the Defendant's network to obtain a circumferential
body lift. The Defendant denied the request on July 1, 2016.
That month, the Plaintiff took matters into her own hands and had
a circumferential body lift performed by Dr. Joel Beck, a
physician outside of Kaiser's network, for $16,000 at her own
cost. After Plaintiff's surgery, the Defendant affirmed its
denial of the Plaintiff's request to go outside of its physician
network, again stating that the appropriate care is available
within the plan."
After Dr. Beck's out-of-network surgery, the Plaintiff sought
another "out-of-plan" referral from the Defendant to address
excess skin issues involving her arms, legs, and breasts. The
Defendant denied her request.
The Plaintiff then sought another referral from Dr. Yap to address
the issues involving her arms, legs, and breasts. Dr. Yap
referred her to Dr. Smith in the Defendant's Walnut Creek
location. The Defendant did not provide the Plaintiff with
written or electronic notice regarding Dr. Smith's denial of her
request for excess skin surgery. In November 2016, the Plaintiff
again went out-of-network and had an upper body circumferential
lift and had excess skin removed by Dr. Beck. She paid $18,000
for the surgery, which the Defendant did not cover.
The Plaintiff brings the putative class action under the Employee
Retirement Income Security Act of 1974 ("ERISA") on March 1, 2017.
On April 27, 2017, the Defendant filed this motion to dismiss.
The Plaintiff filed her opposition on May 11, 2017, and the
Defendant replied on May 18, 2017.
The Plaintiff alleges two causes of action under ERISA. First,
she brings a claim under 29 U.S.C. Section 1132(a)(1)(B) to
recover benefits due and to enforce and clarify her rights to the
benefits at issue. Second, she brings a claim under 29 U.S.C.
Section 1132(a)(3), alleging that the Defendant breached its
fiduciary duties when it "systematically" violated California's
reconstructive surgery law and improperly denied requests for
excess skin surgery, and when it failed to follow reasonable
claims procedures.
Judge Gilliam finds that the Plaintiff's failure to exhaust her
administrative remedies is clear from the face of the complaint,
thus precluding her section 1132(a)(1)(B) claim. The Plaintiff
fails to plead exhaustion as to her third authorization request.
Following the surgery for which she paid out-of-pocket, she again
sought an out-of-network referral for additional excess skin
surgery. The Defendant denied the request. The Plaintiff makes
no allegations that she engaged in the Defendant's dispute
resolution process. The Plaintiff fails to sufficiently plead
that she complied with the claim procedures set forth in the EOC.
Nor does she plead any facts showing that those procedures were
unreasonable. Accordingly, the Plaintiff cannot show that her
claims should be deemed exhausted.
The Judge also finds that in denying the Plaintiff's requests to
obtain surgery from an out-of-network physician, the Defendant
consistently stated that the care she sought was available within
her health plan. The Plaintiff failed to appeal two denials, and
went out-of-network before the Defendant had a chance to review
another denial on appeal. There is therefore no basis to excuse
the Plaintiff's failure to exhaust on grounds of futility.
Because this is one of the rare cases in which a failure to
exhaust is evident from the face of the Complaint, the Judge
concludes the Plaintiff's claim under section 1132(a)(1)(B) will
be dismissed without prejudice.
For these reasons, Judge Gilliam granted in part and denied in
part the Defendant's motion. She dismissed without prejudice the
Plaintiff's claim under 29 U.S.C. Section 1132(a)(1)(B)due to her
failure to exhaust administrative remedies. What remains is the
Plaintiffs' claims under 29 U.S.C. Section 1132(a)(3), and as to
these claims the Complaint and the motion to dismiss or stay
briefing create more questions than they answer. The Judge
accordingly set a case management conference for April 3, 2018 at
2:00 p.m.
In addition to the standard case management conference topics, the
parties should address in their joint CMC statement and be
prepared to discuss at the hearing the following topics: (1) the
estimated time necessary for Plaintiff to exhaust the claim
underlying the dismissed cause of action; (2) the basis for the
Plaintiff's theory that she may pursue broad, generalized,
purportedly class-wide relief under ERISA's catch-all provision;
(3) whether those claims must or should in any event be stayed
pending exhaustion, given the Plaintiff's apparent theory that
under section 1132(a)(3) she may seek such relief on behalf of a
putative class; and (4) whether it would be productive for the
parties to renew their ADR efforts earlier than the October 2018
deadline contained in their initial stipulation.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/zxYqvQ from Leagle.com.
Jacqueline Adan, on behalf of herself and all others similarly
situated, Plaintiff, represented by Joshua Seth Davis --
Joshua.Davis@gmlawyers.com -- Gianelli and Morris, Adrian Jorge
Barrio, Gianelli and Morris & Robert Steven Gianelli, Gianelli and
Morris.
Kaiser Foundation Health Plan, Inc., Defendant, represented by Moe
Keshavarzi -- mkeshavarzi@sheppardmullin.com -- Sheppard Mullin
Richter & Hampton LLP, Andrea Nicole Feathers --
afeathers@sheppardmullin.com -- Sheppard Mullin Richter and
Hampton, John T. Brooks -- jbrooks@sheppardmullin.com -- Sheppard
Mullin Richter & Hampton LLP & Robert James Guite --
rguite@sheppardmullin.com -- Sheppard Mullin Richter & Hampton
LLP.
KIND LLC: Non-GMO Claim Stayed Until Aug. 15
--------------------------------------------
In the cases, IN RE: KIND LLC "HEALTHY AND ALL NATURAL"
LITIGATION. This Document Relates to All Actions, Case Nos. 15-MD-
2645 (WHP), 15-MC-2645 (WHP)(S.D. N.Y.), Judge William H. Pauley,
III of the U.S. District Court for the Southern District of New
York granted in part and denied in part the Defendants' motion to
dismiss or stay the "non-GMO" claim, and denied without prejudice
the Plaintiffs' motion to lift the stay on the "natural" claim.
The Defendants seek dismissal of the Plaintiffs' Amended
Consolidated Class Action Complaint. The Plaintiffs allege that
KIND deceptively marketed its products as "natural" and "non-GMO"
even though they contain synthetic and genetically modified
ingredients. The Court previously stayed the "natural" claim.
On Sept. 15, 2016, the Court granted in part KIND's motion to
dismiss the original complaint. As an initial matter, the Court
disposed of the original complaint's "healthy" claim after the
Plaintiffs stipulated to dismissing it. Invoking the primary
jurisdiction doctrine, the Court stayed the "all natural" claim,
finding that the FDA's rulemaking process should run its course
before allowing that claim to proceed here. Finally, it dismissed
without prejudice the Plaintiff's "non-GMO" claim on the basis
that it was insufficiently pled. Despite largely granting KIND's
motion, the Court provided them with a further opportunity to re-
plead their "non-GMO" claim.
In November 2015, the FDA announced the establishment of a docket
to receive information and comments on the use of the term
'natural' in the labeling of human food products, including foods
that are genetically engineered or contain ingredients produced
through the use of genetic engineering. The notice and comment
period ended in May 2016. Since then, the FDA has gone quiet,
leaving various stakeholders with little clarity on the agency's
position.
On Dec. 15, 2016, the parties jointly provided a status report
concerning the FDA's rulemaking process. Despite injecting their
letter with competing interpretations of what the FDA might do,
the parties acknowledged that the agency had not formally issued
any guidance since closing its comment period.
On Feb. 24, 2017, the parties supplemented their joint status
report, informing the Court of President Donald Trump's Jan. 30,
2017 executive order titled, "Reducing Regulation and Controlling
Regulatory Costs." While the Executive Order does not
specifically reference the FDA's rulemaking process, the
Plaintiffs in particular stressed that an Executive Order rooted
in scaling back regulation could stymie the FDA's process of
defining "natural."
The Executive Order essentially imposes new requirements on agency
rulemaking. First, it directs agencies to identify at least two
existing regulations to be repealed" for every new regulation they
seek to implement. Second, the Executive Order establishes an
annual budgeting process to control the cumulative costs imposed
by each agency's regulations.
In their Amended Complaint, the Plaintiffs re-allege the stayed
"natural" claim and seek to cure the deficiencies previously
identified in the Court's Opinion and Order underlying their "non-
GMO" claim. The Amended Complaint devotes a section to addressing
KIND's non-GMO marketing, alleging, among other things, that
testing completed on June 1, 2016 detected the presence of GMOs in
at least some of KIND's Products and that at least one product
tested positive for GMO soy from the ingredient soy protein
isolate.
In total, the Plaintiffs assert nine different claims on behalf of
a putative nationwide class and/or various state sub-classes: (1)
breach of express warranty; (2) unjust enrichment or common law
restitution; (3) negligent misrepresentation; (4) violation of New
York General Business Law ("NY GBL") Section 349; (5) violation of
NY GBL Section 350; (6) violation of California's Consumers Legal
Remedies Act ("CLRA"); (7) violation of California's False
Advertising Law ("FAL"); (8) violation of California's Unfair
Competition Act ("UCL"); and (9) violation of Florida's Deceptive
and Unfair Trade Practices Act ("FDUPTA").
KIND now seeks to dismiss or stay the "non-GMO" claim. It argues
that the "non-GMO" claim is expressly preempted by the National
Bioengineered Food Disclosure Standard, a federal law that took
effect on July 29, 2016 ("National GMO Standard Law"). This
statute directs the U.S. Department of Agriculture ("USDA") to
establish "a national mandatory bioengineered food disclosure
standard with respect to any bioengineered food" by July 2018. It
seeks, in the alternative, to stay the non-GMO claim under the
doctrine of primary jurisdiction.
Separately, the Plaintiffs move to lift the stay of the "natural"
claim. They assert that the FDA's rulemaking process to define
the term "natural" has stalled since May 2016 when the agency
closed its notice and comment period. They are eager to forge
ahead on their "natural" claim in tandem with their "non-GMO"
claim, and contend that indefinitely staying the "natural" claim
will result in undue delay and prejudice.
Judge Pauley finds that the Plaintiffs do not seek to impose new
standards or requirements in connection with their consumer
protection claims. They simply want to ensure that KIND's labels
are truthful. Accordingly, their claims are not preempted by the
National GMO Standard Law.
The Judge also finds that (i) there is no dispute that whether
genetically engineered foods may be labeled as "non-GMO" is within
the USDA's discretion; (ii) staying the action until the USDA
offers guidance would almost certainly help harmonize court
rulings, and avoid any glaring conflicts with the USDA; and (iii)
the parties have not formally made applications to the USDA on
this issue, but the agency's work is underway pursuant to the
National GMO Standard Law. Accordingly, the "non-GMO" claim will
be stayed until Aug. 15, 2018 to allow the parties to review any
agency action taken by July 29, 2018 and provide a status update
informing this Court of relevant developments. If the USDA has
not taken any action by that date, or publicly provided any
updates regarding its progress, the Plaintiffs are free to file a
motion to lift the stay.
Although the "non-GMO" claim is stayed pending the completion of
the USDA's work on establishing a national GMO standard, KIND's
motion to dismiss for failure to state a claim will be denied.
Finally, Judge Pauley finds that the Plaintiffs' "natural" claim
has been stayed since September 2016. Almost a year and a half
has elapsed since the stay. In the interim, the FDA has exhibited
little discernible activity. In view of these observations, he
believes it prudent to continue staying the "natural" claim, but
will limit its duration through the date on which the USDA is
expected to define and promulgate the "non-GMO" standard.
However, in the interest of litigating the "natural" and "non-GMO"
claims concurrently, he believes the Aug. 15, 2018 deadline is a
sensible benchmark from which it can re-assess whether a stay over
both claims is proper. Therefore, like the "non-GMO" claim, the
"all natural" claim will be stayed until Aug. 15, 2018.
For the foregoing reasons, Judge Pauley denied KIND's motion to
dismiss the "non-GMO" claim. Prosecution of the "non-GMO" claim
is stayed until Aug. 15, 2018. Additionally, he denied without
prejudice the Plaintiffs' motion to lift the stay of their "all
natural" claim to renew after Aug. 15, 2018. He directed the
Clerk of Court to terminate the motions pending at ECF Nos. 100
and 108.
A full-text copy of the Court's March 2, 2018 Opinion and Order is
available at https://is.gd/Ot3Dcb from Leagle.com.
Kind Bar Plaintiffs, Dena Karnezis & Brandon Kaufer, Plaintiffs,
represented by Todd Seth Garber -- tgarber@fbfglaw.com --
Finkelstein Blankinship, Frei-Pearson & Garber, LLP.
Elizabeth Livingston, Sarah Thomas, Amanda Short & Charity
Bustamante, Plaintiffs, represented by Tina Wolfson --
twolfson@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. & Todd Seth
Garber, Finkelstein Blankinship, Frei- Pearson & Garber, LLP.
Kind Bar Defendants & Kind LLC, Defendants, represented by Dale J.
Giali -- dgiali@mayerbrown.com -- Mayer Brown LLP.
KINDRED HEALTHCARE: Filing Due of "Cashon" Settlement Bid
---------------------------------------------------------
In the case, VALERIE CASHON, on behalf of herself and all others
similarly situated, Plaintiff, v. KINDRED HEALTHCARE OPERATING,
INC., a Delaware Corporation; GENTIVA CERTIFIED HEALTHCARE CORP.,
a Delaware Corporation; and DOES 1 through 15 inclusive,
Defendants, Case No. 3:16-cv-04889 RS (N.D. Cal.), Magistrate
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California granted the Parties' Stipulation that the
deadline for the Plaintiff to file her motion for preliminary
approval of settlement currently scheduled for March 1, 2018 will
be continued to March 6, 2018; and the hearing on the Plaintiff's
motion for preliminary approval currently scheduled for March 29,
2018 remain on that date or the Court's earliest available hearing
date thereafter.
On Nov. 19, 2017 the Parties participated in mediation in the
action. On Nov. 28, 2017, the Plaintiff filed a Notice of
Proposed Class Settlement and Request for Preliminary Approval
Hearing Date in which she informed the Court of a proposed
settlement and sought a motion for preliminary approval of class
action settlement hearing date in late January 2018.
On Nov. 28, 2017, the Court issued an Order Staying Currently Set
Date and Setting Schedule for Preliminary Approval in which the
Court ordered the parties to file the motion for preliminary
approval by Jan. 11, 2018 and set the hearing regarding
preliminary approval on Feb. 1, 2018 at 1:30 p.m. in Courtroom 3.
The Parties have previously requested and the Court approved the
Parties' request to move the deadline to file the motion for
preliminary approval. The current deadline for the Plaintiff to
file her motion for preliminary approval is March 1, 2018.
The Parties have been and continue to work diligently to prepare
the long-form stipulation regarding class settlement but have not
yet finalized that agreement. They need further additional time
to finalize that agreement after which the motion for preliminary
approval can be filed and heard. They believe that it would be
most efficient for the parties and the Court to continue the
deadline regarding motion for preliminary approval.
The Parties stipulated and agreed, and Magistrate Judge Seeborg
approved that the deadline for the Plaintiff to file her motion
for preliminary approval currently scheduled for March 1, 2018
will be continued to March 6, 2018; and the hearing on the
Plaintiff's motion for preliminary approval currently scheduled
for March 29, 2018 remain on that date or the Court's earliest
available hearing date thereafter.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/nWduVu from Leagle.com.
Valerie Cashon, on behalf of herself and all others similarly
situated, Plaintiff, represented by Anthony Martin Perez,
Jr. -- aperez@perezlawoffices.com -- Perez Law Offices & Brendan
J. Begley -- bbegley@weintraub.com -- Weintraub Genshlea Chediak &
Charles L. Post -- cpost@weintraub.com -- Weintraub Tobin Chediak
Coleman Grodin.
Kindred Healthcare Operating Inc., a Delaware Corporation &
Gentiva Certified Healthcare Corp., a Delaware Corporation,
Defendants, represented by Elizabeth Porter Staggs-Wilson --
estaggs-wilson@littler.com -- Littler Mendelson, P.C., Alison
Jacquelyn Cubre -- acubre@littler.com -- Littler Mendelson, P.C.,
Angelo Spinola -- aspinola@littler.com -- Littler Mendelson, P.C.
& Lisa Lin Garcia -- llgarcia@littler.com -- Littler Mendelson.
KINDRED HEALTHCARE: April 19 "Cashon" Deal Approval Hearing
-----------------------------------------------------------
In the case, VALERIE CASHON, on behalf of herself and all others
similarly situated, Plaintiff, v. KINDRED HEALTHCARE OPERATING,
INC., a Delaware Corporation; GENTIVA CERTIFIED HEALTHCARE CORP.,
a Delaware Corporation; and DOES 1 through 15 inclusive,
Defendants, Case No. 3:16-cv-04889 RS (N.D. Cal.), Judge Richard
Seeborg of the U.S. District Court for the Northern District of
California ordered that the deadline for Plaintiff to file her
motion for preliminary approval is continued from March 27, 2018
to April 6,, 2018; and the hearing on Plaintiff's motion for
preliminary approval remain on April 19, 2018 at 1:30 pm.
On Nov. 19, 2017 the parties participated in mediation in the
action. On Nov. 28, 2017, the Plaintiff filed a Notice of
Proposed Class Settlement and Request for Preliminary Approval
Hearing Date in which she informed the Court of a proposed
settlement and sought a motion for preliminary approval of class
action settlement hearing date in late January 2018. That same
day, the Court issued an Order Staying Currently Set Date and
Setting Schedule for Preliminary Approval in which it ordered the
parties to file the motion for preliminary approval by Jan. 11,
2018 and set the hearing regarding preliminary approval on Feb. 1,
2018 at 1:30 p.m. in Courtroom 3.
The Parties have previously requested and the Court approved the
Parties' request to move the deadline to file the motion for
preliminary approval. The current deadline for the Plaintiff to
file her motion for preliminary approval is March 27, 2018. The
Parties have been and continue to work diligently to prepare the
long-form stipulation regarding class settlement but have not yet
finalized that agreement. They need further additional time to
finalize that agreement after which the motion for preliminary
approval can be filed and heard. The parties believe that it
would be most efficient for the parties and the Court to continue
the deadline regarding motion for preliminary approval.
Therefore, the parties stipulated and agreed, and Judge Seeborg
granted, that the deadline for the Plaintiff to file her motion
for preliminary approval currently scheduled for March 27, 2018
will be continued to April 6, 2018; and the hearing on the
Plaintiff's motion for preliminary approval currently scheduled
for April 19, 2018 at 1:30 p.m. will remain on the same date and
time or the Court's earliest available hearing date thereafter.
A full-text copy of the Court's March 27, 2018 Order is available
at https://is.gd/aDYfia from Leagle.com.
Valerie Cashon, on behalf of herself and all others similarly
situated, Plaintiff, represented by Anthony Martin Perez,
Jr. -- aperez@perezlawoffices.com -- Perez Law Offices & Brendan
J. Begley -- bbegley@weintraub.com -- Weintraub Genshlea Chediak &
Charles L. Post -- cpost@weintraub.com -- Weintraub Tobin Chediak
Coleman Grodin.
Kindred Healthcare Operating Inc., a Delaware Corporation &
Gentiva Certified Healthcare Corp., a Delaware Corporation,
Defendants, represented by Elizabeth Porter Staggs-Wilson --
estaggs-wilson@littler.com -- Littler Mendelson, P.C., Alison
Jacquelyn Cubre -- acubre@littler.com -- Littler Mendelson, P.C.,
Angelo Spinola -- aspinola@littler.com -- Littler Mendelson, P.C.
& Lisa Lin Garcia -- llgarcia@littler.com -- Littler Mendelson.
KORYODANG BAKERY: "Alvarado" Suit Seeks to Recover Unpaid Wages
---------------------------------------------------------------
Yolanda Alvarado, on behalf of herself and others similarly
situated v. Koryodang Bakery & Cafe Inc. and KW Supermarket Inc.
d/b/a Koryodang Bakery and KW Supermarket, and Seung Yong Baek,
and Hyon Joo Yang, Case No. 1:18-cv-02066 (E.D.N.Y., April 6,
2018), seeks to recover unpaid overtime compensation and earned
wages under the Fair Labor Standards Act and New York Labor Law.
The Defendants own and operate Koryodang Bakery and KW Supermarket
located at 3702 Union Street, Flushing, NY 11354. [BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 100017
Telephone: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
KRISPY KREME: Faces "Agajanyan" Over Product Misrepresentation
--------------------------------------------------------------
Irina Agajanyan, as an individual, on behalf of herself, all
others similarly situated, and the general public v. Krispy Kreme
Doughnut Corporation and Does 1 through 10, inclusive, Case No.
2:18-cv-02885-SJO-AS (C.D. Cal., April 6, 2018), arises from the
Defendants' pattern and practice of selling doughnuts with the
words such as "blueberry" and "maple" in their names, which do not
contain the named ingredients.
Krispy Kreme Doughnut Corporation operates stores throughout the
United States through which it markets, advertises and sells
Krispy Kreme branded goods. [BN]
The Plaintiff is represented by:
Hovanes Margarian, Esq.
THE MARGARIAN LAW FIRM
801 North Brand Boulevard, Suite 210
Glendale, CA 91203
Telephone: (818) 553-1000
Facsimile: (818) 553-1005
E-mail: hovanes@margarianlaw.com
LA TORTILLA: Faces "McAllister" Suit in California Superior Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against La Tortilla Factory
Inc. The case is styled as Jonathan McAllister, on behalf of
other members of the general public similarly situated, Plaintiff
v. La Tortilla Factory Inc. a California corporation and Does 1
through 100 inclusive, Defendants, Case No. 34-2018-00230819-CU-
OE-GDS (Cal. Super. Ct., April 12, 2018).
La Tortilla Factory Inc. produces and sells tortillas. The company
provides traditional flour, low-carb, low-fat, extra virgin olive
oil, organic, and flavored tortillas.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
Justice Law Corporation
411 North Central Avenue Suite 500
Glendale, CA 91203
Tel: 818.230.7502
Fax: 818.230.7259
Email: dhan@justicelawcorp.com
LIBERTY MUTUAL: Settlement in "Moyle" Has Final Approval
--------------------------------------------------------
In the case styled GEOFFREY MOYLE, an individual, PAULINE ARWOOD,
an individual, THOMAS ROLLASON, an individual, and, JEANNIE
SANDERS, an individual, on behalf of themselves and all others
similarly situated, and ROES 1 through 500, inclusive, Plaintiff,
v. LIBERTY MUTUAL RETIREMENT BENEFIT PLAN; LIBERTY MUTUAL
RETIREMENT PLAN RETIREMENT BOARD; LIBERTY MUTUAL GROUP INC., a
Massachusetts company; LIBERTY MUTUAL INSURANCE COMPANY, a
Massachusetts company; and, DOES 1 through 50, inclusive,
Defendant, Case No. 10CV2179-GPC(MDD)(S.D. Cal.), Judge Gonzalo P.
Curiel of the U.S. District Court for the Southern District of
California granted the Plaintiffs' Motion for Final Approval of
Class Settlement and Application for Attorneys' Fees and Costs,
and Service Awards.
After years of pre-complaint investigation and administrative
proceedings, on Oct. 19, 2010, the Plaintiffs filed their
purported class action complaint under Employee Retirement Income
Security Act ("ERISA"). On Oct. 21, 2010, the Plaintiffs filed an
amended complaint. Liberty Mutual then filed a Motion to Dismiss.
The Plaintiffs successfully survived the Motion.
The Plaintiffs then applied for, and were given, leave to file a
Second Amended Complaint over Liberty Mutual's objection. They
filed their Second Amended Complaint ("SAC") and then Liberty
Mutual answered in October of 2011, citing 45 affirmative
defenses. Then on Oct. 17, 2012, the Plaintiffs filed a Third
Amended Complaint pleading causes of action for: (1) Determination
of the Terms of the Plan and Clarification of Rights to Future
Benefits under 29 U.S.C. Section 1132(a)(1)(B), (2) To Obtain
Equitable Relief Under 29 U.S.C. Section 1132(a)(3), and (3) for
violation of various Federal Regulations governing proper
disclosures under ERISA. The Plaintiffs included breach of
fiduciary duty claims under 29 U.S.C. Section 1132(a)(2).
In December of 2011, the Plaintiffs filed their motion to certify
the case as a class action. The Defendants opposed. On April 10,
2012, the Court granted the Plaintiffs' motion to certify, also
appointing the named Plaintiffs as the class representatives and
their counsel as the class counsel. The Court certified the Class
as a non-opt-out class under Federal Rule of Civil Procedure
23(b)(1).
Liberty Mutual then filed a Motion for Reconsideration of the
Order certifying the Class, along with a Motion to stay all
proceedings pending Liberty Mutual's Petition to appeal under Rule
23(f). The Court denied the Motion for Reconsideration, but
granted the request for a stay. The stay was short-lived,
however, because the Ninth Circuit denied the Petition to appeal
the next month. The parties then sent out a class notice and
continued to investigate the case and conduct discovery.
On Jan. 3, 2013, the Defendants filed a motion for summary
judgment against all four causes of action. The Plaintiffs filed
a motion for partial summary judgment ("MSJ") on the second and
fourth causes of action and on certain of the Defendants'
affirmative defenses. The briefing and exhibits submitted by both
sides during the first round of MSJ proceedings totaled over
10,800 pages of briefing and evidence. On July 1, 2013, the Court
granted the Defendants' motion for summary judgment on all four
causes of action in the third amended complaint, and it denied the
Plaintiffs' motion for summary judgment.
The Plaintiffs then filed a timely appeal regarding the dismissal
of the first, second, and fourth causes of action. The Defendants
cross-appealed, claiming that the suit was time-barred and that
class certification was not proper. On May 20, 2016, in a
published opinion, the Ninth Circuit revived the case, restoring
the second cause of action for equitable relief under 29 U.S.C.
Section 1132 (a)(3). The Ninth Circuit remanded for
determinations of fact and equitable relief in the form of
reformation and surcharge.
The District Court then considered the arguments left undecided by
the Ninth Circuit. The Court held oral argument on the Motion for
Summary Judgment on Dec. 16, 2016. Ultimately, on April 11, 2017,
the Court denied in part the Defendants' motion for summary
judgment. In doing so, the Court preserved the two issues that
the Ninth Circuit revived. The Court did find, however, that two
of the named Plaintiffs' claims were time-barred.
The Court then set deadlines for Pretrial Disclosures and set a
final Pretrial Conference for June 16, 2017. Twelve days later,
Liberty Mutual filed a Motion for Reconsideration of the Order
granting in part and denying in part their Motion for Summary
Judgment. That Motion was pending when the parties began to
seriously explore settlement before the impending trial.
After the Court's Order on the motion for summary judgment, the
parties engaged experienced class action and ERISA mediator Hunter
Hughes, Esq. Ultimately, Mr. Hughes succeeded in getting the
parties to agree on the "past service credit" and, separately, on
attorneys' fees. Both numbers were separately proposed and
recommended by Mr. Hughes. The parties formally accepted Mr.
Hughes' proposals on Aug. 8, 2017.
The Settlement Agreement defines the Settlement Class as all
former employees of Golden Eagle Insurance Co. who are or were
employed by Liberty Mutual Group, Inc. and/or Liberty Mutual
Insurance Co., including, but not limited to, Golden Eagle
Insurance Corp., starting Oct. 1, 1997, who participated or are
participating in the Liberty Mutual Retirement Benefit Plan, have
met all other vesting and eligibility requirements for benefits
under the terms of the Plan, and who were or will be denied credit
for all years of service with Golden Eagle Insurance Co. for the
purposes of calculating all benefits owed to them under the Plan
from Oct. 1, 1997 forward, or, in the case of any such persons who
are deceased, their beneficiaries as determined under the Plan.
The Settlement Class consists of Class Members, or their
beneficiaries as determined under the Plan, who will receive the
New Benefit agreed to in the Proposed Settlement.
The Settlement provides added retirement benefits of 50% of the
credit that would have been available had the entire Class
obtained a 100% victory at trial and after appeal. More
specifically, the parties have agreed that the Plan will be
amended to provide a New Benefit in addition to the existing
retirement benefits provided by the Plan. The amendment will
result in a larger retirement benefit through a grant of "past
service credit" equivalent to half of the time that each
Settlement Class Member worked for Old Golden Eagle before coming
to work for Liberty Mutual on Oct. 1, 1997, after the acquisition.
As stated in the Settlement Agreement, the Parties agree that the
Plan will be amended by the plan sponsor to provide a New Benefit
to Settlement Class Members under the Plan commensurate with
granting 50% past service credit for years of employment by Golden
Eagle Insurance Co. for purposes of benefits accrual, and subject
to all the other terms and conditions of the Plan.
In addition, Liberty has agreed to separately pay $7.5 million in
attorneys' fees to the Class Counsel, to reimburse $250,000 in
out-of-pocket expenses, and pay $25,000 in total incentive awards
to the class representatives. Liberty has also paid or will pay
to cover the notice costs and the costs of administering the new
settlement.
Judge Curiel of the U.S. District Court for the Southern District
of California granted the Plaintiffs' Motion for Final Approval of
Class Settlement and Application for Attorneys' Fees and Costs,
and Service Awards. The release set forth in the Settlement will
become binding and effective on all Class members upon the
Effective Date, which under Paragraphs 1.17 and 1.22 will be 30
calendar days after entry of the Final Approval Order pursuant to
Federal Rules of Appellate Procedure, Rule 4.
The Judge directed the Plan Administrator to implement and carry
out the Settlement in accordance with the terms and provisions
thereof, including the Settlement Plan, as described in Paragraph
13 and elsewhere in the Settlement Agreement.
He awarded the Class Counsel attorney fees in the amount of
$7,500,000, and costs in the amount of $250,000. The Defendants
will make the payment 30 days after the Final Approval Order has
become Final. The payment for the award of attorneys' fees and
costs in all or any part of the amount to be received by the
attorneys may be deferred (such as in the case of an annuity, a
structured settlement, or periodic payments). If an attorney
decides to receive their award of all or a portion of their fees
in an annuity, structured settlement, or periodic payments, their
interest in the funds will be paid from a Qualified Settlement
Fund and assigned to a third party to provide such payments. Any
such agreement as to the time and manner of paying the attorney's
fees will be irrevocable. The fees and expenses will be allocated
among the Class Counsel by Class Counsel Craig Nicholas in a
manner that in a good-faith judgment, reflects each firm's
contribution to the institution, prosecution, and resolution of
the litigation.
The Judge awarded three $5,000 service awards to: (1) Pauline
Arwood; (2) Thomas Rollason; and (3) Jeannie Sanders, and one
$10,000 service award to Geoffrey Moyle. These incentive awards
will be distributed by the Defendants at the same time as the
attorneys' fees and costs.
There being no just reason for delay, the Judge, in the interests
of justice, expressly directed the Clerk of the Court to enter the
Final Order and Judgment, and decreed that, upon entry, it be
deemed a Final Judgment.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/3UKCvW from Leagle.com.
Geoffrey Moyle, an individual, on behalf of themselves, Thomas
Rollason, an individual, on behalf of themselves & Jeannie
Sanders, an individual, on behalf of themselves, Plaintiffs,
represented by Alex M. Tomasevic -- atomasevic@nicholaslaw.org --
Nicholas and Tomasevic LLP, Craig McKenzie Nicholas --
cnicholas@nicholaslaw.org -- Nicholas and Tomasevic, Georg
Capielo, Jack B. Winters, Jr., Law Offices of Winters and
Associates, Matthew B. Butler -- mbutler@butler-firm.com -- The
Butler Firm, Sarah D. Ball, Winter and Associates & David Gerald
Greco -- dgreco@nicholaslaw.org -- Nicholas & Tomasevic, LLP.
Pauline Arwood, an individual, on behalf of themselves, Plaintiff,
represented by Alex M. Tomasevic, Nicholas and Tomasevic LLP,
Craig McKenzie Nicholas, Nicholas and Tomasevic, Georg Capielo,
Jack B. Winters, Jr., Law Offices of Winters and Associates &
Sarah D. Ball, Winter and Associates.
Liberty Mutual Retirement Benefit Plan & Liberty Mutual Retirement
Plan Retirement Board, Defendants, represented by Aimee E.
Axelrod, Jackson Lewis -- aaparker@cozen.com -- Amber Gardina-
Quintanilla -- amber.gardina-quintanilla@procopio.com -- Jackson
Lewis, P.C., Ashley Bryan Abel -- AbelA@jacksonlewis.com --
Jackson Lewis LLP, pro hac vice, Julia M. Ebert, Jackson Lewis
LLP, pro hac vice & Robert M. Wood -- WoodR@jacksonlewis.com --
Jackson Lewis LLP, pro hac vice.
Liberty Mutual Insurance Company, a Massachusetts company,
Defendant, represented by Amber Gardina-Quintanilla, Jackson
Lewis, P.C., Ashley Bryan Abel , Jackson Lewis LLP, pro hac vice,
Julia M. Ebert, Jackson Lewis LLP, pro hac vice & Robert M. Wood,
Jackson Lewis LLP, pro hac vice.
Liberty Mutual Insurance Group Inc., a Massachusetts company,
Defendant, represented by Aimee E. Axelrod Parker, Cozen O Connor,
Amber Gardina-Quintanilla, Jackson Lewis, P.C., Ashley Bryan Abel,
Jackson Lewis LLP & Julia M. Ebert, Jackson Lewis LLP, pro hac
vice.
LITTLE SAIGON CUISINE: Faces "Liu" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Little Saigon
Cuisine Inc. The case is styled as Zhendong Liu, individually and
on behalf of all other employees similarly situated, Plaintiff v.
Little Saigon Cuisine Inc. doing business as: Little Saigon
Cuisine and Christy Zhang, Defendants, Case No. 1:18-cv-02181
(E.D. N.Y., April 12, 2018).
Little Saigon Cuisine is a restaurant offering Thai and Vietnamese
food.[BN]
The Plaintiff appears PRO SE.
LONGFIN CORP: Investigates Potential Securities Class Action
------------------------------------------------------------
U.S. Market Advisors Law Group PLLC on April 2 disclosed that the
firm is investigating whether LongFin Corp. (NASDAQ: LFIN)
violated federal securities laws. The investigation involves
investors that purchased Longfin common stock between December 14,
2017 and March 25, 2018.
USMA Law Group is preparing for a securities fraud class action
against Longfin. The firm's Longfin webpage provides a proposed
class action complaint (not yet filed) and other important
information: http://usmarketlaw.com/longfin/. You may also
contact David P. Abel, Managing Attorney of USMA Law Group, to
discuss this matter at no obligation or cost: (202) 274-0237;
dabel@usmarketlaw.com.
According to the proposed complaint, Longfin allegedly made false
and misleading statements and failed to disclose that: (i) Longfin
had material weaknesses in its operations and internal controls
that hindered the company's profitability; and (ii) Longfin did
not meet the requirements for inclusion in FTSE Russell indices.
Longfin's recent entry into blockchain markets has attracted
widespread attention. On December 15, 2017, Longfin announced the
acquisition of Ziddu.com, a blockchain-empowered global micro-
lending solutions provider. On March 15, 2018, the global index
operator Russell added the company to two widely-tracked Russell
indices.
On March 26, 2018, stock commentary website Citron Research posted
a tweet on Twitter.com questioning the authenticity of Longfin's
operations. The same day, Russell issued a statement announcing
Longfin did not meet its requirements and would be removed from
the indices, only days after being added. As a result, the price
of Longfin's common stock declined from $71.10 per share on March
23, 2018, to close at $34.68 per share on March 28, 2018, a
decline of 51%.
Visit USMA Law Group's Longfin investigation webpage for more:
http://usmarketlaw.com/longfin/.
About USMA Law Group
USMA Law Group -- http://www.usmarketlaw.com-- is a national law
firm based in the District of Columbia. The firm represents
investors in antitrust, securities and shareholder litigation.
[GN]
MACARONI JOES: Doesn't Properly Pay Employees, "Bailey" Suit Says
-----------------------------------------------------------------
Zachary Bailey, individually and on behalf of all others similarly
situated v. Macaroni Joes, Ltd. and Panhandle Restaurant Group,
Ltd., Case No. 2:18-cv-00067-D (N.D. Tex., April 9, 2018), is
brought against the Defendants for failure to pay minimum wage at
the rates required by the Fair Labor Standards Act.
The Defendants own and operate a restaurant located at 2408
Commerce Street, Amarillo, Texas 79109. [BN]
The Plaintiff is represented by:
Jeremi K. Young, Esq.
Collin Wynne, Esq.
YOUNG & NEWSOM, PC
1001 S. Harrison, Suite 200
Amarillo, TX 79101
Telephone: (806) 331-1800
Facsimile: (806) 398-9095
E-mail: jyoung@youngfirm.com
collin@youngfirm.com
MASTEC NETWORK: Faces "Zepeda" Suit in C.D. California
------------------------------------------------------
A class action lawsuit has been filed against Mastec Network
Solutions, LLC. The case is styled as Jorge A. Zepeda, an
individual, on behalf of himself and others similarly situated,
Plaintiff v. Mastec Network Solutions, LLC, a Florida limited
liability company, Mastec Services Company, Inc., a Florida
corporation, Mastec Network Solutions, Inc., a Florida
corporation, Westower Communications, LLC, Erroneously Sued As
Westower Communications, Inc. and Does 1 through 50, inclusive,
Defendants, Case No. 5:18-cv-00749-VAP-SHK (C.D. Cal., April 12,
2018).
MasTec Network Solutions is a worldwide service and solutions
provider.[BN]
The Plaintiff is represented by:
Alvin B Lindsay, Esq.
David Yeremian and Associates Inc
535 North Brand Boulevard Suite 705
Glendale, CA 91203-1989
Tel: (818) 230-8380
Fax: (818) 230-0308
Email: alvin@yeremianlaw.com
- and -
David Yeremian, Esq.
David Yeremian and Associates Inc
535 North Brand Boulevard Suite 705
Glendale, CA 91203
Tel: (818) 230-8380
Fax: (818) 230-0308
Email: david@yeremianlaw.com
- and -
Walter L Haines, Esq.
United Employees Law Group PC
5500 Bolsa Avenue Suite 201
Huntington Beach, CA 92649
Tel: (310) 652-2242
Fax: (562) 256-1006
Email: walterhaines@yahoo.com
MCDONALD'S: Judge Dismisses Calss "Extra Value Meal" Action
-----------------------------------------------------------
Courthouse News Service reports that a federal judge dismissed a
class action claiming a McDonald's "Extra Value Meal" costs more
than buying each item separately, noting that prices are visible
from the counter.
MDL 2516: $54MM Indirect Purchasers Deal Has Preliminary Approval
-----------------------------------------------------------------
In the case, IN RE AGGRENOX ANTITRUST LITIGATION. THIS DOCUMENT
RELATES TO: ALL INDIRECT PURCHASER ACTIONS, Case No. 3:14-md-02516
(SRU)(), Judge Stefan R. Underhill of the U.S. District Court for
the District of Connecticut granted Indirect Purchaser Class
Plaintiffs' Unopposed Motion for Certification of a Settlement
Class, Appointment of Class Counsel, Preliminary Approval of
Proposed Settlement, Approval of the Form and Manner of Notice to
the Class, Proposed Schedule for a Fairness Hearing.
Pursuant to Rule 23(c)(1)(B), the Judge certified the class
defined as all persons or entities in the Commonwealth of Puerto
Rico, Arizona, California, Colorado, District of Columbia,
Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North Dakota,
Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West
Virginia, and Wisconsin, who, in one of the listed states,
indirectly purchased, paid and/or provided reimbursement for some
or all of the purchase price for branded or generic Aggrenox, for
consumption by themselves, their families, or their members,
employees, insureds, participants, or beneficiaries, other than
for resale, from Nov. 30, 2009 through Dec. 22, 2017.
The Judge appointed the Named Plaintiffs as the representatives of
the Class, and the Lead Counsel, Liaison Counsel and an Executive
Committee for the Indirect Purchaser Class, consistent with the
Court's Order dated June 16, 2017.
Judge Underhill preliminarily approved, subject to further
consideration at the Fairness Hearing, the proposed class
settlement, which includes a cash payment of $54 million by the
Defendants into an escrow account for the benefit of the Class in
exchange for, inter alia, dismissal of the litigation between
Indirect Purchaser Class Plaintiffs and the Defendants with
prejudice and releases of certain claims filed or that could have
been filed against the Defendants by Indirect Purchaser Class
Plaintiffs and the Class, as set forth in the Settlement
Agreement.
He approved the proposed forms of Notice to the members of the
Class of the pendency of the Class Action and the proposed
Settlement thereof. The Class Counsel will cause the Notice to be
disseminated beginning March, 21, 2018 to those members of the
Class who can reasonably and economically be identified, by
publication, and email as set forth in the Notice Plan. The
members of the Class may request exclusion from the Class or
object to the Settlement no later than May 11, 2018. The Class
Counsel or their designee will monitor and record any and all opt-
out requests that are received.
The Judge directed the Claims Administrator to provide copies of
all Objections and Requests for Exclusion to Counsel for
Plaintiffs and Defendants as those are received and the
Plaintiffs' Counsel will file those Objections and Requests for
Exclusion in a single submission. Pursuant to the Class Action
Fairness Act of 2005 ("CAFA"), the Defendants will serve notices
as required under CAFA within 10 days from the date the Plaintiffs
file the Settlement Documents with the Court. They will
contemporaneously provide Class Counsel with copies of any such
notices.
He appointed A.B. Data, Ltd. to serve as the claims administrator
and to assist the Class Counsel in disseminating the Notice. All
expenses incurred by the claims administrator must be reasonable,
are subject to Court approval, and will be payable solely from the
Settlement Fund.
He also appointed Bank Leumi USA to serve as Escrow Agent pursuant
to the terms of the Escrow Agreement for the purpose of
administering the escrow account holding the Settlement Fund.
Except as the parties have agreed in the Escrow Agreement, all
expenses incurred by the Escrow Agent must be reasonable, are
subject to Court approval, and will be payable solely from the
Settlement Fund.
The Fairness Hearing will be held before the Court at 1:00 p.m.
(ET) on July 19, 2018. The Class members who wish to object with
respect to the proposed Settlement; and/or wish to appear in
person at the Fairness Hearing, must first send an Objection and,
if intending to appear, a Notice of Intention to Appear, along
with a Summary Statement outlining the position(s) to be asserted
and the grounds therefore together with copies of any supporting
papers or briefs, via first class mail, postage prepaid, to:
Aggrenox Settlement c/o A.B. Data, Ltd. P.O. Box 173046 Milwaukee,
WI 53217.
The Claims Administrator will provide copies of all Objections and
Notices of Intention to Appear to the following counsel: On behalf
of the Indirect Purchaser Class: Marvin A. Miller Miller Law LLC
115 S. LaSalle Street, Suite 2910 Chicago, IL 60603 Tel: (312)
332-3400 mmiller@millerlawllc.com Steven Shadowen Hilliard &
Shadowen LLP 2407 S Congress Avenue, Ste E 122 Austin, TX 78704
Tel: (855) 344-3928 steve@hilliardshadowenlaw.com Renae Steiner
Heins Mills & Olson, P.L.C. 310 Clifton Avenue Minneapolis, MN
55403 Tel: (612) 338-4605 rsteiner@heinsmills.com On behalf of
Boehringer: Peter J. Carney White & Case LLP 701 Thirteenth
Street, NW Washington, DC 20005-3807 Tel: (202) 626-3600
Pcarney@whitecase.com On behalf of Teva Christopher T. Holding
Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 Tel:
(617) 570-1679 cholding@goodwinlaw.com.
To be valid, any such Objection and/or Notice of Intention to
Appear and Summary statement must be postmarked no later than May
11, 2018. All briefs and materials in support of the application
for an award of attorneys' fees and reimbursement of expenses, and
incentive awards for the Named Plaintiffs, will be filed with the
Court by April 14, 2018. All briefs and materials in support of
the final approval of the settlement and the entry of Final Order
and Judgment proposed by the parties to the Settlement Agreement
will be filed with the Court by July 5, 2018.
A full-text copy of the Court's March 6, 2018 Ruling and Order is
available at https://is.gd/NEugnb from Leagle.com.
Aggrenox Antitrust Litigation, Plaintiff, represented by Brian P.
Daniels -- bpdaniels@bswlaw.com -- Brenner, Saltzman & Wallman LLP
& David R. Schaefer -- dschaefer@bswlaw.com -- Brenner, Saltzman &
Wallman.
A.F. of L. - A.G.C. Buildings Trade Welfare Plan is represented by
Mathew P. Jasinski, Esq. -- mjasinski@motleyrice.com -- Michael M.
Buchman, Esq. -- mbuchman@motleyrice.com -- William H. Narwold,
Esq. -- bnarwold@motleyrice.com -- MOTLEY RICE LLC.
Painters District Council No. 30 Health & Welfare Fund is
represented by Mathew P. Jasinski, Esq. --
mjasinski@motleyrice.com -- William H. Narwold, Esq. --
bnarwold@motleyrice.com -- MOTLEY RICE LLC - Mitchell M. Breit,
Esq. -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLP --
Sarah S. Burns, Esq. -- sburns@simmonsfirm.com -- SIMMONS BROWDER
GIANARIS ANGELIDES & BARNERD LLC -- Lori Ann Fanning, Esq. --
lfanning@millerlawllc.com -- Marvin A. Miller, Esq. --
mmiller@millerlawllc.com -- MILLER LAW LLC.
Miami-Luken, Inc. is represented by Anne Mathilde Schmidt, Esq. --
aschmidt@odrlaw.com -- Craig Matthew Glantz, Esq --
cglantz@odrlaw.com -- Dan Chiorean, Esq., at Stuart Edward Des
Roches, Esq -- stuart@odrlaw.com -- ODOM & DES ROCHES, LLC --
Brian D. Brooks, Esq -- bbrooks@ssrllp.com -- David C. Raphael,
Jr Esq --- draphael@ssrllp.com -- Erin R. Leger, Esq. --
eleger@ssrllp.com -- SMITH SEGURA & RAPHAEL, LLP; Ephraim R.
Gerstein, Esq. -- egerstein@garwingerstein.com -- Bruce E.
Gerstein, Esq. -- bgerstein@garwingerstein.com -- Jonathan Michael
Gerstein, Esq. -- jmichael@burkelaw.com -- Joseph Opper, Esq. --
jopper@garwingerstein.com -- GARWIN GERSTEIN & FISHER, LLP;
Daniel C. Simons, Esq. -- dsimons@bm.net -- David F. Sorensen,
Esq. -- dsorensen@bm.net -- BERGER & MONTAGUE, P.C. -- Miranda Yan
Jones, Esq. -- mjones@hpcllp.com -- Russell Allen Chorush, Esq. -
- rchorush@hpcllp.com -- HEIM, PAYNE & CHORUSH, LLP.
International Union of Operating Engineers Local 132 Health and
Welfare Fund, on its own behalf and on behalf of all others
similarly situated, Plaintiff, represented by Christina H.C.
Sharp, Girard Gibbs, LLP, Daniel C. Girard, Girard Gibbs, LLP,
Natalie Finkelman Bennett, Shepherd, Finkelman, Miller & Shah,
LLP, pro hac vice & Scott M. Grzenczyk, Girard Gibbs, LLP.
Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, on
Behalf of Itself and All Others Similarly Situated, Plaintiff,
represented by Lee Albert -- lalbert@glancylaw.com -- Glancy
Prongay & Murray LLP, pro hac vice.
United Food And Commercial Workers Local 1776 & Participating
Employers Health And Welfare Fund, on its own behalf and on behalf
of all others similarly situated, Plaintiff, represented by Donald
Sean Nation, Hilliard & Shadowen LLP, pro hac vice, Natalie
Finkelman Bennett, Shepherd, Finkelman, Miller & Shah, LLP, pro
hac vice & Steven D. Shadowen, Hilliard & Shadowen LLP, pro hac
vice.
Fraternal Order Of Police Miami Lodge 20, Insurance Trust Fund, on
its own behalf and on behalf of all others similarly situated,
Plaintiff, represented by Jayne A. Goldstein, Shepherd, Finkelman,
Miller & Shah, LLP, pro hac vice & Adam Giffords Kurtz --
agkurtz@pomlaw.com -- Pomerantz LLP.
Man-U Service Contract Trust Fund, on behalf of itself and all
others similarly situated, Plaintiff, represented by Jacob A.
Goldberg, Rosen Law Firm, Michael Coren, Cohen Placitella & Roth,
P.C. & Stewart Lee Cohen, Cohen Placitella & Roth, P.C.
IAFF Local 22 Health & Welfare Fund, on behalf of itself and all
others similarly situated & International Union of Painters and
Allied Trades, District Council 21 Health and Welfare Fund, on
behalf of itself and all others similarly situated, Plaintiffs,
represented by Renae D. Steiner, Heins Mills & Olson, PLC, pro hac
vice.
Minnesota and North Dakota Bricklayers and Allied Craftworkers
Health Fund, on behalf of itself and all others similarly
situated, Plaintiff, represented by Anne T. Regan, Zimmerman Reed,
PLLP, pro hac vice & Renae D. Steiner, Heins Mills & Olson, PLC,
pro hac vice.
Barr Pharmaceuticals Inc. is represented by Brigid M. Carpenter,
Esq. -- bcarpenter@bakerdonelson.com -- BAKER, DONELSON, BERMAN,
CALDWELL & BERKOWITZ, P.C., Peter J. Carney, Esq. --
pcarney@whitecase.com -- WHITE & CASE; Robert D. Carroll, Esq. --
rcarroll@goodwinlaw.com -- Sarah K. Frederick, Esq. --
sfrederick@goodwinlaw.com -- and Christopher T. Holding, Esq. --
cholding@goodwinlaw.com -- GOODWIN PROCTER LLP; Assaf Ze'ev Ben-
Atar, Esq. -- abenatar@pullcom.com -- PULLMAN & COMLEY; and James
T. Shearin, Esq. -- jtshearin@pullcom.com -- PULLMAN & COMLEY.
Boehringer Ingelheim International GmbH, Defendant is represented
by Jaime M. Crowe, Esq. -- jcrowe@whitecase.com -- Alison
Hanstead, Esq. -- ahanstead@whitecase.com -- J. Mark Gidley, Esq.
-- mgidley@whitecase.com -- Jack E. Pace, III, Esq. --
jpace@whitecase.com -- Matthew S. Leddicotte, Esq. --
mleddicotte@whitecase.com -- Peter J. Carney, Esq. --
pcarney@whitecase.com -- and Robert A. Milne, Esq. --
rmilne@whitecase.com -- WHITE & CASE; Richard P. Colbert, Esq. --
rpcolbert@daypitney.com -- and Bryan James Orticelli, Esq. --
borticelli@daypitney.com -- DAY PITNEY LLP.
Boehringer Ingelheim Pharmaceuticals Inc, a Delaware corporation,
Defendant, represented by Alison Hanstead, White & Case, pro hac
vice, Holly Letourneau, White & Case, pro hac vice, J. Mark
Gidley, White & Case, pro hac vice, Jack E. Pace, III, White &
Case, pro hac vice, Jaime M. Crowe, White & Case, James T.
Cowdery, Cowdery & Murphy, LLC, John P. D'Ambrosio, Cowdery &
Murphy, LLC, Kelly G. Laudon, Lindquist & Vennum LLP, Mark A.
Jacobson, Lindquist & Vennum LLP, Michael J. Gallagher, White &
Case, pro hac vice, Peter J. Carney, White & Case, pro hac vice,
Robert Dale Grimes, Bass, Berry & Sims, Ross E. Elfand, White &
Case, pro hac vice, Bryan James Orticelli, Day Pitney LLP, David
Kessler, Norton Rose Fulbright US LLP, pro hac vice, Matthew S.
Leddicotte, White & Case, Richard P. Colbert, Day Pitney LLP &
Robert A. Milne, White & Case.
Boehringer Ingelheim Pharma GMBH & Co. KG, a German limited
partnership, Defendant, represented by Holly Letourneau, White &
Case, pro hac vice, Jaime M. Crowe, White & Case, Ross E. Elfand,
White & Case, pro hac vice, Alison Hanstead, White & Case, pro hac
vice, Bryan James Orticelli, Day Pitney LLP, David Kessler, Norton
Rose Fulbright US LLP, J. Mark Gidley, White & Case, pro hac vice,
Jack E. Pace, III, White & Case, James T. Cowdery, Cowdery &
Murphy, LLC, John P. D'Ambrosio, Cowdery & Murphy, LLC, Matthew S.
Leddicotte, White & Case, Peter J. Carney, White & Case, Richard
P. Colbert, Day Pitney LLP & Robert A. Milne, White & Case.
Teva Women's Health, Inc., formerly known as Duramed
Pharmaceuticals Inc, Defendant, represented by Christopher T.
Holding -- cholding@goodwinlaw.com -- Goodwin Procter LLP &
Timothy G. Ronan -- tronan@pullcom.com -- Pullman & Comley.
Gyma Laboratories of America, Inc., Interested Party, represented
by Robert J. Kenney, Jr., Blank Rome LLP, pro hac vice & Walter
Cameron Beard, III -- cbeard@blankrome.com -- Blank Rome LLP.
PAR Pharmaceutical, Inc., Interested Party, represented by B.
Thomas Watson -- thomas.watson@lw.com -- Latham & Watkins, pro hac
vice, Jennifer Koh -- jennifer.koh@lw.com -- Latham & Watkins,
LLP, pro hac vice & Jessica L. Bengels, Latham & Watkins.
Generic Pharmaceutical Association, Amicus, represented by W. Todd
Miller -- TMiller@bakerandmiller.com -- Baker & Miller PLLC.
MDL 2804: Dunbar Votes to Join Class Action Over Opioid Crisis
--------------------------------------------------------------
Mara Regling, writing for the Gazette-Mail, reports that Dunbar
City Council members voted on April 2 night to join a class-action
lawsuit against drug wholesalers as a result of the ongoing opioid
crisis.
The city will enter an agreement with Webb Law Centre, under
attorney Rusty Webb. Mr. Webb will be representing Dunbar, along
with Nitro and other West Virginia cities and towns, against
AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson
Corp. The lawsuit alleges these wholesalers failed to follow
state and federal laws to prevent the abuse and distribution of
prescription medication.
"Hopefully if the outcome is what we want, we will get some kind
of financial or physical assistance," Mayor Bill Cunningham said.
"We have a substantial number of addicts and people walking the
streets. We will take any help we can get."
Council approved a resolution declaring the unlawful distribution
of prescription drugs has created a public nuisance for the
citizens of Dunbar.
"This resolution gives us the cause for taking legal action,"
Cunningham said.
Council also approved plans to construct a new restroom at Wine
Cellar Park. These improvements will be paid for with a $50,000
grant the city was awarded from a community development fund
through the Kanawha County Commission. Mr. Cunningham hopes this
renovation will be completed by June, after plans and prices are
finalized.
"If you've ever visited the restrooms, you know this is much
needed," Councilman Greg Hudson said.
Council also approved a measure to allow the mayor to apply for a
Recreational Trail Grant to make improvements at Laura Anderson
Lake. The application will be for $164,000 to make the trails
safer and to extend handicap access to more parts of the lake. The
application is due in November and the mayor will begin working on
this application.
"We want to incorporate in the walking trails [Americans with
Disabilities Act]-accessibility at the upper-level trails so
people that have restrictions can enjoy the lake the way anybody
else can," Cunningham said.
Probationary firefighter Brett Dennis was awarded his firefighter
badge on April 2 after serving a year of probationary service.
Fire Chief Chris Thornhill said Dennis has completed all the state
requirements and has completed everything that has been asked of
him to receive this promotion.
"It's a hard year and this is a big achievement," Mr. Thornhill
said. 'We're really happy for him."
Mr. Dennis, a 22-year-old native of Wood County, said it was a
long 12 months of classes and time at the station. Mr. Dennis had
to pass a number of written and physical tests to reach this
promotion.
Council also recognized the Dunbar Women's Club for their 80th
anniversary of serving the Dunbar community. Many members of the
club attended the April 2 meeting and were asked to stand for
applause. Recreation Director Bub Jones said many of the
activities that go on around the city would not be possible
without the support of the Women's Club. [GN]
MEDICAL REIMBURSEMENTS: Wins Partial Summary Judgment in "Hoops"
----------------------------------------------------------------
In the case, CYNTHIA HOOPS, Plaintiff, v. MEDICAL REIMBURSEMENTS
OF AMERICA, INC., and MERCY HOSPITALS EAST COMMUNITIES,
Defendants, Case No. 4:16-cv-01543-AGF (E.D. Mo.), Judge Audrey F.
Fleissig of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, granted in part and denied in part the
Defendants' motions for summary judgment.
On May 31, 2016, Hoops was involved in an automobile accident
while driving her 2012 Acura TSX. Hoops suffered injuries during
the accident and was treated in the emergency room that day at a
Mercy hospital in Missouri. The medical treatment Hoops received
from Mercy resulted in charges totaling $6,519.54.
Hoops' claims arise out of the way Mercy, and its billing
consultant, MRA, billed Hoops and her insurers for these charges.
The resolution of Hoops' claims requires consideration of four
contracts and two relevant Missouri insurance regulations.
When Hoops obtained treatment on May 31, 2016, her husband, acting
as her authorized representative, and Mercy signed a Consent and
Agreement -- Physician Services and Hospital Services. The
Consent and Agreement provided that Hoops consented to the
services performed at Mercy, and that Hoops agreed to pay for
goods and services provided at the rates disclosed by Mercy unless
she was entitled to pay a different amount under her health
insurance plan.
At all relevant times, Mercy had a Network Agreement with
RightChoice Managed Care, Inc., the BlueCrossBlueShield ("BCBS")
entity in Missouri. The Network Agreement applied to other BCBS
affiliates, including CareFirst of Maryland, the entity through
which Hoops had group health insurance coverage.
At the time of the accident, Hoops had group health insurance
coverage from CareFirst, which was provided through Hoops'
husband's employer. Hoops has admitted that the details of her
health insurance policy are set forth in the CareFirst Evidence of
Coverage document produced by her and attached to MRA's statement
of uncontroverted material facts.
At the time of the accident, Hoops also had an automobile
insurance policy through State Farm, which covered her 2012 Acura
TSX and which included medical payments coverage for medical
expenses incurred because of bodily injury suffered by Hoops while
occupying her 2012 Acura TSX, a newly acquired car, a temporary
substitute car, a non-owned car in her lawful possession, or a
trailer attached to one of these cars, subject to certain time
limits not at issue here.
In July 7, 2016, MRA placed a medical lien for $6,519.54 on the
tort claim that Hoops asserted against the other driver involved
in Hoops' automobile accident.
Hoops initiated the class action complaint in state court on Aug.
26, 2016, and the Defendants removed the case to the Court on
Sept. 26, 2016, pursuant to the Class Action Fairness Act of 2005.
Hoops seeks to represent a class of all Missouri residents who
received medical treatment from any Missouri hospital/provider
while being covered by valid commercial health insurance, and MRA
sought collection from a source other than the patient's
commercial health insurance such as asserting a medical lien or
directly billing the patient's auto insurance medical payments
coverage, during the period of Aug. 26, 2011 to the present. She
also seeks to represent a similarly-defined subclass, but limited
to those Missouri residents who received medical treatment from
any Mercy-owned or Mercy-affiliated hospital/provider in Missouri.
On Sept. 15, 2016, MRA released the medical lien it had placed on
Hoops' tort claim. MRA did not obtain any money for Mercy as a
result of the lien, and Hoops' tort claim remains pending.
On Sept. 15, 2016, MRA returned Hoops' claim file to Mercy for any
subsequent billing. On Sept. 21, 2016, Mercy billed Hoops'
CareFirst Policy, noting that $5,000 had already been paid on the
claim.6 With State Farm's $5,000 payment, $1,519.54 of the total
$6,519.54, remained unpaid. CareFirst processed the claim and
determined that it owed $836 on the claim, and that Hoops was
responsible for $209 as a Cost Share, for a total of $1,045,
pursuant to the discounted rates set forth in the Network
Agreement. CareFirst explained this determination in an
Explanation of Benefits, and CareFirst issued a payment to Mercy
of $836.
On Oct. 2, 2016, Mercy billed Hoops for $209, which Hoops paid in
full on Oct. 14, 2016. Neither CareFirst nor State Farm has
complained about, sought return of, or otherwise attempted to
alter the payments made with respect to Hoops' medical treatment.
In her second amended complaint, filed on April 3, 2017, Hoops
asserts six claims, on behalf of herself and the putative classes,
each arising from (1) the Defendants' assertion of the medical
lien on Hoops' tort claim, and (2) the Defendants billing State
Farm first and, as a result, collecting more than the discounted
rate set forth in Mercy's Network Agreement with CareFirst.
Specifically, Hoops asserts claims for breach of the Consent and
Agreement against Mercy, for billing for and collecting more money
(through the assertion of the medical lien and the bill to State
Farm) than permitted under the Network Agreement (Count 1); breach
of the Network Agreement against Mercy, on the theory that Hoops
is a third-party beneficiary to that contract (Count 2); tortious
interference with contract or business expectancy against both
Defendants, for interfering with Hoops' contract with CareFirst
and Hoops' reasonable expectancy under that contract that her
medical bills would be satisfied in full by the discounted rate
set forth in the Network Agreement (Count 3); violation of the
Missouri Merchandising Practices Act against both the Defendants,
for failing to disclose that they would assert a medical lien or
that they would bill and collect from a patient's automobile
insurance even when a patient has group health insurance that
entitles them to a discounted rate (Counts 4 and 5); and unjust
enrichment based on the Defendants collecting more than they were
entitled to collect under the Network Agreement (Count 6).
Hoops alleges that the Defendants' actions caused her damage
because, by exhausting her $5,000 limit for medical payments
coverage under her State Farm Policy, she was prevented from using
that coverage for other medical services not covered by her
CareFirst Policy and arising out of her accident. She further
alleges that she was damaged because she was subjected to and
encumbered by a Missouri medical lien despite the fact that she
had commercial health insurance that guaranteed payment and
despite the fact that she owed no debt to Mercy.
The putative class action is before the Court on the motions of
Defendants Mercy and MRA for summary judgment. On Nov. 15, 2017,
the Court gave the parties notice that it believed one or more of
Hoops' claims may be subject to summary judgment on a ground not
raised by the Defendants, and allowed the parties an opportunity
to submit supplemental briefing on the issue, which they have
done. The Court also heard oral argument on the motions on Jan.
17, 2018.
The Defendants argue that summary judgment is warranted on all
claims related to the medical lien because Hoops has not
articulated any conceivable damages resulting from the short-lived
lien, and damage is a required element of each of Hoops' claims.
With respect to the claims based on the Defendants billing State
Farm first and, as a result, collecting more than the discounted
rate set forth in Mercy's Network Agreement with CareFirst, the
Defendants argue that their conduct did not violate the Network
Agreement.
Upon careful review of the entire record, Judge Flessig granted in
part and denied in part the motions for summary judgment. The
Judge agrees with the Defendants that, except with respect to the
breach of contract claims, retention of a benefit by the
Defendants or damage to the Plaintiff is a required element of
each of Hoops' claims.
Because Hoops has not articulated any loss or damages suffered
from the lien, which was released before any settlement or
judgment was reached in her tort claim, the Judge granted summary
judgment in favor of the Defendants on Counts 3-6 to the extent
these claims are based on the Defendants' assertion of a medical
lien. However, with respect to Hoops' contract claims (Counts 1
and 2), asserted only against Mercy, Missouri law provides that a
party may recover nominal damages if a breach is established and
no actual damages are proven. As to the other elements of a
contract claim, Mercy does not dispute that the Consent and
Agreement and Network Agreement are valid contracts.
The Judge explains that it is undisputed that the amount of the
lien was not limited to the Cost Shares Hoops owed under the
Network Agreement, and was instead for the total amount of
$6,519.54. Although the lien was released before causing Hoops
any actual damages, Hoops has made a sufficient showing of the
existence of a contract and breach to proceed to trial for nominal
damages. Therefore, he denied summary judgment on Counts 1
(breach of the Consent and Agreement) and 2 (breach of the Network
Agreement) against Mercy, to the extent they arise from Mercy's
assertion of a medical lien.
Judge Fleissig also finds that Hoops is not a third-party
beneficiary entitled to enforce the provisions in the Network
Agreement which, according to Hoops, prohibit the Defendants from
billing State Farm first and collecting more than the Agreement's
discounted rate.
Finally, the Judge finds that the Network Agreement permitted
Mercy to bill State Farm first and for the full amount. Because,
except as set forth above with respect to the medical lien and any
alleged double billing, each of Hoops' claims is based directly or
indirectly on this alleged violation of the Network Agreement, he
granted summary judgment in favor of the Defendants on Hoops'
remaining claims.
The parties have also filed motions to exclude certain expert
testimony pursuant to Daubert v. Merrell Dow Pharms., Inc. Judge
Fleissig did not rely on any expert's opinion in ruling on the
motion for summary judgment, and the Daubert motions are now moot
to the extent they relate to claims resolved here as a matter of
law. Before denying the motions as moot, however, the Judge will
ask the parties to advise the Court, not more than seven days
after the date of the Memorandum and Order, whether any part of
their Daubert motions relates to the remaining claims in this
case, and if so, which part(s).
For these reasons, Judge Fleissig denied in part the Defendants'
motions for summary judgment, with respect to the Plaintiff's
breach of contract claims (Counts I and II) only to the extent
such claims arise out of the assertion of a medical lien, as set
forth above; the motions are otherwise granted.
Within seven days of the date of the Memorandum and Order, the
parties will file a joint notice advising the Court whether any
part of their motions to exclude expert testimony relates to the
claims remaining in the case, and if so, which part(s). Failure
to comply with the Order will result in the denial of these
motions as moot.
Pursuant to the Case Management Order, within 14 days of the date
of the Memorandum and Order, the parties will file a joint
proposed schedule to address Phase II of the case, with class
discovery and the filing of any motion for class certification
with respect to the remaining claims to be completed in not more
than six months.
A full-text copy of the Court's March 2, 2018 Memorandum and Order
is available at https://is.gd/4QAUxW from Leagle.com.
Cynthia Hoops, Plaintiff, represented by Rebecca E. Grossman --
rgrossman@holloranlaw.com -- HOLLORAN AND SCHWARTZ, LLP & Thomas
E. Schwartz -- tschwartz@holloranlaw.com -- HOLLORAN AND SCHWARTZ,
LLP.
Medical Reimbursements of America, Inc., Defendant, represented by
Deborah J. Campbell -- deborah.campbell@dentons.com -- DENTONS US
LLP, Stephen J. O'Brien -- stephen.obrien@dentons.com -- DENTONS
US LLP & Alice Marie Aten -- alice.aten@dentons.com -- DENTONS US
LLP.
Mercy Hospitals East Communities, Defendant, represented by Allen
D. Allred -- aallred@thompsoncoburn.com -- THOMPSON COBURN, LLP &
Jeffrey R. Fink -- jfink@thompsoncoburn.com -- THOMPSON COBURN,
LLP.
MEDTRONIC INC: Wins Partial Summary Judgment in Securities Suit
---------------------------------------------------------------
In the case, WEST VIRGINIA PIPE TRADES HEALTH & WELFARE FUND,
EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF HAWAII, and UNION
ASSET MANAGEMENT HOLDING AG, Plaintiffs, v. MEDTRONIC, INC.,
WILLIAM A. HAWKINS, GARY L. ELLIS, RICHARD E. KUNTZ, JULIE
BEARCROFT, RICHARD TREHARNE, and MARTIN YAHIRO, Defendants, Civil
No. 13-1686 (JRT/FLN) (D. Minn.), Judge John R. Tunheim of the
U.S. District Court for the District of Minnesota granted in part
and denied in part the Defendants' Renewed Motion for Summary
Judgment as to Individual Defendants.
The Plaintiffs retirement and investment funds bring the
consolidated class action alleging that Medtronic and a number of
its officers and employees, William A. Hawkins, Gary L. Ellis,
Richard E. Kuntz, Dr. Julie Bearcroft, Dr. Richard Treharne, and
Dr. Martin Yahiro ("Individual Defendants") engaged in a scheme to
defraud investors. In particular, the Plaintiffs allege that
Medtronic artificially inflated its stock price by manipulating
early clinical studies of two bone-morphogenetic-protein ("BMP")
products -- INFUSE and AMPLIFY.
The Plaintiffs allege that Medtronic and the Individual Defendants
violated Section 10(b) of the Exchange Act by making false and
misleading statements to investors (Count I) and by engaging in a
scheme to pay physician authors to conceal adverse events
associated with INFUSE and AMPLIFY (Count II). Additionally, they
allege that the Individual Defendants are liable under Section
20(a) of the Exchange Act as control persons of Medtronic (Count
III).
On Sept. 14, 2014, the Court granted in part and denied in part
the Defendants' motions to dismiss. The Court granted the
Consultant Defendants' motion after concluding that the applicable
date for the statute of repose is June 27, 2008. However,
Medtronic and the Individual Defendants did not move to dismiss
based on the statute of repose, and their motion was granted in
part and denied in part.
On Sept. 30, 2015, the Court granted summary judgment against the
Plaintiffs on all remaining claims based on the statute of
limitations. The Defendants also argued that the statute of
repose barred the action but the Court did not reach that issue.
The Plaintiffs appealed the dismissal of their claims of scheme
liability and control person liability. The Defendants sought to
defend against reversal by arguing that the Plaintiffs merely
repackaged allegations of false statements into a scheme-liability
claims in contradiction of Supreme Court precedent. The Eighth
Circuit reversed and remanded the case back to the Court.
The Individual Defendants again move for summary judgment for the
scheme-liability claims and control-person claims brought against
them. They argue (i) they committed no independently actionable
violation of Rule 10b-5(a) and (c) within the repose period, and
(ii) they are not control persons under 15 U.S.C. Section 78t(a).
Judge Tunheim granted in part and denied in part the Defendants'
Renewed Motion for Summary Judgment as to Individual Defendants as
follows:
a. Summary Judgment is granted with respect to all claims
brought against Richard W. Treharne. He dismissed Count II and
Count III with respect to Treharne with prejudice.
b. Summary Judgment is denied with respect to the scheme-
liability claim brought against Martin Yahiro. Summary Judgment
is granted with respect to the control-personal liability claim
brought against Yahiro. He dismissed Count III with respect to
Yahiro with prejudice.
c. Summary Judgment is granted with respect to all claims
brought against Richard E. Kuntz. The Judge dismissed Count II
and Count III with respect to Kuntz with prejudice.
d. Summary Judgment is granted with respect to the scheme-
liability claim brought against William A. Hawkins. He dismissed
Count II with respect to Hawkins with prejudice. Summary Judgment
is denied with respect to the control-person liability claim
brought against Hawkins.
e. Summary Judgment is granted with respect to the scheme-
liability claim brought against Gary L. Ellis. He dismissed Count
II with respect to Hawkins with prejudice. Summary Judgment is
denied with respect to the control person liability claim brought
against Ellis.
f. Summary Judgment is denied with respect to the scheme-
liability claim brought against Julie Bearcroft. Summary Judgment
is GRANTED with respect to the control-person liability claim
brought against Bearcroft. The Judge dismissed Count III with
respect to Bearcroft with prejudice.
The Judge finds, among other things, (i) that there is a genuine
issue of material fact regarding whether Dr. Yahiro committed a
deceptive act in furtherance of the alleged scheme while designing
clinical trials for INFUSE during the repose period; (ii) there is
a genuine issue of material fact regarding whether Dr. Bearcroft
committed a deceptive act in furtherance of the alleged scheme
while working with physician consultants; and (iii) that there is
a genuine issue of material fact with respect to whether Hawkins
possessed the power "to control the specific transaction or
activity" upon which the alleged scheme is based.
A full-text copy of the Court's March 2, 2018 Memorandum Opinion
and Order is available at https://is.gd/G5tP1H from Leagle.com.
West Virginia Pipe Trades Health & Welfare Fund, Plaintiff,
represented by Brian C. Gudmundson --
brian.gudmundson@zimmreed.com -- Zimmerman Reed, PLLP, Carolyn G.
Anderson -- carolyn.anderson@zimmreed.com -- Zimmerman Reed, PLLP,
Christopher M. Wood -- cwood@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP, Danielle S. Myers -- danim@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, pro hac vice, Hillary Bryn Stakem,
Robbins Geller Rudman & Dowd LLP, pro hac vice, Jonah H. Goldstein
-- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Robert R. Henssler, Jr. -- bhenssler@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, pro hac vice, Shawn A. Williams --
shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Susannah
R. Conn -- sconn@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Employees' Retirement System of the State of Hawaii & Union Asset
Management Holding AG, Plaintiffs, represented by Arthur C. Leahy
-- artl@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Brian C. Gudmundson, Zimmerman Reed, PLLP, Carolyn G.
Anderson, Zimmerman Reed, PLLP, Christopher F. Moriarty --
cmoriarty@motleyrice.com -- Motley Rice LLC, pro hac vice,
Christopher M. Wood, Robbins Geller Rudman & Dowd LLP, pro hac
vice, Danielle S. Myers, Robbins Geller Rudman & Dowd LLP, Hillary
Bryn Stakem, Robbins Geller Rudman & Dowd LLP, pro hac vice, James
M. Hughes -- jhughes@motleyrice.com -- Motley Rice LLC, pro hac
vice, Jonah H. Goldstein, Robbins Geller Rudman & Dowd LLP, pro
hac vice, Meghan S.B. Oliver -- moliver@motleyrice.com -- Motley
Rice LLC, pro hac vice, Robert R. Henssler, Jr., Robbins Geller
Rudman & Dowd LLP, pro hac vice, Shawn A. Williams, Robbins Geller
Rudman & Dowd LLP, pro hac vice, Susannah R. Conn, Robbins Geller
Rudman & Dowd LLP, pro hac vice, William Henry Narwold --
bnarwold@motleyrice.com -- Motley Rice LLC, pro hac vice & William
S. Norton -- bnorton@motleyrice.com -- Motley Rice LLC, pro hac
vice.
Medtronic, Inc., Defendant, represented by Amanda Margaret
MacDonald -- amacdonald@wc.com -- Williams & Connolly LLP, pro hac
vice, Christopher W. Wasson -- wassonc@pepperlaw.com -- Pepper
Hamilton LLP, pro hac vice, James K. Langdon --
langdon.jim@dorsey.com -- Dorsey & Whitney LLP, Janine Marie
Pierson -- jpierson@wc.com -- Williams & Connolly LLP, pro hac
vice, Joseph G. Petrosinelli -- jpetrosinelli@wc.com -- Williams &
Connolly LLP, pro hac vice, Sarah Lochner O'Connor --
soconnor@wc.com -- Williams & Connolly LLP, pro hac vice, Steven
M. Farina -- sfarina@wc.com -- Williams & Connolly LLP, pro hac
vice & Theresa M. Bevilacqua -- bevilacqua.theresa@dorsey.com --
Dorsey & Whitney LLP.
William A. Hawkins, Gary L. Ellis, Richard E. Kuntz, Julie
Bearcroft, Richard W Treharne & Martin Yahiro, Defendants,
represented by Amanda Margaret MacDonald, Williams & Connolly LLP,
James K. Langdon, Dorsey & Whitney LLP & Theresa M. Bevilacqua,
Dorsey & Whitney LLP.
Employees' Retirement System of the State of Hawaii & Union Asset
Management Holding AG, Movants, represented by Arthur C. Leahy,
Robbins Geller Rudman & Dowd LLP, pro hac vice, Christopher F.
Moriarty, Motley Rice LLC, pro hac vice, Christopher M. Wood,
Robbins Geller Rudman & Dowd LLP, pro hac vice, Danielle S. Myers,
Robbins Geller Rudman & Dowd LLP, pro hac vice, James M. Hughes,
Motley Rice LLC, pro hac vice, Shawn A. Williams, Robbins Geller
Rudman & Dowd LLP, pro hac vice, Susannah R. Conn, Robbins Geller
Rudman & Dowd LLP, pro hac vice & William S. Norton, Motley Rice
LLC, pro hac vice.
MICHAEL P. MORTON: Faces "Ortez" Suit in D. Delaware
----------------------------------------------------
A class action lawsuit has been filed against Michael P. Morton
P.A. The case is styled as Herman Ortez, on behalf of himself and
others similarly situated, Plaintiff v. Michael P. Morton P.A.,
Defendant, Case No. 1:18-cv-00561-UNA (D. Del., April 13, 2018).
Michael P. Morton P.A. is a law firm in Greenville, Delaware.[BN]
The Plaintiff is represented by:
Vivian A. Houghton, Esq.
800 N. West Street, 2nd Floor
Wilmington, DE 19801
Tel: (302) 658-0518
Email: Vivianhoughton@comcast.net
MICHIGAN: "Hill" Suit Brought Before 6th Cir.
---------------------------------------------
The case styled as Henry Hill, Jemal Tipton, Damion Lavoial Todd,
Bobby Hines, Kevin Boyd, Bosie Smith, Jennifer Pruitt, Matthew
Bentley, Keith Maxey, Giovanni Casper, Jean Carlos Cintron, Nicole
Dupure and Dontez Tillman, individually and on behalf of those
similarly situated, Plaintiffs v. Rick Snyder, in his Official
Capacity as Governor of the State of Michigan, Heidi E.
Washington, Director of the Michigan Department of Corrections,
Michael Eagen, Chair, Michigan Parole Board and Bill Schuette,
Attorney General, Defendants, Case No. 18-1418, was brought before
the U.S. Court of Appeals for the Sixth Circuit on
April 12, 2018.
Michigan is a state in the Great Lakes and Midwestern regions of
the United States.[BN]
The Plaintiffs/Appellees are represented by:
Deborah A. LaBelle, Esq.
Law Offices of Deborah LaBelle
221 N. Main Street, Suite 300
Ann Arbor, MI 48104-0000
Tel: 734-996-5620
The Defendants/Appellants are represented by:
Kathryn M. Dalzell, Esq.
Office of the Attorney General
P.O. Box 30212
Lansing, MI 48909-0000
Tel: 517-373-1124
- and -
Bernard Eric Restuccia, Assistant Attorney General
Office of the Attorney General
P.O. Box 30217
Lansing, MI 48116
Tel: 517-373-1124
MJ CHRISTENSEN: Court Certifies Class, Subclass in "Fisher" Suit
----------------------------------------------------------------
In the case, STEVENSON FISHER, Plaintiff, v. MJ CHRISTENSEN
JEWELERS, LLC, et al., Defendants, Case No. 2:15-cv-00358-RFB-NJK
(D. Nev.), Judge Richard F. Boulware, II, of the U.S. District
Court for the District of Nevada granted the Plaintiff's Motion to
Certify Class, and denied without prejudice Defendant Le Vian
Corp.'s Motion for Summary Judgment.
Le Vian designs and manufactures jewelry, which it sells wholesale
to retailers. MJC is an independent Las Vegas retailer that began
selling Le Vian's jewelry in the summer of 2014. In the fall of
2014, MJC informed Le Vian that it would like to host a sales
event on Dec. 4, 2014 at MJC's store, featuring Le Vian jewelry.
To promote the trunk show, MJC paid LX Publications, LLC, an
independent marketing vendor, to invite MJC's customers via mail
and a telephone message recorded by MJC's owner. The Plaintiff is
pursuing MJC and Le Vian on theories of vicarious liability, based
on allegations that their marketing programs for the trunk show
directed a phone blast that was conducted by LX.
MJC provided LX (1) a prerecorded voice message advertising the Le
Vian trunk show and (2) spreadsheets with MJC customer
information. LX called consumers with the prerecorded message. MJC
provided LX two separate spreadsheets. One was a spreadsheet of
MJC customer phone numbers from MJC's customer database. The list
contained approximately 13,000 phone numbers. The second
spreadsheet was for a mailer, and contained the names and
addresses of the same MJC customers whose phone numbers were in
the phone number spreadsheet. In the course of discovery in the
litigation, MJC has produced a spreadsheet with combined
information from the Phone Number Spreadsheet and the Mailer
Spreadsheet.
LX emailed a company called CallMultiplier, regarding the "MJ
Christensen Call," and instructed CallMultiplier to schedule a
call for Dec. 3, 2014 at 12:00 (PST), using the caller ID of MJC's
phone number. CallMultiplier ultimately transmitted a total of
8,225 calls. LX paid CallMultiplier for transmitting the calls.
A different company, FullTel, Inc., made 6,805 of the calls,
including the call to Plaintiff Fisher. FullTel provided a
spreadsheet in discovery containing 6,805 rows of data, including
the date and the time of the call, the calling party phone number,
the called party phone number, and the call disposition (answered,
busy, etc). CallMultiplier provided, in discovery in this
litigation, the call detail records for the remainder of the calls
in the form of a spreadsheet indicating the date, time, phone
number of the called party, and result (failed or succeeded).
Plaintiff Fisher received the call on his cell phone on Dec. 3,
2014, at 12:30 p.m., while he was at his home in Las Vegas,
Nevada. The call came from MJC's phone number. When he answered,
he heard a prerecorded voice message, in which a voice identified
himself as Cliff Miller with MJC promoting a Le Vian VIP event for
Dec. 4, 2014. Fisher has no relationship with MJC and has never
given MJC consent to call his cell phone. Fisher has no
relationship with Le Vian and has never given Le Vian consent to
call him.
The Plaintiff claims that the call at issue violated the TCPA
because it was made using an autodialer, without his prior express
consent. The case was removed to federal court on Feb. 27, 2015.
The Plaintiff's Second Amended Complaint, filed on Nov. 17, 2015,
asserts the following claims, on a class-wide basis, against MJC,
Le Vian, and LX: (1) violation of the Telephone Consumer
Protection Act of 1991 ("TCPA"); and (2) violation of the Nevada
Deceptive Trade Practices Act ("NVDTPA").
The Plaintiff filed his Motion to Certify Class on Nov. 18, 2016,
on the close of discovery. He seeks certification of a class of
consumers who received telemarketing calls from the Defendants
using a prerecorded voice message. Specifically, he asks the
Court to certify the following national class of all persons
residing in the United States who received a telephone call made
using a prerecorded voice or automated telephone dialing system by
or on behalf of Defendants, on or after Jan. 20, 2011. He asks
additionally, or else alternatively, that the Court certifies the
subclass of all persons residing in Nevada who received a
telephone call made using a prerecorded voice or automated
telephone dialing system by or on behalf of the Defendants, on or
after Jan. 20, 2011.
Defendant Le Vian responded on Dec. 19, 2016. The Plaintiff
Replied in support of class certification on Jan. 16, 2017.
Defendant Le Vian filed its Motion for Summary Judgment on Dec.
19, 2016. The Plaintiff responded on Jan. 23, 2017. The
Defendant replied on Feb. 6, 2017. The Court held a hearing on
the Motion for Class Certification on July 25, 2017.
Judge Boulware finds that have met the Rule 23(a) requirements.
However he agrees with Le Vian that the Plaintiff has not shown a
need for injunctive relief, and that the monetary relief requested
is more than incidental. Rather, damages are fundamental to the
Plaintiff's case. Thus, certification under Rule 23(b)(2) is not
appropriate in the case.
The Judge also finds that the Defendant has not provided specific
evidence of consent defeating commonality. He finds that common
questions of law and fact do predominate over questions affecting
individual class members, and he will certify the class under Rule
23(b)(3). He further finds that all of the reasons noted to
certify the class in the case also support certification of a
subclass limited to Nevada given the Plaintiff's receipt of the
call in Nevada.
Finally, with respect to Le Vian's Motion for Summary Judgment,
the Judge holds that while the district court has discretion to
rule on a motion for summary judgment before it decides the
certification issue, he needs not. The Judge will therefore deny
the Defendant's Motion for Summary Judgment without prejudice, and
with leave to refile in light of the Court's decision on class
certification.
Accordingly, Judge Boulware granted the Plaintiff's Motion to
Certify Class, and certifies the class, under Fed. R. Civ. P.
23(b)(3), of all persons residing in the United States who
received a telephone call made using a prerecorded voice,
regarding the Le Vian trunk show at MJ Christensen to be held on
Dec. 4, 2014, which call was received on or about Dec. 3, 2014.
He also certified the subclass, under Fed. R. Civ. P. 23(b)(3),
defined as all persons residing in Nevada who received a telephone
call made using a prerecorded voice, regarding the Le Vian trunk
show at MJ Christensen to be held on Dec. 4, 2014, which call was
received on or about Dec. 3, 2014. The Judge denied without
prejudice the Defendant's Motion for Summary Judgment.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/hefEQr from Leagle.com.
Stevenson Fisher, Plaintiff, represented by Candice Renka --
crenka@maclaw.com -- Marquis & Aurbach & Scott A. Marquis --
smarquis@maclaw.com -- Marquis Aurbach Coffing.
MJ Christensen Jewelers, LLC, Defendant, represented by Kevin N.
Anderson -- kanderson@fabianvancott.com -- Fabian VanCott.
Le Vian Corp, Defendant, represented by D. Neal Tomlinson, Snell &
Wilmer L.L.P. & Joseph Duffy, Jr. -- joseph.duffy@morganlewis.com
-- Morgan, Lewis & Bockius, LLP, pro hac vice.
MONTANA: June 8 Final OK Hearing on Prison Conditions Suit Deal
---------------------------------------------------------------
In the case, IN THE MATTER OF LITIGATION RELATING TO CONDITIONS OF
CONFINEMENT AT MONTANA STATE PRISON THIS DOCUMENT RELATES TO Terry
LANGFORD, et al., Plaintiffs, v. Gov. Steve BULLOCK, et al.,
Defendants, Case No. CV 93-46-H-DWM-JCL (D. Mont.), Magistrate
Judge Jeremiah C. Lynch of the U.S. District Court for the
District of Montana, Helena Division, granted the Unopposed Motion
for New Hearing Date for the Final Approval Hearing, and reset for
10:00 a.m. on June 8, 2018, at the Russell Smith Courthouse, 201
E. Broadway, in Missoula, the Final Approval Hearing for the
Revised Class Action Settlement.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/p6UnBb from Leagle.com.
In the matter of litigation relating to conditions of confinement
at Montana State Prison., Debtor, represented by Amy F. Robertson,
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, pro hac vice, Eric
G. Balaban, NATIONAL PRISON PROJECT, Jon E. Ellingson, Attoney At
Law & Alexander H. Rate -- alex@ratelawoffice.com -- RATE LAW
OFFICE.
Montana State Prison Inmates, Plaintiff, represented by Alexander
H. Rate, RATE LAW OFFICE, Amy F. Robertson, CIVIL RIGHTS EDUCATION
AND ENFORCEMENT CENTER, pro hac vice, Eric G. Balaban, NATIONAL
PRISON PROJECT, Jeffrey T. Renz, CRIMINAL DEFENSE CLINIC School of
Law & Jon E. Ellingson, Attoney At Law.
State of Montana, Department of Corrections Personnel, Defendant,
represented by Colleen E. Ambrose, MONTANA DEPARTMENT OF
CORRECTIONS.
MULLEN & IANNARONE: Faces "Moreo" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Mullen & Iannarone,
P.C. The case is styled as Lynne M. Moreo, individually and on
behalf of all others similarly situated, Plaintiff v. Mullen &
Iannarone, P.C., Defendant, Case No. 2:18-cv-02120 (E.D. N.Y.,
April 10, 2018).
Mullen & Iannarone, P.C. in Smithtown, New York, offers
comprehensive legal services.[BN]
The Plaintiff appears PRO SE.
NATIONAL RECOVERY: Court Reluctantly Certifies Class in "O'Dell"
----------------------------------------------------------------
In the case, CORINE O'DELL, Plaintiff, v. NATIONAL RECOVERY
AGENCY, Defendant, Civil Action No. 16-5211 (E.D. Pa.), Judge
Edward G. Smith of the U.S. District Court for the Eastern
District of Pennsylvania reluctantly granted the Plaintiff's
motion for class certification.
On Sept. 30, 2016, the Plaintiff filed a complaint alleging that
the NRA violated the Fair Debt Collection Practices Act ("FDCPA").
The lawsuit accuses the Defendant, a debt collector, of violating
the provisions of the FDCPA banning false, deceptive, or
misleading collection conduct. NRA filed an answer to the
complaint on Dec. 9, 2016. O'Dell filed an amended complaint on
Dec. 16, 2016. NRA filed an answer to the amended complaint on
Dec. 30, 2016. As the matter was originally scheduled to proceed
to compulsory arbitration under the Court's local civil rules, the
Court entered an order on Jan. 17, 2017, which required the
parties to complete all discovery by the date of the arbitration
hearing.
On March 29, 2017, the Court granted the parties' joint motion to
extend the discovery period and directed the Clerk of Court to
reschedule the arbitration hearing for on or about June 13, 2017.
At NRA's request, the Court later entered an order on May 12,
2017, continuing the arbitration hearing for an additional period
of approximately 60 days.
O'Dell filed a motion to amend the amended complaint on May 16,
2017, which the Court granted without opposition after a telephone
conference with counsel for the parties on June 8, 2017. On the
same date, and at the Court's direction, the Clerk of Court
docketed O'Dell's second amended complaint.
In the second amended complaint, O'Dell brought claims for
violations of the FDCPA in two individual counts and one class
action count. Under the class action count, O'Dell indicated that
she would ask the court to certify two separate classes:
a. Account return class: (a) all consumers with a
Pennsylvania address; (b) that incurred a debt from Lancaster
General Health; (c) for which the Defendant sought to collect on
the debt; (d) that thereafter the debt was returned to Lancaster
General Health; (e) and subsequently placed back with the
Defendant; (f) after which the Defendant placed a trade line on
the consumers' credit reports for the returned debt; (g) that
reported the date placed for collection as the date it had
received the account the second time; (h) during a period
beginning one year prior to the filing of the initial action and
ending 21 days after the service of the initial complaint filed in
the action.
b. Improper date reported: (a) all consumers with a
Pennsylvania address; (b) that incurred a debt from Lancaster
General Health; (c) for which the Defendant sought to collect on
the debt by placing a trade line on the consumers' credit reports;
(d) and reporting the date placed for collection as the date of
first delinquency (e) during a period beginning one year prior to
the filing of the initial action and ending 21 days after the
service of the initial complaint filed in the action.
NRA filed an answer to the second amended complaint on June 16,
2017. The Court entered an order on July 6, 2017, which, inter
alia, (1) directed the parties to engage in fact and class
certification discovery, and (2) set a schedule for O'Dell to move
for class certification and for NRA to respond to the motion. The
Court granted NRA's motion to file an amended answer to the second
amended complaint on July 24, 2017.
O'Dell filed a motion for class certification on Sept. 14, 2017.
In the motion, O'Dell clarified that she is now only seeking
certification of one class, rather than two. NRA responded to the
motion for class certification on Oct. 13, 2017. O'Dell filed a
reply to NRA's response on Oct. 23, 2017. On Oct. 31, 2017, the
Court heard oral argument on the motion.
On Feb. 1, 2017, the Court held a telephone conference with the
counsel for the parties during which O'Dell stipulated to
dismissal of her individual claims in counts I and II of the
second amended complaint. The Court then entered an order
dismissing those counts from the second amended complaint without
prejudice. Thus, the only remaining claim is the class claim and
the motion for class certification.
NRA argues that the putative class members have not been harmed
because it has either fixed the trade line dates or removed them
altogether. Judge Smith finds this argument as immaterial to the
injury-in-fact requirement, because, even under the broad reading
of Spokeo all that is required is a one-time "risk of real harm,"
not a continuing or ongoing "risk of real harm." NRA's argument
regarding their corrective actions is more appropriately
considered in the mootness analysis.
The Judge also finds that the facts are sufficiently developed.
The central fact of the case is that NRA improperly aged a number
of LGH accounts. All the necessary facts surrounding this event
have already occurred and there are no facts that the Court needs
to wait to develop before adjudicating the claim. Additionally,
to the extent it is relevant in the ripeness inquiry, O'Dell has
shown sufficient "injury." Accordingly, O'Dell's claim is ripe
for adjudication.
Finally, the Judge finds that the requirements of Federal Rule of
Civil Procedure 23 have been met.
For these reasons, Judge Smith reluctantly granted the motion for
class certification.
A full-text copy of the Court's March 6, 2018 Memorandum Opinion
is available at https://is.gd/XKhH4h from Leagle.com.
CORINE O'DELL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by ALEXANDER R. FERRANTE --
arf@goldferrantelaw.com -- GOLD & FERRANTE, DANIEL ZEMEL --
dz@zemellawllc.com -- ZEMEL LAW LLC & ELIZABETH EASLEY APOSTOLA --
ea@zemellawllc.com -- ZEMEL LAW LLC.
NATIONAL RECOVERY AGENCY, Defendant, represented by MATTHEW P.
GALLO -- mgallo@grsm.com -- GORDON & REES LLP & PETER GEORGE
SIACHOS -- psiachos@grsm.com -- GORDON & REES LLP.
NEW JERSEY: Courts Sued for Putting Off Trials in Older Cases
-------------------------------------------------------------
Charles Toutant, writing for Law.com, reports that a proposed
class action suit accuses New Jersey's courts of giving scheduling
priority to criminal cases from after the 2017 enactment of the
Criminal Justice Reform Act and putting off trials in older cases.
The suit asserts that Glenn Grant, acting administrative director
of the New Jersey courts, issued a confidential directive
requiring judges to schedule trials for post-Criminal Justice
Reform Act cases before cases that predate the CJRA.
Mr. Grant's alleged directive violates the rights of pre-CJRA
defendants to a speedy trial under the Sixth Amendment of the U.S.
Constitution and their equal protection rights under the
Fourteenth Amendment, according to the suit, Brown v. Grewal.
New Jersey Attorney General Gurbir Grewal, Grant and Mercer County
Superior Court Judge Peter Warshaw are named as defendants in the
suit, which seeks to enjoin the state judiciary from enforcing Mr.
Grant's alleged directive by giving post-CJRA defendants priority
in scheduling trials. Judge Warshaw is named because he is the
presiding criminal judge in Mercer County and is in charge of
scheduling of criminal trials in that county, the suit said.
The suit also seeks damages and legal expenses. The suit seeks
certification of one class for injunctive relief and another for
damages.
The named plaintiff in the case is Shaheed Brown, who was arrested
in August 2014 and charged with first-degree murder in the
shooting death of Enrico Smalley Jr. outside a Trenton bar. Since
his arrest, Mr. Brown has been held in lieu of $1 million in bail.
Unable to post bail, Brown has remained incarcerated, most
recently in the Camden County Jail under an agreement with Mercer
County officials.
Mr. Brown has been tried twice, and each trial ended in a hung
jury.
Mr. Brown's bail was set at $1 million based on the state's
representation that it had an eyewitness identifying Mr. Brown as
the killer of Mr. Smalley, said Edward Harrington Heyburn, the
East Windsor attorney who represents him in the criminal case and
the class action.
In the first trial, extending over three weeks before Judge Andrew
Smithson in October 2015, the state had no eyewitness testimony to
identify Brown as the shooter, Mr. Heyburn said. The state did
not produce a weapon, or a confession, or physical evidence
linking Brown to the shooting, Mr. Heyburn said. The state's only
evidence was a video showing Mr. Brown and Mr. Smalley talking,
Mr. Heyburn said. The case ended with Judge Smithson declaring a
hung jury.
After the first trial, Mr. Brown remained in the Mercer County
Jail, and Judge Smithson refused to reduce his $1 million bail,
said Heyburn. The second trial, held before Judge Smithson in May
2016, with the same limited evidence, also ended in a mistrial.
After the second mistrial, Mr. Brown moved to dismiss the
indictment, claiming the state was unlikely to convict him in a
subsequent trial, but Judge Anthony Massi denied the motion in
August 2017. At a September 2017 appearance before Judge Massi,
Mr. Brown expected to hear a new trial date, but Judge Massi did
not set a trial date, advising that there is a directive requiring
judges to take post-CJRA cases before cases such as his, according
to Heyburn.
No such directive is posted on the judiciary's website, and the
Mercer County Criminal Case Management would not release the memo,
according to Mr. Heyburn.
The judiciary provided a copy of Mr. Grant's memo to the Law
Journal when a reporter inquired about it. The memo calls for all
criminal defendants who are incarcerated to receive equal priority
toward trial dates, whether the defendants were arrested before or
after the Jan. 1, 2017, effective date of the CJA.
Judiciary spokesman Pete McAleer said in a statement, "An August,
23, 2017 memo from Judge Glenn A. Grant, acting administrative
director of the courts, to all assignment judges and criminal
presiding judges outlines the statewide protocol for prioritizing
cases pre- and post-criminal justice reform. It states that 'All
cases where a defendant is incarcerated need to be prioritized;
therefore, the highest priority or the first category has been
allocated to defendants who are incarcerated both pre- and post-
January 1, 2017.'"
The memo further notes that the "statutory speedy trial
requirement applicable to detained eligible defendants does not
lessen the concerns for the deprivation of liberty interests for
defendants incarcerated prior to January 1, 2017," Mr. McAleer
said.
"In addition, the memo notes that as part of an effort to
prioritize pre-January 1, 2017 cases 'the Judicial Council
continues to conduct monthly reviews of each county's ten oldest
cases and cases over 700 days old where the defendant is also
incarcerated. In weighing these cases, the length of time that
the defendant is incarcerated should be taken into account as well
as the age of the case,'" Mr. McAleer said.
The Attorney General's Office had no comment about the suit.
Mr. Heyburn did not respond to calls requesting comment. [GN]
NORTH CAROLINA: N.C. Reverses Dismissal of Abrons Suit
------------------------------------------------------
In the case, ABRONS FAMILY PRACTICE AND URGENT CARE, PA; NASH OB-
GYN ASSOCIATES, PA; HIGHLAND OBSTETRICAL-GYNECOLOGICAL CLINIC, PA;
CHILDREN'S HEALTH OF CAROLINA, PA; CAPITAL NEPHROLOGY ASSOCIATES,
PA; HICKORY ALLERGY & ASTHMA CLINIC, PA; HALIFAX MEDICAL
SPECIALISTS, PA; and WESTSIDE OB-GYN CENTER, PA, Individually and
on Behalf of All Others Similarly Situated v. NORTH CAROLINA
DEPARTMENT OF HEALTH AND HUMAN SERVICES and COMPUTER SCIENCES
CORPORATION, Case No. 427A16 (N.C.), Judge Barbara Jackson of the
Supreme Court of North Carolina reversed the decision of the Court
of Appeals reversing the trial court's order granting the
Defendants' motions to dismiss for lack of subject-matter
jurisdiction.
The Plaintiffs are medical practices in North Carolina, all of
which provide care to Medicaid-eligible patients pursuant to
Medicaid contracts with the State of North Carolina. Defendant
North Carolina Department of Health and Human Services ("DHHS")
administers the State's Medicaid plan. Defendant Computer
Sciences Corp. ("CSC") is a Nevada corporation with its principal
office in Falls Church, Virginia.
After being required by the federal Centers for Medicare and
Medicaid Services ("CMS") to replace its Medicaid Management
Information System ("MMIS"), the State of North Carolina awarded a
contract to CSC to develop a new MMIS. CSC designed and developed
NCTracks, the new system intended to manage reimbursement payments
to health care providers for services provided to Medicaid
recipients across North Carolina. NCTracks went live on July 1,
2013, and the Plaintiffs began submitting claims to DHHS for
Medicaid reimbursements under the new system. In the first few
months of being in operation, NCTracks experienced over 3,200
software errors, resulting in delayed, incorrectly paid, or unpaid
reimbursements to the Plaintiffs.
On Jan. 31, 2014, the Plaintiffs filed a First Amended Class
Action Complaint against the Defendants. They asserted that
NCTracks ultimately proved to be a disaster, inflicting millions
of dollars in damages upon North Carolina's Medicaid providers.
Specifically, the Plaintiffs alleged that CSC was negligent in its
design and implementation of NCTracks and that DHHS breached its
contracts with each of the plaintiffs by failing to pay Medicaid
reimbursements. The Plaintiffs also alleged that they had a
contractual right to receive payment for reimbursement claims and
that this was a property right that could not be taken without
just compensation.
As a result of these allegations, the Plaintiffs sought damages
based upon claims of negligence and unfair and deceptive acts
against CSC, and claims of breach of contract and violation of
Article I, Section 19 of the North Carolina Constitution against
DHHS. Additionally, they sought a declaratory judgment that the
methodology for payment of Medicaid reimbursement claims
established by DHHS violated Medicaid reimbursement rules.
The Plaintiffs further maintained that, because the available
administrative procedures would not compel the State to adhere to
Medicaid reimbursement rules or provide recovery of certain
damages, plaintiffs were not required to exhaust their
administrative remedies before filing their civil action.
Additionally, they contended that the administrative procedures
were futile and inadequate.
On April 4, 2014, the Defendants filed motions to dismiss pursuant
to North Carolina Rules of Civil Procedure 12(b)(1), 12(b)(2), and
12(b)(6). They argued, inter alia, that the Plaintiffs' complaint
failed to establish personal and subject-matter jurisdiction. The
trial court concluded that the Plaintiffs had failed to exhaust
their administrative remedies and had not demonstrated that the
available administrative remedies were inadequate. Because the
trial court determined that it lacked subject-matter jurisdiction
over the Plaintiffs' claims, it denied as moot the Defendants'
motions to dismiss pursuant to Rules 12(b)(2) and 12(b)(6).
The Court of Appeals majority reversed the trial court's order,
holding that the trial court erred by dismissing the Plaintiffs'
complaint for failure to exhaust administrative remedies without
resolving whether DHHS issues final agency decisions in Medicaid
claim matters and whether DHHS supplies providers with written
notice of its final agency decisions.
On appeal to the Court, the Defendants contend that the Court of
Appeals erred by reversing the dismissal of the Plaintiffs' claims
because the Plaintiffs failed to exhaust their available
administrative remedies prior to filing a lawsuit. They also
argue that the Plaintiffs only have speculated that pursuing the
available administrative remedies would be futile or inadequate.
Judge Jackson disagrees. She concludes that the Department's
decision to deny the Plaintiffs' claims would be subject to
judicial review only after the Plaintiffs had exhausted their
available administrative remedies or demonstrated that doing so
would have been futile. The Plaintiffs have not succeeded at
either endeavor; however, given the inadequacy of notice, the
Plaintiffs still are entitled to exhaust the available
administrative remedies. Nevertheless, she says, because the
Plaintiffs have failed to exhaust their administrative remedies
and have failed to demonstrate futility of the available remedies
at this time, the Court of Appeals erred by reversing the
dismissal of the Plaintiffs' claims. For these reasons, the Judge
reversed the decision of the Court of Appeals.
A full-text copy of the Court's March 2, 2018 Order is available
at https://is.gd/mWghYa from Leagle.com.
Williams Mullen, by Camden R. Webb -- crwebb@williamsmullen.com --
Elizabeth C. Stone -- ecstone@williamsmullen.com -- and Ruth A.
Levy -- rlevy@williamsmullen.com -- for plaintiff-appellees.
Joshua H. Stein, Attorney General, by Olga Vysotskaya de Brito and
Amar Majmundar, Special Deputy Attorneys General, for defendant-
appellant North Carolina Department of Health and Human Services.
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Charles F.
Marshall, III -- cmarshall@brookspierce.com -- and Jennifer K. Van
Zant -- jvanzant@brookspierce.com -- for defendant-appellant
Computer Sciences Corporation.
Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe --
mattwolfe@parkerpoe.com -- for American Medical Association, North
Carolina Academy of Family Physicians, North Carolina Hospital
Association, North Carolina Health Care Facilities Association,
and North Carolina Medical Society, amici curiae.
Ott Cone & Redpath, P.A., by Matthew Jordan Cochran --
mjc@ocrlaw.com -- Thomas E. Cone -- tec@ocrlaw.com -- Curtis B.
Venable -- cbv@ocrlaw.com -- and Stephen J. White --
sjw@ocrlaw.com -- for Charlotte-Mecklenburg Hospital Authority,
Duke University Medical Center, Mission Hospitals, Inc., The Moses
H. Cone Memorial Hospital Operating Corporation, North Carolina
Baptist Hospital, and WakeMed, amici curiae.
NUDIE JEANS: Faces "Fischler" Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Nudie Jeans Inc. The
case is styled as Brian Fischler, individually and on behalf of
all other persons similarly situated, Plaintiff v. Nudie Jeans
Inc., Defendant, Case No. 1:18-cv-02219 (E.D. N.Y., April 15,
2018).
Nudie Jeans is a Swedish denim brand based in Gothenburg, Sweden
founded in 2001 by Maria Erixon.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
OVERSTOCK.COM INC: Says Stockholders' Class Action "Frivolous"
--------------------------------------------------------------
Mary Burritt, writing for Furniture Today, reports that a class
action lawsuit filed on March 30 against Overstock.com alleges the
company defrauded stockholders by using blockchain technology
investments as "a thinly veiled strategy to take advantage of the
Bitcoin Frenzy."
Overstock.com emailed this response to Furniture Today:
"Overstock's history as a technological leader over the past two
decades has often made us the target of frivolous lawsuits, and
our track record on these suits speaks for itself. We adamantly
disagree with the claims levied against us and look forward to
another successful result in this case."
The suit asserts that stockholders who purchased shares between
Aug. 3, 2017, and March 26, 2018, were falsely lured by the
blockchain technology endeavors of Medici Ventures and the initial
coin offering (ICO) planned by indirect subsidiary tZERO.
The company's stock price dropped during this period, first when
the SEC began examining ICOs and again when Overstock.com
announced plans for an underwritten public offering of 4 million
shares. Overstock.com cancelled the offering "due to market
conditions."
The suit further claims that the company's stock price fell and
Medici Ventures lost money "despite the fact that Bitcoin prices
increased by 1,375%."
Medici Ventures has invested in Bitt, SettleMint, Ripio, Symbiont,
PeerNova, IdentityMind Global, Factom and Spera, which develop
blockchain applications for purposes such as digital identity and
compliance, voting, mortgage loan compliance, digital payments and
invoicing systems.
Overstock.com began accepting Bitcoin in 2014, keeping 10% and
selling the rest, until mid-2017, when it began keeping 50% of
those holdings.
In Overstock.com's 10Q filed for the third quarter of 2017 and in
its 10K filed for fiscal 2017, Furniture Today found "bitcoin" and
tZERO mentioned multiple times in risk disclosures published on
multiple pages.
Overstock's cryptocurrency holdings are included "in Prepaids and
other current assets in our consolidated balance sheets." The
company reported cryptocurrency totals of $403,000 for the third
quarter of 2017. The total reached $1.5 million by year's end,
compared with $307,000 at year-end 2016.
For 2017, Overstock.com reported its first loss for a fiscal year
since 2011: negative net income of $109.9 million. [GN]
PATTERSON COS: May 29 Lead Plaintiff Motion Deadline Set
--------------------------------------------------------
The securities litigation law firm of Brower Piven, A Professional
Corporation, on April 2 disclosed that a class action lawsuit has
been commenced in the United States District Court for the
District of Minnesota on behalf of purchasers of Patterson
Companies, Inc. (Nasdaq:PDCO) ("Patterson" or the "Company")
securities during the period between June 26, 2015 and February
28, 2018, inclusive (the "Class Period"). Investors who wish to
become proactively involved in the litigation have until May 29,
2018 to seek appointment as lead plaintiff.
If you wish to choose counsel to represent you and the class, you
must apply to be appointed lead plaintiff and be selected by the
Court. The lead plaintiff will direct the litigation and
participate in important decisions including whether to accept a
settlement for the class in the action. The lead plaintiff will
be selected from among applicants claiming the largest loss from
investment in Patterson securities during the Class Period.
Members of the class will be represented by the lead plaintiff and
counsel chosen by the lead plaintiff. No class has yet been
certified in the above action.
The complaint accuses the defendants of violations of the
Securities Exchange Act of 1934 by virtue of the defendants'
failure to disclose during the Class Period that the Company's
revenue and earnings were fraudulently inflated by an illegal and
fraudulent price-fixing scheme aimed at prohibiting sales to and
price negotiations by group purchasing organizations that
represented small and independent dental practices.
According to the complaint, following a February 12, 2018 filing
of a complaint for violations of U.S. antitrust laws alleging that
the Company had been engaged in a conspiracy to fix the prices of
dental supply products, a March 1, 2018 announcement of dismal
results due to changes in the Company's sales organization and
disruption in its sales force, the immediate resignation of the
Company's Chief Financial Officer, and the cutting of the full
year guidance, the value of Patterson shares declined
significantly.
If you have suffered a loss in excess of $100,000 from investment
in Patterson securities purchased on or after June 26, 2015 and
held through the revelation of negative information during and/or
at the end of the Class Period and would like to learn more about
this lawsuit and your ability to participate as a lead plaintiff,
without cost or obligation to you, please contact Brower Piven
either by email at hoffman@browerpiven.com or by telephone at
(410) 415-6616.
Attorneys at Brower Piven have extensive experience in litigating
securities and other class action cases and have been advocating
for the rights of shareholders since the 1980s. If you choose to
retain counsel, you may retain Brower Piven without financial
obligation or cost to you, or you may retain other counsel of your
choice. You need take no action at this time to be a member of
the class. [GN]
PAUL M. ZAGARIS INC: Summary Judgment in Hanover Suit Affirmed
--------------------------------------------------------------
In the case, HANOVER INSURANCE COMPANY, Plaintiff-Appellant, v.
PAUL M. ZAGARIS, INC., a California corporation; et al.,
Defendants-Appellees, Case No. 17-15477 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirmed the district court's
order denying Hanover's motion for summary judgment, and granting
the Defendants' motion for summary judgment.
In this insurance coverage dispute, Hanover contends that the
Miscellaneous Professional Liability Policy it issued to the
Insureds does not require Hanover to defend the Insureds in a
third-party lawsuit filed against them. The lawsuit, a putative
class action filed in the Superior Court of the State of
California, County of Contra Costa ("Spracher Lawsuit"), alleged
that Defendant Paul M. Zagaris, a real estate brokerage company,
received undisclosed kickbacks from the sale of natural-hazard
disclosure reports ("NHD reports") to its clients. The Spracher
Lawsuit alleged claims for breach of fiduciary duties, aiding and
abetting such breaches, violations of Section 1710(3) of the
California Civil Code (prohibiting "deceit" by omission when
obligated to disclose), violations of Section 17200 of the
California Business and Professions Code, constructive fraud,
unjust enrichment, civil conspiracy, and accounting. Hanover
agreed to defend the Insureds in the Spracher Lawsuit subject to a
reservation of rights.
Hanover's first reservation of rights letter cited certain
provisions of the Policy and mistakenly cited a version of
Exclusion 1 that had been superseded by the version in the Real
Estate Professionals Endorsement appended to the Policy.
Hanover's second reservation of rights letter focused on Exclusion
11, stating that based on Policy 11, Hanover is defending under a
reservation of rights those counts for violations of California's
deceptive practices act and business code prohibiting unfair,
unlawful or fraudulent and unfair competition."
Hanover filed the instant action seeking, inter alia, declaratory
relief that it has no duty to defend or indemnify the Insureds in
the Spracher Lawsuit based on Exclusion 11 of the Policy.
Exclusion 11 exempts Hanover's duty to defend claims arising out
of false advertising, misrepresentation in advertising, antitrust,
unfair competition, restraint of trade, unfair or deceptive
business practices, including but not limited to, violations of
any local, state or federal consumer protection laws.
Both parties moved for summary judgment, and the district court
denied Hanover's motion and granted the Insureds' motion. Hanover
appeals.
The Appellate Court holds that the district court correctly
reasoned that the Spracher causes of action for breach of
fiduciary duty and constructive fraud do not necessarily arise out
of deceptive business practices such that Exclusion 11 certainly
excludes coverage for them. These causes of action rely on the
Insureds' omissions -- whether or not fraudulent or deceptive.
As the district court explained, the Appellate Court adds, it
remains possible that the Insureds could be found not to have
engaged in deceptive business practices even if they are found to
have breached their fiduciary duties by failing to disclose their
interest in the sales of the NHD reports, or engaged in
constructive fraud via the same omission. Hanover has not met its
burden to demonstrate that there is no possible scenario in which
the claims in the Spracher Lawsuit fall within the Policy. Thus,
Hanover has a duty to defend the Spracher Lawsuit, and the
Appellate Court affirmed the district court's decision.
A full-text copy of the Court's March 2, 2018 Memorandum is
available at https://is.gd/jiC5ZN from Leagle.com.
PORTFOLIO RECOVERY: Faces "Bishop" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Portfolio Recovery
Associates, LLC. The case is styled as Lara D Bishop, on behalf of
herself and all others similarly situated, Plaintiff v. Portfolio
Recovery Associates, LLC, Defendant, Case No. 2:18-cv-02184 (E.D.
N.Y., April 12, 2018).
Portfolio Recovery Associates, LLC, also known as Anchor
Receivables Management, manages past-due accounts.[BN]
The Plaintiff is represented by:
Mitchell L. Pashkin, Esq.
775 Park Avenue, Ste. 255
Huntington, NY 11743
Tel: (631) 335-1107
Email: mpash@verizon.net
PREMTECH LLC: Has Sent Unsolicited Messages, "Barnett" Suit Says
----------------------------------------------------------------
Kip Barnett, individually and on behalf of all others similarly
situated v. Premtech, LLC, d/b/a/ Bitcoin Depot, and Brandon
Mintz, Case No. 0:18-cv-60767-RNS (S.D. Fla., April 9, 2018),
seeks to stop the Defendants' practice of sending thousands of
illegal marketing text messages providing different types of
promotions redeemable for future transactions as well as
advertisements of new Bitcoin ATM locations without first
obtaining express written consent.
The Defendants operate a Georgia based company that operates as a
buyer and re-seller of cryptocurrencies. [BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC.
110 SE 6th Street Ft.
Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
E-mail: jibrael@jibraellaw.com
PROCTER & GAMBLE: Loses Bid to Dismiss DACA Discrimination Suit
---------------------------------------------------------------
Tiffany Hu, writing for Law360, reports that a Florida federal
court denied the Procter & Gamble Co.'s attempt to toss a proposed
class action by a rejected prospective intern claiming the company
discriminates against those with temporary work authorization
under the Deferred Action for Childhood Arrivals program, finding
the man properly alleged its hiring practices are biased.
U.S. District Judge Kathleen M. Williams said on March 30 that
Venezuela native David M. Rodriguez had shown enough facts in his
allegations.
The case is Rodriguez v. The Procter & Gamble Company, Case No.
1:17-cv-22652 (S.D. Fla.). The case is assigned to Judge
Kathleen M. Williams. The case was filed July 17, 2017. [GN]
SAKS INC: Faces "Sacklow" Suit in M.D. Tennessee
------------------------------------------------
A class action lawsuit has been filed against Saks Incorporated.
The case is styled as Jeanne Sacklow and Erika Targum,
individually and on behalf of all other similarly situated,
Plaintiffs v. Saks Incorporated, Defendant, Case No. 3:18-cv-00360
(M.D. Tenn., April 11, 2018).
Saks Incorporated operates retail stores in the United States.[BN]
The Plaintiffs are represented by:
BEN BARNOW, Esq.
ERICH P. SCHORK, Esq.
BARNOW AND ASSOCIATES, P.C.
1 North LaSalle Street, Suite 4600
Chicago, IL 60602
Tel: 312/621-2000
Fax: 312/641-5504
Email: b.barnow@barnowlaw.com
e.schork@barnowlaw.com
- and -
Daniel Tepper, Esq.
Janine Pollack, Esq.
Wolf Haldenstein Adler Freeman & Herz LLP
270 Madison Avenue
New York, NY 10016
Tel: 212-545-4600
Fax: 212-545-4677
Email: tepper@whafh.com
pollack@whafh.com
- and -
Kevin H. Sharp, Esq.
Sanford Heisler Sharp, LLP
611 Commerce Street, Suite 3100
Nashville, TN 37203
Tel: (615) 434-7001
Fax: (615) 434-7020
Email: ksharp@sanfordheisler.com
SAMSUNG ELECTRONICS: Judge Tosses Overheating Phones Class Action
-----------------------------------------------------------------
Rachel Graf, writing for Law360, reports that a California federal
judge on March 30 tossed a proposed action alleging Samsung
Electronics Co. Ltd.'s Galaxy phones are at risk of overheating
and potentially exploding, finding the consumers' claims are too
vague to proceed.
U.S. District Judge Beth Labson Freeman said the consumers' claims
about the phones must be more specific than "defects in its
design, engineering, development, manufacturing, testing,
production, and/or assembly," and should include more substantial
allegations about Samsung's purported knowledge of the issue.
The case is In re Samsung Galaxy Smartphone Marketing and Sales
Practices Litigation, Case No. 5:16-cv-06391 (N.D. Calif.). The
case is assigned to Judge Beth Labson Freeman. The case was filed
November 2, 2016. [GN]
SAMSUNG ELECTRONICS: Sued Over Galaxy Covers
--------------------------------------------
Robert Kahn, writing for Courthouse News Service, reports that a
federal class action claims the covers of Samsung Galaxy
smartphone cameras "spontaneously shatter within a few weeks of
purchase," and that Samsung has received "countless complaints
about it," but continues to hide the defect and refuses to cover
it under warranty.
The case is LYNETTE PANG AND TIMO MASALIN, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. SAMSUNG ELECTRONICS
AMERICA, INC., Defendant, No. 3:18-cv-1882 (N.D. Cal.).
Attorneys for Plaintiffs:
Michael D. Woerner, Esq.
Alison S. Gaffney, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Ave., Suite 3200
Seattle, WA 98101
Tel: (206) 623-1900
Fax (206) 623-3384
-- and --
Jeffrey Lewis, Esq.
KELLER ROHRBACK L.L.P.
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Tel: (510) 463-3900
Fax: (510) 463-3901
Email: jlewis@kellerrohrback.com
SANTA BARBARA COUNTY, CA: Protective Order Issued in "Murray"
-------------------------------------------------------------
Magistrate Judge Jean P. Rosenbluth of the U.S. District Court for
the Central District of California has issued a Stipulated
Protective Order in the case, CLAY MURRAY, DAVID FRANCO, SHAREEN
WINKLE, MARIA TRACY, ERICK BROWN, on behalf of themselves and all
others similarly situated, Plaintiffs, v. COUNTY OF SANTA BARBARA,
and SANTA BARBARA COUNTY SHERIFF'S OFFICE, Defendants, Case No.
2:17-cv-08805-GW-JPR (C.D. Cal).
The action is likely to involve confidential, proprietary, highly
sensitive, or private information, or information that could
implicate the safety and security of a correctional facility for
which special protection from public disclosure and from use for
any purpose other than prosecution of this action is warranted.
Such confidential and proprietary materials and information may
consist of, among other things, medical files, personnel files,
records that identify inmates and/or parolees, information
otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or
federal statutes, court rules, case decisions, or common law.
Accordingly, a protective order for such information is justified
in the matter.
It is the intent of the parties that information will not be
designated as confidential for tactical reasons and that nothing
be so designated without a good faith belief that it has been
maintained in a confidential, non-public manner, and there is good
cause why it should not be part of the public record of the case.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by the Parties, their
Counsel, or Non-Party that might reveal Protected Material.
Even after final disposition of the litigation, the
confidentiality obligations imposed by the Order will remain in
effect until a Designating Party agrees otherwise in writing or a
court order otherwise directs. Final disposition will be deemed
to be the later of (1) dismissal of all claims and defenses in the
Action, with or without prejudice; and (2) final judgment after
the completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the Action, including the time limits for
filing any motions or applications for extension of time pursuant
to applicable law.
After the final disposition of the Action, within 60 days of a
written request by the Designating Party, each Receiving Party
must return all Protected Material to the Producing Party or
destroy such material.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/YDNosE from Leagle.com.
Clay Murray, on behalf of themselves and all others similarly
situated, David Franco, on behalf of themselves and all others
similarly situated, Shareen Winkle, on behalf of themselves and
all others similarly situated, Maria Tracy, on behalf of
themselves and all others similarly situated & Eric Brown, on
behalf of themselves and all others similarly situated,
Plaintiffs, represented by Aaron Joseph Fischer --
Aaron.Fischer@disabilityrightsca.org -- Disability Rights
California, Corene Kendrick -- ckendrick@prisonlaw.com -- Prison
Law Office, Donald Specter, Prison Law Office, Donald F. Zimmer,
Jr. -- fzimmer@kslaw.com -- King and Spalding LLP, Jennifer Taylor
Stewart -- stewart@kslaw.com -- King and Spalding LLP, Richard
Brian Diaz -- richard.diaz@disabilityrightsca.org -- Disability
Rights California, Stacy Lynn Foster -- stacy.foster@kslaw.com --
King and Spalding LLP, Joshua C. Toll -- jtoll@kslaw.com -- King
and Spalding LLP, pro hac vice & Julia Elizabeth Romano --
jromano@kslaw.com -- King and Spalding LLP.
County of Santa Barbara & County of Santa Barbara Sheriffs Office,
Defendants, represented by Danielle Francine Drossel --
ddrossel@co.santa-barbara.ca.us -- Santa Barbara County Counsel's
Office.
SANTANDER BANK: Bid to Dismiss 2nd Amended "Sanchez" Suit Denied
----------------------------------------------------------------
In the case, CRYSTAL SANCHEZ, Plaintiff, v. SANTANDER BANK, N.A.,
et al., Defendants, Civil Action No. 17-cv-5775 (PGS)(DEA)(D.
N.J.), Judge Peter G. Sheridan of the U.S. District Court for the
District of New Jersey denied the Defendants' Motion to Dismiss
the class and collective action allegations made in the
Plaintiff's Second Amended Complaint.
In this putative collective and class action, the Plaintiff
alleges that Santander engaged in various intimidating and
coercive tactics aimed to dissuade similarly situated employees
from reporting overtime hours worked, contrary to the Fair Labor
Standards Act ("FLSA") and New Jersey Wage and Hour Law ("NJWHL").
In July 2014, the Plaintiff was hired by Santander, at its South
Amboy, New Jersey office, and was later promoted to full-time in
September 2014. In February 2016, Santander promoted the
Plaintiff to Branch Operations Manager ("BOM"), which according to
the complaint, is a non-exempt position under the FLSA, since they
do not perform managerial responsibilities or exercise meaningful
independent judgment. Instead, BOMs perform primarily non-
managerial tasks, such as processing customer transactions;
counting and balancing the cash vault; and placing work orders,
just to name a few.
However, despite being labeled non-exempt, the Plaintiff claims
that Santander prohibited BOMs from reporting overtime hours and
would discipline those who did. As such, many BOMs worked
considerable hours, off the clock, for which they received no
compensation. Shortly after being promoted, the Plaintiff
attended mandatory BOM training, wherein other New York and New
Jersey BOMs complained to Santander about its policies and
procedures relating to BOMs and the fact that many were required
to work overtime hours, without receiving compensation. The
Plaintiff also claims Santander issued a series of performance-
based policies that affected BOM compensation, contrary to FLSA
standards.
Given their extensive responsibilities, the Plaintiff requested
that more employees be hired to handle daily operations, so that
BOMs would not work as many unreported hours. According to her,
she felt compelled to work 10-12 hours per week off the clock,
i.e., uncompensated, so that the branch would be able to
effectively serve its customers because, with just two other
employees (one part-time) who could perform the duties of a
teller, it was not possible for her to operate the branch and
avoid working overtime.
The Plaintiff "repeatedly complained" to Regional Operations
Manager Sharon Stone and Defendant Branch Manager Rimek about
working off the clock, and not being allowed to report overtime
hours worked. The Plaintiff asserts that Santander branch and
corporate level management encouraged BOMs not to record and
submit accurate timecards reflecting the actual hours worked, and
such management had actual or constructive notice and knowledge
that this practice was not in compliance with the FLSA and NJWHL,
and they failed to take remedial action to ensure compliance with
the FLSA and NJWHL.
Based on Santander's failure to pay overtime, the Plaintiff brings
the present cause of action on behalf of herself and similarly
situated employees in New Jersey, alleging: (1) Violation of the
FLSA (Count I); (2) Violations of NJWHL (Counts II and III); (3)
Violation of the New Jersey Wage Payment Law (Count IV); and (4)
Common law unjust enrichment (Count V). The Defendants seek
dismissal of these claims pursuant to Federal Rule of Civil
Procedure 12(b)(6), since the Plaintiff fails to plead sufficient
facts to maintain a class or collective action.
At this stage of litigation, Judge Sheridan finds the Defendants'
motion premature and, therefore, dismissal inappropriate. When
viewing the Complaint the light most favorable to the Plaintiff,
it is pled with sufficient facts to support a plausible claim for
class certification. In her Complaint, the Plaintiff describes
the role of BOMs and claims that these BOMs were coerced into not
reporting overtime hours, despite being entitled to overtime pay
as non-exempt managers.
As such, since the Complaint sufficiently pleads a claim for class
certification, based on violations under the FLSA and NJWHL, the
Defendant's motion to dismiss class allegations is premature.
Accordingly, the Judge denied the Defendants' motion to dismiss.
A full-text copy of the Court's March 6, 2018 Memorandum and Order
is available at https://is.gd/r039Kv from Leagle.com.
CRYSTAL SANCHEZ, Plaintiff, represented by STEPHAN T. MASHEL --
smashel@mashellaw.com -- LAW OFFICES OF STEPHAN T. MASHEL, AMY
CATHERINE BLANCHFIELD -- ablanchfield@mashellaw.com -- MASHEL LAW
L.L.C & PETER D. VALENZANO -- pvalenzano@mashellaw.com -- MASHEL
LAW LLC.
SANTANDER BANK, N.A., a subsidiary of Santander Holdings, USA,
Inc., NADIA JOSEPH & KRISTEN RIMEK, Defendants, represented by
KEITH J. ROSENBLATT -- krosenblatt@littler.com -- LITTLER
MENDELSON, P.C., MICHAEL T. GROSSO -- mgrosso@littler.com --
LITTLER MENDELSON, P.C. & RACHEL ANNE SEATON --
rseaton@littler.com -- LITTLER MENDELSON PC.
SAS INSTITUTE: Ct. Narrows Claims in "Cahoo" Tort Negligence Suit
-----------------------------------------------------------------
Judge David M. Lawson of the U.S. District Court for the Eastern
District of Michigan, Southern Division, granted in part and
denied in part the Defendants' motions to dismiss the case, PATTI
JO CAHOO, KRISTEN MENDYK, KHADIJA COLE, HYON PAK, and MICHELLE
DAVISON, Plaintiffs, v. SAS INSTITUTE INC., FAST ENTERPRISES LLC,
CSG GOVERNMENT SOLUTIONS, STEPHEN GESKEY, SHEMIN BLUNDELL, DORIS
MITCHELL, DEBRA SINGLETON, JULIE A. McMURTRY, SHARON MOFFET-
MASSEY, CLAYTON TIERNEY, ANDREW PHILLIPS, JEREMY GRAGG, JENNIFER
TUVELL, KRISTEN ARAKI-TOKUSHIGE, MIKE PATTERSON, ALLISON FORGIE-
McCLURG, RICHARD STATEN, REBECCA ROSIER, DANA ROWE, TIM PALMER,
STEVEN GOODHALL, and PAUL PLUTA, Defendants, Case No. 17-10657
(E.D. Mich.).
In 2012, the State of Michigan's Unemployment Insurance Agency
("UIA") implemented a new automated system to detect and punish
individuals who submitted fraudulent unemployment insurance
claims. By most accounts, the system did not work well, as it
lacked human oversight, it detected fraud by certain claimants
where none existed, it provided little or no notice to the accused
claimants, it failed in many instances to allow administrative
appeals, and it assessed penalties and forfeitures against
individuals who were blameless.
The Plaintiffs filed a putative class action complaint for damages
on March 2, 2017. The Plaintiffs are members of a putative class
of unemployment insurance claimants who wrongfully were subjected
to these false fraud determinations made by the State's automated
fraud detection system. They contend that they are collateral
damage in the State's war on fraud, and they have sued the
companies and individuals whom they believe the State enlisted as
its soldiers and officers in that battle. They have asserted a
number of theories under federal and state law.
The complaint alleges that three sets of the private Defendants
designed, created, implemented, or maintained the automated system
employed by the UIA in adjudicating fraud determinations. The
Plaintiffs allege there was input and feedback between all the
private Defendants and state officials at every stage of the
process, and they all agreed to continue the process even after
the defective attributes of the system became widely known. They
also allege that these Defendants opposed the discharge of a
claimant's restitution and penalty debt in bankruptcy with full
knowledge that the underlying fraud determinations were invalid
and false. According to the amended complaint, the Defendants,
respectively, engaged in the following conduct.
The complaint was amended once, and now states seven counts under
state law and six counts under federal law. The state law claims,
brought against the SAS and FAST Defendants, are for negligent
production (Count 1), breach of implied warranty (Count 2), gross
negligence/actual knowledge (Count 3), breach of express warranty
(Count 4), and failure to warn (Count 5), as well as one count
under state law as to the CSG Defendants for negligence (Count 6)
and one count under state law as to all the Defendants for civil
conspiracy (Count 13). The federal claims are directed against
all the Defendants.
They are for denial of procedural due process (Count 7), equal
protection (Count 8), and substantive due process (Count 9), and
violations of the Fifth Amendment's Takings Clause (Count 10), the
Fourth Amendment (Count 11), and 26 U.S.C. Section 6402(f) (Count
12). In their response briefs, the Plaintiffs agreed that Count
10 is not ripe for adjudication and consented to its dismissal.
In another case brought by different Plaintiffs, the Court found
flaws in the State's robo-fraud-detection system, and eventually
approved a settlement agreement in which the State agreed, among
other things, to suspend all collection activity under the
automated system (and Michigan enacted new legislation that
prohibits fraud determinations based solely on computer-identified
discrepancies). That case addressed prospective relief only
against the State.
The Plaintiffs in this case seek damages for the past harm visited
on them by the computer-driven fraud detection system.
The four groups of the Defendants each have filed motions to
dismiss; many of their arguments parrot each others, and they can
be categorized into attacks on jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), challenges to the merits under Rule
12(b)(6), and failure to join the State as a necessary party under
Rule 12(b)(7). SAS Project Manager Andrew Phillips also alleges
that the Court has no personal jurisdiction over him, moving for
dismissal under Rule 12(b)(2). The UIA Defendants also contend
that they are entitled to qualified immunity from the federal
claims alleged against them.
Judge Lawson finds that there is no basis to dismiss the amended
complaint for failure to join a necessary or indispensable party.
The Plaintiffs have not pleaded viable federal claims against the
individual employees of Defendants SAS, FAST, and CSG. However,
they have alleged sufficient facts to support a claim of state
action against those companies, and have stated viable claims for
deprivation of their rights to procedural due process, equal
protection, and freedom from unreasonable seizures of property,
except as to UIA employee defendant Clayton Tierney.
The Judge says they have not stated a claim for denial of
substantive due process, and there is no private right of action
under 26 U.S.C. Section 6402. The plaintiffs concede that their
claim for unlawful taking of property under the Fifth Amendment is
not ripe for adjudication. The Plaintiffs have not established
personal jurisdiction over Defendant Andrew Phillips, but they
have shown that they have standing to sue and the Court has
subject matter jurisdiction over the surviving claims. The
remaining Defendants are not entitled to qualified immunity. And
the Plaintiffs have not stated viable claims based on state law.
Accordingly, Judge Lawson granted in part and denied in part the
motions to dismiss by Defendants CSG, SAS, and the UIA employee
Defendants. He dismissed with prejudice Counts 1 through 6, 9,
10, 12, and 13 of the amended complaint.
The Judge dismissed with prejudice in its entirety the amended
complaint as to Defendants Jeremy Gragg, Jennifer Tuvell, Kristen
Araki-Tokushige, Mike Patterson, Allison Forgie-McClurg, Richard
Staten, Rebecca Rosier, Dana Rowe, Tim Palmer, Steve Goodhall,
Paul Pluta, and Clayton Tierney, only. He dismissed without
prejudice in its entirety the amended complaint Defendant Andrew
Phillips, only.
The Judge directed the counsel for the parties to appear for a
case management conference on April 3, 2018 at 3:00 p.m.
A full-text copy of the Court's March 2, 2018 Opinion and Order is
available at https://is.gd/4bCSgo from Leagle.com.
Patti Jo Cahoo, an individual, Kristen Mendyk, an Individual &
Khadija Cole, an Individual and on behalf of similarly situated,
Plaintiffs, represented by Anthony D. Paris -- tparis@sugarlaw.org
-- Maurice and Jane Sugar Law Center, John C. Philo --
jphilo@sugarlaw.org -- Sugar Law Center, Jonathan R. Marko --
jon@ernstmarkolaw.com -- Ernst & Marko Law, PLC, Tyler M. Joseph,
Marko Law PLC & Kevin S. Ernst .
Hyon Pak & Michelle Davison, Plaintiffs, represented by Jonathan
R. Marko, Ernst & Marko Law, PLC & Kevin S. Ernst .
Fast Enterprises LLC, Fast Enterprises LLC, Defendant, represented
by Craig E. Stewart -- cestewart@jonesday.com -- Holland & Hart
LLP, Erik F. Stidham -- efstidham@hollandhart.com -- Holland &
Hart LLP & Walter J. Piszczatowski -- wallyp@hertzschram.com --
Hertz, Schram.
CSG Government Solutions, CSG Government Solutions, Defendant,
represented by Andrew M. Harris -- andrew.harris@kitch.com --
Kitch, Drutchas, Wagner, Valitutti & Sherbrook, John D.
Fitzpatrick -- jfitzpatrick@mandellmenkes.com -- Mandell Menkes
LLC & Stephen J. Rosenfeld -- srosenfeld@mandellmenkes.com --
Mandell Menkes LLC.
Steven Geskey, Shemin BLUDELL, Dorris Mitchell & Debra Singleton,
Defendants, represented by Kimberly Pendrick, State of Michigan
Division of Labor & Zachary A. Risk, Department of Attorney
General.
Julie A. McMurtry, Defendant, represented by Emily A. McDonough,
Michigan Department of Attorney General.
Sharon Moffet-Massey, Defendant, represented by Debbie K. Taylor,
Department of Attorney General.
Andrew Phillips, Defendant, represented by Stephanie A. Douglas ,
Bush Seyferth & Paige.
SAS Institute Inc., Defendant, represented by Stephanie A. Douglas
-- douglas@bsplaw.com -- Bush Seyferth & Paige & Susan M. McKeever
-- mckeever@bsplaw.com -- Bush Seyferth Paige.
SEARS ROEBUCK: Ct. Partly Allows 579 Late Claims in Washer Suit
---------------------------------------------------------------
In the case, In re: SEARS, ROEBUCK AND CO. FRONT-LOADING WASHER
PRODUCTS LIABILITY LITIGATION. This Document Relates to CCU
Claims, Case No. 06 C 7023, Consolidated with Case No. 07 C 0412,
Consolidated Case No. 08 C 1832 (N.D. Ill.), Magistrate Judge Mary
M. Rowland of the U.S. District Court for the Northern District of
Illinois, Eastern Division, granted in part and denied in part the
Plaintiffs' motion to allow 579 late claims.
The case has a long history dating back more than a decade.
Relevant to the present dispute, in July 2015, the parties entered
into a class action settlement agreement. On Feb. 27, 2016, the
Court held a final fairness hearing and granted the parties' Joint
Motion for Final Approval of Class Action Settlement. On Feb. 29,
2016, the Court entered a written order granting final approval to
the Settlement Agreement.
In the Settlement Agreement, a "Valid Claim" is defined, in part,
as a Claim Form that is timely submitted by a Settlement Class
Member. The parties agreed that deadlines would be measured from
the date on which the Court enters the Preliminary Approval Order.
They agreed that 120 days after the entry of the Preliminary
Approval Order was the date on or before which all claims by
Settlement Class Members to the Settlement Administrator for
benefits under Section IV of this Agreement will be postmarked or
received and claims received after this date will not be Valid
Claims.
The Settlement Agreement also allowed for a "Prequalified Class
Member" defined as a Settlement Class Member who can be identified
in Whirlpool's or Sears's databases as having paid for a
Qualifying Repair or as having paid for a Qualifying Service
Contract. That provision further stated that "Defendants will
provide the Settlement Administrator with all information and
assistance necessary to identify Prequalified Class Members and
compile information to process their claims.
On Oct. 19, 2017, almost 20 months following final approval, the
Plaintiffs filed their Motion to Allow Late Claims. The
Plaintiffs argue that it is common practice in class actions to
allow late claims. They urge the Court to rely on its inherent
and equitable powers and Federal Rule of Civil Procedure 6(b),
which allows a court to extend time, to allow the late claims to
be processed.
The Defendants assert that judicial estoppel and waiver should bar
the Plaintiffs' motion. They also argue that the parties'
Settlement Agreement only allows for timely filed claims, and
equitable principles are irrelevant to this question of contract
construction.
Magistrate Judge Rowland is mindful of the terms of the Settlement
Agreement as well as the significant time and effort it took to
reach a resolution in this case. She does not believe, however,
that the Court's fiduciary duty to the class members and the
equitable powers ceased after final approval of the Settlement
Agreement was granted. The particular circumstances present in
the case, namely the fact that the majority of the valid-but-late
claims, were from the Prequalified Class Members, the status of
settlement processing and distribution, the minimal disruption to
settlement administration and judicial efficiency, and the lack of
surprise or undue prejudice to Defendants, convince that Court
that the 180 valid-but-late claims should be paid. However, the
remaining late filed claims, which may or may not fit the
requirements for payment, will require follow-up by the Settlement
Administrator, will further burden the process, and for which the
Plaintiffs have not offered an explanation for their tardiness,
will not be allowed this late in the process.
The Magistrate Judge agrees with the Defendants that the
Plaintiffs should have requested Court intervention on this issue
far earlier. However, she finds that the equities favor allowing
the 180 valid-but-late claims but denying the other 399 claims.
There is also no risk of prejudice to the other class members
because payment of the 180 claims will not change the amount paid
to other class members. There is no evidence of bad faith on the
part of the late-filing class members. Finally, she places great
weight on the fact that a majority of the 180 valid-but-late
claims were filed by Prequalified Class Members.
For these reasons, Magistrate Judge Rowland granted the
Plaintiffs' Motion to Allow Late Claims only as to the 180 valid-
but-late claims. She denied the Plaintiffs' Motion otherwise. No
further additional late claims will be allowed.
A full-text copy of the Court's March 2, 2018 Memorandum Opinion
and Order is available at https://is.gd/yf2KFE from Leagle.com.
Larry Butler, Plaintiff, represented by Paul M. Weiss --
paul@complexlitgroup.com -- Quantum Legal LLC, Richard J. Burke --
richard@Qulegal.com -- Quantum Legal LLC, Robert A. Clifford --
rac@cliffordlaw.com -- Clifford Law Offices, P.C., Steven A.
Schwartz -- SteveSchwartz@chimicles.com -- Chimicles & Tikellis,
Colin H. Dunn -- chd@cliffordlaw.com -- Clifford Law Offices, Eric
H. Jaso -- ejaso@seegerweiss.com -- Seeger Weiss LLP, pro hac
vice, George K. Lang-- langlawoffice@att.net -- Lang Law Office,
James J. Rosemergy -- jrosemergy@careydanis.com -- Carey, Danis
and Lowe, Jason Louis Lichtman -- jlichtman@lchb.com -- Lieff
Cabraser Heimann & Bernstein LLP, Jerome Mayer-cantu --
jmayercantu@lchb.com -- Lieff Cabraser Heimann & Bernstein Llp,
pro hac vice, John Tate Spragens -- jspragens@lchb.com -- Lieff
Cabraser Heimann & Bernstein, Llp, Jonathan D. Selbin --
jselbin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, Llp,
Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C.,
Mark P. Chalos -- mchalos@lchb.com -- Lieff, Cabraser, Heimann &
Bernstein, Llp, Michael J. Flannery -- mflannery@cuneolaw.com --
Cuneo Gilbert & LaDuca LLP, Sarah R. London -- slondon@lchb.com --
Lieff Cabraser Heimann & Bernstein, LLP, pro hac vice, Scott A.
George -- sgeorge@seegerweiss.com -- Seeger Weiss LLC & Shannon
Marie McNulty -- smm@cliffordlaw.com -- Clifford Law Offices.
Joseph Leonard, Kevin Barnes & Victor Matos, individually and on
behalf of all others similarly situated, Plaintiffs, represented
by Paul M. Weiss, Quantum Legal LLC, Richard J. Burke , Quantum
Legal LLC, Robert A. Clifford, Clifford Law Offices, P.C., Steven
A. Schwartz, Chimicles & Tikellis, Colin H. Dunn, Clifford Law
Offices, Eric H. Jaso, Seeger Weiss LLP, pro hac vice, George K.
Lang, Lang Law Office, James J. Rosemergy, Carey, Danis and Lowe,
Jason Louis Lichtman, Lieff Cabraser Heimann & Bernstein LLP, John
Tate Spragens , Lieff Cabraser Heimann & Bernstein, Llp, Jonathan
D. Selbin, Lieff, Cabraser, Heimann & Bernstein, Llp, Jonathan
Shub , Kohn, Swift & Graf, P.C., Mark P. Chalos Lieff, Cabraser,
Heimann & Bernstein, Llp, Michael J. Flannery, Cuneo Gilbert &
LaDuca LLP, Sarah R. London, Lieff Cabraser Heimann & Bernstein,
LLP, pro hac vice, Scott A. George, Seeger Weiss LLC & Shannon
Marie McNulty, Clifford Law Offices.
Alan Jarashow, Plaintiff, represented by Jason Louis Lichtman,
Lieff Cabraser Heimann & Bernstein LLP, Paul M. Weiss, Quantum
Legal LLC, Richard J. Burke, Quantum Legal LLC, Steven A.
Schwartz, Chimicles & Tikellis, Eric H. Jaso, Seeger Weiss LLP,
pro hac vice, George K. Lang, Lang Law Office, John Tate Spragens,
Lieff Cabraser Heimann & Bernstein, Llp, Mark S. Fistos, Farmer,
Jaffe, Weissing, Edwards, Fistos and Lehrman, Sarah R. London,
Lieff Cabraser Heimann & Bernstein, LLP, pro hac vice, Steven R.
Jaffe, Farmer Jaffe Weissing Edwards Fistos & Lehrman, Tod N.
Aronovitz, Aronovitz Trial Lawyers & James J. Rosemergy, Carey,
Danis and Lowe.
Lauren Crane, Plaintiff, represented by Jason Louis Lichtman,
Lieff Cabraser Heimann & Bernstein LLP, Paul M. Weiss, Quantum
Legal LLC, Richard J. Burke, Quantum Legal LLC, Steven A.
Schwartz, Chimicles & Tikellis, Eric H. Jaso, Seeger Weiss LLP,
pro hac vice, George K. Lang, Lang Law Office, Jerome Mayer-cantu,
Lieff Cabraser Heimann & Bernstein Llp, pro hac vice, John Tate
Spragens, Lieff Cabraser Heimann & Bernstein, Llp, Mark S. Fistos,
Farmer, Jaffe, Weissing, Edwards, Fistos and Lehrman, Sarah R.
London, Lieff Cabraser Heimann & Bernstein, LLP, pro hac vice,
Steven R. Jaffe, Farmer Jaffe Weissing Edwards Fistos & Lehrman,
Tod N. Aronovitz, Aronovitz Trial Lawyers & James J. Rosemergy,
Carey, Danis and Lowe.
Lawrence L'Hommedieu, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Jason Louis
Lichtman, Lieff Cabraser Heimann & Bernstein LLP, Paul M. Weiss,
Quantum Legal LLC, Richard J. Burke, Quantum Legal LLC, Steven A.
Schwartz, Chimicles & Tikellis, Eric H. Jaso , Seeger Weiss LLP,
pro hac vice, George K. Lang, Lang Law Office, John Tate Spragens,
Lieff Cabraser Heimann & Bernstein, Llp, Sarah R. London, Lieff
Cabraser Heimann & Bernstein, LLP, pro hac vice, Steven R. Jaffe,
Farmer Jaffe Weissing Edwards Fistos & Lehrman, Tod N. Aronovitz,
Aronovitz Trial Lawyers & James J. Rosemergy, Carey, Danis and
Lowe.
John Bettua & Derral Howard, Plaintiffs, represented by Jason
Louis Lichtman, Lieff Cabraser Heimann & Bernstein LLP, Paul M.
Weiss, Quantum Legal LLC, Richard J. Burke, Quantum Legal LLC,
Steven A. Schwartz, Chimicles & Tikellis, Eric H. Jaso , Seeger
Weiss LLP, pro hac vice, George K. Lang, Lang Law Office, John
Tate Spragens, Lieff Cabraser Heimann & Bernstein, Llp, Sarah R.
London, Lieff Cabraser Heimann & Bernstein, LLP, pro hac vice,
Steven R. Jaffe, Farmer Jaffe Weissing Edwards Fistos & Lehrman,
Tod N. Aronovitz, Aronovitz Trial Lawyers & James J. Rosemergy,
Carey, Danis and Lowe.
Giuseppina P. Donia, Plaintiff, represented by Jason Louis
Lichtman , Lieff Cabraser Heimann & Bernstein LLP, Steven A.
Schwartz, Chimicles & Tikellis, Eric H. Jaso, Seeger Weiss LLP,
pro hac vice George K. Lang, Lang Law Office, Glenn Edward Orr,
Shea Law Group, Jerome Mayer-cantu, Lieff Cabraser Heimann &
Bernstein Llp, pro hac vice, John Tate Spragens, Lieff Cabraser
Heimann & Bernstein, Llp, Ronald S. Kravitz, Law Offices of Ronald
S. Kravitz, Sarah R. London, Lieff Cabraser Heimann & Bernstein,
LLP, pro hac vice & James J. Rosemergy, Carey, Danis and Lowe.
Denise Miller, Vic Pfefer, Jeffrey A. Robinson & Sandra K.
Robinson, Plaintiffs, represented by Jason Louis Lichtman, Lieff
Cabraser Heimann & Bernstein LLP, Steven A. Schwartz, Chimicles &
Tikellis, Eric H. Jaso, Seeger Weiss LLP, pro hac vice, George K.
Lang, Lang Law Office, Glenn Edward Orr, Shea Law Group, John Tate
Spragens, Lieff Cabraser Heimann & Bernstein, Llp, Natalie
Finkelman Bennett, Shepherd Finkelman Miller & Shah, LLC, pro hac
vice, Sarah R. London, Lieff Cabraser Heimann & Bernstein, LLP,
pro hac vice & James J. Rosemergy, Carey, Danis and Lowe.
Charles Napoli, Plaintiff, represented by Jason Louis Lichtman ,
Lieff Cabraser Heimann & Bernstein LLP, Steven A. Schwartz,
Chimicles & Tikellis, Douglas P. Dehler, Shepherd Finkelman Miller
& Shah, LLC, Eric H. Jaso, Seeger Weiss LLP, pro hac vice, George
K. Lang, Lang Law Office, Glenn Edward Orr, Shea Law Group, James
E. Miller, Shepherd Finkelman Miller & Shah, LLC, James C. Shah,
Shepherd Finkelman Miller & Shah, John Tate Spragens, Lieff
Cabraser Heimann & Bernstein, Llp, Joseph Patrick Shea, Law
Offices of Joseph Patrick Shea, Karen M. Leser-Grenon, Shepherd
Finkelman Miller & Shah, LLP, Natalie Finkelman Bennett, Shepherd
Finkelman Miller & Shah, LLC, pro hac vice, Sarah R. London, Lieff
Cabraser Heimann & Bernstein, LLP, pro hac vice & James J.
Rosemergy, Carey, Danis and Lowe.
Alfred Blair & Martin Champion, Individually and on behalf of all
others similarly situated, Plaintiffs, represented by Paul M.
Weiss, Quantum Legal LLC, Richard J. Burke, Quantum Legal LLC,
Robert A. Clifford, Clifford Law Offices, P.C., Steven A.
Schwartz, Chimicles & Tikellis, Colin H. Dunn, Clifford Law
Offices, Eric C. Brunick, Brunick LLC, Eric H. Jaso, Seeger Weiss
LLP, pro hac vice, George K. Lang, Lang Law Office, James J.
Rosemergy, Carey, Danis and Lowe, Jason Louis Lichtman, Lieff
Cabraser Heimann & Bernstein LLP, Jerome Mayer-cantu, Lieff
Cabraser Heimann & Bernstein Llp, pro hac vice, John Tate Spragens
Lieff Cabraser Heimann & Bernstein, Llp, Jonathan D. Selbin,
Lieff, Cabraser, Heimann & Bernstein, Llp, Jonathan Shub, Kohn,
Swift & Graf, P.C., Mark P. Chalos, Lieff, Cabraser, Heimann &
Bernstein, Llp, Michael J. Flannery, Cuneo Gilbert & LaDuca LLP,
Sarah R. London, Lieff Cabraser Heimann & Bernstein, LLP, pro hac
vice, Scott A. George, Seeger Weiss LLC, Shannon Marie McNulty,
Clifford Law Offices & Steven R. Jaffe, Farmer Jaffe Weissing
Edwards Fistos & Lehrman.
Sears Roebuck & Co., Defendant, represented by Bradley B. Falkof -
- bfalkof@btlaw.com -- Barnes & Thornburg, Evan B. Stephenson --
stephenson@wtotrial.com -- Wheeler Trigg O'Donnell LLP, Galen D.
Bellamy -- bellamy@wtotrial.com -- Wheeler Trigg O'Donnell LLP,
Hugh Quan Gottschalk -- gottschalk@wtotrial.com -- Wheeler Trigg
O'donnell Llp, Joel Steven Neckers -- neckers@wtotrial.com --
Wheeler Trigg O'Donnell LLP, Michael T. Williams --
williams@wtotrial.com -- Wheeler Trigg O'Donnell LLP, Sarah R.
London, Lieff Cabraser Heimann & Bernstein, LLP, pro hac vice &
Theresa R. Wardon -- wardon@wtotrial.com -- Wheeler Trigg
O'Donnell LLP.
Whirlpool Corporation, Intervenor Defendant, represented by
Rebecca Weinstein Bacon -- rweinstein.bacon@bbhps.com -- Bartlit
Beck Herman Palenchar & Scott LLP, Asha L.I. Spencer --
asha.spencer@bartlit-beck.com -- Bartlit Beck Herman Palenchar &
Scott, Eric Reuel Olson -- eric.olson@bartlit-beck.com -- Bartlit
Beck Herman Palenchar & Scott LLP & John C. Fitzpatrick --
john.fitzpatrick@bartlit-beck.com -- Bartlit Beck Herman Palenchar
& Scott Llp.
SUSHI AI: Servers File Class Action Over Tip-Sharing Policy
-----------------------------------------------------------
Sarah Fenske, writing for River Front Times, reports that a
lawsuit filed against Sushi Ai Friday alleges the restaurant chain
didn't just force servers to share tips with sushi chefs -- but
also required those servers to pay monetary fines out of their tip
money.
Servers at the St. Louis-based chain were fined if they were late
to work, broke dishes or waited on customers who returned their
food because of a server error, among other alleged infractions,
the lawsuit alleges. The fines were taken out of the tips those
servers had earned.
That's illegal, the suit says. And now a former server claims she
was retaliated against for complaining about the policies -- and
has filed a lawsuit seeking class-action status to represent
others like her.
Sushi Ai opened in 2010 and has grown to three locations in the
metro area, with restaurants in Midtown, Clayton and St. Charles.
As the suit details, federal law allows restaurants to pay servers
less than minimum wage if they benefit from gratuities given by
patrons. But restaurants that take advantage of those lowered
wages have to meet certain conditions -- among them, that servers
get to keep their tips.
Tip sharing may take place -- but, by law, only employees who
directly interact with customers are allowed to be a part of it.
Chefs and food prep workers do not qualify.
At Sushi Ai, the lawsuit says, customers don't place orders with
sushi chefs, and the chefs don't hand them their food directly. In
fact, most of the sushi chefs don't speak English, the suit says,
and cannot "communicate effectively with patrons." Still, the suit
alleges, sushi chefs were included in the restaurants' tip pool.
Loretta Gratta, who lives in Alton, worked as a server at Sushi Ai
from March 2016 until March 8, 2018. In the suit, Gratta alleges
that she was fired after she complained about the tip-sharing and
the fines assessed out of the tip pool.
Ms. Gratta is being represented by Russell Riggan of the Kirkwood-
based Riggan Law Firm. Her suit names the company's owner, Chen's
Inc., as well as owner/managers Jian Li Chen and Ron Huang.
The company did not respond to a message at its Clayton location
seeking comment. The Midtown voicemail box was full and unable to
accept messages. [GN]
SOUTHWEST AIRLINES: Court Dismisses "Doyle" Class Claims
--------------------------------------------------------
The United States District Court for the District of New Jersey
granted Plaintiffs' Motion to Bring in Forma Pauperis the case
captioned ROBERT DOYLE, Plaintiff, v. SOUTHWEST AIRLINES, INC.,
Defendant, Civil Action No. 17-11767 (JMV) (MF) (D.N.J.).
The Plaintiff alleges that he has missed numerous Southwest
flights in the past and that his failure to check in served as an
adequate means of informing Southwest of his intention not to
board said flights. Further, the Plaintiff said Southwest has
allowed him to credit the purchase price of his unused tickets
toward future travel notwithstanding a lack of express notice.
The Plaintiff's Complaint alleges three causes of action against
Southwest: Count I - Breach of Contract, Count II - Unjust
Enrichment, and Count III - Fraud in the Inducement. All counts
are state law claims, and are alleged on an individual and class
basis.
Under Section 1915, this Court may excuse a litigant from
prepayment of fees when the litigant establishes that he is unable
to pay the costs of his suit. At the outset, the Plaintiff
sufficiently establishes his inability to pay, and the Court
grants his application to proceed in forma pauperis without
prepayment of fees and costs.
When allowing a plaintiff to proceed in forma pauperis, however,
the Court must review the complaint and dismiss the action if it
determines that the action is frivolous, malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune. A complaint is frivolous if it
lacks an arguable basis either in law or in fact.
In a case involving a class action, however, the Class Action
Fairness Action of 2005 (CAFA) governs diversity jurisdiction.
CAFA eliminates Section 1332(a)'s complete diversity requirement
and, pursuant to 28 U.S.C. Section 1332(d)(2), provides that a
federal court has jurisdiction in a class action when three
requirements are met: (1) an amount in controversy that exceeds
$5,000,000; (2) minimally diverse parties; and (3) a class
consisting of at least 100 or more members.
The Plaintiff has not established on the face of his Complaint
that federal law creates the cause of action or that the
Plaintiff's right to relief necessarily depends on the resolution
of a substantial question of federal law. Accordingly, the Court
has no basis on which to exercise federal question jurisdiction
pursuant to Section 1331.
The Complaint also fails to establish diversity jurisdiction
pursuant to Section 1332(a). The Plaintiff alleges that he is a
resident of Morris County, New Jersey and lived in Broward County,
Florida, during the rise of his particular causes of action. The
Plaintiff adds that Southwest is a retail airline company
incorporated under the laws of, and headquartered in, the State of
Texas. The Plaintiff, therefore, establishes complete diversity
between the parties; however, he fails to allege an amount in
controversy exceeding $75,000. The Court must look at the
Complaint at the time it was filed to determine the amount in
controversy.
Therefore, the Plaintiff's individual claims are dismissed for
lack of subject-matter jurisdiction.
Plaintiffs Class Claims
The Plaintiff's Complaint raises identical breach of contract,
unjust enrichment, and fraud in the inducement claims on behalf of
a class of unidentified plaintiffs. The Plaintiff alleges that the
members of this class were similarly harmed by Southwest insofar
as they were required to forfeit the value of their unused tickets
for failing to notify Southwest in accordance with its new policy.
The Court finds, however, that the Plaintiff is not qualified to
fairly and adequately represent the interests of the putative
class. While the Plaintiff indicates that he is an attorney and
therefore likely possesses the minimal requisite knowledge to
serve as class representative, his status as a pro se plaintiff
renders him a less than ideal candidate. In addition, the
Plaintiff does not indicate that he personally has any experience
in acting as counsel in class action matters. Furthermore, a class
representative's adequacy is inextricably linked with the adequacy
of the counsel he or she has retained to represent the class. At
this time, the Plaintiff has not retained class counsel and has
not provided any information regarding the class counsel that he
will allegedly retain, including whether such counsel is
qualified, experienced, and generally able to conduct the proposed
litigation, so as to adequately represent the class.
Moreover, while the Plaintiff's interests are likely aligned with
those of the rest of the class insofar as they have suffered a
similar injury, that factor alone is insufficient to support a
finding of adequate representation. Critically, if the Plaintiff
is not able to retain qualified counsel, then he does not appear
to have the financial wherewithal to represent the class as he is
proceeding in forma pauperis. Accordingly, the Plaintiff is not
able to satisfy Rule 23(a)(4)'s requirement of adequate
representation and, therefore, has not established that class
certification is warranted.
For these reasons, the Plaintiff's class claims are dismissed
without prejudice.
The Plaintiffs application to proceed in forma pauperis is granted
and the Plaintiffs Complaint is dismissed without prejudice, with
leave to file an amended complaint within thirty (30) days from
entry of this Order.
A full-text copy of the District Court's March 1, 2018 Opinion and
Order is available at https://tinyurl.com/yc68osxl from
Leagle.com.
ROBERT DOYLE, Plaintiff, pro se.
SPENCER GIFTS: "Chapel" Class Suit Removed to N.D. New York
-----------------------------------------------------------
The class action lawsuit filed on March 20, 2018 captioned Bryan
Chapel, individually and on behalf of all others similarly
situated v. Spencer Gifts, LLC, Case No. 002913/2018 was removed
on April 9, 2018, from the Supreme Court of the State of New York,
County of Onondaga to the U.S. District Court for the Northern
District of New York. The District Court Clerk assigned Case No.
5:18-cv-00432-DNH-ATB to the proceeding.
The Plaintiff's complaint alleges a claim arising under the Fair
Labor Standards Act.
Spencer Gifts, LLC owns and operates a lifestyle retail company in
New Jersey. [BN]
The Defendant is represented by:
Jeffrey H. Ruzal, Esq.
EPSTEIN BECKER & GREEN, P.C.
250 Park Avenue
New York, NY 10177-0077
Telephone: (212) 351-4500
E-mail: jruzal@ebglaw.com
STAPLES GROUP: Faces "Zybtsev" Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against The Staples Group,
Inc. The case is styled as Viktor Zybtsev, individually and on
behalf of all others similarly situated, Plaintiff v. The Staples
Group, Inc and HSPR Associates, LLC, Defendants, Case No. 1:18-cv-
02178 (E.D. N.Y., April 12, 2018).
Staples Solutions is a provider of workplace products, services
and solutions to small, mid-sized, and large businesses in
Europe.[BN]
The Plaintiff appears PRO SE.
STEAK N SHAKE: Ct. Denies Bid to Depose of "Drake" Class Members
----------------------------------------------------------------
The United States District Court for the Eastern District of
Missouri, Eastern Division, denied Defendant Steak N Shake
Operations, Inc.'s request to depose absent class members and will
order Plaintiffs to supplement their trial plan in the case
captioned SANDRA DRAKE and RANDY SMITH, on behalf of themselves
and others similarly situated, Plaintiffs, v. STEAK N SHAKE
OPERATIONS, INC., Defendant, Case No. 4:14-cv-01535-JAR (E.D.
Mo.).
SnS asked the Court to authorize ten additional depositions of
absent members of the Rule 23 class and to order Plaintiffs to
supplement their trial plan with the names of the witnesses they
intend to call at trial.
The Plaintiffs filed a class action under Federal Rule of Civil
Procedure 23, alleging that the Defendant failed to properly pay
overtime wages in violation of the Fair Labor Standards Act, 29
U.S.C. Section 216(b), and Missouri law.
In the first phase of discovery, SnS selected and deposed eighteen
opt-in plaintiffs from the FLSA collective, eleven of whom are
also part of the now-certified Rule 23 class. According to the
Parties at the hearing, each deposition lasted the better part of
a business day. In addition, SnS drafted and collected
questionnaires from forty-five members of the FLSA collective,
thirty-four of whom are also members of the Rule 23 class.
Additional Depositions of Absent Rule 23 Class Members
SnS argued that, because the FLSA collective is made up entirely
of option plaintiffs, it was not a representative sample of the
collective or the Rule 23 class. Citing the statistical concept of
selection bias, SnS asserted that although it was able to pick
which FLSA collective members it wanted to depose or question, it
was forced to pick from a biased pool.
The Plaintiffs argue that discovery involving unnamed putative
class members is the rare exception to the general rule that
courts typically limit discovery to named plaintiffs or class
representatives.
The Court agrees with the Plaintiffs. SnS has already conducted
substantial merits discovery directly related to a majority of the
putative class of the plaintiffs; SnS conducted day-long
depositions of eighteen plaintiffs and has collected questionnaire
information from many more.
The Court will therefore deny SnS's request for an order allowing
it to depose absent class members.
Identification of Plaintiffs' Witnesses
SnS also seeks an order compelling the Plaintiffs to supplement
their trial plan to identify the witnesses it intends to call at
trial.
The Court agrees with SnS that fundamental fairness dictates that
the Plaintiffs should identify their witnesses at this time. The
Court will therefore grant SnS's request for an order compelling
the Plaintiffs to supplement their trial plan and will allow SnS
to depose any witness identified by the Plaintiffs whom it has not
already deposed.
Accordingly, the Plaintiffs must supplement their trial plan no
later than May 4, 2018, to include the identity of all persons
they intend to call as witnesses at trial. SnS is entitled to
depose any fact witness the Plaintiff identifies whom it has not
already deposed.
A full-text copy of the District Court's March 1, 2018 Memorandum
and Order is available at https://tinyurl.com/ychwd5xk from
Leagle.com.
Sandra Drake & Randy Smith, on behalf of, Plaintiffs, represented
by Brendan J. Donelon, DONELON, P.C. & Daniel W. Craig, DONELON,
P.C..
Steak N Shake Operations, Inc., an Indiana Corporation, Defendant,
represented by Andrew Cahill Johnson, LITTLER MENDELSON, P.C.,
Michael A. Moffatt, LITTLER MENDELSON, P.C. &Patricia J. Martin,
LITTLER MENDELSON, P.C..
STOP & SHOP: Faces "Louis" Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Stop & Shop
Supermarket Company LLC. The case is styled as Danielle Louis,
individually and on behalf of all others similarly situated,
Plaintiff v. Stop & Shop Supermarket Company LLC, Defendant, Case
No. 1:18-cv-02221 (E.D. N.Y., April 15, 2018).
Stop & Shop Supermarket Company, known as Stop & Shop, is a chain
of supermarkets/stores located in the northeastern United
States.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Levin-Epstein& Associates
One Penn Plaza, Suite 2527
New York, NY 10119
Tel: (212) 792-0046
Fax: (212) 563-7108
Email: joshua@levinepstein.com
SUNRISE SENIOR: Reply Date to 1st Amended "Heredia" Extended
------------------------------------------------------------
In the case, AUDREY HEREDIA as successor-in-interest to the Estate
of Carlos Heredia; and CORBINA MANCUSO as successor-in-interest to
the Estate of Ruby Mancuso; on their own behalves and on behalf of
others similarly situated, Plaintiffs, v. SUNRISE SENIOR LIVING,
LLC; and DOES 1-100, Defendants, Case No. 4:18-cv-00616-HSG (N.D.
Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court
for the Northern District of California approved the parties'
stipulation extending the Defendant's deadline to respond to the
Plaintiffs' First Amended Class Action Complaint to March 30,
2018.
The Plaintiffs filed their Class Action Complaint on June 27,
2017, in the Superior Court of California, County of Alameda. The
Defendant removed the case to this Court on Jan. 29, 2018.
On Feb. 5, 2018, the Defendant filed a Motion to Compel
Arbitration or to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(3); or to Transfer Venue Pursuant to 28 U.S.C.
Section 1404(A); or to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) and 9(b) or to Stay, which are presently set
for hearing on May 10, 2018, at 2:00 p.m..
The Plaintiffs filed a First Amended Class Action Complaint on
Feb. 23, 2018.
The parties stipulation and Judge Gilliam approved that (i) the
current hearing date of May 10, 2018 for the Defendant's Motions,
and the dates for opposition and reply briefing regarding those
Motions will be vacated; and (ii) the Defendant's motion, answer
or other response to the First Amended Complaint will be filed and
served on or before March 30, 2018. Assuming the Defendant files
a pleading challenge or other motion with respect to the First
Amended Complaint, any such motion will be set for hearing by the
Court on June 7, 2018, with opposition briefing filed and served
on or before April 30, 2018 and reply briefing filed and served
on or before May 21, 2018.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/PlBgTP from Leagle.com.
Audrey Heredia, as successor-in-interest to the Estate of Carlos
Heredia & Corbina Mancuso, as successor-in-interest to the Estate
of Ruby Mancuso; on their own behalves and on behalf of others
similarly situated, Plaintiffs, represented by Kelly Jean Knapp --
kelly@stebnerassociates.com -- Stebner and Associates, Christopher
J. Healey -- chris.healey@dentons.com -- Dentons US LLP, George
Nobuo Kawamoto -- george@stebnerassociates.com -- Stebner and
Associates, Guy Burton Wallace -- gwallace@schneiderwallace.com --
Schneider Wallace Cottrell Konecky Wotkyns LLP, Jennifer Ann
Uhrowczik -- juhrowczik@schneiderwallace.com
-- Schneider Wallace Cottrel Konecky Wotkyns LLP, Julie C.
Erickson -- jce@arnslaw.com -- The Arns Law Firm, Kathryn Ann
Stebner -- Kathryn@stebnerassociates.com -- Stebner & Associates,
Michael Dougald Thamer -- mthamer@trinityinstitute.com -- Law
Offices Of Michael D. Thamer PC, Robert Stephen Arns --
ddl@arnslaw.com -- The Arns Law Firm, Sarah S. Colby --
sscolby@schneiderwallace.com -- Schneider Wallace Cottrell Konecky
WotkynsLLP & William Timothy Needham -- tneedham@janssenlaw.com --
Janssen Malloy LLP.
Sunrise Senior Living LLC, Defendant, represented by Rachel S.
Brass -- rbrass@gibsondunn.com -- Gibson Dunn & Crutcher LLP,
Jason C. Schwartz -- jschwartz@gibsondunn.com -- & Laura Anne
Sucheski -- LSucheski@gibsondunn.com -- Gibson, Dunn and Crutcher
LLP.
QUEST TRANSPORTATION: Faces "Young" Suit in E.D. Arkansas
---------------------------------------------------------
A class action lawsuit has been filed against Quest Transportation
LLC. The case is styled as Shannon Young, individually and on
behalf of all others similarly situated, Plaintiff v. Quest
Transportation LLC, Michael Morton and Ryan Kingrey, Defendants,
Case No. 4:18-cv-00246-BSM (E.D. Ark., April 11, 2018).
Quest Transportation Llc is a licensed and bonded freight shipping
and trucking company running a freight hauling business from
Hickory, North Carolina.[BN]
The Plaintiff is represented by:
Christopher Wesley Burks, Esq.
Sanford Law Firm
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
Email: chris@sanfordlawfirm.com
- and -
Joshua Sanford, Esq.
Sanford Law Firm
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
TIGER BRANDS: First Court Date Expected in Next Three Months
------------------------------------------------------------
Chisom Jenniffer Okoye, writing for The Citizen, reports that the
first court date might be set in the next three months, to allow
time for Tiger Brands to respond and prepare their answering
documents.
The listeria class action suit against Tiger Brands and Enterprise
Foods has been filed and, according to attorney Richard Spoor,
it's a "waiting game" now.
Richard Spoor Inc Attorneys filed the class action suit in the
High Court in Johannesburg on March 29, seeking compensation for
the damage caused by contaminated Enterprise products on behalf of
victims of the deadly listeriosis outbreak.
Mr. Spoor said the first court hearing date might be set in the
next three months, to also allow time for Tiger Brands to respond
and prepare their answering documents.
"It is a procedural matter. We have to wait and see if Tiger
Brands will decide to approve or oppose the class action. We're
hoping they don't," said Mr. Spoor.
He added that it could be in Tiger Brands' interest to approve the
class action, because it could present a binding settlement and
eliminate the proposition of having to deal with different
judgments in different courts for individual cases.
If Tiger Brands approves of their terms, they could meet to reach
a settlement and present their consensus to the court.
The firm has already selected the 10 applicants who will represent
the hundreds of victims who have claimed to have been affected by
the listeria outbreak, in court.
Within the class action suit there are four main categories. These
include: "Individuals who contracted a listeria infection but did
not die; individuals who contracted the infection in utero but did
not die; individuals who were dependent upon other individuals who
died as a consequence of their listeria infection; and individuals
responsible for taking care of other individuals who contracted a
listeria infection."
When court proceedings begin, the first stage would deal with
liability issues.
"This means determining issues related to whether the presence of
listeria monocytogenes in the Enterprise products was the cause of
the listeria outbreak and if it was enough to cause ill health and
deaths of consumers," said Mr. Spoor.
In the second stage, individuals would describe the damages they
suffered and compensation due. This would most likely be an
administrative stage, rather than a legal procedure. [GN]
TODISCO SERVICES: Pierce Atwood Attorney Discusses Court Ruling
---------------------------------------------------------------
Donald Frederico, Esq. -- dfrederico@pierceatwood.com -- of Pierce
Atwood LLP, in an article for JDSupra, wrote that on March 6th, in
Silva v. Todisco Services, Inc., Judge Kenneth Salinger, sitting
in the Business Litigation Session of the Massachusetts Superior
Court, held that a defendant's tendering of the maximum amount of
damages a plaintiff might recover in a putative class action did
not moot either the plaintiff's individual claims or the claims of
putative class members. In rejecting defendant's "pick-off"
attempt, Judge Salinger aligned Massachusetts state court practice
with federal case law, including the United States Supreme Court's
decision in Campbell-Ewald v. Gomez, and subsequent federal
decisions. His reasons for doing so, while perhaps consistent
with Massachusetts precedent, were somewhat different from the
federal court rationale and could have unintended consequences.
In Campbell-Ewald, the Supreme Court held that an unaccepted offer
of judgment does not moot a named plaintiff's claim, and therefore
cannot prevent a putative class action from moving forward. The
Court based its decision on principles of contract law (once
rejected, an offer becomes a nullity), which are echoed in the
language of Fed. R. Civ. P. 68(b). The focus of the decision was
on the viability of the plaintiff's individual claims; the Court
did not rely on the nature of the case as a putative class action.
Campbell-Ewald expressly did not address whether the outcome would
be different had the defendant actually tendered the money to the
plaintiff rather than simply offered to do so. After the
decision, defendants in other cases attempted to test the
potential loophole by tendering the funds, but a number of lower
federal courts, in cases cited in Judge Salinger's opinion, have
rejected that stratagem. The defendant in Silva sent plaintiff's
counsel a check for three times the actual damages the plaintiff
alleged to have incurred (incorporating an amount for treble
damages under G.L. c. 93A), but Judge Salinger, consistent with
the federal case law, held that doing so did not moot the
plaintiff's claim.
Judge Salinger reasoned, in part, that because the named plaintiff
sought not just monetary relief, but also injunctive and
declaratory relief, his claim was not mooted by the defendant's
tender of payment. By focusing on the status of the named
plaintiff's claim, he stayed within the lines of Campbell-Ewald,
and he might have stopped there. A similar approach was followed
by Boston federal district judge Allison Burroughs in a case Judge
Salinger cites. In that case, Judge Burroughs rejected a mootness
argument based on a third-party defendant's payment of the full
amount of plaintiff's claimed damages into an escrow account. The
court expressly avoided deciding whether there were "sound policy
reasons for not allowing defendants or third-party defendants to
stave off class litigation by picking off the named plaintiffs,"
and instead focused on the third-party defendant's failure to
provide the plaintiff with all the relief the plaintiff sought.
Judge Salinger's reasoning diverged from the Supreme Court
decision and Judge Burroughs' decision, however, by focusing not
just on the interests of the named plaintiff, but also on the
interests of putative absent class members, in determining whether
the case was moot.
Judge Salinger held that "[t]he tender of payment of the full
amount of damages to Silva individually cannot moot claims for
injunctive and declaratory relief either on behalf of Silva or,
more importantly, on behalf of the putative class." (Emphasis
added.) The highlighted language, and other language in the
opinion, suggests that, even if Silva's claim had become entirely
moot, the case could proceed with Silva acting as the class
representative. Such reasoning contradicts the fundamental
concept inherent in class action practice generally that, unless
and until a class is certified, the case is to be treated as an
individual case, and the only parties in interest are the
defendant and the named plaintiffs.
Judge Salinger found support for his decision in SJC precedent. He
cited the 2016 decision of the SJC in Cantell v. Comm'r of
Correction, a prisoners' civil rights case challenging conditions
of confinement. The Appeals Court had held that the case should
have been dismissed as moot because the named plaintiffs were
released from the segregated unit in which they claimed they were
unconstitutionally held. The SJC reversed, holding that, because
the case was a putative class action, and the challenged
conditions continued to exist for other putative class members,
the case remained viable. This was especially so, the court said,
because the defendant could always render an individual prisoner's
claim moot by releasing him from confinement, thereby shielding
its conduct from effective review.
The SJC in Cantell might have reached the same outcome by applying
the principle that a claim will not be dismissed as moot if it is
capable of repetition yet evading review. That "inherently
transitory" exception to the mootness doctrine, as described in
the 2016 Supreme Court decision of Kingdomware Technologies, Inc.
v. United States, and referenced in Judge Burroughs' decision as
well, focuses on the possibility that the same named plaintiff who
seeks injunctive relief against conduct that the defendant ceased
after the claim was filed might be harmed if he or she were
subjected to the same challenged conduct again. The principles
underlying that exception, however, which focus on the continued
interests of the named plaintiff, are fundamentally different from
the Massachusetts courts' conclusion that mooting a named
plaintiff's claim in a putative class action does not moot the
lawsuit because of the interests of absent putative class members
who are not before the court.
Massachusetts courts, of course, are not bound by federal
procedural precedent, and Judge Salinger's reasoning may well be
correct under existing Massachusetts law. And, because the court
found that Silva retained a viable individual claim for
prospective relief, the court's focus on the putative class
members' interests may have been inconsequential. But courts
should be careful not to extend such reasoning to cases where
named plaintiffs' claims prove to be non-viable, whether on
grounds of mootness or for other reasons. Doing so would
transform class litigation from representative litigation to
private attorney general litigation, which is inconsistent with
the terms of both the federal and state versions of Rule 23, and
would constitute an unwarranted expansion of the class action
procedure contemplated by chapter 93A. Not only would it be
unfair to businesses to subject them to suit by private citizens
somehow deputized to prosecute the claims of unrelated parties,
but it would be unfair to such absent parties to place their legal
interests in the hands of strangers whose incentives to pursue the
claims may be different from their own. [GN]
TOKAI PHARMA: April 20 Lead Plaintiff Bid Filing Deadline
---------------------------------------------------------
In the case, MICHAEL GARBOWSKI, ET AL, Plaintiffs, v. TOKAI
PHARMACEUTICALS, INC., ET AL, Defendants. VAIBHAV DOSHI, ET AL,
Plaintiffs, v. TOKAI PHARMACEUTICALS, INC., ET AL, Defendants,
C.A. Nos. 16-CV-11963-MLW, 16-CV-11992-MLW (D. Mass.), Judge Mark
L. Wolf of the U.S. District Court for the District of
Massachusetts ordered that, by April 20, 2018, Garbowski, Stephen
Buchansky, Vaibhav Doshi, and Sanjiv Purohit move, individually or
as one or more groups, for appointment as the Lead Plaintiff or
state that they decline to do so.
In these consolidated class actions, it is alleged that Tokai and
several of its officers, directors, and underwriters committed
securities fraud in connection with the development of galeterone,
an experimental drug. On Sept. 30, 2016, Steven Maxon and Sanjiv
Purohit timely filed competing motions, pursuant to the Private
Securities Litigation Reform Act of 1995 ("PSLRA"), seeking
consolidation, appointment as the Lead Plaintiff for the class,
and approval of their respective selections of Lead Counsel.
Maxon is a contractor for the United States Department of Defense
who is working in Djibouti. Purohit subsequently withdrew his
motion because Maxon has a larger financial stake in the
litigation. However, Purohit stated that he intended the
withdrawal to have no impact on his ability to serve as a
representative party should the need arise.
On Aug. 1, 2016, Pomerantz, on behalf of Doshi, filed a class
action complaint against Tokai and certain of its officers and
directors in the U.S. District Court for the Southern District of
New York. The complaint alleges securities fraud in connection
with the development of the company's galeterone drug. Doshi
asserts claims under the Securities and Exchange Act of 193. The
action was subsequently transferred to the District of
Massachusetts as Doshi v. Tokai Pharmaceuticals, Inc. et al., C.A.
No. 16-11992.
Also on Aug. 1, 2016, Pomerantz, among other law firms, published
a notice announcing the filing of the Doshi Action. The notice
advised investors of their right to file a motion to be appointed
the Lead Plaintiff in the Doshi Action within 60 days, meaning by
Sept. 30, 2016.
On Sept. 29, 2016, Michael Garbowski and Bushansky filed a similar
action. They allege the same claims as Doshi under Section 10(b)
of the Exchange Act and also assert claims under Sections 11,
12(a)(2), and 15 of the Securities Act of 1933.
On Sept. 30, 2016, Purohit and Steven Maxon each moved to be
appointed the Lead Plaintiff. On Oct. 14, 2016, however,
Garbowski and Bushansky opposed Maxon's motion to be appointed the
Lead Plaintiff, arguing that it was premature. Maintaining that
the Aug. 1, 2016 notice was adequate and that the deadline for
moving to be appointed the Lead Plaintiff was Sept. 30, 2016,
Maxon nevertheless filed a new motion for consolidation and
appointment as the Lead Plaintiff, with Pomerantz as the Lead
Counsel, on Dec. 13, 2016.
Both of Maxon's motions raised questions concerning whether Maxon
is a suitable Lead Plaintiff. In any event, the Certification and
Maxon's other submissions did not provide sufficient information
for the court to decide whether Maxon satisfied all of the PSLRA's
requirements for serving as the Lead Plaintiff. Therefore, on
Sept. 28, 2017, the Court attempted to hold a hearing concerning
Maxon's motions. Maxon, however, was no longer connected to the
hearing by telephone when the court attempted to question him
concerning whether he would be a suitable Lead Plaintiff.
Therefore, the Court could not then determine whether Maxon
understood the responsibilities of a Lead Plaintiff and whether he
was competent to discharge them. Accordingly, the Court denied
the motion to appoint Mr. Maxon as the Lead Plaintiff without
prejudice.
Maxon and Mr. Schall were ordered to file additional declarations
addressing whether Maxon understood and satisfied all of the
requirements of a Lead Plaintiff in a class action under the
PSLRA. Maxon and Mr. Schall filed the required declarations. At
the Oct. 10, 2017 hearing, the Court questioned Maxon and Mr.
Schall. Maxon stated several times that he never had any oral
conversation with Mr. Schall. Mr. Schall, however, reiterated his
belief that he had extensive telephone conversations with Maxon
before the motion for his appointment as the Lead Plaintiff was
filed.
The Court orally ordered that, by Oct. 17, 2017, Mr. Schall file
the telephone records of his conversations with Maxon and inform
the Court of the dates of those calls. It also ordered Mr. Schall
to file, on Oct. 10, 2017, a supplemental declaration concerning
when he first received Maxon's "Plaintiff's Certification," and
providing his copy of it. On Oct. 10, 2017, Mr. Schall filed the
Certification and related declaration.
On Oct. 17, 2017, Mr. Lieberman filed a Notice of Withdrawal of
Motion of Steven Maxon for Appointment as Lead Plaintiff and
Approval of Counsel. The Notice requests that the Court orders a
"modified re-opening of the PSLRA Lead Plaintiff appointment
process" by ordering that another notice be published and
providing 30 more days for class members to seek appointment as
the Lead Plaintiff.
Mr. Schall, however, did not comply with the order that he file by
Oct. 17, 2017 the telephone records of his conversations with
Maxon and a declaration concerning the dates of those calls. On
Oct. 23, 2017, the Court issued an Order explaining that the
Withdrawal Notice did not relieve Mr. Schall of the obligation to
file those items. It also ordered Mr. Lieberman to file Mr.
Maxon's fee agreement with Pomerantz.
On Oct. 24, 2017, Mr. Lieberman filed the fee agreement, reflected
in a letter from Pomerantz to Maxon dated Oct. 3, 2017. On Oct.
25, 2017, Mr. Schall filed another declaration and several
attachments, including a record of the dates, times, originating
and destination cities, and durations of his calls between May 21
and Nov. 1, 2016. As evidence that he had telephone conversations
with Maxon, he submitted an Oct. 10, 2017 email from Maxon to
Pomerantz in which Maxon stated that he had forgot about the calls
from the Goldberg firm. Mr. Schall also gave detailed
descriptions of the contents of telephone calls with Mr. Maxon,
and stated that Mr. Hood informed him that while preparing for the
Oct. 10, 2017 hearing, Maxon told Mr. Hood that he remembered
talking to Mr. Schall on the telephone.
Pomerantz requests that the Court authorizes it to issue a new
notice inviting hte class members other than the Plaintiffs and
Purohit to move within 30 days for appointment as the Lead
Plaintiff.
Judge Wolf finds that Maxon's willingness to make false statements
under oath contributes to the Court's conclusion that he would not
have been an adequate Lead Plaintiff. The willingness of
Pomerantz to submit to the court a statement that was obviously
incorrect at least to the extent that it represented that Maxon
had authorized the filing of a complaint heightens the Court's
concerns. Its failure to speak to Maxon about whether he had read
any of the complaints in these actions or anything else before
submitting Maxon's misrepresentation to the Court, reinforces the
conclusion that Maxon, with Pomerantz as his counsel, would not
have represented the putative class in the manner required by the
PSLRA.
More specifically, the Judge would have found that Maxon did not
understand the obligations of a Lead Plaintiff, and would not have
been willing and able to satisfy them. Maxon did not select the
proposed class counsel or negotiate their fee. No one at
Pomerantz ever spoke to Maxon, or communicated with him directly,
until the court expressed its intent to question him at the
September 28, 2017 hearing. Therefore, the Judge concludes that
if Maxon and Pomerantz had been appointed, this case would have
been conducted by unsupervised Plaintiffs' attorneys -- a practice
the PLSRA was intended to end.
Finally, the Judge explains that the PLSRA process is intended to
produce a Lead Plaintiff within 90 days after notice of the filing
of a class action suit or promptly after multiple related class
actions are consolidated. Reopening the notice period would
further delay the progress of the case, which the Court expects
will include the filing of a consolidated amended complaint by
anyone appointed lead plaintiff and a motion to dismiss. He says
the Defendants have a legitimate interest in knowing as soon as
now possible whether the case will continue as a putative class
action and the allegations against each of them.
Therefore, Judge Wolf ordered that, by April 20, 2018, Garbowski,
Buchansky, Doshi, and Purohit move, individually or as one or more
groups, for appointment as the Lead Plaintiff or state that they
decline to do so. If one or more of these eligible individuals
moves to be appointed the Lead Plaintiff, the Court will promptly
conduct a hearing to determine whether his motion is meritorious
and to resolve any competing claims to the position. A hearing
will be held on April 30, 2018, at 2:00 p.m. Any person seeking
to serve as the Lead Plaintiff will attend and be prepared to
testify if necessary.
A full-text copy of the Court's March 16, 2018 Memorandum and
Order is available at https://is.gd/iNDyxB from Leagle.com.
Michael Garbowski, on behalf of themselves and all others
similarly situated & Stephen Bushansky, on behalf of themselves
and all others similarly situated, Plaintiffs, represented by
Joseph H. Weiss -- jweiss@weisslawllp.com -- WeissLaw LLP, pro hac
vice, Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber &
Urmy LLP, Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber
& Urmy LLP & David Pastor -- info@pastorlawoffice.com -- Pastor
Law Office, LLP.
Tokai Pharmaceuticals, Inc., Jodie Pope Morrison, Lee H Kalowski,
Seth L Harrison, Timothy J. Barberich, M.D. David A. Kessler &
Joseph A Yanchik, III, Defendants, represented by Boris Feldman --
Boris.Feldman@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Gideon
A. Schor -- gschor@wsgr.com -- Wilson Sonsini Goodrich & Rosati,
pro hac vice & Michael J. Pineault --
mpineault@clementspineault.com -- Clements & Pineault, LLP.
BMO Capital Markets Corp., Stifel, Nicolaus & Company,
Incorporated, William Blair & Company, L.L.C. & Janney Montgomery
Scott LLC, Defendants, represented by Charlene Sachi Shimada --
charlene.shimada@morganlewis.com -- Morgan Lewis & Bockius LLP,
pro hac vice, Lucy Wang -- lucy.wang@morganlewis.com -- Morgan,
Lewis & Bockius LLP, pro hac vice & S. Elaine McChesney --
elaine.mcchesney@morganlewis.com -- Morgan, Lewis & Bockius LLP.
Steven Maxon, Movant, represented by Aatif Iqbal --
aiqbal@pomlaw.com -- Pomerantz LLP, pro hac vice, J. Alexander
Hood -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac
vice, Matthew L. Tuccillo -- mltuccillo@pomlaw.com -- Pomerantz
LLP & Murielle J. Steven Walsh -- mjsteven@pomlaw.com --
Pomerantz, Haudek, Grossman & Gross LLP, pro hac vice.
TOTAL CARD: Faces "Clements" Suit in N.D. Alabama
-------------------------------------------------
A class action lawsuit has been filed against Total Card, Inc. The
case is styled as Andrew Clements, individually and on behalf of
all others similarly situated, Plaintiff v. Total Card, Inc., a
South Dakota Corporation, Defendant, Case No. 4:18-cv-00574-VEH
(N.D. Ala., April 10, 2018).
Total Card, Inc. provides customized contact center support and
financial products and services.[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
TRUECAR INC: Kaplan Fox Files Securities Class Action in Calif.
---------------------------------------------------------------
Kaplan Fox & Kilsheimer LLP on April 2 disclosed that it has filed
a class action suit against TrueCar, Inc. ("TrueCar" or the
"Company") (NASDAQ: TRUE) and Michael Guthrie, that alleges
violations of the Securities Exchange Act of 1934 on behalf of all
persons and entities who purchased the publicly traded common
stock of TrueCar from at least as early as February 16, 2017
through November 6, 2017, inclusive (the "Class Period"). The
case is pending in the United States District Court for the
Central District of California.
The complaint alleges that during the Class Period the Company
made numerous positive statements concerning the Company's
prospects and growth, while failing to disclose negative
developments related to the United Services Automobile Association
("USAA"), its largest source of revenue.
The Complaint further alleges that, throughout the Class Period
defendants made false and/or misleading statements and/or failed
to disclose that: (1) that USAA had been planning significant
changes to its website that would have a material adverse effect
on the volume of purchases generated by USAA; (2) that USAA made
significant changes to its website that would have a material
adverse effect on the volume of purchases generated by USAA; (3)
that the changes to USAA's website maintained by TrueCar caused a
material adverse effect on the volume of purchases generated by
USAA; and (4) that, as a result of the foregoing, Defendants'
statements about TrueCar's business, operations, and prospects,
were materially false and/or misleading and/or lacked a reasonable
basis.
On November 6, the Company disclosed that USAA had made
significant changes to its website during the Class period that
had a material adverse effect on the volume of purchases generated
by USAA. On this news, TrueCar's shares declined by $5.76 per
share, or 35.25%, to close at $10.58 per share on November 7, 2017
on heavy trading volume.
If you purchased TrueCar common stock during the Class Period, you
may move the court no later than June 1, 2018 to serve as a lead
plaintiff for the Class. You need not seek to become a lead
plaintiff in order to share in any possible recovery.
For more information about Kaplan Fox & Kilsheimer LLP, or to
review a copy of the Complaint filed in this action, you may
contact Kaplan Fox.
If you have any questions about this Notice, the action, your
rights, or your interests, please contact:
Jeffrey P. Campisi
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, New York 10022
(800) 290-1952
(212) 687-1980
Fax: (212) 687-7714
E-mail address: jcampisi@kaplanfox.com
Laurence D. King
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, California 94104
Telephone: (415) 772-4700
Fax: 415-772-4707
E-mail address: lking@kaplanfox.com [GN]
UNITED STATES: May Appeal Illegal Immigrant Minors' Abortion Case
-----------------------------------------------------------------
Margot Cleveland, writing for The Federalist, reports that a
federal judge ordered the government to assist illegal alien
minors in obtaining abortions on March 30, delivering a win to the
American Civil Liberties Union in its ongoing litigation against
the Office of Refugee Resettlement.
The court issued a preliminary injunction in Garza v. Hargan, even
though the four plaintiffs represented by the ACLU had all
procured abortions months ago, and even though the ACLU has not
identified any girls in the custody of the ORR currently seeking
abortions.
The ACLU finessed this victory by convincing district court judge
Tanya Chutkan to certify the case as a class action and to appoint
the ACLU to represent "all pregnant, unaccompanied immigrant minor
children who are or will be in the legal custody of the federal
government," whether the girls seek an abortion or not.
The government may appeal Judge Chutkan's decision. Following the
March 30 release of the district court opinion, a spokesperson for
the Department of Health and Human Services noted that they are
working with the Justice Department to "review the court's order
and determine next steps."
HHS "strongly maintains that taxpayers are not responsible for
facilitating the abortion of unaccompanied minors who entered the
country illegally and are currently in the government's care," the
spokesperson added.
Should the Justice Department appeal Judge Chutkan's decision, the
case would return to the D.C. Court of Appeals for the second
time: In October of 2017, the D.C. Circuit ruled in a 6-3 split
decision that the ORR's refusal to facilitate an abortion for J.D.
-- the first unaccompanied minor to file suit -- violated her
constitutional right to an abortion.
In that case, the Justice Department immediately informed the ACLU
of its intent to appeal the ruling to the United States Supreme
Court. However, after agreeing to keep the government apprised of
the timing of the procedure, the ACLU whisked J.D. away a day
early, and at 4:30 a.m., to obtain an abortion, preventing the
Justice Department from challenging the D.C. Court of Appeals'
decision. Justices are currently deciding whether to vacate the
appellate court's decision because of the ACLU's duplicity. They
have already discussed the case at nine separate court
conferences, but without resolution.
Whether the Supreme Court vacates -- or lets stand -- the D.C.
Circuit's original decision, though, the DOJ should immediately
appeal Judge Chutkan's more recent opinion to the federal
appellate court because her ruling certifying a class action in
Garza was fundamentally flawed. And the D.C. Circuit's earlier
holding does not control the question of the propriety of class
certification.
A federal class action lawsuit is appropriate only if four
requirements are met:
Numerosity: The class must be "so numerous that joinder of all
members is impractical."
Commonality: Questions of law or fact are common to the class.
Typicality: The claims or defenses of the named plaintiffs are
typical of the class
Adequacy: The named plaintiffs will fairly and adequately
protect the interests of the class.
Judge Chutkan, a Barack Obama appointee, concluded that the ACLU
had established the above four factors and certified a class
action. However, in finding the class "numerous," Judge Chutkan
wrongly focused on the number of pregnant minors in the ORR
custody -- 726 in 2014, 450 in 2015, and 682 in 2016 -- and not
the number of pregnant minors seeking an abortion. To date, the
ACLU has only identified four such minors, and one of those the
ORR released from custody after learning she was over 18.
The district court ignore the small number of plaintiffs affected
by the ORR's policies by accepting the ACLU's framing of the issue
as whether the "ORR's policies and/or practices deprive pregnant
[unaccompanied minors] the ability to make their own choices
regarding whether to seek an abortion or disclose pregnancy-
related information." Judge Chutkan reasoned, "If true, this
deprivation would constitute an injury to all class members,
regardless of which option an individual class member might
ultimately choose."
But the policies the ACLU challenges do not affect all pregnant
minors -- they only affect pregnant minors considering an
abortion. Specifically, the ACLU challenges the ORR's mandate
that federally funded shelters do not take "any action that
facilitates an abortion without direction and approval from the
Director of ORR," and its directive that shelters "notify ORR
through [assigned federal staff] immediately of any request or
interest on any girl's part in terminating her pregnancy." The
ACLU also objects to the ORR's requirement that shelters provide
"only pregnancy services and life-affirming options counseling,"
and requires girls seeking an abortion to inform their parents of
their pregnancies.
The ACLU's "choice" rhetoric falters because these policies do not
impact girls who have already chosen life for their unborn babies.
In fact, it is the ACLU who is interfering with those girls'
choice by foisting their legal representation on pregnant minors
who have no interest in obtaining an abortion or in the ACLU's
abortion advocacy.
Because the policies challenged in the ACLU's complaint affect
only girls contemplating an abortion, any class should have been
defined as "pregnant unaccompanied minors considering an
abortion." But such a class would not satisfy the "numerosity"
requirement because the ACLU has presented evidence of only a
handful of such girls. Those girls may sue individually, as J.D.
and the other three girls added to the Garza lawsuit have done,
but they cannot properly maintain a class action lawsuit. [GN]
UNITED STATES: Veteran to Pursue Honorable Discharge Class Action
-----------------------------------------------------------------
Peggy McCarthy, writing for Hartford Courant, reports that
Connecticut veterans' leader and decorated soldier
Stephen Kennedy has won his eight-year battle to have his Army
discharge status upgraded to honorable.
Mr. Kennedy, of Fairfield, president of the Connecticut branch of
Iraq and Afghanistan Veterans of America (IAVA-CT), will continue
his federal class action lawsuit on behalf of Army veterans
nationwide who received less than honorable discharges for
behavior later attributed to post traumatic stress disorder.
Mr. Kennedy said in an interview that his Army service "was really
central to my identity. I was really proud of that. To have them
say it was less than honorable, to have that kind of stamp on it .
. . has been a cloud over the memory of my service."
"It's hard not to really take that to heart," he said, adding that
having the upgrade "really feels great."
The Army Discharge Review Board reversed Kennedy's previous status
called "general under honorable," which deprived him of veterans'
education benefits and the pride and respect connected to an
honorable discharge.
Mr. Kennedy, 31, served in Iraq for 13 months. In the Army, he
was given leadership positions, fast-tracked to become a sergeant
and honored with several awards including the Combat Infantry
Badge, Army Commendation Medal and Army Achievement Medal. His
discharge status was based on his going Absent Without Leave
(AWOL) for his wedding and honeymoon, a behavior he later said was
uncharacteristic for him and based on PTSD, which had resulted
from his military service. He had become suicidal and self-
destructive, cutting himself and drinking and smoking heavily.
Since he left the Army in 2009, he has received medical help for
his PTSD, fathered three children, graduated from the University
of Massachusetts, taken a leadership role in veterans' affairs in
Connecticut, and is pursuing a doctoral degree in biophysical
chemistry at New York University.
He estimated that he lost out on about $90,000 in education grants
under the federal GI bill because of his less than honorable
discharge status. He said he will now try to be compensated under
the GI bill.
Mr. Kennedy is a lead plaintiff in a lawsuit in U.S. District
Court in Bridgeport, which is asking the court to order the Army
to properly apply a Pentagon policy that was designed to
facilitate discharge upgrades for veterans with PTSD. The policy
directs military review boards to give "liberal consideration" to
veterans whose service-connected PTSD is diagnosed after
discharge.
A second plaintiff, Alicia J. Carson, a former Southington
resident who now lives in Alaska, was given a status upgrade to
honorable by the National Guard in March.
The suit was filed last April. The Yale Law School Veterans Legal
Services Clinic is representing the plaintiffs. The clinic
estimates that more than 100,000 Iraq and Afghanistan veterans
received less than honorable discharges, also known as "bad paper"
discharges. The suit is representing those who have discharges
labeled as general under honorable and other than honorable (OTH).
Mr. Kennedy expressed hope that the court will require the
discharge review board to handle discharge upgrade cases
equitably. He had applied for an upgrade twice, in 2010 and 2015.
His second application was denied in a 3-2 vote. He said that the
successful application was exactly the same as the previous one,
indicating to him an improper process.
"We didn't add anything to what I filed originally and got a
completely different result because a judge was watching,"
Mr. Kennedy said. "To take the exact same case and come to a
completely different outcome shows the need for everyone to get a
review like this. When no one is watching, they are not doing this
properly," he said.
"I really hope that what comes out of this is that everyone gets
the same kind of review," he said.
"It shouldn't take a small Army of lawyers, a class action
lawsuit, and eight years to get the Army to follow their own
rules," he said in a statement, adding that "most veterans with
PTSD are in no position to fight the Army like this, and veterans
are dying while the Army drags its feet on properly handling these
cases."
Helen White, a Yale law student working on the case, said, "we're
encouraged to see justice done for Steve, but there are thousands
of veterans across the country whose honorable service the Army
still refuses to recognize."
The new federal budget signed into law by President Donald Trump
includes a provision championed by U.S. Sen. Chris Murphy for
veterans with OTH discharges to receive long-term mental health
care from the U.S. Department of Veterans Affairs (VA).
IAVA-CT is advocating changes on the state level, which would
expand eligibility for state services for service members with OTH
discharges and have PTSD, traumatic brain injury, or were victims
of military sexual trauma. Such benefits would include state
substance abuse treatment, transitional housing, long-term care,
tuition waivers at state colleges, burial assistance and property
tax exemptions. The legislature's Veterans Affairs Committee has
approved the proposal, which needs a vote of the Senate and House
to become law.
This story was reported under a partnership with the Connecticut
Health I-Team (c-hit.org). [GN]
UNITED STATES: Judge Allows Men to Challenge Male-Only Draft
------------------------------------------------------------
The National Coalition for Men can proceed with its class action
lawsuit challenging the government's men-only mandate for
registering for the military draft, a federal judge ruled on April
6.
Although the U.S. military is now an all-volunteer force, to stay
prepared for a major war the Military Select Service Act requires
men age 18 to 25 to register with the Select Service System.
The government held its last draft, for the Vietnam War, in 1973.
All men, including undocumented immigrants, who do not register
and keep their contact information current can be sentenced to
five years in prison, fined up to $250,000 and be disqualified
from federal financial aid and citizenship, though no man has been
prosecuted for failing to register since the 1980s.
The National Coalition for Men, represented by Marc Angelucci in
Los Angeles, sued the Select Service System in April 2013,
claiming the male-only draft registration rule is unconstitutional
gender discrimination. The Pentagon in January 2013 lifted a ban
on women serving in front-line combat positions.
The coalition seeks an injunction ordering the government to make
both men and women register for the draft.
As of February there were 213,851 women in the military, about 16
percent of the 1.3 million total members, according to the
Department of Defense.
U.S. District Judge Gray Miller on April 6 denied the government's
motion to dismiss the coalition's class action.
The government claimed the coalition's co-plaintiffs, James
Lesmeister and Anthony Davis, lack standing, as neither has been
drafted, nor are they at risk of being prosecuted, because they
have registered for the draft.
"Regardless, both have a continuing obligation to update SSS with
changes to their information. That obligation, paired with the
requirement to register with SSS, constitutes an injury sufficient
for Article III standing," Miller wrote.
In its dismissal motion, the government said the challengers are
trying to intrude on Congress's authority to oversee military
affairs, and their claims are precluded by the U.S. Supreme Court
1981 ruling in Rostker v. Goldberg, involving men who made similar
sex-discrimination arguments about draft-registration rules.
Justices Byron White wrote a dissent, joined by Justice William
Brennan, who also joined a separate dissent by Justice Thurgood
Marshall.
The 6-3 majority in Rostker held that because women were excluded
from combat, there was no need to draft them, so the male-only
rule was constitutional.
But Miller ruled that the coalition has made a viable gender
discrimination claim under the Fifth Amendment's equal protection
clause, due to the military's new policy of letting women fight on
the front lines.
"Regarding Rostker's holding that the male-only draft did not
violate the Constitution, the factual circumstances of this case
are different. . . . Now, women can serve in combat roles,"
Miller, a George W. Bush appointee, wrote in an 8-page order.
The coalition filed the lawsuit in April 2013 in the Central
District of California. U.S. District Judge Dale S. Fischer
dismissed it, but the Ninth Circuit reversed and remanded. Fischer
again nixed the coalition's claims in November 2016, finding it
lacked standing since its only co-plaintiff, James Lesmeister, was
not a coalition member.
Fischer transferred the case to the Southern District of Texas
because Lesmeister lives near Houston.
The coalition filed an amended complaint in August 2017, adding
class claims and its member Anthony Davis as a plaintiff. Judge
Miller found the addition of Davis was enough for the coalition to
establish "associational standing."
The coalition, founded in 1977, is based in San Diego, California.
It helped bring a lawsuit in 1985 against Hancock International
Airport in Syracuse, New York, for having diaper-changing tables
only in the airport's women's restrooms.
Settlement of that case led to the placement of changing tables in
men's bathrooms throughout the United States, the coalition says
on its website.
Its attorney, Marc Angelucci, Esq., is vice president of its
board. He started its Los Angeles chapter in 2001.
Angelucci said in a statement April 8 the coalition is pleased
with Miller's order. But he said its goal is not necessarily to
force the government to make women sign up for the draft.
"NCFM takes no position on whether the best approach is to end
mandatory draft registration or to require both men and women to
register. Nor does NCFM take any position as to whether women
should be in combat, as the draft can include noncombat positions.
As a men's rights organization, NCFM's concern is with the
unconstitutional sex discrimination against men. How to resolve
the illegality is up to the federal government," he said.
The Department of Justice did not respond on April 8 to an email
seeking comment on Miller's order.
UNIVERSAL TAX: Averts Class Action Over Software Glitches
---------------------------------------------------------
Diana Novak Jones, writing for Law360, reports that an Illinois
federal judge freed a tax preparation software company from a
proposed class action over an allegedly glitchy product on
March 31, saying the company was protected from liability over
software malfunctions by a licensing agreement.
U.S. District Judge Rebecca Pallmeyer granted Universal Tax
Systems Inc.'s motion for summary judgment in the suit, which
claimed the company breached its warranty and implied contracts to
sell tested and effective software. Universal Tax Systems'
software came with a license agreement that cuts off all the
suit's claims, Judge Pallmeyer says.
The case is D&B II Enterprises, LLC v. Universal Tax Systems,
Inc., Case No. 1:13-cv-05702 (N.D. Ill.). The case is assigned to
Judge Honorable Rebecca R. Pallmeyer. The case was filed August
9, 2013. [GN]
UNIVERSITY HOSPITALS: 117 Suits Filed Over Clinic Malfunction
-------------------------------------------------------------
Tara Molina, writing for News 5 Cleveland, reports that new
lawsuits have been announced almost daily since University
Hospitals first admitted to its fertility clinic failure. The
hospital is now facing a mounting stack of class action and
individual lawsuits from heartbroken families, many who lost their
last chance at having a biological child.
About 900 patients have now received the devastating news that
their eggs and embryos were affected in a storage tank
malfunction.
Tom Merriman, of Landskroner Greico Merriman, said his firm is now
representing more than 100 patients and will not consolidate them
into a class action.
"This is not a case that should be resolved through some
antiseptic class action settlement," Mr. Merriman said. "Every
one of the women who had their eggs retrieved, every couple who
had eggs that were stored, they need to bring their cases to
court, they need to be heard. A jury needs to decide what happens
to them and they need to demand punitive damages against the
hospital."
Peiffer Rosca and Wolf, another one of a handful of firms
involved.
"Plaintiffs viewed their eggs and embryos as their future
children," Lydia Floyd -- lfloyd@prwlegal.com -- of Peiffer Rosca
and Wolf said when the firm first announced their class action
suit.
DiCello Levitt & Casey has another class action lawsuit filed on
behalf of Amber and Elliott Ash who had two embryos stored with
UH.
"You put so much faith into the physicians and the medical team
and to have this taken away and have your hopes and dreams
destroyed," Amber Ash said.
The couple found out early on in the malfunction debacle that
their embryos are no longer viable.
Elliott Ash, who was diagnosed with a rare form of cancer in 2003,
decided to bank his sperm at age 23 before they were destroyed by
chemotherapy. The couple has had their embryos stored at UH since
2014, paying about $400 a year for the service.
"The medical community calls it tissue, I like to think of it as
my children. My frozen children," Mr. Ash said.
It still hasn't been decided whether or not one judge will preside
over all of the pending cases against UH, which is now up to more
than 117, including class action and individual. Judge Stuart
Friedman is expected to make that decision soon. [GN]
WALMART: Retailers Face Class Action from Accused Shoplifters
-------------------------------------------------------------
Maria Dinzeo, writing for Courthouse News Service, reports that
retailers across the nation are being sued for using a "corrective
education" program that is tantamount to extortion, a class of
accused shoplifters claim in federal court.
The Utah-based Corrective Education Company calls it restorative
justice. But the three lead plaintiffs, anonymously named in the
complaint, call it a shakedown.
"Defendants are not small-time Mafia thugs," the lawsuit says.
"They do not break kneecaps; they do not torch storefronts. Many
of the nation's leading corporations number are among the Retailer
Defendants. The individual defendants include graduates of the
Harvard Business School, the University of Oxford, and Brigham
Young University. But despite their glittering credentials,
Defendants are all participants in a long-running, highly
profitable extortion scheme that has extracted millions of dollars
from thousands of poor, desperate people across the country. And
RICO applies, with equal force, to street hoodlums and Harvard
MBAs alike."
One plaintiff, identified as Jane Doe from Loganville, Georgia,
was detained at a Walmart in September 2017 after buying supplies
for her child's birthday party. Walmart's loss prevention
personnel accused her of stealing hotdog buns and a case of water.
Under threat of being reported to the police, Doe agreed to
participate in the CEC program.
She was shown a CEC video promoting its six to eight-hour
education course designed to teach "life skills" and "make
positive behavior changes." And she would need to pay for the
program; either through a $400 upfront payment, or through a
payment plan comprising a $50 upfront payment and monthly payments
totaling $500.
The class action complaint lists Bloomingdale's, DSW, Walmart
Inc., Kroger, Abercrombie & Fitch, and CEC founders Darrell
Huntsman, Glen Bingham, Brian Ashton, and executives Jeffrey
Mitchell, Jeff Powers, Chris Cotrell, Richard Haddrill, Tim Hickey
and Jeff Stringer as defendants.
"This case is intended to prove that we are all equal under the
law," said Joel Fleming, Esq., class attorney and partner with
Block & Leviton. "Our country's racketeering and extortion laws
apply with equal force whether you're a common street hoodlum or
one of the Harvard MBAs who founded CEC. We're trying to stop
these illegal shakedowns and get compensation for victims."
About 20,000 people are known to have gone through the CEC program
since 2015.
Hilliard, Florida resident Mary Moe was detained at a
Jacksonville, Florida Walmart in November 2017, accused of
stealing snacks and hygiene products. She also agreed to
participate in the CEC program after watching one of their videos,
as did John Roe, accused of stealing a tri-ball hitch from a Texas
Walmart in January 2017. While Roe agreed to participate in CEC
under threat of being reported to the police, he hasn't been able
to make his payments and his account has been sent to collections.
Founded in 2010, CEC touts itself as "the leading provider of
restorative justice education," saving first-time shoplifters from
a criminal record while teaching them to make better life choices.
The lawsuit quotes a script CEC used between 2013 and 2016 that
admonishes viewers: "Once again, when you complete the resolution
program, no charges will be filed, you will not have to go to
jail, and you won't have to pay any criminal fines. Most
importantly, you will not have a criminal record and you will
avoid the cost of civil demands. However, if you fail to comply
with the requirements of this program, if you don't complete it,
your case will be submitted to the police and they may issue a
warrant for your arrest. This will happen only if don't complete
the program."
While Fleming noted that this is the first class action of its
kind, San Francisco City Attorney Dennis Herrera, Esq., sued to
block the company from contracting with retailers, seeking civil
penalties and restitution for extortion and false imprisonment. In
2017, the city won an injunction, with state court Judge Harold
Kahn finding the CEC program runs afoul of California extortion
laws.
"This is textbook extortion under California law, and has been so
declared for at least 125 years," Kahn wrote in his ruling last
year.
CEC representatives did not respond to an email seeking comment on
April 9.
The plaintiffs seek statutory and punitive damages for
racketeering. They are represented by Fleming and Jacob Walker,
Esq., with Block & Leviton in Boston.
WEST COAST: Shippers Face Gender Discrimination Complaint
---------------------------------------------------------
Martin Macias, Jr., writing for Courthouse News Service, reports
that labor justice advocates representing dock works along the
West Coast filed a discrimination complaint March 29 with the
U.S. Equal Employment Opportunity Commission, alleging workers
have been systematically denied access to promotions due to
gender-based discrimination by employers.
Female longshore workers in ports across the West Coast said
those who miss time due to on-the-job injuries or military
service are awarded access to promotions, higher wages and union
membership, but women absent due to pregnancy and maternity leave
are not.
"As a casual longshore worker, the prospect of falling so far
behind my coworkers in the long road toward joining the union,
just because I had a baby, is heartbreaking," said Tracy Plummer,
whose treatment at Los Angeles and Long Beach ports is outlined
in the charges filed with the federal agency.
The American Civil Liberties Union, the ACLU Foundation of
Southern California, the law firm of Outten & Golden LLP, and Los
Angeles attorney Brenda Feigen, Esq. -- bfeigen@feigenlaw.com --
represent the workers.
The parties named in the complaint are the Pacific Maritime
Association, which represents West Coast shipping and terminal
companies, and the International Longshore and Warehouse Union
which represents dock workers along the West Coast.
In 1983, the PMA and ILWU settled a lawsuit by 500 female
longshore workers alleging systematic exclusion from union
membership. At the time, just seven women were ILWU members. The
settlement resulted in a consent decree known as the "Golden
Decree" which resulted in as many as 1,000 women joining the
ILWU, according to the ACLU.
The PMA represents close to 80 shipping and terminal companies
that use and operate the 29 ports along the West Coast, from San
Diego, California to Bellingham, Washington.
The women whose individual stories are outlined in the charges
represent a group of thousands of non-union dockworkers known as
"casuals," the lowest rung on the port employment hierarchy,
according to the ACLU.
So-called casual workers, which number around 5000, can only
receive higher wages and access to union membership by
accumulating thousands of work hours, according to the ACLU
statement.
Under their work contract, casuals do not know from day to day if
they will work a shift, let alone a full week of shifts.
According to documents filed with the complaint, the contract
contains no provisions for work hour credits due to maternity
leave or related medical procedures, nor does it provide any
protocol for workers to request accommodation due to pregnancy.
Workers say work hour credit policies are designed to hinder
them. When a female casual is ready to return to work after
recovering from childbirth but is still breastfeeding, she is
denied access to a sanitary, private space in which to pump
breast milk during her shift, the complaint said.
Casual workers can wait up to a decade for the ILWU to open its
ranks to new members. Union membership can mean job security for
workers and benefits like a pension and medical coverage.
Dock worker advocates argue pregnant women and new mothers who
cannot work lose hundreds of hours and fall behind their peers,
jeopardizing their opportunity to climb to higher wage levels
which can range from $31 an hour and up, according to the
statement.
"Pregnancy is a predictable medical event for the vast majority
of working women," said Melissa Goodman of ACLU Southern
California.
"The industry and union leaders refuse to treat pregnant
'casuals' the same way they treat others who are temporarily
unable to work in the dangerous conditions on the docks," she
said.
The refusal by employers, and by extension, port officials, to
extend the same work hour accrual policy to workers absent due to
pregnancy and childbirth as other absent workers is a violation
of the Pregnancy Discrimination Act, the workers' legal advocates
said.
"The Pregnancy Discrimination Act requires employers and unions
to give pregnant workers the same opportunities as those provided
to non-pregnant employees," said David Lopez, an attorney
supporting dock workers.
Longshore work is extremely dangerous for everyone, but
especially for pregnant and breastfeeding workers, the ACLU said.
The Port of Los Angeles is the largest source of air pollution in
Southern California, due in large part to the reliance on diesel
fuel for trucks and other cargo equipment on the docks.
Shipping containers weighing several tons can be accidentally
dropped by cranes, or can leak, spilling hazardous materials, the
complaint said.
"These charges are a necessary first step to ensure PMA and
ILWU's policy complies with the law," said Lopez, a former
general counsel of the EEOC.
The amended complaint is tied to a class-action lawsuit
challenging "unequal policies allowing workers who are absent to
accrue the work hours necessary for" access to both higher wages
and union membership, according to a statement from the ACLU.
The class includes workers in 29 ports from north of Seattle down
to San Diego.
The Port of Los Angeles in Long Beach, also called America's
Port, is the largest of the West Coast Ports, employing close to
14,000 individuals.
WILSHIRE COMMERCIAL: Bid to Deny "Freeman" Class Cert. Premature
----------------------------------------------------------------
In the case, VERINA FREEMAN and VALECEA DIGGS, individually and
on behalf of all others similarly situated, Plaintiffs, v.
WILSHIRE COMMERCIAL CAPITAL L.L.C., a California limited
liability company, dba WILSHIRE CONSUMER CREDIT, Defendant, CIV.
No. 2:15-1428 WBS AC (E.D. Cal.), Judge William B. Shubb of the
U.S. District Court for the Eastern District of California denied
the Plaintiffs' Motion for Partial Summary Judgment, and denied
the Defendant's Motion to Deny Class Certification.
The Plaintiffs initiated the class action against WCC alleging
violations of the Telephonic Consumer Protection Act ("TCPA").
Non-party Shanell White procured an automobile title loan from
defendant on Jan. 13, 2009. The loan application required that
White list references, for which she provided the names and cell
phone numbers of Freeman and Diggs. Freeman and Diggs had no
relationship with defendant throughout the putative class period.
During the course of her loan, White became delinquent. In the
course of collection efforts, between Dec. 17, 2010 and Nov. 29,
2011, the Defendant allegedly called Freeman nine times and Diggs
five times in an effort to locate and collect money from White.
The Plaintiffs initiated the case on July 6, 2015. In November
2015, the Court stayed the case pending the resolution of the
Defendant's motion in a separate, but similar, matter. In the
meantime, the Court allowed the parties to conduct limited
discovery on the issue of the dialing system that the Defendant
used to call the Plaintiffs and the putative class members in the
action. On April 11, 2016, the Court lifted the stay.
In September 2016, the court ordered that prior to class
discovery and any motion for class certification, the parties
would first brief the threshold issues of (1) the Plaintiffs'
Article III Standing and (2) the alleged capacity of the
Defendant's Automatic Telephone Dialing System to make autodialed
calls to the Plaintiffs and the proposed class members.
On Jan. 19, 2017, the Defendant filed a Motion for Summary
Judgment due to Lack of Article III Standing of Plaintiffs, which
the court denied. Presently before the Court are the Defendant's
Motion to Deny Class Certification and the Plaintiffs' Motion for
Partial Summary Judgment.
Judge Shubb holds that prior to a Rule 23 Motion seeking class
certification, the parties are entitled to conduct discovery in
order to provide the Court with evidence to either support or
refute the requested certification. However, based on the
information, he concludes that the Plaintiffs have not been given
the opportunity to engage in the necessary class discovery.
Therefore, he concludes that the Defendant's motion is premature
and should be denied.
The Judge finds that it is undisputed that the Defendant used two
different dialing systems to place its phone calls -- an Aspect
Unified IP 6.6 Predictive Dialer and an Avaya PBX. The Avaya is
a manual dialer system whereas the Aspect is, undeniably, an
automatic telephone dialing system, also known as an auto-dialer
system. Thus, the question for the Judge is whether the
Defendant used the Aspect to call the Plaintiffs. He finds that
(i) a genuine, material factual dispute exists as to whether the
Defendant did in fact use the Aspect system to call Freeman; and
(i) the Defendant has raised sufficient doubts as to whether it
in fact used the Aspect system to call Diggs, and thus a dispute
of material facts exists.
For these reasons, Judge Shubb denied the Plaintiffs' Motion for
Summary Judgment, and denied the Defendant's Motion to Deny Class
Certification.
A full-text copy of the Court's March 6, 2018 Memorandum and
Order is available at https://is.gd/r8jjgn from Leagle.com.
Verina Freeman & Valecea Diggs, Plaintiffs, represented by Bryan
Kemnitzer, Kemnitzer Barron & Krieg, PC, Patrick C. Crotty, Scott
D. Owens, P.A., pro hac vice, Scott D. Owens, Scott D. Owens,
P.A., pro hac vice & Elliot Jason Conn -- elliot@kbklegal.com --
Kemnitzer Anderson Barron and Ogilvie LLP.
Wilshire Commercial Capital L.L.C., a California Limited
Liability Company, Defendant, represented by Anthony Angelo
Molino -- molino@molinolawfirm.com -- Molino and Berardino, APLC,
Benjamin John Carter, Molino & Berardino, APLC, Steven Reed
Berardino -- sberardino@molinolawfirm.com -- Molino & Berardino,
APLC & Michelle Cooper -- mcooper@molinolawfirm.com -- Molino &
Berardino, APLC.
WILSHIRE COMMERCIAL: Court Stays "Freeman" Pending "Resh" Ruling
----------------------------------------------------------------
Judge William B. Shubb of the U.S. District Court for the Eastern
District of California stayed the class discovery in the case,
VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of
all others similarly situated, Plaintiffs, v. WILSHIRE COMMERCIAL
CAPITAL L.L.C., a California limited liability company, dba
WILSHIRE CONSUMER CREDIT, Defendant, CIV. No. 2:15-1428 WBS AC
(E.D. Cal.) until the Supreme Court issues an opinion in Resh v.
China Agritech, Inc.
The Plaintiffs initiated the class action against WCC alleging
violations of the Telephonic Consumer Protection Act ("TCPA").
On Feb. 14, 2018, the parties submitted a Joint Status Report in
which the Defendant requests that in the event the Court denies
its Motion to Deny Class Certification, the Court stays the class
discovery pending Supreme Court review of Resh. The Court is
scheduled to hear Resh on March 28, 2018, and it is expected to
issue a ruling on the case by the end of June.
In Resh, the Ninth Circuit concluded that the filing of a class
action tolls the limitations period and permits a previously
absent class member to bring a subsequent class action outside of
the generally applicable limitations period. The Supreme Court
has previously ruled that the filing of a class action suit tolls
the running of the statute of limitations for a purported
member's individual claims.
However, there is a circuit split regarding the interpretation of
the American Pipe rule as it relates to tolling for subsequent
putative class actions. Three courts of appeal, including the
Ninth Circuit, have interpreted the rule to mean that the
limitations period is tolled not only as to individual claims but
also as to future class action claims, while six other courts of
appeal have found tolling only permits subsequent individual
actions.
If the Court reverses Resh and determines that the statute of
limitations is tolled only for individual claims, then the
Plaintiffs would be unable to bring the case as a class action,
though they would still be able to proceed with their individual
claims.
Accordingly, Judge Shubb holds that the need to do class
discovery may be completely eliminated depending on the Supreme
Court's ruling in Resh. Therefore, he stayed the class discovery
until the Supreme Court issues an opinion. A status conference is
set for Aug. 6, 2018, at 1:30 p.m.
A full-text copy of the Court's March 6, 2018 Order is available
at https://is.gd/j5Cl3o from Leagle.com.
Verina Freeman & Valecea Diggs, Plaintiffs, represented by Bryan
Kemnitzer, Kemnitzer Barron & Krieg, PC, Patrick C. Crotty, Scott
D. Owens, P.A., pro hac vice, Scott D. Owens, Scott D. Owens,
P.A., pro hac vice & Elliot Jason Conn -- elliot@kbklegal.com --
Kemnitzer Anderson Barron and Ogilvie LLP.
Wilshire Commercial Capital L.L.C., a California Limited
Liability Company, Defendant, represented by Anthony Angelo
Molino -- molino@molinolawfirm.com -- Molino and Berardino, APLC,
Benjamin John Carter, Molino & Berardino, APLC, Steven Reed
Berardino -- sberardino@molinolawfirm.com -- Molino & Berardino,
APLC & Michelle Cooper -- mcooper@molinolawfirm.com -- Molino &
Berardino, APLC.
ZIMMERMANN (USA): Faces "Fischler" Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Zimmermann (USA),
Inc. The case is styled as Brian Fischler, individually and on
behalf of all other persons similarly situated, Plaintiff v.
Zimmermann (USA), Inc., Defendant, Case No. 1:18-cv-03281 (S.D.
N.Y., April 15, 2018).
Zimmermann (USA), Inc. is a clothing store.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
ZULILY INC: Court Enters Final Judgment in Securities Suit
----------------------------------------------------------
Judge Ricardo S. Martinez of the U.S. District Court for the
Western District of Washington, Seattle, has entered Final
Judgment and Order in the case, IN RE ZULILY, INC. LITIGATION,
Case No. 2:15-cv-01424-RSM (W.D. Wash.).
The matter came before the Court for hearing on March 6, 2018,
pursuant to the Order of the Court dated Oct. 30, 2017, on the
application of the Federal Plaintiffs for approval of the
Settlement set forth in the Stipulation and Agreement of
Compromise, Settlement and Release dated Oct. 26, 2017.
Having considered all papers filed and otherwise being fully
informed and good cause appearing therefor,
Judge Martinez certified the Consolidated Federal Action as a
mandatory non-opt-out class action solely for purposes of the
Settlement. The Class consists of all record and beneficial
holders of ZU common stock at any time during the period from and
including Aug. 16, 2015 through and including Oct. 1, 2015,
including any and all of their respective successors in interest,
predecessors, representatives, trustees, executors,
administrators, heirs, assigns or transferees, immediate or
remote, and any person or entity acting for or on behalf of, or
claiming under any of them, and each of them.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
for the purposes of the Settlement only, the Judge certified the
Federal Plaintiffs as the class representatives for the Class,
and appointed the Plaintiffs' Counsel as the class counsel for
the Class.
Pursuant to Rule 23, the Judge approved the Settlement set forth
in the Stipulation. Accordingly, the Settlement embodied in the
Stipulation is finally approved in all respects and the parties
are authorized and directed to consummate the Settlement in
accordance with the terms and provisions of the Stipulation and
of the Final Judgment. The Consolidated Federal Action is
dismissed in its entirety with prejudice.
The Plaintiffs' Counsel is awarded attorneys' fees and expenses
in the total amount of $356,250. It will be the joint and
several obligation of each of the Plaintiffs' Counsel to refund
to zulily (or its successor-in-interest) any fees and expenses
paid (or, in the case of an order modifying the fees and expenses
award, any portion thereof) within 10 calendar days of the entry
of any order reversing, vacating or modifying the Final Judgment
and Order of Dismissal or any award of fees and expenses, even
though such order may be subject to further appeal.
Judge Martinez finds, for purposes of the Federal Rules of Civil
Procedure, that there is no just reason for delay and expressly
directed the Clerk of Court to enter the Final Judgment
immediately. Final Judgment will be, and is, entered dismissing
the Consolidated Federal Action in its entirety with prejudice
and on the merits. This Judgment is a final Judgment in the
Consolidated Federal Action as to all claims asserted therein at
any time and as to all of the Class' Released Claims against the
Released Persons.
A full-text copy of the Court's March 6, 2018 Final Judgment and
Order is available at https://is.gd/rWAwTk from Leagle.com.
Patrick Pisano, individually and on behalf of all others
similarly situated & Scott Mao, Plaintiffs, represented by Evan
J. Smith -- esmith@brodsky-smith.com -- BRODSKY & SMITH & Roger
M. Townsend -- rtownsend@bjtlegal.com -- BRESKIN JOHNSON &
TOWNSEND PLLC.
Karan Jugal, Plaintiff, represented by Evan J. Smith, BRODSKY &
SMITH, Juan E. Monteverde, FARUQI & FARUQI & Roger M. Townsend,
BRESKIN JOHNSON & TOWNSEND PLLC.
Zulily, Inc., Darrell Cavens, Mark Vadon, W. Eric Carlborg, John
Geschke, Mike Gupta, Youngme Moon, Michael Potter & Spencer
Rascoff, Defendants, represented by Stephen M. Rummage --
steverummage@dwt.com -- DAVIS WRIGHT TREMAINE & Brendan Thomas
Mangan -- brendanmangan@dwt.com -- DAVIS WRIGHT TREMAINE.
Liberty Interactive Corporation, Mocha Merger Sub, Inc & Ziggy
Merger Sub, LLC, Defendants, represented by Bradley S. Keller --
bkeller@byrneskeller.com -- BYRNES KELLER CROMWELL LLP & John
Arthur Tondini -- jtondini@byrneskeller.com -- BYRNES KELLER
CROMWELL LLP.
Asbestos Litigation
ASBESTOS UPDATE: Ingersoll-Rand Still Faces Claims at Dec. 31
-------------------------------------------------------------
Ingersoll-Rand Public Limited Company disclosed in its Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017, that over 80 percent of the
open claims against the Company are non-malignancy or unspecified
disease claims.
The Company states, "Certain wholly-owned subsidiaries and former
companies of ours are named as defendants in asbestos-related
lawsuits in state and federal courts. In virtually all of the
suits, a large number of other companies have also been named as
defendants. The vast majority of those claims have been filed
against either Ingersoll-Rand Company or Trane U.S. Inc. (Trane)
and generally allege injury caused by exposure to asbestos
contained in certain historical products sold by Ingersoll-Rand
Company or Trane, primarily pumps, boilers and railroad brake
shoes. None of our existing or previously-owned businesses were
a producer or manufacturer of asbestos.
"The Company engages an outside expert to assist in calculating
an estimate of the Company's total liability for pending and
unasserted future asbestos-related claims and annually performs a
detailed analysis with the assistance of an outside expert to
update its estimated asbestos-related liability. The methodology
used to project the Company's total liability for pending and
unasserted potential future asbestos-related claims relied upon
and included the following factors, among others:
* the outside expert's interpretation of a widely accepted
forecast of the population likely to have been occupationally
exposed to asbestos;
* epidemiological studies estimating the number of people
likely to develop asbestos-related diseases such as mesothelioma
and lung cancer;
* the Company's historical experience with the filing of non-
malignancy claims and claims alleging other types of malignant
diseases filed against the Company relative to the number of lung
cancer claims filed against the Company;
* the outside expert's analysis of the number of people likely
to file an asbestos-related personal injury claim against the
Company based on such epidemiological and historical data and the
Company's most recent three-year claims history;
* an analysis of the Company's pending cases, by type of
disease claimed and by year filed;
* an analysis of the Company's most recent three-year history
to determine the average settlement and resolution value of
claims, by type of disease claimed;
* an adjustment for inflation in the future average settlement
value of claims, at a 2.5% annual inflation rate, adjusted
downward to 1.5% to take account of the declining value of claims
resulting from the aging of the claimant population; and
* an analysis of the period over which the Company has and is
likely to resolve asbestos-related claims against it in the
future.
"At December 31, 2017, over 80 percent of the open claims against
the Company are non-malignancy or unspecified disease claims,
many of which have been placed on inactive or deferral dockets
and the vast majority of which have little or no settlement value
against the Company, particularly in light of recent changes in
the legal and judicial treatment of such claims."
A full-text copy of the Form 10-K is available at
https://is.gd/mUjL5y
ASBESTOS UPDATE: Ingersoll-Rand Has $605M Liabilities at Dec.31
---------------------------------------------------------------
Ingersoll-Rand Public Limited Company has total asbestos-related
liabilities of US$604.8 million as of December 31, 2017,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
The Company states, "The Company's asbestos insurance receivable
related to Ingersoll-Rand Company and Trane was US$138.5 million
and US$127.9 million at December 31, 2017, and US$129.6 million
and US$142.9 million at December 31, 2016, respectively.
"The receivable attributable to Trane for probable insurance
recoveries as of December 31, 2017 is entirely supported by
settlement agreements between Trane and the respective insurance
carriers. Most of these settlement agreements constitute
"coverage-in-place" arrangements, in which the insurer
signatories agree to reimburse Trane for specified portions of
its costs for asbestos bodily injury claims and Trane agrees to
certain claims-handling protocols and grants to the insurer
signatories certain releases and indemnifications.
"In 2012 and 2013, Ingersoll-Rand Company filed actions in the
Superior Court of New Jersey, Middlesex County, seeking a
declaratory judgment and other relief regarding the Company's
rights to defense and indemnity for asbestos claims. The
defendants were several dozen solvent insurance companies,
including companies that had been paying a portion of Ingersoll-
Rand Company's asbestos claim defense and indemnity costs. The
responding defendants generally challenged the Company's right to
recovery, and raised various coverage defenses. Since filing the
actions, Ingersoll Rand Company has settled with approximately
two-thirds of the insurer defendants, and has dismissed one of
the actions in its entirety.
"The Company continually monitors the status of pending
litigation that could impact the allocation of asbestos claims
against the Company's various insurance policies. The Company
has concluded that its Ingersoll-Rand Company insurance
receivable is probable of recovery because of the following
factors:
* Ingersoll-Rand Company has reached favorable settlements
regarding asbestos coverage claims for the majority of its
recorded asbestos-related insurance receivable;
* a review of other companies in circumstances comparable to
Ingersoll-Rand Company, including Trane, and the success of other
companies in recovering under their insurance policies, including
Trane's favorable settlement;
* the Company's confidence in its right to recovery under the
terms of its policies and pursuant to applicable law; and
* the Company's history of receiving payments under the
Ingersoll-Rand Company insurance program, including under
policies that had been the subject of prior litigation.
"The amounts recorded by the Company for asbestos-related
liabilities and insurance-related assets are based on currently
available information. The Company's actual liabilities or
insurance recoveries could be significantly higher or lower than
those recorded if assumptions used in the calculations vary
significantly from actual results. Key variables in these
assumptions include the number and type of new claims to be filed
each year, the average cost of resolution of each such new claim,
the resolution of coverage issues with insurance carriers, and
the solvency risk with respect to the Company's insurance
carriers. Furthermore, predictions with respect to these
variables are subject to greater uncertainty as the projection
period lengthens. Other factors that may affect the Company's
liability include uncertainties surrounding the litigation
process from jurisdiction to jurisdiction and from case to case,
reforms that may be made by state and federal courts, and the
passage of state or federal tort reform legislation.
"The aggregate amount of the stated limits in insurance policies
available to the Company for asbestos-related claims acquired,
over many years and from many different carriers, is substantial.
However, limitations in that coverage, primarily due to the
considerations, are expected to result in the projected total
liability to claimants substantially exceeding the probable
insurance recovery."
A full-text copy of the Form 10-K is available at
https://is.gd/mUjL5y
ASBESTOS UPDATE: Diamond Offshore Still Defends Suits at Dec. 31
----------------------------------------------------------------
Diamond Offshore Drilling, Inc. continues to defend itself
against asbestos-related lawsuits pending in Louisiana, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
The Company states, "We are one of several unrelated defendants
in lawsuits filed in Louisiana state courts alleging that
defendants manufactured, distributed or utilized drilling mud
containing asbestos and, in our case, allowed such drilling mud
to have been utilized aboard our drilling rigs. The plaintiffs
seek, among other things, an award of unspecified compensatory
and punitive damages. The manufacture and use of asbestos-
containing drilling mud had already ceased before we acquired any
of the drilling rigs addressed in these lawsuits.
"We believe that we are not liable for the damages asserted in
the lawsuits pursuant to the terms of our 1989 asset purchase
agreement with Diamond M Corporation. We are unable to estimate
our potential exposure, if any, to these lawsuits at this time
but do not believe that our ultimate liability, if any, resulting
from this litigation will have a material effect on our
consolidated financial condition, results of operations or cash
flows."
A full-text copy of the Form 10-K is available at
https://is.gd/k58mF8
ASBESTOS UPDATE: Owens-Illinois Defends 1,330 Claims at Dec. 31
---------------------------------------------------------------
Owens-Illinois, Inc. still defends itself against 1,330 asbestos-
related claims as of December 31, 2017, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
The Company states, "The Company is a defendant in numerous
lawsuits alleging bodily injury and death as a result of exposure
to asbestos. From 1948 to 1958, one of the Company's former
business units commercially produced and sold approximately US$40
million of a high-temperature, calcium-silicate based pipe and
block insulation material containing asbestos. The Company sold
its insulation business unit at the end of April 1958. The
typical asbestos personal injury lawsuit alleges various theories
of liability, including negligence, gross negligence and strict
liability and seeks compensatory and, in some cases, punitive
damages in various amounts (herein referred to as "asbestos
claims").
"Based on an analysis of the lawsuits pending as of December 31,
2017, approximately 89% of plaintiffs either do not specify the
monetary damages sought, or in the case of court filings, claim
an amount sufficient to invoke the jurisdictional minimum of the
trial court. Approximately 8% of plaintiffs specifically plead
damages above the jurisdictional minimum up to, and including,
US$15 million or less, and 3% of plaintiffs specifically plead
damages greater than US$15 million but less than or equal to
US$100 million.
"As indicated by the foregoing summary, current pleading practice
permits considerable variation in the assertion of monetary
damages. The Company's experience resolving hundreds of
thousands of asbestos claims and lawsuits over an extended period
demonstrates that the monetary relief alleged in a complaint
bears little relevance to a claim's merits or disposition value.
Rather, the amount potentially recoverable is determined by such
factors as the type and severity of the plaintiff's asbestos
disease, the plaintiff's medical history and exposure to other
disease-causing agents, the product identification evidence
against the Company and other co-defendants, the defenses
available to the Company and other co-defendants, the specific
jurisdiction in which the claim is made, and the plaintiff's firm
representing the claimant.
"In addition to the pending claims, the Company has claims-
handling agreements in place with many plaintiffs' counsel
throughout the country. These agreements require evaluation and
negotiation regarding whether particular claimants qualify under
the criteria established by such agreements. The criteria for
such claims include verification of a compensable illness and a
reasonable probability of exposure to a product manufactured by
the Company's former business unit during its manufacturing
period ending in 1958.
"The Company has also been a defendant in other asbestos-related
lawsuits or claims involving maritime workers, medical monitoring
claimants, co-defendants and property damage claimants. Based
upon its past experience, the Company believes that these
categories of lawsuits and claims will not involve any material
liability and they are not included in the above description of
pending matters or in the following description of disposed
matters.
"Since receiving its first asbestos claim, the Company as of
December 31, 2017, has disposed of the asbestos claims of
approximately 399,000 plaintiffs and claimants at an average
indemnity payment per claim of approximately US$9,600. The
Company's asbestos indemnity payments have varied on a per claim
basis, and are expected to continue to vary considerably over
time. Asbestos-related cash payments for 2017, 2016, and 2015
were US$110 million, US$125 million, and US$138 million,
respectively. The Company's cash payments per claim disposed
(inclusive of legal costs) were approximately US$83,000,
US$71,000 and US$95,000 for the years ended December 31, 2017,
2016, and 2015, respectively.
"The Company's objective is to achieve, where possible,
resolution of asbestos claims pursuant to claims-handling
agreements. Failure of claimants to meet certain medical and
product exposure criteria in the Company's administrative claims
handling agreements has generally reduced the number of claims
that would otherwise have been received by the Company in the
tort system. In addition, certain court orders and legislative
acts have reduced or eliminated the number of claims that the
Company otherwise would have received by the Company in the tort
system. These developments generally have had the effect of
increasing the Company's per-claim average indemnity payment over
time."
A full-text copy of the Form 10-K is available at
https://is.gd/ralIVS
ASBESTOS UPDATE: Ct. Won't Strike Expert Reports in "MacQueen"
--------------------------------------------------------------
Judge Christopher J. Burke of the United States District Court
for the District of Delaware denied Crane Company's Motion to
strike Plaintiff Marguerite MacQueen's expert reports proffered
in in the case styled Marguerite MacQueen, Individually and as
the Surviving Spouse of David MacQueen, Deceased, Plaintiff, v.
Union Carbide Corporation, et al., Defendants.
On March 28, 2013, Plaintiff Marguerite MacQueen filed her
Complaint in the Superior Court of Delaware, in and for New
Castle County, asserting state law causes of action based on her
husband David MacQueen's alleged exposure to asbestos and
asbestos-containing products while MacQueen was employed: (1) by
the United States Navy aboard the U.S.S. Randolph and the U.S.S.
Independence from 1956 to 1960; and (2) as a salesman by Union
Carbide Corporation from approximately 1963 to 1980. The matter
was later removed to the United States District Court for the
District Delaware, and proceeded as the instant consolidated
action.
Defendant Crane Company is the only remaining Defendant in this
case and the only remaining count of the operative Fourth Amended
Complaint is Count VII's allegation that Crane and others
conspired to suppress and misrepresent the hazards of exposure to
asbestos.
On April 21, 2017, the Court ordered that, pursuant to the terms
of the operative Scheduling Order, expert discovery on Plaintiffs
conspiracy claim against Crane would commence. Plaintiff then
served initial expert reports on the subject from: James R.
Bruce, M.D.; Barry I. Castleman, Sc.D.; and Captain Francis J.
Burger.
Crane filed the instant Motion on June 29, 2017, in which it
moves to strike these three expert reports, asserting that
Plaintiffs expert reports should be stricken on the ground that
they are "in violation of Federal Rules of Evidence 402 and 702
[because they] fail to set forth any opinions relevant to
Plaintiffs sole remaining claim against Crane Co."
Defendant argues that each of Dr. Bruce's, Dr. Castleman's, and
Captain Burger's proposed testimony, described in their expert
reports, are irrelevant to the remaining claim set out in Count
VII. The Court's understanding is that with Count VII, Plaintiff
is pursuing a claim of civil conspiracy under Delaware law.
Crane asserts that Dr. Bruce's expert report, should be struck
because "he does not opine that a conspiracy between Crane...
[and] any other entity... was a cause of MacQueen's lung cancer."
Plaintiff, however, argues that Dr. Bruce's report and opinion is
simply offered to show that MacQueen's lung cancer was caused, at
least in part, by exposure to asbestos. With regard to the
conspiracy claim, Plaintiff will have to establish damages
resulting from the actions of the parties to the conspiracy. It
is understandable to the Court that, as one brick in the wall of
such a showing, Plaintiff would first attempt to demonstrate that
MacQueen's lung cancer was caused by asbestos exposure (even if
Plaintiff would also need to offer additional evidence to show
that Crane was somehow a part of a conspiracy that, in some way,
caused such damage to occur). In light of this, the Court finds
Dr. Bruce's testimony to be relevant.
Crane argues that the Court should strike Dr. Castleman's
testimony, because in his affidavit, Dr. Castleman "sets forth no
opinion about Crane Co.'s knowledge, much less about Crane Co.'s
alleged involvement in a conspiracy... to suppress or
misrepresent the hazards of asbestos." Plaintiff responds that
Dr. Castleman's intended testimony is relevant because it will go
to the issue of "what Crane Co. knew regarding the hazards of
asbestos at the relevant time while engaging in a conspiracy."
Plaintiff is alleging that as part of the conspiracy in question,
Crane and/or its co-conspirators engaged in an unlawful act --
the tort of intentional misrepresentation. To the extent that
Crane, in engaging in that tort, is alleged to have acted with
scienter to misrepresent facts regarding asbestos, then what
Crane knew about asbestos and its harms (and when they knew it)
seems relevant to Count VII. Dr. Castleman is expected to provide
some expert testimony as to Crane's knowledge in this regard. And
so the Court concludes that his proffered testimony seems to
"fit" with an issue in the case.
Crane notes that the Court has previously reviewed Captain
Burger's proposed testimony, in issuing its February 8, 2017
Report and Recommendation granting-in-part Crane's motion for
summary judgment on product identification and nexus grounds.
Crane argues that Captain Burger's testimony should be struck
because he "offers no opinions about any alleged conspiracy
between Crane Co. and any other entities." Plaintiff responds by
noting that "while the Court found that Captain Burger's
affidavit was not sufficient to establish genuine issues of
material fact relative to the issue of MacQueen's exposures to
asbestos-containing products and equipment of... Crane" that does
not mean that "Captain Burger's expertise could not be
contributory... in establishing general asbestos exposure
causation for... MacQueen's fatal lung cancer."
At this stage, however, the Court cannot say, that Captain
Burger's proposed testimony is absolutely irrelevant to any
issues relating to Count VII. As the Court noted in its February
8, 2017 Report and Recommendation, Captain Burger's testimony may
be helpful to Plaintiff (at least as a fact witness) in
establishing that there were asbestos-containing products on the
two ships on which MacQueen worked. And on the limited record
here, it is unclear whether Captain Burger's expert opinion
(offered in conjunction with other evidence Plaintiff might
present) might have some other relevance to the issue of general
causation/damages.
A full-text copy of the Memorandum Order dated March 14, 2018, is
available at https://tinyurl.com/y995atur from Leagle.com.
Marguerite MacQueen, Individually and as the Surviving Spouse of
David MacQueen, deceased, Plaintiff, represented by Thomas C.
Crumplar -- tom@jcdelaw.com -- Jacobs & Crumplar, P.A., Elizabeth
Barnes Lewis -- liz@jcdelaw.com -- Jacobs & Crumplar, P.A. &
Raeann Warner -- raeann@jcdelaw.com -- Jacobs & Crumplar, P.A..
Marguerite MacQueen, Plaintiff, pro se.
Crane Co., Defendant, represented by Nicholas E. Skiles --
nskiles@swartzcampbell.com -- Swartz Campbell LLC, Allison L.
Texter -- atexter@swartzcampbell.com -- Swartz Campbell LLC &
Shawn Edward Martyniak.
Warren Pumps LLC, Defendant, represented by Jessica Lee Tyler --
JLTyler@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin.
Crane Co., Cross Defendant, represented by Nicholas E. Skiles --
nskiles@swartzcampbell.com -- Swartz Campbell LLC, Allison L.
Texter -- atexter@swartzcampbell.com -- Swartz Campbell LLC &
Shawn Edward Martyniak .
Marguerite MacQueen, Individually and as the Surviving Spouse of
David MacQueen, deceased, Cross Defendant, represented by Thomas
C. Crumplar -- tom@jcdelaw.com -- Jacobs & Crumplar, P.A. &
Raeann Warner -- raeann@jcdelaw.com -- Jacobs & Crumplar, P.A.
Warren Pumps LLC, Cross Claimant, represented by Jessica Lee
Tyler -- JLTyler@mdwcg.com -- Marshall, Dennehey, Warner,
Coleman & Goggin.
Warren Pumps LLC, Cross Defendant, represented by Jessica Lee
Tyler -- JLTyler@mdwcg.com -- Marshall, Dennehey, Warner,
Coleman & Goggin.
ASBESTOS UPDATE: Zurich to Pay Polar-Mohr Settlement in "Huwe"
--------------------------------------------------------------
Plaintiff Polar-Mohr Maschinenvertriebsgesellschaft GMBH, Co. KG
brings an action against defendant Zurich American Insurance Co.
in the case entitled Polar-Mohr Maschinenvertriebsgesellschaft
GMBH, Co. KG, Plaintiff, v. Zurich American Insurance Company,
Defendant, Case No. 17-cv-01804-WHO, (N.D. Cal.).
Polar-Mohr asks the Court to determine whether Zurich's insurance
policy required it to pay the entire amount of the settlement of
a wrongful death case or simply a pro rata share. The Parties
dispute whether it matters if the Court apply California or New
York law to answer that question.
Judge William H. Orrick of the U.S. District Court for the
Northern District of California concludes that, applying either
state's laws, Zurich is obligated to pay all sums due, and that
Zurich must also pay the defense costs incurred by Polar-Mohr
plus interest at 7% on the amounts paid in Euros, not dollars.
On December 10, 2014, Roger and Oliver Huwe filed a lawsuit
against a number of defendants, including Polar-Mohr, in the
Superior Court of California, County of San Francisco, alleging
that their father, Walter Huwe, had died from mesothelioma due to
exposure to asbestos and/or asbestos-containing products from
1964 to 1999 during his employment as a service technician for
Polar-Mohr machines. Polar-Mohr tendered the Huwe lawsuit to
Zurich in October 2015. Zurich had a copy of the primary policy
covering Polar-Mohr by December 2015. And by April 2016, Zurich
was certain that the Huwe lawsuit encompassed claims triggering
the additional insured endorsements due to Polar-Mohr's sales of
cutters to Heidelberg Eastern and Gane Brothers. In February
2017, six weeks before trial, Zurich agreed to defend Polar-Mohr.
Zurich issued a policy to Heidelberg Eastern with effective dates
of July 1, 1984 to July 1, 1985, providing "Completed Operations
and Products Liability Insurance." The policy provides $1 million
in limits for bodily injury claims. Zurich agreed to "pay on
behalf of the insured all sums which the insured will become
legally obligated to pay as damages" that are a result of "bodily
injury. . . caused by an occurrence." Zurich also owes the
policyholder a duty to defend, with defense costs covered in
addition to the policy's limits.
Zurich argues that, applying California's choice of law rules,
New York law applies to the allocation of the settlement payment
in the Huwe lawsuit, and that under New York law the "pro rata"
method of allocation applies to the settlement amount. Zurich
argues that the definition of "bodily injury" in the policy
necessitates pro rata allocation because, by this express
language, Zurich is only responsible for liabilities arising out
of bodily injuries that occurred during the policy period.
Polar-Mohr responds that because the definition of "bodily
injury" acknowledges the policy's continuing coverage for bodily
injury claims, it is inconsistent with pro rata allocation.
Polar-Mohr also claims that the policy's "other insurance" clause
is inconsistent with pro rata allocation, mandating the use of
"all sums" allocation. Polar-Mohr also claims that the
application of either New York or California law garners the same
results that the "all sums" method of allocation applies.
The Court finds that there is no conflict of law between New York
and California regarding allocation, and that the laws are
identical. Given this lack of conflict, the Court can consider
both in determining the appropriate method of allocation. The
Court explains that although some states have concluded that "pro
rata coverage would be more fair and equitable when compared to
all sums allocation," the Court is constrained by the language of
the applicable policies.
The Court finds that the Zurich policy defines "bodily injury" as
"bodily injury, sickness or disease sustained by any person that
occurs during the policy period, including death at any time
resulting therefrom," which contemplates and promises
indemnification to damages that arise outside of the policy
period. Accordingly, the Court concludes that Zurich's promise to
pay necessitates "all sums" allocation.
Zurich concedes that it breached its duty to defend Polar-Mohr.
The Court is not persuaded by Zurich's argument that where an
insurer has breached its duty to defend, the insured still
carries the burden of proving by a preponderance of the evidence
the existence, amount, reasonableness, and necessity of defense
costs.
In cases where the insurer has breached its duty to defend,
although the insured carries the burden of proving the existence
and amount of defense costs -- which are presumed to be
reasonable and necessary, the Court explains that the insurer
must carry the burden of proving that the costs are "in fact
unreasonable or unnecessary." This means that Polar-Mohr's costs
are presumptively reasonable and necessary, and Zurich must put
forth evidence that demonstrates that they are not reasonable or
necessary.
Zurich fails to carry its burden as it offers no evidence of the
reasonableness or necessity of the defense costs. Instead, Zurich
objects to invoices provided by Polar-Mohr that contain German
entries with no authenticated translation. The Court finds
Zurich's objection absurd, considering that it has been in
possession of the invoices since October 2017 and could easily
have had the invoices translated.
Polar-Mohr's burden is to prove the existence and amount of the
defense costs. Even without an authenticated translation, the
invoices, as provided, allow Polar-Mohr to carry this burden.
Given that Polar-Mohr has provided (unauthenticated) translations
to Zurich, the Court finds the (unauthenticated) translations
sufficient to allow Zurich to pursue evidence establishing (if it
could) that the costs were unreasonable or unnecessary.
Zurich also argues that its duty to defend was not triggered
until April 2016, when it received documentation that Heidelberg
Eastern was the exclusive distributor of Polar-Mohr cutters from
1971-1990, thus triggering endorsement number 2 in the primary
policy.
The Court points out that the duty to defend is triggered when
the insured "shows that the underlying claim may fall within
policy coverage; the insurer must prove that it cannot." At the
time of tender in October 2015, Zurich possessed information that
Walter Huwe was exposed to asbestos in equipment sold by Polar-
Mohr, who was an additional insured for sales to Heidelberg
Eastern and Gane Brothers & Lane during the policy period. Given
that "any doubt as to whether the facts establish the existence
of the defense duty must be resolved in the insured's favor," the
Court finds these facts alone demonstrate the possibility that
the Zurich policy covered the liability arising from Walter
Huwe's injury, which are sufficient to trigger Zurich's duty to
defend.
Because Zurich has failed to provide any evidence that the
defense costs are unreasonable or unnecessary and its duty to
defend was triggered at the time of tender, the Court concludes
that Polar-Mohr is entitled to summary judgment.
Zurich contends that it is not necessary to reimburse Polar-Mohr
in Euros given that the attorneys' rates in U.S. dollars can
easily be applied. Further, Zurich points out that the invoices
for the attorneys based in the United States show billing rates
in U.S. dollars. The invoices upon which all of Polar-Mohr's
claims are based were invoiced and paid in Euros. As such, any
reimbursement of these invoices should also be paid in Euros.
Polar-Mohr claims that Zurich owes 7% prejudgment interest on all
amounts paid and that it is entitled to be paid in Euros as
opposed to U.S. dollars.
The Court determines that Zurich's defense obligation was
triggered at the time of tender, and Zurich has presented no
evidence to rebut the presumption of reasonableness and
necessity. The Court notes that in California, for contracts
entered prior to January 1, 1986, the prejudgment interest rate
is 7%. The Court says that the amount of the debt is the same
whether expressed in dollars or Euros. Hence, Polar-Mohr's breach
of contract claim, judgment will be entered for the sum of
2,246,186 Euros (US $2,515,001) to be paid in Euros.
A full-text copy of the Order dated March 15, 2018, is available
at https://tinyurl.com/y7lyrc6d from Leagle.com.
Polar-Mohr Maschinenvertriebsgesellschaft GMBH, CO. KG,
Plaintiff, represented by Dennis M. Cusack --dcusack@fbm.com --
Farella Braun & Martel LLP & Nathan Pedrini Anderson --
nanderson@fbm.com -- Farella Braun Martel, LLP.
Zurich American Insurance Company, Defendant, represented by
Randy Mark Marmor -- rmarmor@spcclaw.com -- Sinnott Puebla
Campaign & Curet, APLC & Blaise S. Curet -- bcuret@spcclaw.com --
Sinnott Puebla Campagne & Curet, APLC.
ASBESTOS UPDATE: Humana ERISA Claims Not Subject to Dismissal
-------------------------------------------------------------
Judge Sim Lake of the U.S. District Court for the Southern
District of Texas, denies dismissal of the case styled Humana,
Inc.; United Healthcare Services, Inc.; and Aetna Inc.,
Plaintiffs, v. Shrader & Associates, LLP, Defendant, Civil Action
No. G-16-0354, (S.D. Tex.), and required the Parties to advise
the Court whether they now have all the information needed to
fully address the indispensable-parties issue.
Plaintiffs, Humana, Inc., United Healthcare Services, Inc., and
Aetna Inc., bring suit against defendant Shrader & Associates,
LLP, alleging that they are "all non-governmental insurers,
sponsors, and administrators of health benefit plans, under which
they provide or have provided health benefits to treat injuries,
including Asbestos Injuries, suffered by Plan Members," including
at least fifteen Matched Claimants who are or have been
represented by Shrader. Plaintiffs allege that all of the Matched
Claimants received healthcare coverage from one or more of their
ERISA or Medicare Advantage ("MA") plans, the Health Plans paid
to treat the Matched Claimants' asbestos-related medical
conditions, and that plan documents and/or federal law obligate
Shrader and the Matched Claimants to compensate the Health Plans
from settlement funds held by Shrader.
Plaintiffs seek all available relief, including equitable relief
under Section 502(a)(3) of the Employee Retirement ncome
Security Act ("ERISA") and as Medicare Advantage Plan providers,
as defined in the Balanced Budget Act of 1997, the Medicare
Prescription Drug Improvement and Modernization Act of 2003, as
well as the federal regulations promulgated under those laws.
Shrader argues that Plaintiffs' Amended Complaint should be
dismissed for lack of subject matter jurisdiction because: (i)
their claims implicate recoveries from asbestos bankruptcy trusts
and are thus within the exclusive jurisdiction of the courts
establishing the trusts, and (ii) any claims the Insurers assert
based on the Federal Employees Health Benefits Act (FEHBA) plans
sound in state law, and the Court lacks any basis for
supplemental jurisdiction over them.
Plaintiffs respond that they are not asserting FEHBA-related
claims, and that the relationship of their claims to asbestos
bankruptcy trusts does not deprive the Court of jurisdiction
because they seek reimbursement from any asbestos-related
recoveries held by Shrader on behalf of its clients, both
identified and as-yet unidentified -- including recoveries made
from asbestos trusts, as well as recoveries from settlements or
judgments against solvent asbestos defendants in litigation, and
recoveries from any other sources.
Plaintiffs argue that the Court has subject matter jurisdiction
because to the extent that their claims relate to recoveries from
asbestos trusts, they do not involve the validity, application,
construction, or modification of any injunction issued in
connection with the creation of an asbestos trust,16 and that
"any 524(g) Injunctions that were implemented in connection with
creation of the Asbestos Trusts that have paid or will pay
Asbestos Recoveries to Shrader on behalf of its clients have no
bearing on this action."
Plaintiffs argue that Section 524(g) does not deprive the court
of jurisdiction because the funds that they seek "have in fact
already been paid, and are now in Shrader's possession, putting
them outside of the scope of Section 524(g)," and because the
claims asserted in this action "arise out of Shrader's
independent, direct obligation to properly handle the funds
once... received... from any asbestos trust."
Shrader responds that Section 524(g) injunctions enjoin entities
from taking legal action to receive payment out of the funds
Section 524(g)(1)(B) identifies (i.e., funds to be paid by
asbestos trusts). Shrader also replies that the Court lacks
jurisdiction over Plaintiffs' claims because "this proceeding
thus involves at least the application or construction of an
injunction 'enjoining entities from taking legal action for the
purpose of directly or indirectly, receiving payment... with
respect to any claim or demand... to be paid' by an asbestos
trust."
Under Section 524(g), a debtor's reorganization centers around a
statutorily-created trust, the purpose of which is to preserve
and facilitate the resolution of current asbestos claims, while
simultaneously relieving the insolvent debtor from the
uncertainty associated with impending future asbestos litigation.
Such trusts are funded by the reorganized debtor's assets, stock,
insurance, and funds from contributions and settlements with
third parties. The trust assumes the debtor's liabilities, which
in turn gives the debtor the opportunity to restructure itself as
an economically-viable entity unencumbered by present and future
asbestos-related liabilities. In exchange for funding the trust,
the debtor, its predecessors, successors in interest, and
affiliates receive broad protection from asbestos-related claims.
Once an asbestos trust is formed and an injunction put in place,
the injunction requires -- or "channels" -- all asbestos
claimants to pursue any remedies that they may have against the
trust so that such claims can be resolved in accordance with the
debtor's plan of reorganization. Channeling asbestos-related
claims to a personal injury trust relieves the debtor of the
uncertainty of future asbestos liabilities.
Plaintiffs premise Shrader's liability on contractual agreements
and statutory requirements of ERISA and MA health benefit plans
that they allege provided asbestos related health care to
Shrader's clients who have made claims and received payments from
asbestos trusts. Shrader argues that since the Plaintiffs only
seek recovery from funds that asbestos trusts have already paid
to claimants, Plaintiffs' claims cannot be enjoined and channeled
to the trusts under Section 524 (g).
Because the funds from which Plaintiffs seek recovery are funds
that have passed out of an asbestos trust in payment of claims
made against the trust, the Court concludes that the claims
asserted in this action are not subject to dismissal either
because they implicate recoveries from asbestos trusts that are
within the exclusive jurisdiction of the courts establishing the
trusts or because Section 524(g) deprives the Court of
jurisdiction.
Shrader also argues that Plaintiffs' Amended Complaint is a
"shotgun pleading" that violates Rule 10(b) because Plaintiffs
impermissibly group together claims by three unrelated Insurers
premised on unrelated transactions: fifteen non-parties'
purported breaches of unidentified reimbursement provisions in
separate ERISA, Medicare Advantage, or FEHBA plans. Shrader also
argues that the Plaintiffs fail to identify any of the Matched
Claimants or the type of plan under which they were insured.
Instead, the Insurers nebulously contend that they assert ERISA
claims based on each Matched Claimant that received benefits
under an ERISA Plan or MSP Act claims based on Matched Claimants
[that] received health benefits under Medicare Advantage Plans.
Without allegations specifying the type of plan associated with
each Matched Claimant, Shrader claims that it would be impossible
to determine which claims the Insurers are asserting based on
which Matched Claimant.
Plaintiffs respond that each of them provided medical benefits to
the Matched Claimants under a plan that provides a right of
reimbursement and alleged that the MA plans have a private right
of action pursuant to the MSP Act. Moreover, the Health Plans
have continuously represented to the Court and Shrader that upon
entry of a protective order, they will produce detailed
information proving these allegations. Asserting that Shrader is
well aware that producing Matched Claimants' confidential
information about their identities, the type of health benefit
plan under which they received benefits, and the type of benefits
they received would violate the Health Insurance Portability and
Accountability Act ("HIPAA"), and that Shrader refused to agree
to a protective order, Plaintiffs argue that Shrader is able to
claim that the Health Plans' complaint is a shotgun pleading only
because it refuses to sign a protective order that would allow
the Health Plans to produce information eviscerating that claim.
The Court does not find Plaintiffs' Amended Complaint to
constitute an instance of "shotgun pleading." The Court finds
Plaintiffs' Amended Complaint clearly presents the facts and
allegations as related to Shrader's actions and then provides a
short and plain statement of the Plaintiffs' entitlement to
relief. The Court also notes that Shrader has been able to take
issue with the particularity of the Plaintiffs' factual
allegations, but fails to argue either that factual particularity
is required to allege the claims asserted in this action, or that
Plaintiffs have failed to articulate their claims with sufficient
clarity for Shrader to frame a responsive pleading.
Shrader argues that Plaintiffs' ERISA claims are subject to
dismissal because the Plaintiffs' "complaint contains no
allegations identifying each ERISA plan under which they sue, the
plan fiduciary, the beneficiaries of those plans, the intended
benefits, the source of financing, the procedures for receiving
benefits, or the particular provision of each ERISA plan [that
they] seek to enforce."
The Plaintiffs' Amended Complaint allege "that the Health Plans
all administer health benefit plans governed by ERISA ("ERISA
Plans"); that each Matched Claimant that received benefits under
an ERISA Plan for treatment of his Asbestos Injuries was, at the
time of treatment a participant in an ERISA Plan; and . . . each
Matched Claimant was a beneficiary of an ERISA Plan . . . " The
Court finds these allegations factually sufficient to allege the
existence of ERISA plans and plan terms that the Plaintiffs seek
to enforce.
The Court notes that although the Plaintiffs' Amended Complaint
does not contain the word "fiduciary," their allegations that
"the Health Plans all administer health benefit plans governed by
ERISA," sufficiently alleges that they are fiduciaries of the
ERISA Plans because an ERISA fiduciary "must be someone acting in
the capacity of manager or administrator." Determination of ERISA
fiduciary status is a fact intensive inquiry which involved
motions for summary judgment not a motion to dismiss.
Under ERISA Plans, "the Health Plans have paid medical expenses
on behalf of Matched Claimants related to treatment of Asbestos
Injuries, and that health benefit plans offered or administered
by the Health Plans provide the Health Plans a contractual right
to reimbursement equal to the total amount paid by them for
treatment of their Plan Members', including Matched Claimants',
Asbestos Injuries..."
The Medicare Act allows Medicare enrollees to obtain Medicare
benefits through private insurers called Medicare Advantage
Organizations ("MAOs") operating Medicare Advantage Plans
("MAPs") instead of obtaining those benefits directly from the
government. It also provides that the Center for Medicare and
Medicaid Services ("CMS") "pays an MAO a fixed amount for each
enrollee, per capita, and "the MAO then administers Medicare
benefits for those enrollees and assumes the risk associated with
insuring them."
Count II of Plaintiffs' Amended Complaint asserts claims on
behalf of plaintiff MAOs pursuant to the Medicare Secondary Payer
("MSP") provisions of the Medicare Act, and regulations
promulgated thereto by CMS alleging that Shrader is required to
reimburse the Health Plans for outstanding conditional Medicare
payments (plus interest) out of Asbestos Recoveries up to the
amount of all payments made on behalf of Matched Claimants under
Medicare Advantage Plans. Shrader, however, has refused and
continues to refuse to reimburse the Health Plans from the
Asbestos Recoveries. Therefore, Shrader, itself, is liable to the
Health Plans.
The Court concludes that the claims asserted in this action do
not involve the validity, application, construction, or
modification of any injunction issued in connection with the
creation of an asbestos trust, and that any 524(g) channeling
injunctions implemented in connection with an asbestos trust that
has paid or will pay asbestos recoveries to Shrader on behalf of
its clients have no bearing on this action. The Court explains
that since Plaintiffs seek recovery from funds that have been
paid by the trusts for claims made by Shrader on behalf of its
clients, the funds at issue have passed from the trusts and out
of the jurisdiction of the courts that issued Section 524(g)
injunctions.
Shrader argues that the asbestos trusts are not "primary plans"
as defined by the MSP provisions because they are neither a
"liability insurance policy" nor "an entity that engages in a
business, trade, or profession," but are instead judicial
creations of the Bankruptcy Code that pay claims on the terms
specified in a bankruptcy reorganization or liquidation plan.
Accordingly, even if the tortfeasors that caused the Matched
Claimants' asbestos injuries or their liability insurers were
primary plans, the Section 524(g) trusts created in connection
with the tortfeasors' applications for bankruptcy protection are
not. Accordingly, payments from those trusts cannot support
liability under the MSP Act.
Plaintiffs argue that even if Shrader is correct that Asbestos
Trusts fall outside of the statutory and regulatory definition of
primary plan, the entities that funded Asbestos Trusts -- all
bankrupt, self-insured plans or their liability insurers --
comfortably fall within that definition. These primary plans have
in turn funded the Asbestos Trusts, whose sole purpose is to
serve as primary payers making primary payments within the
meaning of the Secondary Payer Act's regulations.
The Act defined a primary plan to include a self-insured plan,
but at that time the Act gave no guidance as to what constituted
a self-insured plan. In December 2003, as part of the Medicare
Modernization Act, Congress amended the Medicare Secondary Payer
Act to accommodate Medicare's failed litigation position and
expressly defined a self-insured plan as "an entity that engages
in a business, trade, or profession... if it carries its own risk
(whether by a failure to obtain insurance, or otherwise) in whole
or in part." This amendment reflected Congress' clear intention
to make tortfeasors liable under the Act.
The Court concludes that pursuant to the 2003 amendments to the
MSP provisions, asbestos trusts can constitute primary plans
under the MSP, and the settlements paid by asbestos trusts to
Shrader on behalf of Shrader's clients can be a source of
reimbursement under the MSP. Accordingly, Plaintiffs' MSP claims
against Shrader are not subject to dismissal because asbestos
trusts are not "primary plans" as defined by the MSP provisions.
The Court is not persuaded that Plaintiffs have failed to allege
facts capable of establishing that a "primary plan" failed to
make a required payment in accordance with the requirements of
the MSP provisions. Plaintiffs have alleged that (1) their MAOs
paid medical expenses to treat asbestos-related injuries of
Matched Claimants, (2) the MAOs had no reason to believe that a
primary payment would be forthcoming when they paid those medical
expenses, (3) the Matched Claimants made claims through the tort
system and to asbestos trusts that were resolved and paid to
Shrader upon proof of certain asbestos-related diagnoses and in
exchange for signed releases, (4) Shrader has refused to
reimburse the MAOs from the asbestos recoveries, and (5) on
information and belief those funds are currently in Shrader's
possession and rightly belong to the MAOs. The Court concludes
that the Plaintiffs have sufficiently alleged that a "primary
plan" failed to make a required payment.
Shrader also argues that this action should be dismissed because
Plaintiffs failed to join required and indispensable parties over
whom the court lacks personal jurisdiction, i.e., the Matched
Claimants whose asbestos injury recoveries the Plaintiffs seek.
Shrader argues that the Matched Claimants are necessary parties
because (1) the Matched Claimants have an interest in the subject
matter of the Plaintiffs' action, i.e., the recoveries that the
Matched Claimants have obtained for their asbestos injuries, and
(2) proceeding without the Matched Claimants would impair the
Matched Claimants' ability to protect their interests in their
asbestos recoveries and would subject Shrader to substantial risk
of incurring inconsistent obligations, i.e., that the Matched
Claimants would demand from Shrader the same funds that
Plaintiffs are demanding. Shrader argues that the Matched
Claimants are required parties and that ordering their joinder is
not feasible because many of them are not subject to personal
jurisdiction in Texas.
The ERISA Plans are seeking a constructive trust over any
Asbestos Recoveries that remain in Shrader's possession, custody,
or control, and an injunction to prevent the further distribution
of those amounts and any amounts that may come into Shrader's
possession while this action is pending. Shrader possesses the
res of this constructive trust, and the Court has the authority
to enter an order prohibiting Shrader from dissipating those
funds until the Health Plans' rights are resolved. Case law also
makes clear that the ERISA plans can recover directly from
Shrader.
Shrader ignores its direct liability under the Secondary Payer
Act (to the MA plans). Rather, it bases its entire argument upon
that portion of the ERISA plans' claims seeking to enforce their
rights against the constructive trust. To the extent that such
recovery is sought from settlements that Shrader has already
disbursed (although it surely retains at least a portion, namely
the percentage it kept as a fee), the client has no current,
direct interest in those funds. To the extent that such recovery
is sought from current settlement proceeds actually (or soon to
be) in Shrader's possession, the Court can consider whether the
Matched Claimants covered by ERISA plans have an interest in
those funds sufficient to warrant their inclusion in this
litigation.
While Plaintiffs correctly argue that to the extent the
Plaintiffs are only seeking the percentage of a recovery that
Shrader kept as a fee for proceeds that have already been
disbursed, Shrader's clients have no current, direct interest in
the funds they seek, the Plaintiffs' claims are not limited to
funds that Shrader kept as a fee. In response to Shrader's motion
to dismiss, Plaintiffs candidly acknowledge that the ERISA Plans
are seeking a constructive trust over any Asbestos Recoveries
that remain in Shrader's possession, custody, or control, and an
injunction to prevent the further distribution of those amounts
and any amounts that may come into Shrader's possession while
this action is pending.
Plaintiffs also acknowledge that "to the extent that such
recovery is sought from 'current' settlement proceeds actually
(or soon to be) in Shrader's possession, the Court can consider
whether the Matched Claimants covered by ERISA plans have an
interest in those funds sufficient to warrant their inclusion in
this litigation." But Plaintiffs have not provided the Court
either allegations of fact or evidence from which the Court can
decide such an issue. Nor have Plaintiffs cited any case in which
an ERISA plan fiduciary seeking reimbursement for medical
benefits provided to a plan member brought an action seeking
imposition of a constructive trust on settlement proceeds without
naming the plan member who received the medical benefits as a
defendant.
Because neither the Plaintiffs' Amended Complaint nor the
Plaintiffs' Response to Shrader's motion provide the court
information sufficient to distinguish the Matched Claimants that
have no current interest in settlement proceeds in Shrader's
possession from those that do, the Court is forced to conclude
that the Plaintiffs' seek funds that belong not only to Shrader
but also to the Matched Claimants. Because the Matched Claimants
claim an interest in the subject matter of the Plaintiffs'
action, i.e., the recoveries that Shrader has obtained for their
asbestos injuries, the Court concludes that the Matched Claimants
are required and that proceeding without them would not only
impair the Matched Claimants' ability to protect their interests
in their asbestos recoveries, but also would subject Shrader to
substantial risk of incurring inconsistent obligations, i.e.,
that the Matched Claimants would demand from Shrader the same
funds that Plaintiffs are demanding.
Accordingly, the Court must determine whether joining them is
feasible. Shrader argues that "joining the Matched Claimants is
not feasible because many of [them] are not subject to personal
jurisdiction in Texas." Shrader explains that approximately half
of the Matched Claimants identified by the [plaintiffs] in their
Original Complaint are residents of other states, and all of them
filed their personal injury lawsuits related to asbestos exposure
in Illinois [, and plaintiffs'] alleged injuries do not arise out
of any contacts between the Matched Claimants and Texas. Lack of
personal jurisdiction is one reason joinder may not be feasible.
Even though ERISA provides a statutory grant of jurisdiction
allowing nationwide service of process, the Court is unable to
conclude that joinder of all the Matched Claimants would be
feasible because Plaintiffs have not identified which of the
Matched Claimants allegedly owe reimbursements to ERISA plans and
which owe reimbursements to Medicare Advantage Plans. Nor have
Plaintiffs identified which Matched Claimants reside in Texas and
which reside elsewhere, or cited any case holding that an out-of-
state resident's retention of a Texas law firm to provide
representation in out-of-state litigation provides a sufficient
basis for this court to assert personal jurisdiction.
Because the Plaintiffs' allegations demonstrate that all of the
Matched Claimants are required parties, but provide no basis for
the court to determine whether joinder of all the Matched
Claimants is feasible, the Court concludes that the current
record is insufficient to determine which, if any, of the Matched
Claimants are indispensable parties. Accordingly, Shrader's
Motion to Dismiss for failure to join indispensable parties will
be denied without prejudice to being reurged once Plaintiffs have
identified: (1) the Matched Claimants and their states of
residence, (2) the plans pursuant to which each Matched Claimant
allegedly owes reimbursement, (3) the terms of those plans that
entitle Plaintiffs to reimbursement, and (4) as to each Matched
Claimant, the extent to which Plaintiffs seek recovery from
current settlement proceeds actually or soon to be in Shrader's
possession, and the extent to which Plaintiffs seek recovery only
from those portions of settlement proceeds that Shrader has
withheld for its fees.
Shrader argues that "joinder of plaintiffs is inappropriate in
this action because Plaintiffs' claims do not share common
questions of law or fact and do not arise out of the same
transaction or occurrence." Shrader argues that the Plaintiffs'
claims do not share common issues of law or fact because each
plaintiff brings different claims against Shrader -- those claims
are premised on different health benefit plans (i.e., different
ERISA plans, different Medicare Advantage plans), between
different parties, containing different language. Shrader argues
that severance is warranted for the additional reasons that
joinder of Plaintiffs would unduly prejudice it and its clients
and would not facilitate judicial economy.
Because Plaintiffs' Amended Complaint does not contain facts that
allow the Court to determine whether the individual health plans
applicable to each Matched Claimant are, in fact, different and
contain different language. Accordingly, Shrader's motion to
sever will be denied without prejudice to being reurged once
plaintiffs have made the identifications of each Matched
Claimant.
A full-text copy of the Memorandum Opinion and Order dated March
16, 2018, is available at https://tinyurl.com/yd437anr from
Leagle.com.
Humana, Inc., United Healthcare Services, Inc. & Aetna Inc.,
Plaintiffs, represented by Abbie G. Sprague, Hicks Thomas LLP,
Gerald Lawrence -- glawrence@lowey.com -- Lowey Dannenberg Cohen
& Hart PC, Mark D. Fischer, Rawlings & Associates PLLC, Robert
Griffith, Rawlings & Associates PLLC & John Bryant Thomas, Hicks
Thomas LLP.
Shrader & Associates, LLP, Defendant, represented by Justin
McKenzie Waggoner, Smyser Kaplan et al.
ASBESTOS UPDATE: Union Pacific Must Produce Docs in "Fitzpatrick"
-----------------------------------------------------------------
The Court of Appeals of California for the First District has
ordered the issuance of a peremptory writ of mandate directing
respondent superior court to vacate and set aside the portion of
its March 17, 2017 orders for Union Pacific Railroad Company to
produce the challenged documents so that Dennis Fitzpatrick could
review them to prepare for his upcoming deposition, and to
conduct further proceedings in accordance with the opinion.
Dennis Fitzpatrick was a long-time employee of Union Pacific
Railroad Company's predecessor, Southern Pacific Railroad Company
(Southern Pacific). He held various roles, including electrician,
electrical foreman, mechanical scheduler, general foreman, and
quality control manager. From 1983 to 1993, he worked as a
"special analyst" in Southern Pacific's legal department, where
he helped with asbestos matters and asbestos litigation.
Shortly after his retirement, Fitzpatrick brought two lawsuits
against Southern Pacific: one for personal injuries based on his
hearing loss, and one for business interference based on Southern
Pacific's alleged attempts to prevent him from working as a
consultant on railroad injury cases. In 1995, Fitzpatrick settled
the lawsuits together for $75,000. In connection with the
settlement, he signed a general release of all known and unknown
claims, including claims arising out of any exposure to toxic
chemicals and fumes, except that the release excluded asbestos-
related claims.
In 2016, Fitzpatrick filed this lawsuit against Union Pacific,
alleging that he developed lymphoma as a result of being exposed
to asbestos and other toxic chemicals while working at Southern
Pacific. He alleged a cause of action under the Federal
Employers' Liability Act, 45 U.S.C. Section 51 et seq., as well
as state law causes of action for negligence and fraud. Union
Pacific answered, asserting the release signed by Fitzpatrick in
1995 as an affirmative defense. Union Pacific also brought a
cross-complaint against Fitzpatrick, alleging that he breached
the 1995 release by suing it.
During discovery, Fitzpatrick brought two motions to compel
disclosure of documents that Union Pacific withheld on the basis
of the attorney-client privilege and the work product doctrine.
The documents were listed in two privilege logs: the December
2016 log and the January 2017 log. The December 2016 log listed
documents relating to Union Pacific's contention that the 1995
release precluded Fitzpatrick's claims in this action.
Fitzpatrick wrote or received all of the documents at issue
during his work as a special analyst for Southern Pacific's legal
department. Fitzpatrick argued that the privilege did not apply
to these documents since he had seen them in the past.
Fitzpatrick also argued that Union Pacific waived any privilege
attached to these documents by arguing that the release precluded
Fitzpatrick's claims in this action.
Plaintiff Dennis Fitzpatrick sued Union Pacific Railroad Company
(Union Pacific), alleging that he suffered personal injuries
caused by exposure to asbestos and other toxic chemicals while
working for Union Pacific's predecessor. Fitzpatrick moved to
compel Union Pacific to produce documents that Fitzpatrick
authored or received when he worked as a legal consultant for its
predecessor company.
All of these documents, according to Union Pacific, are protected
from disclosure under the attorney-client privilege and work
product doctrine. However, Fitzpatrick took a slightly different
position with respect to the January 2017 log. That log listed
documents relating to alleged health and safety violations and
Union Pacific's remediation efforts. Fitzpatrick wrote or
received the majority of them while working at Southern Pacific.
As with the documents in the December 2016 log, Fitzpatrick
argued that many documents in the January 2017 log are not
privileged because he had already seen them. Fitzpatrick also
argued that the documents in the January 2017 log are not
privileged because the documents did not involve legal matters,
were sent to "non-essential" third parties, or were authored by
non-legal employees. For documents in both logs, Fitzpatrick
argued that even if the documents are privileged, he should be
allowed to review them in order to prepare his case.
In an apparent attempt to reach a middle ground, the trial court
declined to address whether the documents are privileged, and
instead ruled that they must be disclosed to Fitzpatrick for the
limited purpose of allowing him to review them prior to his
deposition, but not retain them. The court ordered that
Fitzpatrick could not copy the documents, and could not
disseminate the documents or information in them to anyone except
himself and his attorneys "for the sole purpose" of refreshing
his memory before his deposition. Fitzpatrick was also ordered to
return the documents to Union Pacific at the beginning of his
deposition.
Union Pacific petitioned for a writ of mandate, arguing that the
trial court could not order a limited production of the
documents.
The Court granted Union Pacific's request for a temporary stay of
the trial court's order and requested preliminary briefing.
Subsequently, Fitzpatrick filed a petition for writ of mandate
arguing the trial court should have addressed his arguments that
the challenged documents are not privileged. Upon finding that
the both petitions had merit, the Court issued an alternative
writ of mandate in response to Fitzpatrick's writ petition that
would have the effect of resolving his petition and Union
Pacific's petition.
Specifically, the Court directed the trial court that it must
consider Fitzpatrick's arguments regarding why the documents are
not privileged -- if the trial court determined that any of the
challenged documents are not privileged, and the documents are
otherwise discoverable, then the trial court should order Union
Pacific to produce them to Fitzpatrick. If, however, the trial
court determined that any of the challenged documents are
privileged, we said that the court could not order Union Pacific
to produce them to Fitzpatrick for any purpose.
But Fitzpatrick, dissatisfied with the additional guidance that
the Court provided, disagreed with the Court's conclusion that
the documents could not be produced for a limited purpose if they
are privileged. He convinced the trial court not to comply with
the alternative writ, thus placing the matter back to the Court
for plenary consideration.
Fitzpatrick asks the Court to make an exception to the general
rule of absolute protection that would allow him and his
attorneys to review the challenged documents in the event they
are found to be privileged. Specifically, as to the documents
that he authored or received, Fitzpatrick maintains that he
should have access to them to develop his case and to respond to
Union Pacific's affirmative defenses and cross-complaint.
The Court determines that Fitzpatrick's alleged injuries are not
related to his role as a legal consultant, but instead allegedly
arise from exposure to chemicals in other roles he held prior to
becoming a legal consultant. Fitzpatrick is also not seeking to
provide information already in his possession to his attorneys so
that they can help prepare his case. Instead, he wants access to
documents in Union Pacific's possession.
The Court notes that Fitzpatrick has not shown that he will have
the same problems of proof that an in-house attorney might have
in pursuing a wrongful termination claim, since his alleged
injuries are not connected to his legal consultant role.
Fitzpatrick claims that "Union Pacific gets to assert all manner
of claims about what happened at the Southern Pacific worksite,
but then shield the evidence supporting (or not supporting) those
claims behind assertions of 'privilege.'" But if Union Pacific is
putting privileged information at issue to defend itself and
support its defenses, Fitzpatrick already has a remedy: he can
argue Union Pacific has waived any privilege.
Fitzpatrick is not claiming that he needs to consult with his
attorneys about privileged information "to ensure the action can
be pursued without a dismissal -- and without disciplinary action
for improper disclosure of confidences." Rather, he wants access
to the documents to develop his case and to respond to Union
Pacific's affirmative defense and cross-complaint. The Court says
that fact that the information might be relevant does not, by
itself, give Fitzpatrick the right to the information. The
absolute character of the attorney-client privilege and of core
work product, must, in practice, be distinguished from the
qualified protection provided for non-core work product.
The Court recognizes that Fitzpatrick feels he needs access to
attorney-client information to prepare himself for deposition,
but if a showing of legitimate need were all that was required to
gain access to attorney-client privileged information and core
work product, the absolute confidentiality protection surrounding
that type of information would be no different in kind from the
protection for non-core work product.
The Court concludes that Fitzpatrick has not demonstrated he
should have even limited access to Union Pacific's privileged
documents. In the event the trial court determines that any of
the challenged documents are privileged, Union Pacific has no
obligation to disclose them to Fitzpatrick for any purpose. The
course Fitzpatrick must take, if he is eventually to see any of
the challenged documents, is to demonstrate that they are not in
fact privileged or not subject to core work product protection.
The appealed case is Dennis M. Fitzpatrick et al., Petitioners,
v. The Superior Court of Alameda County, Respondent; Union
Pacific Railroad Company, Real Party in Interest, No. A151122.
(Cal. Ct. App. 1st).
A full-text copy of the Opinion dated March 16, 2018, is
available at https://tinyurl.com/y7w3xog5 from Leagle.com.
ASBESTOS UPDATE: 5th Cir. Affirms Remand of "Legendre"
------------------------------------------------------
Judge Stephen A. Higginson of the United States Court of Appeals
for the Fifth Circuit affirms the order of the district court
remanding the case styled Stephen R. Legendre; Paul L. Legendre,
also known as Leroy Paul Legendre; Ragus J. Legendre; Percy J.
Legendre, Jr., Plaintiffs-Appellees, v. Huntington Ingalls,
Incorporated, formerly known as Northrop Grumman Shipbuilding,
Incorporated, formerly known as Northrop Grumman Ship Systems,
Incorporated, formerly known as Avondale Industries,
Incorporated, formerly known as Avondale Shipyards, Incorporated,
formerly known as Avondale Marine Ways, Incorporated, Defendant-
Appellant, No. 17-30371, (5th Cir.) for lack of "causal nexus" to
support federal jurisdiction.
In 2016, Mary Jane Wilde died of complications related to
mesothelioma. Wilde's father, Percy Legendre, worked at
Avondale's shipyard in the 1940s. His responsibilities included
working with asbestos insulation in the engine rooms of tugs
built for the United States government. The Legendre brothers,
Stephen, Paul, Ragus, and Percy, Jr., sued appellant Huntington
Ingalls, Inc. (Avondale) and other defendants in Louisiana state
court.
In their complaint, the Legendres alleged that the defendants
exposed their sister, Mary Jane Wilde, to asbestos and caused her
to die of mesothelioma. The Legendre brothers allege that
asbestos fibers clung to their father's clothing and body when he
returned home from work each day, and that Wilde was exposed to
these fibers at home, causing her disease and eventual death. The
Legendres further alleged that Avondale failed to warn its
employees of the risks of asbestos exposure and failed to
implement proper safety procedures for handling asbestos.
Avondale invoked the federal officer removal statute and removed
to the Eastern District of Louisiana. The Legendre brothers moved
to remand. Under Section 1442, an action "against or directed
to... any officer (or any person acting under that officer) of
the United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color of
such office" may be removed to federal court. To remove, a
defendant must show: "(1) that it is a person within the meaning
of the statute, (2) that it has 'a colorable federal defense,'
(3) that it 'acted pursuant to a federal officer's directions,'
and (4) 'that a causal nexus exists between [its] actions under
color of federal office and the plaintiff's claims.'" The
district court determined that Avondale could not meet the
"causal nexus" prong, and therefore did not reach the rest of the
test. Accordingly, the district court granted the motion, and
Avondale now appeals.
The Legendres provide unrebutted evidence that although the
government required Avondale to use asbestos in the construction
of the tugs, the government did nothing to restrict Avondale's
safety practices. The Legendres point to unchallenged evidence
that Avondale was free to adopt the safety measures the Legendres
allege would have prevented their sister's death.
Additionally, the Legendres' expert, a former Navy ship inspector
at Avondale, states that "government inspectors neither monitored
nor enforced safety regulations" at Avondale. Rather, "on the job
safety during the construction of vessels for the United States
government was the responsibility of Avondale Shipyards' safety
department." Another Navy inspector states in deposition that the
Navy was a customer "just like anybody else" and the purpose of
Navy inspections was to ensure that a particular job "was
completed and Avondale had done all the work."
Avondale does not attempt to rebut this evidence, or to show that
the government did in fact limit Avondale's authority to
implement safety measures. Avondale makes no showing that it was
not "free to adopt the safety measures the plaintiffs now allege
would have prevented their injuries." Accordingly, Avondale
cannot meet the causal nexus prong of the federal officer removal
standard and remand was proper.
The Fifth Circuit explains that to qualify for removal, an
officer of the federal courts must establish that the suit is for
an act under color of office. To satisfy this requirement, the
officer must show a nexus, a causal connection between the
charged conduct and asserted official authority." Thus, Avondale
must show a causal connection between the federal officer's
direction and the conduct challenged by the Legendres.
Accordingly, the Fifth Circuit affirms as correct the district
court's conclusion that Avondale has not made this showing.
A full-text copy of the Order dated March 16, 2018, is available
at https://tinyurl.com/yaznealn from Leagle.com.
John Maurice Futrell, for Defendant-Appellant.
Gary Allen Lee, for Defendant-Appellant.
Gerolyn Petit Roussel, for Plaintiff-Appellee.
Michael Kevin Powell, for Defendant-Appellant.
Jonathan Brett Clement, for Plaintiff-Appellee.
ASBESTOS UPDATE: Lead Attys Must Show Cause for Non-Appearance
--------------------------------------------------------------
The Hon. Jeffrey S. White of the U.S. District Court for the
Northern District of California has ordered Geoffrey M. Davis,
Esq. and Derek S. Johnson, Esq. to show cause why the Court
should not impose monetary sanctions in the amount of $250 on
them for their failure to comply with the Court's Order and
appear at the initial case management conference.
Pursuant to the Order Setting Case Management Conference, the
Court requires the parties to appear through lead counsel at the
initial case management conference. On March 16, 2018, the
parties appeared before Court for the initial case management
conference. Peter Soskin, Esq. appeared for Defendant Crane Co.,
and Katherine Gardiner, Esq. appeared on behalf of Defendants
General Electric Company and CBS Corporation. But neither Mr.
Soskin nor Ms. Gardiner is lead counsel for their clients.
The case is Ronald Brown, et al., Plaintiffs, v. General Electric
Company, et al., Defendants, Case No. 17-cv-07150-JSW, (N.D.
Cal.).
A full-text copy of the Order dated March 20, 2018, is available
at https://tinyurl.com/y9mmt4q7 from Leagle.com.
Ronald Brown, Plaintiff, represented by Kimberly Joy Wai Jun Chu,
Brayton Purcell LLP & David R. Donadio, Brayton Purcell LLP.
Dorenne Brown, Plaintiff, represented by David R. Donadio,
Brayton Purcell LLP.
General Electric Company & CBS Corporation, formerly known as,
Defendants, represented by Derek S. Johnson -- djohnson@wfbm.com
-- WFBM, LLP, Charles T. Sheldon -- csheldon@wfbm.com -- WFBM,
LLP, Emily Elizabeth Anselmo -- eanselmo@wfbm.com -- WFBM, LLP &
Katherine Paige Gardiner -- kgardiner@wfbm.com -- WFBM, LLP.
Crane Co., Defendant, represented by Geoffrey M. Davis --
Geoffrey.Davis@klgates.com -- K&L Gates LLP & Peter Edward Soskin
-- peter.soskin@klgates.com -- K&L Gates LLP.
ASBESTOS UPDATE: Claims vs. Warren Pumps Dismissed in "Johnson"
---------------------------------------------------------------
Judge Thomas S. Zilly of the U.S. District Court for the Western
District of Washington, having been advised by counsel for
Plaintiffs and Defendant Warren Pumps, LLC, that the dispute
between them has been resolved, dismissed Plaintiffs' claims
against defendant Warren Pumps, LLC, with prejudice and without
costs.
Accordingly, Warren Pumps' motion for summary judgment, and
motion in limine, as well as Plaintiffs' motion for summary
judgment as to defendant Warren Pumps' affirmative defenses, are
stricken as moot.
The case is Thomas A. Johnson and Barbara C. Johnson, Plaintiffs,
v. CBS Corporation, f/k/a Viacom, Inc., successor by merger to
CBS Corporation f/k/a Westinghouse Electric Corporation; General
Electric Company; and Warren Pumps, LLC, Defendants, No. C17-834
TSZ, (W.D. Wash.).
A full-text copy of the Order dated March 20, 2018, is available
at https://tinyurl.com/y7b48wdc from Leagle.com.
Thomas A. Johnson & Barbara C. Johnson, Husband and Wife,
Plaintiffs, represented by Kristin M. Houser -- houser@sgb-
law.com -- Schroeter Goldmark & Bender, Lucas W.H. Garrett --
garrett@sgb-law.com -- Schroeter Goldmark & Bender, Thomas J.
Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & Joseph A.
Campagna -- campagna@sgb-law.com -- Schroeter Goldmark & Bender.
CBS Corporation, successor by merger to CBS Corporation, formerly
known as Westinghouse Electric Corporation, Defendant,
represented by David A. Speziali, Speziali, Greenwald & Hawkins,
pro hac vice, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum
Keale LLP, William D. Harvard -- wdharvard@ewhlaw.com -- Evert
Weathersby Houff, pro hac vice & Christopher S. Marks --
cmarks@tktrial.com -- Tanenbaum Keale LLP.
General Electric Company, Defendant, represented by David A.
Speziali, Speziali, Greenwald & Hawkins, pro hac vice, Erin P.
Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP &
Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale
LLP.
ASBESTOS UPDATE: Superior Court to Set Trial in "Fox"
-----------------------------------------------------
The Court of Appeals of California for the First District has
ordered for the issuance of a peremptory writ of mandate,
directing the respondent superior court to vacate its December
20, 2017 order, and to grant a new order setting trial in the
appealed case Ardella Fox et al., Petitioners, v. The Superior
Court of the City and County of San Francisco, Respondent;
Metalclad Insulation LLC et al., Real Parties in Interest, No.
A153672, (Cal. Ct. App. 1d), within 120 days from March 20, 2018.
Petitioners Ardella and Robert Fox (the Foxes) filed this action
in February 2017, claiming that Ms. Fox, age 81, sustained
personal injuries as a result of her exposure to asbestos and
asbestos-containing products many years ago, from approximately
1954 through 1963. They named 18 parties as defendants.
Out of concern for Ms. Fox's declining health, the Foxes filed a
motion seeking preference on the trial calendar. The basis for
the claimed preference was that Ms. Fox now suffers from stage IV
lung cancer and various related ailments. Among the materials
supporting the preference motion was a declaration from the
Foxes' attorney, David Donadio, reporting not only has the cancer
metastasized to Ms. Fox's femur, clavicle, and spine, but she
also suffers from asbestosis, asbestos-related pleural disease,
severe coronary artery disease, and anemia.
To combat her cancer, Ms. Fox receives chemotherapy treatments
every three weeks. Apparently, she is "responding to current
chemotherapy and is in partial remission," but the side effects
have been severe. Donadio explained: "Ms. Fox currently suffers
from whole body aches and pain, severe abdominal and bowel
complications, nausea and vomiting, dehydration, drowsiness,
extreme weakness and fatigue. She also suffers from 'chemo brain'
or fogginess in thought process that impairs her ability to
focus, concentrate and effectively communicate. Her immune system
is extremely weak and impaired and will only continue to become
progressively weaker as she continues with chemotherapy treatment
which will result in worsening impairing side effects including
severe bowel and abdominal issues, severe weakness and fatigue,
poor appetite and difficulty walking and talking. This will
further impair Ms. Fox's stamina and ability to focus,
concentrate, and effectively communicate, making her less able to
fully participate in her trial."
As a result of these health problems, Donadio concluded: "for
[Ms. Fox] to effectively participate and assist in her trial, so
that her interests will not be prejudiced, it is imperative that
the trial be held as soon as possible." The Foxes submitted
medical records confirming Ms. Fox's medical diagnoses. Ms. Fox
also submitted her own declaration attesting to the fact that she
suffers from the diseases and chemotherapy side effects reported
by Donadio. In her declaration, she stated that she is currently
capable of effectively participating in her case, "but unless the
Court grants a preference in setting my case for trial this may
no longer be possible and I risk not being able to participate
effectively or indeed at all in my trial."
Only 2 of 18 defendants opposed the Foxes' motion for trial
preference -- Metalclad Insulation LLC (Metalclad) and Sequoia
Ventures, Inc. Following a brief law-and-motion hearing (at which
both Metalclad and Sequoia appeared, only Metalclad argued in
opposition to the Foxes' motion), the trial court denied the
motion, stating, in a form order provided by Metalclad, that the
Foxes "failed to demonstrate that the health of Ardella Fox is
such that preference is necessary to prevent prejudicing her
interest in the litigation."
Consequently, the Foxes seek for a writ of mandate compelling the
superior court to grant their motion for trial preference and set
a trial date within 120 days of the court's issuance of writ
relief. The Court requested opposition to the petition and
advised the parties a peremptory writ may be granted.
The Code of Civil Procedure Section 36, Subdivision (a), provides
that "a party to a civil action who is over 70 years of age may
petition the court for a preference, which the court will grant
if the court makes both of the following findings: (1) The party
has a substantial interest in the action as a whole; (2) The
health of the party is such that a preference is necessary to
prevent prejudicing the party's interest in the litigation."
Subdivision (d), by contrast, provides that, regardless of the
age of the party involved, "in its discretion, the court may...
grant a motion for preference that is accompanied by clear and
convincing medical documentation that concludes that one of the
parties suffers from an illness or condition raising substantial
medical doubt of survival of that party beyond six months, and
that satisfies the court that the interests of justice will be
served by granting the preference."
The Court notes that the trial court gave no reason for its
denial of the Foxes' motion for calendar preference, nor was it
required to do so, since the denial of a section 36 motion is
reviewable for abuse of discretion. The Court finds that the
record of this case strongly suggests that the trial court was
led astray by an incorrect statutory construction argument from
Metalclad that, in effect, conflated subdivisions (a) and (d).
The Court makes a distinction that the heightened clear and
convincing proof standard is required for motions seeking
discretionary grants of preference under subdivision (d), but not
for motions seeking mandatory preference under subdivision (a).
At oral argument, counsel for the Foxes highlighted the mistake,
Metalclad's counsel conceded error and said she "had no idea why
that was in" the opposition brief, but she nonetheless went on to
compound it by inviting the court to deny calendar preference
because the Foxes had not offered a physician's declaration
attesting to Ms. Fox's prognosis in more detail than Donadio's
declaration provided. To the contrary, the Court maintains that a
motion under subdivision (a) may be supported by nothing more
than an attorney's declaration "based upon information and belief
as to the medical diagnosis and prognosis of any party. The Court
explains that the standard under subdivision (a), unlike under
subdivision (d) -- which is more specific and more rigorous,
includes no requirement of a doctor's declaration.
The only remaining ground of opposition now pressed by Metalclad
is that an elder moving for preference under subdivision (a) must
show that "death or incapacity might deprive [her] of the
opportunity to have [her] case effectively tried." The Court
points out that Section 36, subdivision (a), says nothing about
"death or incapacity." Provided there is evidence that the party
involved is over 70, the Court says that all subdivision (a)
requires is a showing that that party's "health... is such that a
preference is necessary to prevent prejudicing [her] interest in
the litigation."
Metalclad purports to dispute the extent of Ms. Fox's health
problems and claims the trial court was entitled to assess the
"veracity" of her declarations. And in making that assessment,
the absence of more medical details, including some indication of
her "life expectancy," was relevant. If by way of opposition
Metalclad had submitted, say, a photograph of 81-year-old Ms. Fox
scuba-diving in the Galapagos Islands just last fall, there might
be some basis to expect more medical detail, but based on the
record, the Court finds no genuine dispute that Ms. Fox is very
sick.
It is uncontroverted she suffers from stage IV lung cancer and
severe coronary artery disease, among other ailments. The
evidence shows that while Ms. Fox is currently able to
participate in a trial, she has good reason for concern that will
not be the case for much longer as her health deteriorates. In
the face of this uncontroverted showing, the Court determines
that the denial of her preference on the trial calendar as an
error since the Court finds no basis for such ruling other than
the mistaken interpretation of section 36, subdivision (a) urged
by Metalclad.
In a final effort to stave off accelerated trial, Metalclad
argues that the writ relief is inappropriate because the trial
court denied the Foxes' motion for trial preference without
prejudice and, in any event, section 36 permits the Foxes to file
a new motion "at any time." As a result, Metalclad claims the
Foxes have not shown irreparable harm or that they lack an
adequate remedy at law, two prerequisites for writ relief.
While the Foxes' ability to file a new motion gives them a remedy
at law, the Court does not view that as adequate relief. Indeed,
the Foxes could try again by filing a new motion for trial
preference when Ms. Fox's condition worsens at some future time,
but that option may well provide cold comfort. The Court says
that the idea that Ms. Fox should be made to wait to file a
preference motion until she is clearly in her final days -- when
attendance at a trial is hardly what she should be doing -- makes
no sense at all. The Court determines that there is an unusual
urgency, requiring acceleration of the normal process in writ
proceedings.
A full-text copy of the Opinion is available at
https://tinyurl.com/yamyfgqt from Leagle.com.
Brayton Purcell, Alan R. Brayton, and Richard M. Grant for
Plaintiffs and Petitioners.
No appearance for Respondent.
Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US, Michelle
C. Jackson -- Michelle.Jackson@dentons.com -- Dentons US, and
Kathy M. Huynh -- Kathy.Huynh@dentons.com -- Dentons US for
Defendant and Real Party in Interest Metalclad Insulation LLC.
ASBESTOS UPDATE: Claims vs. Buffalo Pumps Dismissed in "Airey"
--------------------------------------------------------------
Having been informed by counsel for Plaintiffs and Defendant Air
& Liquid Systems Corporation, successor by merger to Buffalo
Pumps, Inc., that a settlement of all claims against Defendant
Buffalo Pumps has been fully effectuated and that there are no
longer any issues to further adjudicate, Judge Louis Guirola, Jr.
of the U.S. District Court for the Southern District of
Mississippi has dismissed with prejudice Buffalo Pumps from the
claims of Plaintiffs in the case styled Beatrice H. Airey,
Individually and on Behalf of the Estate and Wrongful Death
Beneficiaries of Albert J. Airey, Deceased, Plaintiffs, v. A.O.
Smith Water Products Co., et al., Defendants, Cause No. 1:16-cv-
00317-LG-RHW, (S.D. Miss.).
A full-text copy of the Order dated March 21, 2018, is available
at https://tinyurl.com/yavd9tl6 from Leagle.com.
Beatrice H. Airey, Individually and on behalf of the Estate and
Wrongful Death Beneficiaries of Albert J. Airey, Deceased,
Plaintiff, represented by James L. Farragut, III, Farragut Law
Firm, PLLC.
Foster Wheeler, LLC, Defendant, represented by Thomas E. Vaughn,
Vaughn & Bowden, PA.
CBS Corp., formerly known as Viacom, Inc. Successor-by-merger
with CBS Corp. fka Westinghouse Electric Corp., Defendant,
represented by Rose Marie Wade -- rmwade@ewhlaw.com -- Evert
Weathersby Houff.
3M Company, formerly known as Minnesota Mining and Manufacturing
Company, Defendant, represented by J. William Manuel --
rnicholson@bradley.com -- Bradley Arant Boult Cummings, LLP &
Mary Clay W. Morgan -- rnicholson@bradley.com -- Bradley Arant
Boult Cummings, LLP.
IMO Industries, Inc., Defendant, represented by Claire W. Ketner
-- cketner@brunini.com -- Brunini, Grantham, Grower & Hewes.
Gardner Denver Nash, LLC, as successor by acquisition to Nash
Elmo Industries LLC fka Nash Engineering Co., Defendant,
represented by Paul D. Palermo -- ppalermo@bluewilliams.com --
Blue Williams, LLP.
Metropolitan Life Insurance Co., Defendant, represented by David
A. Barfield -- dbarfield@pbhfirm.com -- Pettis, Barfield &
Hester, PA.
ASBESTOS UPDATE: Plaintiffs to Pay Expenses of Weyerhaeuser Atty
----------------------------------------------------------------
Judge Stephen L. Crocker of the U.S. District Court for the
Western District of Wisconsin finds that cost-shifting is
appropriate as he is not persuaded that plaintiffs' motions were
substantially justified or that there are other circumstances
that would make an award of expenses unjust. He also finds that
the amounts claimed are reasonable.
On March 7, 2018, the Court denied plaintiffs' twin motions to
allow specified depositions after the close of discovery and
ordered cost-shifting in favor of the defendants in both cases
pursuant to F.R. Civ. Pro. 37(a)(5)(B). Defendant Weyerhaeuser
submitted an itemized request for $2,784 in costs to cover both
motions in both cases. Defendant 3M split its costs in half and
asked for $1,037.50 in each case, for a total of $2,075.
Accordingly, the Court requires: (1) all plaintiffs in the Kilty
lawsuit and their attorneys are jointly and severally responsible
to pay $1,392 in expenses to counsel for defendant Weyerhaeuser
and $1,038 to counsel for defendant 3M; and (2) the plaintiff in
the Spatz lawsuit and their attorneys are jointly and severally
responsible to pay $1,392 in expenses to counsel for defendant
Weyerhaeuser and $1,038 to counsel for defendant 3M, not later
than 14 days after the court rules on plaintiffs' Rule 72 appeal.
The cases are Pam Kilty, Individually and as Special
Administrator, et al., Plaintiffs, v. Weyerhaeuser Company and 3M
Company, Defendants. Scott Spatz, as Special Administrator,
Plaintiff, v. Weyerhaeuser Company and 3M Company, Defendants,
Nos. 16-cv-515-wmc, 16-cv-726-wmc, (W.D. Wis.).
A full-text copy of the Order dated March 22, 2018, is available
at https://tinyurl.com/ycbd3txj from Leagle.com.
Pamela Kilty, Individually and as Special Administrator of the
Estate of Elvira Kilty, Plaintiff, represented by Robert G.
McCoy, Cascino Vaughan Law Offices, Ltd., Daniel Benjamin
Hausman, Cascino Vaughan Law Offices, Ltd., John Eugene Herrick -
- jherrick@motleyrice.com -- Motley Rice LLC, Meredith Kay Clark
-- mkclark@motleyrice.com -- Motley Rice LLC & Nathan David Finch
-- nfinch@motleyrice.com -- Motley Rice LLC.
Paul J. Kilty, David L. Kilty, William J. Kilty & James S. Kilty,
Plaintiffs, represented by Robert G. McCoy, Cascino Vaughan Law
Offices, Ltd., John Eugene Herrick -- jherrick@motleyrice.com --
Motley Rice LLC, Meredith Kay Clark -- mkclark@motleyrice.com --
Motley Rice LLC & Nathan David Finch -- nfinch@motleyrice.com --
Motley Rice LLC.
Weyerhaeuser Company, A corporation, Defendant, represented by
Tanya D. Ellis -- tanya.ellis@formanwatkins.com -- Forman Watkins
& Krutz, LLP, Charles M. McGuffey --
mitch.mcguffey@formanwatkins.com -- Forman Watkins & Krutz, LLP,
Joshua J. Metcalf -- joshua.metcalf@formanwatkins.com -- Forman
Watkins & Krutz, LLP, Mark S. DesRochers, DesRochers Law Offices,
LLC, Ruth Maron -- ruth.maron@formanwatkins.com -- Forman Watkins
& Krutz, LLP, Thomas Benton York -- Benton.York@formanwatkins.com
-- Forman Watkins & Krutz, LLP & Walter G. Watkins, III --
trey.watkins@formanwatkins.com -- Forman Watkins & Krutz, LLP.
3M Company, A corporation, Defendant, represented by Edward J.
McCambridge -- emccambridge@smsm.com -- Segal McCambridge Singer
& Mahoney, Ltd., Jason Patrick Eckerly -- jeckerly@smsm.com --
Segal McCambridge Singer & Mahoney, Ltd., Jennifer Budner, Segal
McCambridge Singer & Mahoney, Bradley R. Bultman --
bbultman@larsonking.com -- Larson King LLP, Grace Ellen Mangieri,
Segal McCambridge Singer & Mahoney, Ltd., Nathan Joseph Law --
nlaw@SMSM.com -- Segal McCambridge Singer & Mahoney, Ltd. &
Patrick Francis Sullivan, III -- psullivan@smsm.com -- Segal
McCambridge Singer & Mahoney, Ltd.
Metropolitan Life Insurance Company, A corporation, Defendant,
represented by Smitha Chintamaneni -- schintam@vonbriesen.com --
von Briesen & Roper.
ASBESTOS UPDATE: Modification of NYCAL CMO Affirmed
---------------------------------------------------
The Appellate Division of the Supreme Court of New York for the
First Department affirms the June 23, 2017 case management order
of the Supreme Court of New York County, superseding all previous
case management orders (CMOs) and amendments thereto in the New
York City Asbestos Litigation (NYCAL), which modified the then
existing CMO with respect to, inter alia, bankruptcy trust
filings (section XXVI), the creation of an accelerated docket
(sections XIV and XV), and the filing of punitive damages claims
(section XXIV).
The Court has previously held in a prior appeal that the NYCAL
Coordinating Justice has the authority under Uniform Rules for
Trial Courts (22 NYCRR) Section 202.69 to issue a CMO or modify
an existing CMO, after consultation with counsel, that sets forth
procedural protocols for the NYCAL that do not strictly conform
with the CPLR so long as those protocols do not deprive a party
of its right to due process.
The Court notes that the decision did not preclude the
Coordinating Justice, after consultation with the parties, from
reconsidering other aspects of the order on appeal, "including
the determination whether to permit claims for punitive damages
under the CMO, in the exercise of the court's discretion, either
upon application or at its own instance." The Coordinating
Justice then agreed to "participate with the parties in a
thoroughgoing reevaluation of the [CMO]" through a "negotiating
committee" and, following an extensive process that did not reach
consensus among the negotiating parties on all issues, the
Coordinating Justice issued the CMO now on appeal.
The CMO, which retains many procedural provisions that have long
been included in the preceding NYCAL CMOs, modified the then
existing CMO by adding, among other things, provisions addressing
the filing of asbestos claims with bankruptcy trusts, creating an
"Accelerated Docket," and governing the filing of claims for
punitive damages.
Section XXVI, which sets deadlines for the submission of asbestos
claims to bankruptcy trusts, contains new language requiring
plaintiffs who intend to file claims with bankruptcy trusts to
report to the court and defense counsel any post-deadline claims
and to confer with the court before filing such claims; as
explained in the decision accompanying the CMO, this "will enable
the [court] to monitor any behavior that could indicate that
plaintiffs are seeking to hide such trust claims."
Sections XIV and XV create rules for an "Accelerated Docket" in
place of the prior rules for the "In Extremis Docket." Section
XXIV and other provisions create rules for discovery and notice
in connection with punitive damages claims so as to protect
defendants' due process rights.
The Court finds these procedural protocols in the new CMO (as
well as the other provisions challenged by defendants that were
either present in preceding CMOs or appear for the first time in
the new CMO) do not deprive defendants of their due process or
other constitutional rights, even where they do not strictly
conform to the CPLR, and that therefore the Coordinating Justice
had the authority to issue these provisions absent defendants'
consent.
The appealed case is In Re: New York City Asbestos Litigation.
All NYCAL Cases Business Council of New York State; Lawsuit
Reform Alliance of New York; New York Insurance Association,
Inc.; Northeast Retail Lumber Association; Coalition for
Litigation Justice, Inc.; Chamber of Commerce of The United
States of America; National Association of Manufacturers; NFIB
Small Business Legal Center; American Tort Reform Association;
Washington Legal Foundation; and American Insurance Association,
Amici Curiae, 40000/88, 6080, 6079, (N.Y. App. Div. 1st Dep.).
A full-text copy of the Decision and Order dated March 22, 2018,
is available at https://tinyurl.com/yc2blduu from Leagle.com.
Tara L. Pehush -- tara.pehush@klgates.com -- K & L Gates LLP, New
York, for Crane Co., appellant.
Craig H. Zimmerman -- czimmerman@mwe.com -- McDermott Will &
Emery LLP, New York, for Honeywell International Inc., Amchem
Products Inc., Union Carbide Corporation and Certainteed
Corporation, appellants.
E. Leo Milonas -- eleo.milonas@pillsburylaw.com -- Pillsbury
Winthrop Shaw Pittman LLP, New York, for Cleaver-Brooks, Inc., et
al., appellants.
Michael J. Hutter, Albany, for Tishman Liquidation Corporation,
appellant.
Zachary W. Carter, Corporation Counsel, New York ( Scot C.
Gleason of counsel), for the City of New York, respondent.
Belluck & Fox, L.L.P, New York (Seth A. Dymond of counsel), and
Weitz & Luxenberg P.C., New York (Alaini Golanski of counsel),
for respondents.
Victor E. Schwartz -- vschwartz@shb.com -- Shook, Hardy & Bacon
L.L.P., Washington, DC, for amici curiae.
ASBESTOS UPDATE: Honeywell Joinder Stricken from "Doolin"
---------------------------------------------------------
Judge Marcia Morales Howard of the U.S. District Court for the
Middle District of Florida has issued an order striking Defendant
Honeywell International Inc.'s, Pneumo Apex LLC's, Honeywell
International Inc.'s, and Ford Motor Company's Notices of Joinder
for being improper which violates Local Rule 3.01(a) and places
an undue burden on judicial resources.
Citing Mobile Shelter Sys. USA, Inc. v. Grate Pallet Solutions,
LLC, 845 F.Supp.2d 1241 (M.D. Fla. 2012), the Court finds that
incorporation by reference "foists upon the Court the burden of
sifting through irrelevant materials to find the materials
referenced while permitting the movant to circumvent this Court's
page limit requirement." Significantly, the page limit
requirement is not designed to burden the parties, but to
conserve judicial resources by "focusing the parties' attention
on the most pressing matters and winnowing the issues to be
placed before the Court..." By both filing their own motions and
incorporating everyone else's arguments as well, the Court
concludes that the Defendants have done no "winnowing" and
instead have engaged in a "throw-the-spaghetti-and-see-what-
sticks motion practice [which] leads to imprecise and inartful
briefing."
More importantly, the Court explains that much of the material
incorporated would be redundant or irrelevant, but it would fall
to the Court to sift through this voluminous briefing to
determine which arguments are potentially relevant to Honeywell,
and extrapolate how such arguments might apply in a different
context to a different Defendant. The Court does not find this a
proper or efficient use of judicial resources.
Accordingly, the Court will strike the Notices of Joinder and
provide Defendants with the opportunity to file amended motions
which set forth the entirety of their arguments. As the Court
recognizes that the parties may need additional space in which to
do so, the Court will extend the page limit to thirty pages.
Also, to accommodate the period for additional potential
briefing, the Court will continue the final pretrial conference
and trial in this matter.
The Court also sets following deadlines:
(a) Defendants will have up to and including April 6, 2018,
to file amended dispositive and Daubert motions, if they so
choose, which set forth the entirety of their arguments;
(b) Plaintiff will have up to and including April 25, 2018,
to respond to any amended motions;
(c) To the extent Defendants were previously granted leave
to reply, such replies are due no later than May 10, 2018;
(d) Deadline for all Other Motions Including Motions In
Limine is on October 1, 2018;
(e) Responses to All Other Motions Including Motions In
Limine are due no later than October 15, 2018;
(f) Joint Final Pretrial Statement due by October 15, 2018;
(g) Final Pretrial Conference will be held on October 22,
2018 at 10:00 a.m.; and
(h) Trial Term Begins November 5, 2018 at 9:30 a.m.
The case is Stacey Doolin, as the Personal Representative of the
Estate of Richard E. Doolin, Plaintiff, v. Borg Warner
Corporation, et al., Defendants.
A full-text copy of the Order dated March 22, 2018, is available
at https://tinyurl.com/y8ywkf74 from Leagle.com.
Stacey Doolin, as Personal Representative of the Estate of
Richard E. Doolin, Plaintiff, represented by David A. Jagolinzer,
The Ferraro Law Firm & Marc Phillip Kunen, The Ferraro Law Firm.
Borg Warner Corporation, Defendant, represented by Amanda Rae
Cachaldora, Bice Cole Law Firm, PL, Caroline M. Iovino --
ciovino@mwe.com -- McDermott, Will & Emery, LLP, Eduardo J.
Medina -- emedina@foleymansfield.com --Foley & Mansfield, PLLP,
Kelly L. Kesner, Bice Cole Law Firm, PL, Melanie E. Chung-Tims,
Bice Cole Law Firm, PL & Susan J. Cole, Bice Cole Law Firm, PL.
Ford Motor Company, Defendant, represented by Alina Alonso
Rodriguez -- alina.rodriguez@bowmanandbrooke.com -- Bowman and
Brooke, LLP, Andrew Scott Freedman --
andrew.freedman@csklegal.com -- Cole, Scott & Kissane, PA,
Caroline M. Iovino -- ciovino@mwe.com -- McDermott, Will & Emery,
LLP, Clarke S. Sturge -- clarke.sturge@csklegal.com -- Cole,
Scott & Kissane, PA, Henry Salas -- henry.salas@csklegal.com --
Cole, Scott & Kissane, PA, Shepherd D. Wainger --
swainger@mcguirewoods.com -- McGuire Woods, LLP, pro hac vice &
Wendy Frank Lumish -- wendy.lumish@bowmanandbrooke.com -- Bowman
and Brooke, LLP.
Honeywell International, Inc., as successor in interest to Allied
Corporation, as successor in interest to The Bendix Corporation,
Defendant, represented by Anthony Nolan Upshaw -- aupshaw@mwe.com
-- McDermott, Will & Emery, LLP, Caroline M. Iovino --
ciovino@mwe.com -- McDermott, Will & Emery, LLP, Melissa Raspall
Alvarez -- malvarez@mwe.com -- McDermott, Will & Emery, LLP &
Jack Roy Reiter -- jack.reiter@gray-robinson.com --GrayRobinson,
PA.
Pneumo Abex LLC, a successor in interest to Pneumo Abex
Corporation, Defendant, represented by Andrew Scott Freedman --
andrew.freedman@csklegal.com -- Cole, Scott & Kissane, PA,
Caroline M. Iovino -- ciovino@mwe.com -- McDermott, Will & Emery,
LLP, Clarke S. Sturge -- clarke.sturge@csklegal.com -- Cole,
Scott & Kissane, PA, Henry Salas -- henry.salas@csklegal.com --
Cole, Scott & Kissane, PA, Johan D. Flynn -- jflynn@dehay.com --
DeHay Elliston, LLP, pro hac vice & John M. Fitzpatrick --
fitzpatrick@wtotrial.com -- Wheeler Trigg O'Donnell, LLP, pro hac
vice.
ASBESTOS UPDATE: Summary Judgment in Favor of Conrail Affirmed
--------------------------------------------------------------
In the appealed case Margaret Jarrett, Executrix of the Estate of
Philip Jarrett, Deceased and Widow in her Own Right, Appellant,
v. Consolidated Rail Corporation, No. 1229 EDA 2017, (Pa.
Super.), the Superior Court of Pennsylvania affirms the order
entered in the Court of Common Pleas of Philadelphia County,
entering summary judgment in favor of Appellee Consolidated Rail
Corporation (Conrail).
Margaret Jarrett, as Executrix of the Estate of Philip Jarrett,
Deceased ("Decedent"), and in her own right, appeals from the
order entered in the Court of Common Pleas of Philadelphia
County, entering summary judgment in favor of Appellee
Consolidated Rail Corporation (Conrail). Upon careful review, we
affirm.
This matter arises from asbestos-related injuries sustained by
Philip Jarrett ("Decedent"), in the course of his employment with
Conrail and its predecessors-in-interest. In 1997, Decedent filed
suit in the Philadelphia Court of Common Pleas under the Federal
Employers Liability Act against Conrail and other defendants,
after he developed non-malignant asbestosis. The case was settled
in 2004 and Decedent executed a release.
Subsequently, in October 2014, Decedent was diagnosed with lung
cancer. The Jarretts commenced another FELA action in the
Philadelphia Court of Common Pleas on February 9, 2015, alleging
that Decedent's workplace exposure to asbestos caused his cancer.
On January 10, 2017, Conrail filed a motion for summary judgment,
arguing that the release Decedent signed in 2004 precluded
recovery in the instant matter, as it had released Conrail from
future liability related to any workplace-related pulmonary-
respiratory diseases and/or injuries, including cancer,
contracted after the execution of the release.
In response, Jarrett argued that the issue of whether a release
for a non-malignancy claim bars recovery for future malignancy
claims is a question for a jury to decide. On March 17, 2017, the
trial court granted summary judgment in favor of Conrail.
Jarrett filed a timely notice of appeal on April 5, 2017, raising
the following questions for review: (a) Did the [trial] court
commit an error of law when it held that a release of a non-
malignancy claim against a railroad under [section] 5 of FELA
could include a future claim for malignancy that had not yet
manifested itself? And (b) Did the [trial] court err by granting
summary judgment to [Conrail] on the basis of the release alone?
Jarrett first argues that the trial court erred in holding that
the scope of the 2004 release, executed in settlement of a non-
malignancy claim under FELA, encompassed a subsequent claim for a
malignancy that had not yet manifested itself at the time the
release was signed. Jarrett asserts that, in enacting FELA, it
was the intent of Congress to protect workers and prevent
overreaching by an employer. Jarrett argues that Section 5
"forecloses the possibility of settlement contracts of adhesion
for injured railroad workers' FELA claims."
The Court finds Jarrett's first claim meritless. After a
comprehensive review of the cases that have applied Section 5,
the Court finds that a valid release "must at least have been
executed as part of a negotiation settling a dispute between the
employee and the employer." In this way, an employer is
foreclosed from evading FELA liability as a condition of
employment or separation. The Court notes that an "evaluation of
the parties' intent at the time the agreement was made is an
essential element of this inquiry." The Court concludes that "a
release that spells out the quantity, location and duration of
potential risks to which the employee has been exposed -- for
example toxic exposure -- allowing the employee to make a
reasoned decision whether to release the employer from liability
for future injuries of specifically known risks does not violate
Section 5 of FELA."
Jarrett argues that her claim should have gone before a jury for
a determination as to whether lung cancer was a "known risk"
and/or whether the release was unenforceable as a general
boilerplate release.
Conrail counters that a party seeking to refute a FELA release
bears the burden of establishing its invalidity. Conrail argues
that Jarrett failed to "create a record to refute the fact that
[Decedent] knew of the risk that he could develop cancer when he
signed the release on the advice of counsel." On its face, the
clear and unambiguous language of the release signed by the
Decedent precludes subsequent recovery for "any and all forms of
cancer... arising in any manner whatsoever... out of exposure
to... asbestos... during [Decedent's] employment with [Conrail]."
The Court notes that Jarrett presented no evidence that the
Decedent was unaware that cancer was a risk of asbestos exposure
at the time he executed the release. Indeed, as the trial court
noted, Jarrett "cannot possibly claim [Decedent] did not know
that cancer was a risk of asbestos exposure, and it would be
implausible to conclude [Decedent] did not know of his exposure
to asbestos when he settled his prior asbestos-related case." As
such, no genuine issue of material fact existed such that a jury
could return a verdict in Jarrett's favor. Accordingly, the Court
concludes that the trial court properly granted summary judgment
in favor of Conrail.
A full-text copy of the Opinion dated March 23, 2018, is
available at https://tinyurl.com/y7t8wfsx from Leagle.com.
Robert E. Paul, Paul, Reich & Myers, P.C., for Appellant,
Margaret Jarrett.
Richard P. Myers, Paul, Reich & Myers, P.C., for Appellant,
Margaret Jarrett.
Craig James Staudenmaier -- cjstaud@nssh.com -- Nauman, Smith,
Shissler & Hall, LLP, for Amicus Keystone State Railroad
Association.
David Alan Damico -- dadamico@burnswhite.com -- Burns White, LLC,
for Appellee, Consolidated Rail Corporation.
Ira L. Podheiser -- ilpodheiser@burnswhite.com -- Burns White,
LLC, for Appellee, Consolidated Rail Corporation.
Nancy L. Winkelman, Schnader Harrison Segal & Lewis LLP, for
Appellee, Consolidated Rail Corporation.
ASBESTOS UPDATE: No Asbestos Risks After Glasgow Nightclub Fire
---------------------------------------------------------------
BBC News reported that the fire service has said there is "no
risk" to the public from asbestos after a blaze which engulfed a
Glasgow nightclub.
Roads around Victoria's in Sauchiehall Street are still cordoned
off with 30 firefighters remaining at the scene.
No-one was hurt and an investigation is under way into the cause.
A spokesman for the Scottish Fire and Rescue Service said:
"Atmospheric testing has concluded that there is no risk to the
public from asbestos."
The operation has now officially changed to the "damping down"
phase.
It is understood that Victoria's and a building next door are so
badly damaged that they may have to be demolished.
Fire crews will remain on site for a number of days and cordons
will remain to keep the public away from the buildings until they
can be made safe.
Chief Fire Officer Alasdair Hay earlier said: "We will remain on
the scene for as long as it takes and we are absolutely committed
to preventing any further damage to surrounding properties and
ensuring the area is made safe.
"This was an incredibly difficult and complex incident -- but the
actions of our firefighters were and continue to be outstanding.
"This is a historic area of Glasgow -- through our aggressive
intervention and planning we were able to protect iconic
buildings, such as the Pavilion Theatre, from significant
damage."
It is thought the nearby Pavilion could remain shut for several
weeks due to smoke damage.
A statement posted on the theatre's Facebook page morning said
three shows -- featuring Ed Byrne, A Vision Of Elvis, and Suggs -
- had been cancelled with the hope that they can be rescheduled
"in the not too distant future"
It added: "We have not taken this decision lightly but feel it is
better to be as upfront and as realistic with everyone as we can
allowing time to make other arrangements.
"The amount of smoke that has entered the building and is
currently still very visible inside...we think could possibly
take weeks to clear and feel that it would be very uncomfortable
and worrying if customers were watching a show with this sort of
smell lingering throughout the theatre.
"Currently, with as much smoke still inside, the fire alarm
cannot be reset and detectors and the system will all require to
be checked before rearming.
"Inside the theatre, there is a considerable amount of ash and
black dust and due to the warnings given by fire and rescue about
asbestos in the air, we cannot allow staff or customers back in
prior to the air/dust being tested by a specialist and confirmed
to be safe and if necessary, cleaned and disposed of properly."
The fire was one of the biggest faced by Scotland's fire service
since it was amalgamated nearly five years ago.
At its height, more than 120 firefighters dealt with the blaze on
the busy shopping thoroughfare.
It took hold in the roof of the building at about 08:20.
Thick smoke billowed across the city for much of the day with
fears the fire could spread to nearby buildings including the
historic Pavilion Theatre.
Roads around the scene remain closed as firefighters continue
their operation.
Ch Insp Audrey Hand, of Police Scotland, said cordons would
remain in place and urged the public to have patience and work
with officers.
Hope Street is closed to all traffic between Bath Street and
Renfrew Street. And Renfield Street is also closed between
Renfrew Street and Bath Street.
Lauders Bar, which is located on the corner of Sauchiehall Street
and Renfield Street remains closed.
The pub's Facebook page posted: "Due to fire in Victoria's in
Sauchiehall Street, we have been evacuated from Lauders.
Therefore we will remain closed until informed it is safe for us
to re-open".
Nicola Sturgeon chaired a meeting of the Scottish government
resilience group on Wednesday to discuss the incident.
She tweeted: "This remains a serious ongoing incident and my
sincere thanks go to the Scottish Fire and Rescue service and
other emergency services for their heroic work."
The fire was described as "an inferno" by the crews fighting it.
ASBESTOS UPDATE: Vintage Maserati Denied Entry Over Asbestos Test
-----------------------------------------------------------------
ABC Online reported that the cars were brought from England for
the seven-night Maserati Global Gathering, which began in
Torquay. But instead of being driven from the Great Ocean Road
to Sydney as planned, the cars have been stuck in a warehouse.
"There was a shipment of eight cars that came from England ...
some of them extremely expensive and some of them absolutely
unique," Maserati enthusiast Mark Guterres told ABC Radio
Melbourne's Jon Faine.
"They've all been restored to the highest of standards; they are
probably the best examples in the world of their models."
Two of the cars were allowed to enter Australia as they were
built after it was made illegal to produce cars containing
asbestos.
Border Force initially refused to release the other six Maseratis
unless holes were drilled in them to test for asbestos.
"Six vehicles were identified as potentially containing asbestos
and the importer could not provide appropriate assurances that
they did not," a Border Force spokesperson said in a statement.
"The importer declined to have the vehicles tested for asbestos.
The importer was given permission to export the vehicles.
"Testing can be avoided if importers provide sufficient assurance
to demonstrate that imported goods do not contain asbestos or
that suspect parts have been removed before import.
"We don't want to unduly penalise classic car importers, but
asbestos can kill and we have an obligation to protect the
community from any asbestos coming into the country."
The stand-off comes a year after biosecurity destroyed one-of-a-
kind plant specimens sent by Paris's Museum of Natural History to
an Australian herbarium.
Mr Guterres, who is the director of an international logistics
company, said those importing the cars were told last year they
would be allowed into the country.
"We did inquiries, obviously, last year during the planning
stages and we knew that there was an issue with asbestos," he
said.
"We were informed that the responsible minister was going to
issue a waiver so that we didn't need to have the asbestos
inspection."
He said the cars were of "museum quality" and had participated in
similar tours overseas.
"I've been on rallies in Europe ... with all these cars appearing
regularly.
"There is, in the best of our knowledge, no asbestos in any of
them at all.
"They've all been completely taken apart and rebuilt."
ASBESTOS UPDATE: Asbestos in Istanbul Bldgs Risk Lives
------------------------------------------------------
Idris Emen of Hurriyet Daily News reported that checks for
asbestos, which is considered carcinogenic material by the World
Health Organization, is only obligatory in seven of the Istanbul
districts ahead of demolition works, experts have warned.
"When we have a look at the data from the seven municipalities
[where checks on asbestos are obligatory] we see there are
asbestic materials in about 25 percent of the buildings to be
demolished," Cevahir Efe Akcelik, environmental engineer and
executive at the Union of Chambers of Turkish Engineers and
Architects (TMMOB), said on March 23.
"When a building is to be demolished, samples should be taken and
analyzed. If any asbestos is detected, those parts should be
removed in accordance with the related provisions of the
regulation before the demolition goes ahead," he added.
In Istanbul's districts of Besiktas, Sisli, Maltepe, Tuzla,
Bagcilar, Kadikoy and Atasehir, it is obligatory to show an
"Asbestos Inventory Report" before getting a demolition permit
from the local municipality.
Data show that asbestic materials were found in 385 of the 1,594
demolished buildings in 2017 in six districts of Istanbul. After
detections, tons of hazardous wastes were disposed by authorized
companies.
Using asbestos in any products was banned in Turkey in 2010.
However, asbestic materials were used in the construction of
thousands of buildings, especially as an insulation material.
Cement products, coating materials, tiling adhesives, roofing
materials, plasters, pipes and acoustical ceiling systems might
be asbestic.
Since being exposed to asbestos causes serious health problems,
the Turkish Environment Ministry and Urbanization prepared a
regulation in April 2017 but since the draft regulation has not
brought obligatory measures, it is the local municipalities who
decide to implement it or not.
Removal process takes one week
The asbestos detection and removal process in a building takes a
week at most and costs about 2,000 Turkish Liras.
When asbestos is detected by a laboratory analysis, the removal
experts set up a security zone around the building. Experts
wearing special protective suits, put the asbestic materials into
packages and take them to the facilities for disposal.
"Most of the asbestos removal companies are based in Istanbul and
other big cities. There are only a few of them in the
countryside. Since asbestos is seriously hazardous for human
health, a relevant inventory report should be prepared before the
demolition of any building, factory maintenance a or home
renovation," said Cafer Fidan, head of the Asbestos Removal
Experts Association.
ASBESTOS UPDATE: ADAO Applauds Senate for Passing 14th Resolution
-----------------------------------------------------------------
The Asbestos Disease Awareness Organization (ADAO), an
independent nonprofit dedicated to preventing asbestos exposure
through education, advocacy, and community work; today praised
the Senate for passing the 14th Resolution establishing "National
Asbestos Awareness Week." Led by Senator Jon Tester (D-MT) and
original bipartisan cosponsors Senators Steve Daines (R-MT), Ben
Cardin (D-MD), Dick Durbin (D-IL), Dianne Feinstein (D-RI),
Sheldon Whitehouse (D-RI), Kamala Harris (D-CA), Patrick Leahy
(D-VT), Jeff Merkley (D-OR), Cory Booker (D-NJ), Edward Markey
(D-MA), Johnny Isakson (R-GA), and Elizabeth Warren (D-MA), the
resolution seeks to "raise public awareness about the prevalence
of asbestos-related diseases and the dangers of asbestos
exposure," underscoring ADAO's important mission.
"Too many folks have suffered or lost their lives to asbestos-
related illness," said Senator Tester. "In Libby and Troy, we
have seen firsthand the devastation that asbestos can cause in a
community. By making education and awareness a priority, we can
protect our families from this silent killer."
"We are enormously thankful to the Senate, and especially Senator
Tester and the 12 cosponsors, for the passage of the resolution
implementing the 14th 'National Asbestos Awareness Week'," stated
ADAO President Linda Reinstein. "Each year, up to 15,000
Americans die from preventable asbestos-caused diseases while
imports and use continue. Undoubtedly, the resolution's momentum
and U.S. Surgeon General's asbestos warning will raise awareness
and save lives."
New data from the Centers for Disease Control and Prevention
(CDC) reports that asbestos-caused deaths are on the rise in the
U.S., despite significantly decreased use since peak consumption
in the 1970s. Furthermore, the study reports that malignant
mesothelioma deaths among patients aged 25-44 continue,
indicating current and continued occupational, environmental, and
secondary exposure risk. Asbestos has even been found recently in
makeup and other consumer products; its import and usage
continue.
Reinstein continued, "As the EPA begins its risk evaluation of
asbestos under the Toxic Substances Control Act (TSCA), the
passage underscores what we've long known about asbestos -- that
it poses undue risk to human health and the environment and must
be banned, as there is no safe or controlled use. This has been
the sentiment of the last 13 Senate Asbestos Awareness
Resolutions as well as five warnings from the U.S. Surgeon
General's office; and former President Barack Obama became the
first sitting president to acknowledge asbestos as a deadly
carcinogen."
During Asbestos Awareness Week, ADAO will feature multilingual
educational materials and videos. ADAO will also hold its 14th
Annual International Asbestos Awareness and Prevention Conference
"Where Knowledge and Action Unite," April 13-15, 2018 at the
Renaissance Arlington Capital View Marriott in Arlington, VA,
just outside of Washington, D.C. Global experts will speak on the
latest advancements in asbestos disease prevention, treatment for
mesothelioma and other asbestos-caused diseases, and global
asbestos ban advocacy.
Exposure to asbestos, a human carcinogen, can cause mesothelioma,
lung, gastrointestinal, colorectal, laryngeal, and ovarian
cancers; as well as non-malignant lung and pleural disorders. The
Global Burden of Disease, Injuries, and Risk Factor Study of 2013
published in the renowned Lancet Medical Journal reported that
194,000 people globally die from asbestos-caused diseases every
year, equaling more than 500 deaths per day.
About the Asbestos Disease Awareness Organization
The Asbestos Disease Awareness Organization (ADAO) was founded by
asbestos victims and their families in 2004. ADAO is the largest
non-profit in the U.S. dedicated to providing asbestos victims
and concerned citizens with a united voice through our education,
advocacy, and community initiatives. ADAO seeks to raise public
awareness about the dangers of asbestos exposure, advocate for an
asbestos ban, and protect asbestos victims' civil rights. For
more information, visit www.asbestosdiseaseawareness.org.
Contacts
Asbestos Disease Awareness Organization (ADAO)
Kim Cecchini
Telephone: 202-391-5205
Email: kim@asbestosdiseaseawareness.org
ASBESTOS UPDATE: Asbestos Stops Otis Hotel Renovation Works
-----------------------------------------------------------
Nicholas Deshais of The Spokesman-Review reported that work to
restore the Otis Hotel in downtown Spokane was stopped after air
quality inspectors found signs of asbestos and no sign the
developer had hired a certified contractor to deal with the
cancer-causing material.
Notices posted March 9 on the doors of the old hotel show an
"order of immediate restraint," which halts all work as the state
Department of Labor and Industries investigates if proper
handling and disposal of any asbestos-laden materials has been
done.
Curtis Rystadt, a former mortgage broker who owns the building,
said he believed the stop-work order was done without
justification, since he had contracted with a company that he
said was qualified to deal with the carcinogenic substance, which
he named as 4 Aces Restoration.
Rystadt -- who is based in Oregon, where he owns several other
properties -- said he'd spent more than $50,000 disposing of the
asbestos, and had the company in the building "three or four
times" to dispose of floor tiles, popcorn ceiling and insulated
pipes embedded in the walls. Each time, he said, workers wore
masks and used a negative pressure enclosure, though he
acknowledged he was "no asbestos expert."
Rystadt provided invoices, a laboratory report and other
documentation that show discussion of the handling of asbestos.
It is not known if 4 Aces Restoration is a certified asbestos
abatement company.
Elaine Fischer, a labor and industries spokeswoman, said her
department was in the "earliest stages of gathering information"
and couldn't provide more detail other than it couldn't confirm
that Rystadt had hired a certified contractor.
"There is no documentation that asbestos was removed by a
certified asbestos abatement contractor whose workers are trained
in asbestos abatement," Fischer said. "Spokane Regional Clean Air
Agency is the agency that is charged with public safety. Our role
is to determine if workers were exposed to contamination."
Requests for information from the clean air agency were not
returned.
Rystadt plans to reopen the Otis as a 122-room hotel with a
restaurant on the ground floor. He said the earliest it would
open is March 2019.
Rystadt said he is "frustrated" with the work being stopped on
his project, but didn't "know who to be frustrated with."
"What I think is absolutely ridiculous is L and I said they
wanted my legal consent to go on the property. That freaked me
out a little bit. I said, 'Why don't you just go out there?' They
said, 'We need your legal consent,' " he said. "I said, 'Just
promise me you're not going to write me a fine and you can go on
the property. Tell me if there's something wrong, I want to solve
it.'"
That didn't happen, and now the project has been stalled. Rystadt
said he's not sure when work will begin again.
"I thought we had it all covered," he said. "Obviously no one
likes delays, but we need to have delays if there's asbestos
there."
ASBESTOS UPDATE: Grand Island Exec Gets Probation Over Asbestos
---------------------------------------------------------------
Karen Robinson of Buffalo News reported that a second man has
been sentenced in the federal pollution case against Grand Island
company Comprehensive Employee Management.
Raj Chopra, 54, of Grand Island, who was convicted of making a
false statement under the Clean Air Act, was sentenced to one
year probation and his company was fined $25,000.
CEM, an environmental consulting company, at 1815 Love Road,
provided consulting services to former Chopra and his partner,
former Buffalo Bills player Sean P. Doctor, for their asbestos
abatement company, S.D. Specialty Services. Doctor was previously
convicted, sentenced to one year probation and fined $2,000.
In December 2009 and January 2010, S.D. Specialty Services
performed asbestos abatement work at the Roosevelt Park Shelter
in Buffalo and transported the material to a waste container at
CEM on Grand Island. In March 2010, Doctor and CEM falsely
reported when the asbestos had been delivered to CEM.
Also, on April 28, 2011, an inspection of the Roosevelt Park
Shelter revealed S.D. Specialty Services improperly left asbestos
behind.
ASBESTOS UPDATE: Asbestos Warning Raised in Woodley Schools
-----------------------------------------------------------
Reading Chronicle reported that former pupils of two Woodley
schools are being urged to assist with an investigation after a
woman was diagnosed with an asbestos-related cancer.
Fears have been raised after the woman, who wishes to remain
anonymous, developed symptoms of what was subsequently diagnosed
as mesothelioma, a cancer that most commonly starts in the layers
of tissue that cover the lungs.
As a result, solicitors have been instructed to build a case as
to whether the woman was exposed to asbestos dust while attending
Beechwood Primary and Bulmershe Secondary schools between 1975
and 1986.
The news comes weeks after Bulmershe Leisure Centre's swimming
pool was permanently closed following fears that the ceiling
tiles were in danger of falling and releasing asbestos.
Helen Childs, from solicitor firm Royds Withy King said: "I
wouldn't want anyone to be alarmed, because the chances of anyone
who attended either school developing an asbestos related illness
is very very small.
"However, asbestos was a very widely used material, and it is
still present in many schools that were built or altered in the
1950's, 60's and 70's, like Bulmershe and Beechwood.
"Any information any of your readers can give about the
construction or maintenance of Bulmershe or Beechwood will be
very much appreciated. I am particularly keen to speak to anyone
who can recall maintenance and repair work being undertaken at
Beechwood or Bulmershe, particularly during term time, or who can
remember that Beechwood or Bulmershe were in a poor state of
repair."
Drop-in sessions are being organised by the solicitors firm at
Coronation Hall, in Headley Road, on April 9 from 10am to 5pm,
again on May 2 from 2pm to 5pm, and then on the first Thursday of
every month between 9am to 12pm. Alternatively, residents can
discuss any concerns with the solicitors by calling 01865 268
359, 07876805431 or by emailing helen.childs@roydswithyking.com.
ASBESTOS UPDATE: Suit vs. Shipyard Co. Remanded to State Court
--------------------------------------------------------------
Amanda Thomas of The Louisiana Record reported that a lawsuit
against a private shipyard company accused of exposing a former
employee's daughter to asbestos which allegedly caused her to die
of cancer has been sent back to state court.
On March 16, the U.S. Court of Appeals for the 5th Circuit
affirmed the district court's decision to remand the case back to
state court.
In 2016, Mary Jane Wilde died of complications related to
mesothelioma. The suit claims Wilde suffered second-hand exposure
to asbestos when she did her father's laundry. Her father, Percy
Legendre Sr., worked at Avondale Shipyard from 1943 to 1945.
The suit alleges that asbestos fibers clung to her father's body
and clothing when he returned home from work each day, exposing
her to the fibers at home.
Wild's surviving relatives filed suit in state court against
Huntington Ingalls Inc., formerly known as Avondale Shipyards,
claiming the company was negligent in mishandling asbestos. The
suit alleges that Avondale failed to tell employees about the
risks of asbestos exposure and failed to implement property
safety procedures for handling asbestos. The plaintiff's expert,
a former ship inspector at Avondale, stated that "government
inspectors neither monitored nor enforced safety regulations."
The former inspector went on to say that responsibility fell on
the Avondale's safety department.
The case was removed to district court after Avondale invoked the
federal officer removal statute. The purpose of the statute is to
allow certain federal defendants to remove a case from state
court to a potentially less-biased federal court. The district
court remanded, saying Avondale failed to show a causal
connection between the federal officer's direction and the
conduct alleged by the plaintiffs.
The appeals court agreed, noting Avondale's argument that the
government required the company to use asbestos insulation and
oversaw construction to ensure it built tugs to the government's
specifications.
"But nothing about this arrangement suggests that Avondale was
not 'free to adopt the safety measures the plaintiffs now allege
would have prevented their injuries,'" the opinion reads.
ASBESTOS UPDATE: ACI Conference to Explore Disease Claims
---------------------------------------------------------
The American Conference Institute (ACI) is pleased to announce
that ACI's 23rd National Forum on Asbestos Claims & Litigation
scheduled for May 21-23, 2018 in Chicago, IL at the Wyndham
Chicago Riverfront will address evolving disease claims in the
asbestos arena and newer theories of liability.
Industry stakeholders agree that asbestos claims are ever-
changing and evolving. We have seen the introduction of a new
class of asbestos plaintiff based on 'other cancers' It is not
only a matter of lung cancer and mesothelioma, but also new
disease theories surrounding the causal link between asbestos
exposure and stomach, kidney, and esophageal cancer. The meso
gene complicates matters further as newer genes identifying
genetic predispositions are being discovered. Talc litigation has
been on the rise as recent activity involving talc contamination
and ovarian cancer creates a new twist in these matters. Rounding
up these evolving disease claims, exposure theories based on
'each and every', 'single fiber', and 'cumulative' reveal the
complex nature of the science behind these new schools of
thought.
Lisa Piccolo, Division Manager at ACI, remarked 'This year's
agenda follows newer evolving disease claims. Practitioners who
are in the trenches daily will come away with in-depth knowledge
of evolving disease claim theories, including meso genes, and so
called 'take-home' exposures.'
Esther Ro, Sr. Legal Analyst & Program Director at ACI, noted
'The theories of liability involved in asbestos claims and
litigation are complex and pose a challenge to industry
stakeholders. Our faculty will unravel these challenges and help
practitioners devise strategies to gain the competitive advantage
in the litigation timeline.'
Featured Speakers Include:
Katie Barker
Riverstone Claims Management
Rick Schlegel Assistant
Exelon
Paul Slater
General Electric
Erin Voyik
Riverstone Claims Management
Dr. Allan Feingold
Feingold Medical Legal
Amy Madl PhD, DABT
Cardno
David H. Schwartz
Innovative Science Solutions, LLC
Bruce Kelman, PhD, DABT, ATS, ERT
Veritox, Inc.
More information about the event, including the full agenda,
faculty list, and brochure can be accessed at
www.AmericanConference.com/Asbestos
A unique organization, American Conference Institute is devoted
to providing the business intelligence that senior decision-
makers need to respond to challenges both here in the US, and
around the world. Staffed by industry specialists, lawyers and
other professionals, American Conference Institute operates as a
think tank, monitoring trends and developments in all major
industry sectors, the law, and public policy, with a view to
providing information on the leading edge. Headquartered in New
York, ACI has grown to produce more than 100 events each year,
attended by thousands of senior delegates from across the world.
Maria Romanova
American Conference Institute
212-352-3220 ext. 5488
Contact:
Maria Romanova
American Conference Institute
212-352-3220 ext. 5488
ASBESTOS UPDATE: Directors Facing Sentence Over Asbestos Disposal
-----------------------------------------------------------------
Matt Jackson of Stoke Sentinel reported that three company
directors are set to learn their fate later this year after a
two-year investigation criticised how they disposed of asbestos
waste.
George Talbot, aged 74, of Blue Mice Farm in Barthomley, and sons
Anthony, aged 50, of Heath Avenue, Rode Heath, and Stephen
Talbot, aged 44, of Sandbach Road North, in Alsager, were all
directors of Alsager Contractors Limited when it was found to be
incorrectly disposing of asbestos.
Following an investigation, which ran between 2011 and 2013, the
Environmental Agency and the Health and Safety Executive accused
the firm of disposing of hazardous waste at its Peel Street site
in the Longbridge Hayes industrial estate in a way that could
present a 'risk of harm' to human health.
Judge passes sentence on Stoke-on-Trent lorry driver who killed
eight people in M1 crash
The agencies also accused the men of operating on a site in
Winghey Road, in Kidsgrove, and another near Bury without the
correct licences.
At Stoke-on-Trent Crown Court George Talbot admitted nine
environmental offences while Anthony Talbot pleaded guilty to
eight and Stephen Talbot six.
Prosecutor Mark Harris said: "The company operated a permitted
site at Peel Street on the Longbridge Hayes Industrial Estate in
Newcastle, undertook operations at an unlicensed site nearby, and
carried out activities at a distribution park at Pilsworth Road,
Heywood, in which asbestos waste was dealt with in a way that
created significant contamination from this highly carcinogenic
substance.
"Bags containing asbestos waste were loaded into skips using a
mechanical loader, and then crushed down, so creating the risk
that the bags would split and the potentially carcinogenic
contents released as large volumes of dust."
Waste found at the Newcastle site included bags of asbestos with
the University of Sheffield branding.
ASBESTOS UPDATE: Burnley Man Dies Following Asbestos Exposure
-------------------------------------------------------------
Ciaran Duggan of Lancashire Telegraph reported that a 78-Year-Old
man died after being exposed to asbestos, an inquest heard.
James Thomas Byron, 78, was with his family when he died at
Glendor Road, Burnley, on August 17 last year.
The inquest at Burnley Magistrates' Court heard Mr Byron
developed mesothelioma, a cancer in his lungs after being exposed
to asbestos throughout his working life.
Mesothelioma is a serious, chronic, non-cancerous respiratory
disease which aggravate lung tissues and can lead to a shortness
of breath and cause scars in the lungs.
The former industrial worker, who worked for a Chorley factory
and Leyland Motors during his career, was first diagnosed with
pneumonia and mesothelioma, a type of cancer that most commonly
affects the lungs and chest wall, in April last year.
Royal Blackburn Hospital consultant pathologist Muammer Al-
Mudhaffer, who conducted the post-mortem examination a day after
his death, said tests showed the cause of death was long-term
pneumonia and mesothelioma.
Dr Al Mudhaffer said the effects would have taken place over a
long period of time and can take many years to show.
During the post-mortem exam, the doctor discovered one lung was
'abnormal' and heavier than the other lung.
The family's solicitor Nicholas Molineux, of Farley's Solicitors,
said Mr Byron was not unaware about the exposure to asbestos
while he was at work.
He said said: "Mr Bryron had difficulties giving a
'chronological' recollection of events towards the end of his
life but was not unaware he had been exposed to asbestos.
During his working life, Mr Molineux said he would have been
exposed to asbestos on the walls and roofs of the various
industrial companies he worked for.
However, assistant coroner for East Lancashire Richard Taylor
said it was inconclusive when in his working life the asbestos
affected him the most.
Reading a conclusion that Mr Byron had died of 'industrial
disease', Mr Taylor said: "He was exposed to asbestos during his
working life but where and when that occurred can't be properly
ascertained."
ASBESTOS UPDATE: Pestello Couple Sues Honeywell, et al.
-------------------------------------------------------
Lhalie Castillo of Madison County Record reported that a couple
is suing a number of companies, citing alleged failure to warn
and negligence over asbestos exposure.
Louis R. Pestello Jr. and Donna Pestello filed a complaint March
7 in the St. Clair County Circuit Court against The Dow Chemical
Co., Honeywell International Inc., Union Carbide Corp. and
others, alleging they breached their duties to exercise due care
for the safety of others.
According to the complaint, the plaintiffs allege that at times
during Louis Pestello's employment from 1958 to 2013, he was
exposed to and inhaled or ingested asbestos fibers emanating from
certain products manufactured, sold, distributed or installed by
defendants. On March 30, he became aware that he developed lung
cancer, which the plaintiffs claim is related to asbestos
exposure.
The plaintiffs hold the defendants responsible because they
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 not less than
$50,000. They are represented by Ethan A. Flint and Laci M.
Whitley of Flint Law Firm LLC in Edwardsville.
St. Clair County Circuit Court case number 18-L-160
ASBESTOS UPDATE: NSW Gov't to Spend $10MM on Asbestos Clean-Up
--------------------------------------------------------------
Daily Mail reported that up to $10 million in NSW government
funding has been assigned to the clean-up of asbestos-
contaminated parts of Tathra, where a devastating bushfire razed
close to 100 properties.
Just over a week after the fire tore through the small Sapphire
Coast seaside town, Premier Gladys Berejiklian said the
government will assign the funding to help in the clean-up
operation.
Speaking to reporters in Tathra, Ms Berejiklian said the money is
already available to fire victims, and the state government is
also providing financial assistance to people with uninsured
properties.
ASBESTOS UPDATE: Asbestos Filings Fell in 2017, KCIC Report Says
----------------------------------------------------------------
Amanda Bronstad of Law.com reported that asbestos filings fell in
2017, and it didn't matter whether they were brought over
mesothelioma, lung cancer or other forms of cancer, according to
consulting firm KCIC.
The report found that there were 4,450 asbestos filings last
year, compared to 4,812 in 2016 and 5,336 in 2015, the first year
that KCIC began compiling such data. For the first time, the
decrease hit all types of cases. Mesothelioma cases were down 5
percent, lung cancer about 10 percent and other types of cancers
nearly 12 percent.
KCIC, which consults defendant companies about products liability
matters, including asbestos, gave no specific reasons for the
decrease. But plaintiffs attorney Perry Weitz, co-founder of New
York's Weitz & Luxenberg, who spoke about the report's findings
at a conference, had a simple explanation: The number of victims
was dwindling as fewer people work around asbestos.
"There's only a finite number of mesothelioma cases, and that
number's going to go down every year anyway," he said. And lung
cancer cases, which have been harder for plaintiffs to blame on
asbestos, are limited in number. "You'll see a certain leveling
out. There's not going to be a dramatic decrease, and not a
dramatic increase."
The report found that the same top 10 plaintiffs' firms filed 62
percent of all asbestos cases. Those firms filed suits in
predominantly the same venues against the same defendants for the
most part, though the report speculated that the U.S. Supreme
Court's June 19, 2017, decision in Bristol-Myers Squibb v.
Superior Court of California could bring changes.
Topping the list of plaintiffs firms was Gori Julian &
Associates, based in Edwardsville, Illinois, which filed 588
asbestos cases last year, up 8.1 percent from 2016. Three other
firms increased their filings, including Weitz & Luxenberg, which
filed 449 cases last year, but the rest of them reduced their
output. The largest decreases came from Goldberg, Persky & White
in Pittsburgh, which dropped 26.9 percent to 147 cases; Simmons
Hanly Conroy, based in Alton, Illinois, which fell 25 percent to
379 filings; and New York's Napoli Shkolnik, which fell 34.1
percent to 85.
Shkolnik's Paul Napoli attributed his own firm's numbers to a
singular focus on existing, rather than new, cases in 2017. But
the general downward trend wasn't unexpected.
"Some of the major defendants have gone bankrupt in the last
couple of years," he said, noting the Chapter 11 filings of
Kaiser Gypsum in 2016 and Georgia-Pacific in 2017. "These are big
defendants that caused a lot of injury, so most of those claims
have shifted to bankruptcy."
The filings also remained concentrated in the same jurisdictions,
although several had significant decreases. Madison County,
Illinois, for instance, which has long held the No. 1 venue for
asbestos filings, saw a 13 percent drop in 2017, while St. Clair
County, Illinois, jumped 200 percent.
Napoli attributed that shift to recent defense verdicts that have
come out of Madison County.
"It was no longer a haven for the plaintiffs to use against the
defendants," he said. "The defendants shot themselves in the foot
by allowing plaintiffs to disperse the cases across the country,
which makes it more expensive of them."
Other top venues were New York, Philadelphia and New Castle
County, Delaware. In particular, mesothelioma cases jumped 32
percent in Philadelphia, 25.5 percent in Middlesex, New Jersey,
more than 21 percent in Alameda, California, and 5 percent in New
Castle. They fell nearly 17 percent in New York and 16 percent in
Los Angeles.
The report said recent U.S. Supreme Court decisions, like
Bristol-Myers, could begin to impact where plaintiffs firms file
their cases, with New York and Delaware potentially more
favorable options given that more defendant companies have
headquarters there. The report also noted that more plaintiffs
firms, like Simmons Hanly Conroy, were filing cases outside of
Illinois.
It also assessed the potential impact of legislation that
required plaintiffs attorneys to disclose in court all claims
that their clients made against bankruptcy trusts. The U.S. House
of Representatives passed such legislation last year, but 13
states also have passed similar laws. In Ohio, the state with the
most asbestos cases, filings have decreased at a greater pace
since passing reform legislation in 2013, the report said.
Weitz said neither Bristol-Myers nor legislation over bankruptcy
trusts had impacted asbestos filings.
"It has to do with the age of the litigation and the types of
disease," he said.
There are 3,000 mesothelioma cases across the nation, he said.
"And that number goes down a little bit every year. And in the
lung cancer cases, although there are more of them, plaintiff
lawyers aren't in the habit of filing cases that aren't good
cases that they won't be successful with."
ASBESTOS UPDATE: Salem Co. Fined $340K for Asbestos Violations
--------------------------------------------------------------
Dustin Luca of The Salem News reported that four companies will
pay the state up to $340,000 in a settlement tied to illegal
asbestos work at Pioneer Terrace, one of the Salem Housing
Authority's largest properties.
The suit alleges the companies violated the state's clean air law
and regulations while doing renovation work at Pioneer Terrace in
early 2015.
Named in the suit are Newton, New Hampshire-based E&F
Environmental Services, as an asbestos abatement contractor, New
England Builders and Contractors of Methuen, Blackstone Block
Architects of Boston, TRC Environmental Corporation of
Connecticut, hired to monitor the work Pioneer Terrace is one of
23 properties under Housing Authority control, and the second
largest property serving state-run elderly public housing under
the authority. It contains 104 one-bedroom garden-style
apartments, according to the authority's website.
In a statement, the attorney general's office said the companies
didn't follow proper procedures required by law to protect
workers, residents and the public from harmful asbestos exposure.
That includes failing to properly store and contain asbestos-
containing material. Investigators with the state's Department of
Environmental Protection found asbestos violations by E&F
employees at nearly every building they worked on in the housing
complex.
The statement further said that New England Builders and
Contractors and Blackstone Block Architects, while filing claims
for payment to the Housing Authority, certified that the improper
work at the facility was done in compliance with state law.
The suit also alleged that while E&F was working at Pioneer
Terrace, it also failed to follow proper asbestos abatement
procedures during construction at a multi-family house in
Medford.
Under the settlement, E&F and its owner Frank Balogh will pay
$150,000, with $20,000 suspended if Balogh and the company's
other employees complete training on the proper handling and
disposal of asbestos. New England Builders will pay $85,000, with
$15,000 suspended pending training as well.
TRC Environmental Corporation will pay $60,000, and Blackstone
will pay $45,000, according to the statement.
Housing Authority executive director Carol MacGown and board
Chairman John Boris didn't immediately return calls requesting
comment.
ASBESTOS UPDATE: New Asbestos Rules Survive Defense Challenge
-------------------------------------------------------------
Andrew Denney of Law.com reported that new rules for the New York
City asbestos litigation court, including one opening the door
for plaintiffs to seek punitive damages, have survived a
challenge in state appellate court.
A panel of the Appellate Division, First Department found that
Justice Peter Moulton, who served as coordinating justice for the
asbestos court until last June when he was elevated to the First
Department, had the authority to issue the new case management
order without the defense bar's consent.
The panel that heard the asbestos defense bar's challenge was
composed of Justices Dianne Renwick, Sallie Manzanet-Daniels,
Marcy Kahn, Cynthia Kern and Anil Singh.
Punitive damages have been inaccessible to asbestos plaintiffs
since 1996, when a state judge in Manhattan indefinitely deferred
all punitive claims.
But in 2014, Manhattan Supreme Court Justice Sherry Klein Heitler
lifted the blockade and found that punitive claims could be
sought.
The First Department affirmed Heitler's decision, but stayed the
punitive damages rule until the asbestos court could issue a new
case management order.
In crafting the new case management order, which also includes a
cap on the number of cases that can be consolidated, Moulton
consulted with a group of attorneys from both the plaintiff and
defense bars.
The defense bar remained steadfast in its resistance to the
reinstatement of punitive damages and challenged the new case
management order after it was promulgated.
The plaintiffs attorney who took part in the talks included Jerry
Kristal and Charles Ferguson of Weitz & Luxenberg; Jordan Fox of
Belluck & Fox; and Robert Komitor, a partner at Levy Konigsberg.
Brian Early of The Early Law Firm served as an alternate.
The defense bar was represented by Kristen Fournier of Orrick,
Herrington & Sutcliffe; Judith Yavitz of Darger Errante Yavitz &
Blau; Robert Malaby, founding partner of Malaby & Bradley; and
Peter Dinunzio, senior counsel to Clyde & Co. David Keyko of
Pillsbury Winthrop Shaw Pittman, who appeared for the defense bar
for its court challenge, did not respond to a request for
comment.
ASBESTOS UPDATE: Asbestos Found in Southland Beach
--------------------------------------------------
Dave Nicoll of Southland Times reported that fishermen who have
gathered seafood from a Southland beach are being told to throw
it away after asbestos was found buried in the foreshore nearby.
Public Health South says a Southland beach will remain closed to
the public for the foreseeable future after asbestos was
unearthed on the foreshore near the former Ocean Beach Freezing
Works at Bluff.
The Department of Conservation was alerted by a member of the
public who believed they found material containing asbestos on
the beach.
Environment Southland tested the material and confirmed it did
contain asbestos.
Public Health South medical liaison officer Keith Reid said it
appeared that erosion of the shoreline had exposed the material,
which had been buried in the foreshore.
It was believed that the area may have been used as a dump site
in the past, before the disposal of asbestos had been tightly
regulated, Reid said.
If people came into contact with the asbestos there was a risk of
harm, he said.
It was difficult to give definitive advice to people who may have
been exposed, since the time that the asbestos has been exposed
was not known, Reid said.
"I would recommend that anyone who has fish or shellfish taken
from the area discards them and does not take any further fish
until advised that it is safe to do so."
The site had been sealed off and a survey would be undertaken to
determine how much asbestos was at the site.
When the extent of the asbestos present is known, plans to remove
it safely would be put in place, he said.
Environment Southland and the Invercargill City Council are
working together with DOC and private landowner, Ocean Beach
Properties, to establish who is responsible for the remediation.
The costs involved would be better known after the site survey,
Reid said.
An Invercargill City Council spokesperson said "council managers
have agreed to engage contractors to ensure access to the beach
is restricted, and therefore reduce the risk of public exposure
to asbestos."
The priority was to restrict public access to the site and clean
up any asbestos present on the beach, the spokesperson said.
"Investigations to determine any further contamination of land
which may be at risk will continue.
ASBESTOS UPDATE: Asbestos Discovered at Wangaratta Fire Station
---------------------------------------------------------------
Blair Thompson of The Border Mail reported that the discovery of
loose asbestos at the Wangaratta fire station has highlighted
problems with the city's water supply.
The substance was found in the rear yard of the fire station.
It's thought the asbestos broke off mains water pipes and was
flushed out by firefighters.
It led to the station being closed, with the brigade operating
out of the district headquarters.
Victoria's deputy chief health officer for environment Angie Bone
said water was still considered safe to drink.
North East Water has been undertaking testing across the
Wangaratta network.
Former Asbestos Safety and Eradication Agency member Tanya
Segelov said the incident showed the problems with ageing
asbestos concrete pipes, which had once been commonly used.
"These pipes are 40, 50 or 60 years old," she said.
"There is asbestos everywhere which we don't talk about.
"There is a huge amount of asbestos still in our community.
"Governments have had a haphazard approach to handling that.
"No-one wants to talk about removing it due to the costs."
CFA operations officer Paul Scragg said there had been "no harm
whatsoever to the public" during the incident, with the station
closed as a precaution.
The pipes, which are a mix of asbestos and cement, began to be
phased out in the 1980s.
Ms Segelov said asbestos posed problems when it was out in the
environment and damaged.
"If it's in pristine condition there's no risk, but this material
is now 40 to 60 years old," she said.
"It's not in pristine condition in many circumstances.
"There are huge amounts of these pipes in regional areas.
"We've got to have a really adult conversation about replacing
them.
"Until they're all gone, we're going to have these problems
continually occur and there needs to be considerable money put
aside by the government to fund this."
North East Water managing director Craig Heiner recently said the
authority was "confident the incident is limited to the fire
station site".
"Based on our details investigations, we are confident that there
is no risk to other water users in the area and that drinking
water is safe to consume," he said.
ASBESTOS UPDATE: 44,000-Tonnes Asbestos Dumping Probed
------------------------------------------------------
Ray Hadley of 4BC reported that a report has raised concerns
about staff handling of the development at Arcadia, where at
least 44,000 tonnes of asbestos-contaminated material was trucked
into a proposed equestrian arena.
Despite repeated complaints being lodged about the site over the
space of five months, no investigation was launched until Ray
Hadley made the situation public.
Proper removal and safe disposal of the material will take up to
18 months and cost between 5 and 10 million dollars.
It's feared the owners of the site David and Maria Levy will
declare bankruptcy, leaving ratepayers or even the NSW Government
to foot the bill.
Mayor Philip Ruddock tells Ray he will look to make improvements.
"There needs to be a strengthening of the processes and staff
education to reduce risks in relation to compliance issues.
"The reports we've had suggest we've got to demand a greater
level of detail from developers that we've got to improve
communications, that we've got to implement a process to escalate
complaints."
ASBESTOS UPDATE: Insurers Prevail Over Ex-Asbestos Distributor
--------------------------------------------------------------
Judy Greenwald of Business Insurance reported that Travelers Cos.
Inc. and Crum & Forster Holdings Corp. Inc. units have prevailed
in litigation over a now-defunct asbestos distributor, with an
appeals court upholding a lower court's ruling that their
coverage limits are exhausted.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia,
ruled in favor of Morristown, New Jersey-based Crum & Forster
unit United States Fire Insurance Co. and St. Paul-based
Travelers unit St. Paul Fire & Marine Insurance Co. in litigation
filed by Walter E. Campbell Co. Inc., in General Insurance Co. of
America; The Walter R. Campbell Co. Inc. v. United States Fire
Insurance Co., St. Paul Fire & Marine Insurance Co., et al.
Walter E. Campbell handled, sold, installed and removed
insulation materials containing asbestos for decades, stopping by
1972. It began to be sued in the mid-1980s for asbestos-related
bodily injury, according to the ruling.
St. Paul and U.S. Fire, the only remaining insurers in the
litigation, and other insurers defended and indemnified the
company against hundreds of asbestos-related bodily injury
claims, paying claimants more than $60 million on its behalf over
several decades, although many claims remain pending, according
to the ruling.
Under terms of policies issued to the company, claims involving
bodily injuries that fall under the completed operations and
products hazards are subject to an aggregate limit.
Operations claims, which are bodily injury claims that do not
constitute completed operations or product hazards, are subject
only to a per occurrence limit, with no aggregate limit.
Among the issues in the litigation is how to classify, past,
pending and future bodily injury claims against the company, with
the company contending insurers "have mischaracterized settled
operations claims as settled completed-operations claims,
resulting in a premature exhaustion of the policies' aggregate
limits for completed-operations claims," according to the ruling.
The U.S. District Court in Baltimore ruled in the insurers'
favor, and was upheld by a unanimous three-judge appeals court
panel. "The main questions at issue in this appeal -- concerning
both the scope and limit of the insurers' duties to defend and
indemnify (Campbell) -- were answered over a decade ago by this
Court" in a 2004 ruling, said the decision.
The ruling said, "we see no reason to depart from (the 2004
ruling's) clear and controlling interpretation of the completed-
operations hazard."
A Montana state court ruled that a Berkshire Hathaway Inc. unit
is obligated to provide coverage to the state of Montana for
asbestos claims under a comprehensive general liability policy it
issued for a mine for 1973 through 1975.
ASBESTOS UPDATE: Proposed Bill Creates More Requirements
--------------------------------------------------------
Jacob Maslow of Legal Scoops reported that the Missouri House
passed a bill that would create more requirements for those
filing asbestos-related lawsuits.
The legislation would give plaintiffs 30 days to provide
documentation for claims and disclose all claims. Those in favor
of the bill say the new requirements would allow plaintiffs to
make claims quicker and recover compensation faster.
Those opposed to the bill say that the rules would make it
impossible to sue.
Another goal of the legislation is to combine all claims into a
single lawsuit.
Bill supporter Rep. David Gregory says plaintiffs will still have
their day in court. According to him, combining all claims into
one lawsuit prevents plaintiffs from suing another company after
already collecting damages from the same incident.
Rep. Mark Ellebracht, who is opposed to the bill, demonstrated
the effects of mesothelioma by breathing shakily into the
microphone. He says the bill strips away constitutional rights
and that victims have a right to bring their claim.
Rep. Jay Barnes, who is also opposed to the bill, said it would
harm firefighters the most, as they may not be able to
immediately determine the source of the asbestos. Barnes also
argues that plaintiffs may not have enough time to gather all of
the evidence they need for court.
The bill passed the House in a 96 to 48 vote and will now head to
the Senate.
News of the bill comes as a new report found that asbestos
filings declined in 2017. The report found that there were 4,450
filing last year, down from 4,812 in 2016 and 5,336 in 2015.
Lung cancer cases were down 10%, while mesothelioma cases were
down 5%. Filings related to other types of cancer were down by
12%.
KCIC, the consulting firm that collected the data, gave no reason
for the decline. But experts believe that filings are on the
decline because fewer people are working around asbestos.
ASBESTOS UPDATE: OH High Ct. to Weigh on Cumulative Exposure
------------------------------------------------------------
Chicago Daily Law Bulletin reported that the Ohio Supreme Court
was asked to determine whether under the statutory construction
of R.C. 2307.96, a "substantial factor" requirement may be met
through a "cumulative-exposure theory," which posits that every
nonminimal exposure to asbestos is a substantial factor in
causing mesothelioma.
ASBESTOS UPDATE: Asbestos in Makeup Reignites Fears
---------------------------------------------------
Alex Strauss of Surviving Mesothelioma reported that the American
accessories chain Claire's is in trouble again after Dutch health
and safety authorities claim to have found mesothelioma-causing
asbestos in makeup powder for teenage girls.
The news was reported by Dutch news outlet DutchNews.nl.
According to the website, the ILT and NVWA (Dutch health and
safety authorities) have ordered two types of makeup -- a face
power and a contouring powder -- pulled from the shelves while an
investigation is conducted.
The inspectors reportedly found 2% to 5% of asbestos, a known
carcinogen and the primary cause of mesothelioma, in the face
powder and 0.1% to 2% in the contouring powder.
The US Environmental Protection Agency has stated that no amount
of asbestos exposure is without risk and Dutch authorities
agreed.
A Troubling Link to Asbestos
Claire's made headlines in the US late last year after a Rhode
Island TV station broke the news that asbestos had also been
found in children's glitter makeup. The problem was uncovered by
a woman who sent her child's makeup kit away to an independent
lab for testing.
The jewelry and accessories chain vigorously denied the asbestos
allegations and claimed their own tests from four independent
labs found no traces of asbestos.
According to Dutch News, the US Food and Drug Association assured
Dutch authorities at the time that the products were safe. But
health and safety inspectors in The Netherlands, where Claire's
operates 32 stores, were on alert.
Personal Care Products and Mesothelioma
Asbestos has been linked to malignant mesothelioma since as early
as the 1950s. Throughout the 80s, and 90s, the use of asbestos,
which was once prevalent in products from insulation to
hairdryers to Christmas decor, was phased out by many developed
countries.
Fifty-five countries, including The Netherlands, have now banned
asbestos in an effort to minimize the risk of mesothelioma, an
aggressive cancer with no known cure. The US has yet to ban
asbestos.
The danger with having any amount of asbestos in powdered
products is that microscopic fibers can become airborne when a
brush is swirled through the mixture and could be inhaled by the
user.
Once asbestos fibers enter the body, it is nearly impossible for
them to be expelled. The result is chronic inflammation and
irritation at the cellular level that can result in pleural
mesothelioma even decades after exposure.
Multiple studies have confirmed that the earlier in life a person
is exposed to asbestos, the higher their lifetime risk of
mesothelioma, making the presence of the toxin in products
designed for young people especially concerning.
Asbestos in Powder
Unfortunately, Claire's is not the only producer of personal care
items to come under scrutiny for possible asbestos contamination.
In 2015, a California woman won a $13 million lawsuit against
Colgate Palmolive, claiming that she developed mesothelioma after
using the company's talcum powder. Pharmaceutical giant Johnson &
Johnson has been sued twice by people who claim that it's baby
powder also contained trace amounts of asbestos.
Children's clothing chain Justice recently recalled a range of
shimmer powder products from its shelves, although the company
claims the move is a precaution and not because of the presence
of asbestos.
Despite the risks, there are no federal regulations in the US to
prevent the presence of asbestos in talcum powder or cosmetics.
ASBESTOS UPDATE: City Employees Fears Asbestos in Buildings
-----------------------------------------------------------
Adam Murphy of WBRC FOX6 News reported that in downtown East
Point, at the city's Customer Care Center, there's a serious
health concern which community activist Jean Wilson wants you to
know about.
"When they purchased it they knew it was in there," said Wilson.
"They were made aware that asbestos was in the building. They
can't say that they did not know."
She's heard from employees complaining about the conditions
including this city worker who did not want to be identified for
fear of losing their job.
"We've been experiencing mold, mildew, termites, possibly
asbestos," said one employee. "They've been doing a lot of
construction, drilling holes in the walls while the building is
open to the public."
The Former mayor of East Point says she knew about the asbestos
as well. She issued this statement to our newsroom: "Yes, I knew
that the Customer Care building had an asbestos problem while I
was a Council Member and Mayor. The City Clerk and Human
Resources staffs were transferred from the downstairs area to
Jefferson Station because of the problem. I was told that the
asbestos problem was limited to the downstairs area and was being
contained. Evidently, that is not the case and no employees or
residents should be allowed to work in the upstairs area. I left
office on December 31, 2013, and more that enough time has
transpired for the asbestos problem to be resolved and the
building closed."
"East Point has a lot of senior citizens that have a lot of
illness so when they go in there they're breathing that same
air," said Wilson.
The anxiety intensified for everyone when an employee said this
red tape was put up in the building warning of asbestos.
"Once we questioned about the asbestos signs and tape they
removed it and said it was pretty much good and there was nothing
there," the employee said.
"They don't care. It's a don't care attitude when they don't
concern themselves with their employees," said Wilson.
Some of those employees have complained about rashes and
respiratory infections, yet the city continues to operate as if
it's business as usual.
"They have buildings they can lease and move people around and
things like that. They can use any excuse they want to, but the
bottom line is they need to save these people's lives," said
Wilson.
CBS46 reached out to the City of East Point regarding this story.
They issued the following statement: "Creating a safe work
environment for employees is the top priority of the City. The
City has made recent modifications to our Customer Care building
and will investigate these complaints. We will continue to
inspect our buildings regularly and address specific complaints
to ensure that all of our employees and members of the public who
visit our facilities are in a safe environment."
ASBESTOS UPDATE: Dutch Inspector Finds Asbestos in Claire's
-----------------------------------------------------------
DutchNews.nl reported that the Dutch health and safety
authorities ILT and NVWA have ordered two types of make-up
produced by American teenage accessories chain Claire's to be
withdrawn from sale after it found traces of asbestos in the
powder.
The organisations said in a statement they have ordered the
company to remove the products from the shelves of the 32 Dutch
branches of Claire's and have started an investigation. The
inspectorate found 2% to 5% asbestos in a face powder and 0.1 to
2% of the carcinogenic substance in a contouring powder.
In spite of the low concentrations 'there is a risk to health',
the organisations said. The inspectorate started the
investigation after it was claimed asbestos was found in Claire's
make up in the United States. An earlier call for the NVWA to
investigate Claire's make up in the Netherlands came in December
of last year but was not followed up because the US Food and Drug
Administration (FDA) assured the NVWA that there was nothing
wrong with the products.
Products containing asbestos are banned in the Netherlands
because of the danger to health. The inspectorate has asked the
company to withdraw other products made with the same ingredients
until further notice.
Bankruptcy
American media report that Claire's filed for Chapter 11
bankruptcy protection, saying it had an agreement with creditors
to restructure about $1.9 billion in debt.
The retailer operates in more than 7,500 locations in 45
countries and employs about 17,000 people. Claire's said it did
not plan to close any of its stores, and its international
subsidiaries are not part of the bankruptcy filing.
ASBESTOS UPDATE: Iselin's School 18 Closed Again Due to Asbestos
----------------------------------------------------------------
News 12 New Jersey reported that a school in the Iselin section
of Woodbridge will once again be closed due to asbestos.
Parents of students at School 18 say that they wanted answers
about the asbestos levels inside the school.
The school was first closed for cleaning in February. But parents
were told that new tests indicated that asbestos was found on
desk surfaces in at least three classrooms and the media center.
The students will be going to a split-session at the middle
school.
Some parents tell News 12 New Jersey that they are tired of the
disruptions to their students' lives.
"I want clear, concrete timelines as to what actions they will
take to fix this and what to expect with our kids," says father
Daniel Grossberg.
A meeting with school officials was held.
ASBESTOS UPDATE: Jury Clears Ameron in Asbestos Cancer Death
------------------------------------------------------------
Law360 reported that a Philadelphia jury has rejected claims from
the family of a Delaware man seeking damages after he was
stricken with fatal mesothelioma as a result of his exposure to
asbestos-laden pipes manufactured by Ameron International Corp.
While jurors agreed that Ernest Schrader had developed malignant
mesothelioma after being exposed to Ameron's products, the panel
declined to find that the company had acted negligently in
failing to provide warnings about the asbestos in its piping.
ASBESTOS UPDATE: Asbestos Co. Fails to Dodge Mesothelioma Trial
---------------------------------------------------------------
Mesothelioma.net Blog reported that it has been six years since
Henry Barabin passed away from malignant pleural mesothelioma,
and more than 8 years since a jury decided that it was a result
of negligence on the part of Scapa Dryer Fabrics, Inc. and other
defendants. But the legal ordeal for Henry's wife Geraldine has
continued, as Scapa appealed the verdict and then moved to have
the whole case dismissed instead of going to a new trial. Despite
Scapa's argument that Mrs. Barabin has insufficient proof that
their products caused her husband's death, District Judge James
L. Robart of the U.S. District Court in Seattle, Washington has
denied their motion and Mrs. Barabin will have the chance to try
her case again.
In making his decision, Judge Robart explained the rules
regarding summary judgment, then concluded that though Mrs.
Barabin didn't present any direct evidence linking Scapa's
products to Mr. Barabin's mesothelioma, "the circumstantial
evidence she provides, when viewed in the light most favorable to
her, is sufficient for a reasonable juror to infer that Mr.
Barabin was exposed to Scapa asbestos-containing dryer felts
during the 30-plus years he worked at the Camas paper mill." Mrs.
Barabin had presented evidence of her husband having worked at
the Camas paper mill between 1968 and 2001 in a variety of
positions, and that many of them required him to work on machines
that Scapa's asbestos-contaminated dryer felts were used on. He
also used high pressured hoses to blow dust out of the dryers,
and it is likely that the dust came from asbestos. Other tasks
included checking the filters on the machines, including those
that used filters made by Scapa.
For their part, Scapa's attorney tried to argue that because the
work site where Mr. Barabin worked was so expansive, there is no
way of knowing that his asbestos exposure and subsequent
mesothelioma diagnosis came from their dryer felts. The court
ruled that the evidence showed that he worked in direct proximity
to the dryer felts as well as on the machines that used them.
They also argued that there was evidence showing that the slight
majority of its dryer felts did not contain asbestos, but the
court disagreed that this would impact the possibility that a
jury would rule out the remainder as a potential cause of
exposure. The widow will be able to proceed with retrying the
case.
ASBESTOS UPDATE: Unlicensed Colorado Contractor Under Probe
-----------------------------------------------------------
Jaclyn Allen of The Denver Channel reported that Colorado health
officials are now investigating an unlicensed contractor
following a major asbestos spill in a Littleton family's home
that cost them nearly everything they own.
Also, despite what the Jim's Renovations truck states, Jim
Johnson and his company are unlicensed, and the Better Business
Bureau says he is not accredited.
"I don't want him to do this to anyone else," said Natasha
Mitchell, who came forward with her family's story to warn others
and soon learned that she was not alone.
For months, the kitchen in Rosalyn Vette's Littleton home has
been a stalled construction zone, but she didn't start worrying
about asbestos until she heard about the toxic spill at the
Mitchell's house.
Both families hired Jim's Renovations and its owner to scrape
their popcorn ceilings.
"He assured us that we didn't have to have its tests," said
Vette. "It circulated through our whole house and they didn't do
anything to contain it."
However, Colorado law requires testing for asbestos in jobs like
those, or for it to be treated like asbestos by a trained,
certified General Abatement Contractor.
In an email to Denver7, a Colorado Department of Public Health
and Environment (CDPHE) spokesman states that the agency has
"initiated an investigation," confirming that Johnson and his
company aren't certified by the state. Under state law, violators
could face fines of up to $25,000 a day and criminal charges.
Alfonso Peters with Asbestos Professionals said that Certified
Abatement Contractors use expensive equipment to clean out tiny
asbestos fibers that, when disturbed, can cause serious health
problems such as cancer and mesothelioma. Peters points out that
asbestos can be found in everything from walls to ceilings to
tiles, even in newer homes.
"We want to save money because we all work hard for what we got,
but unfortunately, at the end of the day, it ends up costing you
a lot more when you go with those kind of contractors," said
Peters.
Fortunately, Vette said, the asbestos testing at her house came
back negative, but the job was still shoddy, overbudget and
incomplete when she finally fired Johnson, who she said has since
sent threatening texts after she posted negative reviews on
social media.
"I thought that my children had been poisoned," said Vette. "I
just want him to stop lying to people and hurting them."
Johnson declined to be interviewed, but said on the phone that he
didn't know Colorado required certification for asbestos removal
and the state called him to tell him to stop.
"Trust me, this has hit me so hard I'm not ever going to touch a
popcorn ceiling again," said Johnson, who said he would not give
his insurance information to the Mitchells or the Vettes because
he did nothing wrong. "I googled the process and followed it 100
percent and then some."
ASBESTOS UPDATE: New Jersey School Closed Due to Asbestos
---------------------------------------------------------
Seattle Times reported that a New Jersey elementary school has
been temporarily closed because of a mold problem.
NJ.com reports Woodbridge Township School District Superintendent
Robert Zega announced the closure of Indiana Avenue Elementary
School. He says asbestos was found in three classrooms and the
media center.
Elementary students will attend classes at Iselin Middle School
students.
The elementary school had been closed earlier this year when mold
was found. Students spent a week out of school before attending
classes at the middle school for two weeks.
ASBESTOS UPDATE: Special Oxford School to Close Over Asbestos
-------------------------------------------------------------
Sophie Grubb of The Oxford Times reported that a special school
in Oxford has been shut to protect pupils' safety after an
asbestos ceiling was damaged.
Northfield School in Blackbird Leys, which teaches boys aged 11-
18, closed and will not reopen until after the Easter holidays.
Oxfordshire County Council confirmed an 'asbestos ceiling' in a
corridor was damaged and the area was sealed off on safety
grounds.
A spokesman said: "Specialist contractors are in the process of
making the school safe.
"In the meantime the school has remained closed as a precaution,
and also as an opportunity to address other issues relating to
the school buildings maintenance and condition.
We are sorry for the inconvenience and concern this has caused."
Until the 21st century, when people realised it was harmful,
asbestos was used in many building and decorating projects -- for
example, many ceilings were covered with textured paint
containing asbestos.
Though safe when left alone, asbestos can be lethal if it is
disturbed and its fibres become airborne, as they can then be
ingested or inhaled.
The council spokesman added: "We would like to reassure parents,
pupils and staff our highest priority is the safety of all
concerned and the continuation of education for all pupils."
Northfield School in Knights Road has been in need of
improvements to its building for some time.
In January Bob Price, then Oxford City Council leader, revealed
land belonging to Northfield School was being considered for
additional parking at Kassam Stadium.
He said at a meeting: "It [the school] is in bad need of being
refurbished, replaced, relocated or even rebuilt."
Parents raised concerns about the potential impact of the
closure.
One mother wrote on the school's Facebook page: "This does have a
big impact on them in every way possible.
"I hope the local authority assesses this situation and repairs
the matter to the best of their ability.
"If you cannot repair the matter then shut the school down and
find alternative schooling for the boys as they are missing out
on their education, which is vital for them."
The school has also apologised to parents for the inconvenience.
A statement released by deputy headteacher Tristan Powell said:
"The difficult decision to close the school to students was not
taken lightly and has been made on health and safety grounds.
"I wish to apologise to parents and carers for the inconvenience
and impact that this may cause but please rest assure that all
efforts are being made to rectify the situation.
"In the absence of students, staff will be working hard to
further develop what is offered at Northfield and to plan for a
successful summer term."
The council also thanked staff for their 'prompt response' to the
problem.
ASBESTOS UPDATE: Mass. Asbestos Removal Co. Owes Union $700K
------------------------------------------------------------
Law360 reported that a Massachusetts man and his asbestos-removal
company must pony up more than $700,000 after admitting they
underpaid unionized construction workers and their retirement
fund from 2011 through 2013, a federal judge ruled.
U.S. District Court Judge Rya W. Zobel sentenced SMI Demolition
Inc. and owner Charles Smith Jr. to pay restitution of $29,000 to
17 Boston-area members of Building Wreckers' Local Union 1421 and
$674,000 to their pension fund, the Massachusetts Laborers
Benefit Funds. Smith, 51, of Sharon, was placed under house
arrest.
ASBESTOS UPDATE: Worker Dies After Years of Asbestos Exposure
-------------------------------------------------------------
Julian Makey of Hunts Post reported that David Spetch, 72, had
even been responsible for drawing up a survey for the removal of
asbestos from a building, an inquest in Huntingdon heard.
In a statement written after his diagnosis, Mr Spetch told how he
had regularly been in areas which were full of asbestos dust as
fireproofing panels were cut to fit, but had not been given any
safety advice or protection.
At Lawrence Court, in Huntingdon, senior coroner David Heming
said the mesothelioma which caused Mr Spetch's death was a result
of him being exposed to the material during his working life.
He said there was a clear link between mesothelioma -- a rare
form of cancer -- and exposure to asbestos, and expressed his
condolences to Mr Spetch's family.
Mr Spetch, of Sparrowhawk Way, in Hartford, died at
Hinchingbrooke Hospital on January 6 from metastatic
mesothelioma, with diabetes being a secondary factor.
In his statement to the coroner, Mr Spetch told how he had been
exposed to asbestos during a number of jobs starting in the 1960s
where fitters were cutting up asbestos sheeting with power saws,
creating dust.
He said he often spent a third of his working life on site,
including checking whether the building work was being carried
out correctly.
"I was never given any warning of the danger of asbestos or
protection to wear," he said.
In his statement, Mr Spetch said he had been working at a
hospital where pipes in a service tunnel had been lagged with
asbestos which was in poor condition and falling off, made worse
by steam leaking from a boiler which had blown some of the
lagging off. He had carried out a survey for the removal of the
asbestos.
ASBESTOS UPDATE: Millport's DA Hall Closes After Asbestos Find
--------------------------------------------------------------
Alan Cawley of Largs and Millport Weekly News reported that the
DA Hall in Millport, which is well used by a number of community
groups, is to close for three weeks after the council found
asbestos in the building.
A North Ayrshire Council spokesperson said: "As part of our
ongoing inspection programme of Council buildings, asbestos was
discovered in the loft space in the DA Hall.
"The facility will be closed for three weeks from April 16 to
allow the asbestos to be removed safely.
"We have informed all community groups of the closure and will
help them source alternative venues if required."
It follows the closure of the Millport Town Hall, which the
'News' reported, is going to be put up for sale, or possibly a
purchase through a 'community asset transfer'.
*********
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