/raid1/www/Hosts/bankrupt/CAR_Public/180720.mbx
C L A S S A C T I O N R E P O R T E R
Friday, July 20, 2018, Vol. 20, No. 145
Headlines
ADVANCED CALL: Seeks 2nd Cir. Review of Decision in "Dipisa" Suit
AIR METHODS: Court Dismisses Suits Over Air Ambulance Fees
ALLSTATE CAR & LIMO: Faces "Fischler" Suit in S.D. New York
ALLSTATE INSURANCE: Partial Summary Ruling Bid in "Romero" Denied
AMERICAN EXPRESS: Ameriprise May Enforce "Benacquisto" Deal
AMERICAN FAMILY: Ct. Partly Dismisses Chiropractic Clinic's Suit
AMERICARE INC: Court Conditionally Certifies "Heredia" FLSA Class
AN DA NJ: "Wang" Suit Seeks Minimum & Overtime Wage under FLSA
AQUA METALS: Glancy Prongay to Lead in Securities Fraud Suit
AUDIBLE INC: Seeks Ninth Circuit Review of Ruling in "McKee" Suit
BASF CORP: Isaac Industries Alleges Foam Chemicals Price-Fixing
BUENA VISTA: Thompson Files Appeal to 10th Circuit
CAPITAL ONE: Website not Accessible to Blind, Duncan Says
CARING SENIOR: Faces "Matzura" Suit in S.D. New York
CHARTER COMMUNICATIONS: Underpays Call Center Agents, Suit Says
CLARK COUNTY, NV: Court Extends Expert Witness Deposition
COMPREHENSIVE HEALTH: Alvelo Seeks Overtime Pay under FLSA
CORONA REGIONAL: 9th Cir. Flips Denial of Class Certification
CORRECT CARE: Bid to Dismiss "Woodcock" Denied
COSTCO WHOLESALE: Partial Summary Judgment Bid in "Canela" Denied
DITECH FINANCIAL: Court Denies Bid to Dismiss TAC in "Scally"
DISTRICT OF COLUMBIA: Court Dismisses "Ejonga" Inmates Suit
DS SERVICES: Morrow Seeks Overtime Pay under FLSA
DWYER GROUP: Faces "Matzura" Suit in S.D. New York
EAST COAST POLYTECHNIC: Parris Sues over Unsolicited Messages
ENCORE RECEIVABLE: Reynolds Appeals D.N.J. Decision to 3rd Cir.
EOG RESOURCES: "Qualls" Stayed Pending Arbitration with Bedrock
EOS CCA: Troyanovsky Sues over Debt Collection Practices
EPIC SYSTEMS: SCOTUS Rules for Arbitration Agreement Enforcement
FACEBOOK INC: Faces "Kopecky" Suit in N.D. California
FEDERAL HOUSING: Dismissal of Net Worth Sweep Suit Affirmed
FEDEX GROUND: Court Partly Grants Bid to Dismiss "Roy" FLSA Suit
FIDELITY MANAGEMENT: Court Won't Amend Judgment in ERISA Suit
FLORIDA: Dismissal of Amended "Bassett" Suit Recommended
FRITO-LAY INC: Martinez Seeks Unpaid Wages under Labor Code
G4 INVESTMENTS: Faces "Britschgi" Suit in Calif. Super. Court
GALLAGHER BASSETT: Court Dismisses Prompt-Pay Suit
GLOBAL TEL-LINK: "McNeil" Moved to M.D. Ark. for Consolidation
GROGG'S HEATING: Must Strike "Faubel" Deal Confidentiality Term
HARTMAN AND TYNER: Removes Tocco Suit to S.D. Florida
HEALTHPORT TECHNOLOGIES: Removes "Bowden" Suit to W.D. Missouri
HILL COUNTRY CHICKEN: $30K Settlement in "Flores" Has Approval
HOMETOWN AMERICA: "Miller" Suit Moved to N.D. California
IDEMIA IDENTITY: Removes Rueda et al. Suit to N.D. California
INFUSED CREATIONS: Edibles Contain Less THC, Lambert Complains
ITT CORP: "Lee" Settlement Has Preliminary Approval
JDJ INVESTMENTS: Fleck Sues over Debt Collection Practices
JPMORGAN CHASE: Court Won't Review "Blake" Suit Dismissal
JV ENTERPRISES: Underpays Delivery Drivers, Hungerford Claims
LIBERTY MUTUAL: Mosley Sues over Uninsured Motorist coverage
LOMA NEGRA: Faces "Kohl" Suit in New York Supreme Court
LONDON TERRACE: Loses Bid to Stay Order of "Dugan" Class Notice
LOUISIANA MEDICAL: "Barnett" Peremptory Exception Ruling Upheld
MAGYAR ALLAMVASUTAK: 7th Cir. Won't Reopen "Fischer" Suit
MAINE: Gladu Files Suit v. MDOC Officials
MAID BRIGADE: Faces "Matzura" Suit in S.D. New York
MAIDPRO INC: Faces "Burbon" Suit in S.D. New York
MARITZCX RESEARCH: "Begay" Suit Seeks Damages under TCPA
MATTRESS FIRM: Underpays Sales Consultants, Crabtree Claims
MAXIM HEALTHCARE: Remove "Duran" Suit to C.D. California
MDL 2820: Wapsie Farms Suit vs. Monsanto Consolidated
MDL 2857: Credit Suisse et al. Move 4 Cases to S.D. New York
MERCHANTS CREDIT: "Taylor" Suit Settlement Has Final Approval
METEOR LEARNING: Has Made Unsolicited Calls, "Hicks" Suit Says
MOLTO BENE BELLMORE: Fails to Pay OT to Cooks, Vazquez Alleges
MONSANTO COMPANY: Kings Sue over Sale of Herbicide Roundup
MOULTON NIGUEL: Dismissal of Inverse Condemnation Suit Upheld
MRS. BLOOM'S: "Saavedra" Suit Settlement Enforceable
MRS BPO: Faces "Castro" Suit in N.D. Illinois
MTC TRANSPORTATION: Runyan et al. Suit Moved to W.D. Washington
NEWELL BRANDS: "Barnett" Suit Alleges Exchange Act Violation
NOBU 57 LLC: Underpays Runners and Servers, "Hossen" Suit Alleges
OYSTER BAY: Faces "Mendez" Suit in S.D. New York
PACIFIC GAS: $6MMM Settlement in "Greer" Has Prelim Approval
PEACHES BOUTIQUE: Fails to Pay Proper Wages, "Alamo" Suit Says
PHILLIPS HOLDINGS: Swistok Seeks Minimum Wage & OT under FLSA
PNC FINANCIAL: Website not Accessible to Blind, Duncan Says
PRIMEFLIGHT AVIATION: Fails to Pay Proper Wages, "Kuhn" Suit Says
PROPERTY CARE: Perrys Sue Over Apartment Defects
QUALITY ENCLOSURES: Kislek Sues over Medical Leave
QUICKEN LOANS: Court Allows Amendment to "Mattson" TCPA Suit
REALHOME SERVICES: Faces "Walker" Suit over Background Checks
REV GROUP: Marinoff Alleges Securities Act Violations
RINCON CRIOLLO: "Agrinzones" Suit Alleges FLSA Violations
ROTH DIVERSIFIED: Lopez Seeks Overtime Wages under FLSA
RUSHMORE LOAN: Boin Alleges Wrongful Debt Collections
S&HH 2018: Rashid Seeks Overtime Wages under FLSA
SAMSUNG ELECTRONICS: Kerkorian Sues over POWERbot Vacuum Defects
SCREEN ACTORS GUILD: Faces "Risto" Suit over Music Service Fees
SERVIS ONE: Court Consolidates Couple's Consumer Class Suits
SHOPLINK INC: Court Dismisses "Tatintsian" Securities Suit
SIBANYE GOLD: "Brandel" Suit Alleges Exchange Act Violations
SILICON VALLEY SECURITY: Fails to Pay Wages & OT, Taylor Says
SOURCE PROVIDERS: Guerriero Seeks Overtime Pay under FLSA
SPOTIFY USA: Settlement in "Ferrick" Suit Has Final Approval
SUPREME INDUSTRIES: Securities Fraud Suit Dismissed
TD AMERITRADE: Wins Dismissal of "Antczak" Securities Suit
TESLA MOTORS: Del. Refuses Elon Musk's Interlocutory Appeal
TJX COMPANIES: Sweeney Files 9th Circuit Appeal in "Chester" Suit
TOYOTA MOTOR: Loses Bid to Dismiss FAC in Rav 4 Suit
TRANSCANADA: PERS Mississippi Sues over Columbia Pipeline Spinoff
TRANS UNION: Court Denies Bid to Alter $200 Sanction in "Letren"
TRANSWORLD SYSTEMS: Tingey Alleges Wrongful Debt Collections
TRI-STAR RESTAURANT: "Trawick" Wage Suit Remains in Federal Court
UBER TECHNOLOGIES: Ninth Circuit Appeal Filed in "Antman" Suit
UBER TECHNOLOGIES: Latif Appeals Ruling in "Mohamed" Class Suit
U & E BRAND: Abrego Seeks Overtime Wages under FLSA
UNICHEM PHARMACEUTICALS: Faces "Johnson" Suit in N.D. Mississippi
UNION PACIFIC: Court Grants Dismissal of "Tinder-Howell"
UNION PACIFIC: Court Enters Final Judgment in "Fowler"
UNITED COLLECTION: "Allberry" Suit Alleges FDCPA Violation
UNITED STATES: Derivative Membership in ABC Class Denial Upheld
UNITED STATES: Padilla et al. Sue over Immigration Policies
UNIVERSAL INSURANCE: Petitions for Writ of Certiorari Filed
UNO RESTAURANT: Court Denies Certification of Bussers' Class
US AIRWAYS: Angeles Appeals N.D. Calif. Decision to Ninth Circuit
VIRGINIA: 4th Cir. Reverses "Stinnie" Dismissal
WENNER MEDIA: Settlement in "Sullivan" Suit Has Final Approval
WHIRLPOOL CORP: "Parsons" Transferred to N.D. Fla.
WILLIAMS-SONOMA: "Rushing" Suit Moved to E.D. Kentucky
WINN-DIXIE STORES: Loses Bid for Attorney's Fees in "Magee" Suit
WORKFORCE RESOURCES: "Jamil" Remains in Federal Court
Asbestos Litigation
ASBESTOS UPDATE: Liverpool Council Settles Asbestos Class Action
ASBESTOS UPDATE: "Williams" Remanded for Summary Disposition
ASBESTOS UPDATE: Summary Judgment Favoring Crosby, et al., OK'd
ASBESTOS UPDATE: Roper Tech, Units Still Defend Suits at Mar.31
ASBESTOS UPDATE: Minerals Technologies Faces 22 Cases at April 1
ASBESTOS UPDATE: Standard Motor Had $32.77MM Liability at Mar.3
ASBESTOS UPDATE: Standard Motor Had 1,545 Fibro Cases at Mar. 31
ASBESTOS UPDATE: Appeal from $13MM Verdict Pending in "Lopez"
ASBESTOS UPDATE: Sempra Energy Units Still Face Suits at March 31
ASBESTOS UPDATE: Regency Centers Has $9.8MM Cleanup Liability
ASBESTOS UPDATE: Kaman Corp. Still Defends Suits at March 30
ASBESTOS UPDATE: General Cable Had 238 Cases at March 30
ASBESTOS UPDATE: BNSF Still Defends PI Claims at March 31
ASBESTOS UPDATE: MetLife Unit Had 823 New Claims at March 31
ASBESTOS UPDATE: Enstar Had US$201.4MM Liability at March 31
ASBESTOS UPDATE: Mallinckrodt Had 11,600 PI Cases at March 30
ASBESTOS UPDATE: 3M Co. Still Faces 2,250 Claimants at March 31
ASBESTOS UPDATE: 3M Co. Accrues US$598MM for Respirator Lawsuits
ASBESTOS UPDATE: 3M Accrues $29MM for Aearo-Related Liabilities
ASBESTOS UPDATE: Valhi Unit Has 106 Cases Pending at March 31
ASBESTOS UPDATE: Albany Int'l Defending 3,662 Claims at March 31
ASBESTOS UPDATE: Brandon Drying Defends 7,707 Claims at March 31
ASBESTOS UPDATE: Albany Int'l. Still Faces Mount Vernon Lawsuits
ASBESTOS UPDATE: Belac Bid for Voluntary Dismissal Granted
ASBESTOS UPDATE: NJ Law Application on Allocation Clash Affirmed
ASBESTOS UPDATE: Retired Engineer Dies of Asbestos Exposure
ASBESTOS UPDATE: Woman Dies of Exposure from Husband's Overalls
ASBESTOS UPDATE: Asbestos Found in Bermuda Police Building
ASBESTOS UPDATE: Woman Says Asbestos at Work Caused Lung Cancer
ASBESTOS UPDATE: Patient Disclosure Sparks Exchange in Talc Trial
*********
ADVANCED CALL: Seeks 2nd Cir. Review of Decision in "Dipisa" Suit
-----------------------------------------------------------------
Defendant Advanced Call Center Technologies, LLC, filed an appeal
from the District Court's memorandum & order entered on May 7,
2018, in the lawsuit styled Dipisa v. Advanced Call Center
Technologies, LLC, Case No. 17-cv-3029, in the U.S. District
Court for the Eastern District of New York (Central Islip).
The nature of suit is stated as consumer credit.
As previously reported in the Class Action Reporter, the lawsuit
was filed on May 19, 2017.
Advanced Call Center provides contact center and back office
support services to companies in the United States.
The appellate case is captioned as Dipisa v. Advanced Call Center
Technologies, LLC, Case No. 18-1714, in the United States Court
of Appeals for the Second Circuit.[BN]
Plaintiff-Appellee Peter Dipisa, Jr., On Behalf of Himself and
all Others Similarly Situated, is represented by:
Mitchell L. Pashkin, Esq.
MITCHELL PASHKIN ATTORNEY AT LAW
775 Park Avenue
Huntington, NY 11743
Telephone: (631) 629-7709
E-mail: mpash@verizon.net
Defendant-Appellant Advanced Call Center Technologies, LLC, is
represented by:
Eric B. Post, Esq.
ABRAMS GARFINKEL MARGOLIS BERGSON, LLP
1430 Broadway
New York, NY 10018
Telephone: (212) 268-8817
E-mail: epost@agmblaw.com
AIR METHODS: Court Dismisses Suits Over Air Ambulance Fees
----------------------------------------------------------
In the cases, JEREMY LEE SCARLETT, on behalf of himself and all
others similarly situated, Plaintiff, v. AIR METHODS CORPORATION
and ROCKY MOUNTAIN HOLDINGS, LLC, Defendants, Civil Action No.
16-cv-02723-RBJ, Consolidated Case No. 17-cv-00485, No. 17-cv-
00502., 17-cv-00509, 17-cv-00667, 17-cv-00791 (D. Colo.), Judge
R. Brooke Jackson of the U.S. District Court for the District of
Colorado granted (i) the Defendants' motion to dismiss Plaintiffs
Randal Cowen, et al.'s Second Amended Class Action Complaint, and
(ii) their motion to dismiss Plaintiff Scarlett's Consolidated
Class Action Complaint.
This is a proposed class action brought on behalf of patients,
their legal custodians, or the estates of deceased patients, who
allege they were charged exorbitant fees by defendants for
medical transport by helicopter. The named Plaintiffs are
residents of various states and bring their action on behalf of a
class of the Plaintiffs transported within the 48 contiguous
states. Air Methods Corporation is an air ambulance company with
a principal place of business in Englewood, Colorado, while Rocky
Mountain is the holding company that owns Air Methods and
directs collection efforts jointly with Air Methods.
The Plaintiffs' claims stem from the allegedly unreasonable
amounts the Defendants charge to provide air ambulance
transportation despite there being no valid agreement as to price
before the transportation occurs. In general, at the time the
Defendants provide medical air transportation, the patients are
suffering a medical emergency, unable to manifest assent, unable
to voluntarily contract, and unable to negotiate any terms or
conditions necessary to a voluntary undertaking.
The Plaintiffs allege that after providing medical air transport,
defendants typically invoice patients upwards of $40,000 for air
ambulance transportation services only, excluding any medical
services provided en route. The average price charged to the
Scarlett Plaintiffs was more than $52,000.
In many cases, after the Defendants send patients an invoice they
ask them to provide an "Assignment of Benefits" prepared by them,
which authorizes direct payment to them and assigns them the
patients' insurance coverage rights. After patients' insurers
pay what they deem to be the reasonable value of the services,
the Defendants typically demand that patients pay the remainder
of the charged amount. The Plaintiffs claim that Defendants have
initiated collection efforts against them, and in some cases, the
Defendants have filed state-court breach of contract claims and
other suits to collect their charges from the Plaintiffs.
The action is comprised of two separate complaints. The first,
Cowen v. Air Method Corporation, et al., No. 17-cv-00791-RBJ, was
filed by four Plaintiffs on behalf of a class of similarly
situated individuals. The Cowen Plaintiffs raise claims for
declaratory and injunctive relief, breach of contract, and
equitable restitution. The second complaint, Scarlett v. Air
Methods Corporation, et al., No. 16-cv-2723-RBJ, consolidated
four similar class actions. The Scarlett complaint raises claims
for breach of implied contract and for declaratory and injunctive
relief.
Although the two complaints allege nearly identical facts, they
rely in part on distinct legal theories. Both sets of Plaintiffs
argue at least nominally that the Airline Deregulation Act
("ADA") should not preempt the application of state common law to
determine a reasonable price for the Defendants' air ambulance
services. The Cowen Plaintiffs advocate the use of federal
common law in the event the ADA is found to preempt state common
law. The Scarlett Plaintiffs contend the ADA is unconstitutional
as applied if it is found to preempt state common law.
The Defendants have moved to dismiss both complaints. The
motions have been fully briefed, and the Court heard oral
argument on the motions on Sept. 27, 2017. Following oral
argument, the parties provided supplemental briefing. The United
States Government has intervened to defend the constitutionality
of the ADA.
The Defendants move to dismiss the Scarlett complaint for failure
to state a claim on the grounds that the complaint is expressly
preempted by the ADA. Judge Jackson agrees with the Defendants
that the ADA preempts the Scarlett Plaintiffs' claims. He says,
although the Plaintiffs highlight unfortunate side effects of the
ADA's preemption provision in this context, these effects do not
render the ADA arbitrary and irrational as it applies to air
ambulances. The fact that the Plaintiffs are left without a
remedy from the courts in this situation does not render the ADA
arbitrary and irrational in violation of substantive due process.
Because the Plaintiffs have not overcome the presumption of
constitutionality to which economic regulation like the ADA is
owed by demonstrating that the ADA is arbitrary or irrational,
their substantive due process claims must fail. The motion to
dismiss the Scarlett Plaintiffs' complaint will therefore be
granted, and the complaint will be dismissed with prejudice.
As to the Defendants' Motion to Dismiss the Cowen Complaint, they
specifically ask the Court to apply the Restatement of Contracts
(Second) articulation of the respective rights of the parties
where a contract is silent as to the price owned for services
rendered, and reasonable price is to be determined. The Judge
finds that the Plaintiffs' fundamental argument appears to be
that if the Defendants seek to pre-empt all breach of contract
claims dependent upon state common law principles, then, of
course, the ADA must channel the business of resolving, pursuant
to judicially fashioned common law, the range of contract claims
relating to airlines rates, routes and services,' as all other
means of resolving them are foreclosed.
Though he can easily sympathize with the Plaintiffs' frustration,
the Judge disagrees with their framing of the issue. The
Defendants do not seek to preempt all breach of contract claims
that would depend upon state common law principles, but only
those claims that have the Court create a bargain where the
parties had none.
In this case, he says, a reasonable price term provided by the
Court would certainly do more than just afford relief according
to the terms of an agreement. The fact that the parties have no
remaining means of resolving their disputes is the result of ADA
preemption. It is not a reason for a Court to impose federal
common law. Instead, the "gap in the law" created by preemption
is a problem for Congress, not the judiciary, to resolve.
For the reasons stated, Judge Jackson granted the Defendants'
motion to dismiss the Cowen Plaintiffs' complaint, and their
motion to dismiss the Scarlett Plaintiffs' complaint. Because
the Plaintiffs' claims are preempted by the ADA as a matter of
law, both complaints are dismissed with prejudice.
A full-text copy of the Court's May 22, 2018 Order is available
at https://is.gd/LL7oR0 from Leagle.com.
Jeremy Lee Scarlett, on behalf of himself and all others
similarly situated, Plaintiff, represented by Abby Caroline
Harder -- aharder@lrrc.com -- Lewis Roca Rothgerber Christie LLP,
Gary E. Mason -- gmason@wbmllp.com -- Mason Law Firm, LLP, The,
Jonathan N. Shub -- jshub@kohnswift.com -- Kohn Swift & Graf,
P.C., Thomas M. Rogers, III -- trogers@lrrc.com -- Lewis Roca
Rothgerber Christie LLP, Troy M. Frederick, Marcus & Mack, P.C. &
Mitchell Baker, Mitch Baker, Attorney at Law.
Yolanda O'Neale, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Richard Joseph Burke, Quantum
Legal LLC & Thomas M. Rogers, III, Lewis Roca Rothgerber Christie
LLP.
Heather Bartley, Judd Bartley, Jodene Lopresto Vaughn, Sarah
Oelke, Bobbie L Reed, Susan Schneberger, Lacy Stidman, Johnny
Trent, Amy Vanzant & Thomas Wade, Consol Plaintiffs, represented
by Abby Caroline Harder, Lewis Roca Rothgerber Christie LLP,
Thomas M. Rogers, III, Lewis Roca Rothgerber Christie LLP, Edward
L. White, Edward L. White, PC & S. Alex Yaffe -- info@fylaw.com -
- Foshee & Yaffe.
Edward Lee Adams, Joel Griffith, Reid Hardy & Michael Robertson,
on Behalf of Themselves and All Others Similarly Situated, Consol
Plaintiffs, represented by Abby Caroline Harder, Lewis Roca
Rothgerber Christie LLP, Christopher James Moore --
cmoore@rpwb.com -- Richardson Patrick Westbrook & Brickman, LLC,
Daniel Scott Haltiwanger -- dhaltiwanger@rpwb.com -- Richardson
Patrick Westbrook & Brickman, LLC, Mario Anthony Pacella, Strom
Law Firm LLC & Thomas M. Rogers, III, Lewis Roca Rothgerber
Christie LLP.
Griff Hughes, on behalf of themselves and all others similarly
situated & Lana Hughes, on behalf of themselves and all others
similarly situated, Consol Plaintiffs, represented by Abby
Caroline Harder, Lewis Roca Rothgerber Christie LLP, Jamie
Elisabeth Saltz Weiss, Quantum Legal LLC, Mitchell Baker, Mitch
Baker, Attorney at Law, Richard Joseph Burke, Quantum Legal LLC,
Thomas M. Rogers, III, Lewis Roca Rothgerber Christie LLP &
Zachary Allen Jacobs, Quantum Legal LLC.
Jenny Lee Stephens, on Behalf of Herself and All Others Similarly
Situated, Consol Plaintiff, represented by Abby Caroline Harder,
Lewis Roca Rothgerber Christie LLP, Thomas M. Rogers, III, Lewis
Roca Rothgerber Christie LLP, Andrew P. Campbell --
andy.campbell@campbellguin.com -- Campbell Guin, LLC & Stephen D.
Wadsworth -- stephen.wadsworth@campbellguin.com -- Campbell Guin,
LLC.
Randal Cowen & Keith Kranhold, Executor of the Estate of Kenneth
Kranhold, Consol Plaintiffs, represented by Richard Joseph Burke,
Quantum Legal LLC.
Air Methods Corporation & Rocky Mountain Holdings, LLC,
Defendants, represented by David Alan King -- dking@bassberry.com
-- Bass, Berry & Sims, PLC, Michael L. O'Donnell --
odonnell@wtotrial.com -- Wheeler Trigg O'Donnell, LLP, Theresa R.
Wardon -- wardon@wtotrial.com -- Wheeler Trigg O'Donnell, LLP &
Trenton Don Tanner -- tanner@wtotrial.com -- Wheeler Trigg
O'Donnell, LLP.
Rocky Mountain Holdings, LLC & Air Methods Corporation, Consol
Counter Claimants, represented by David Alan King, Bass, Berry &
Sims, PLC, Michael L. O'Donnell, Wheeler Trigg O'Donnell, LLP,
Theresa R. Wardon, Wheeler Trigg O'Donnell, LLP & Trenton Don
Tanner, Wheeler Trigg O'Donnell, LLP.
Edward Lee Adams, Joel Griffith, Reid Hardy & Michael Robertson,
on Behalf of Themselves and All Others Similarly Situated, Consol
Counter Defendants, represented by Mario Anthony Pacella, Strom
Law Firm LLC & Thomas M. Rogers, III, Lewis Roca Rothgerber
Christie LLP.
USA, Interested Party, represented by Lisa Ann Olson, U.S.
Department of Justice.
ALLSTATE CAR & LIMO: Faces "Fischler" Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Allstate Car &
Limo, Inc. The case is captioned as Brian Fischler, individually
and on behalf of all other persons similarly situated, Plaintiff
v. Allstate Car & Limo, Inc., Defendant, Case No. 1:18-cv-05714-
JMF (S.D.N.Y., June 24, 2018). The case is assigned to Judge
Jesse M. Furman and referred to Magistrate Judge Ona T. Wang.
Allstate Car & Limo, Inc. is a private car and luxury limousine
service company in Brooklyn, Long Island, Manhattan, and NYC.
[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
630 Third Avenue
New York, NY 10017-6705
Telephone: (212) 392-4772
Facsimile: (212) 444-1030
E-mail: chris@lipskylowe.com
ALLSTATE INSURANCE: Partial Summary Ruling Bid in "Romero" Denied
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In the case, GENE R. ROMERO, et al., Plaintiffs, v. ALLSTATE
INSURANCE COMPANY, et al., Defendants, Civil Action No. 01-3894,
Consolidated with No. 01-6764 (Romero II), No. 03-6872 (Romero
III)., 15-1049 (Abell), 15-3047 (Anzivine) (E.D. Pa.), Judge Mark
A. Kearney of the U.S. District Court for the Eastern District of
Pennsylvania denied Allstate's motion for partial summary
judgment.
For many years, Allstate sold insurance through employee agents
under an employment agreement. In November 1999, Allstate
decided to transition the employee agents to independent
contractor status in a "Preparing for the Future Program." Under
the Program, Allstate terminated nearly all of its employee
agents effective no later than June 30, 2000. The Program
included a Release of claims.
On Aug.1, 2001, the original Plaintiffs -- a group of 27 former
Allstate employee agents including two Illinois agents -- filed
the case as a class action with both federal and state law claims
invoking federal question and supplemental jurisdiction ("Romero
I"). The Plaintiffs sought declaratory judgment on the
invalidity of the Release, alleged the Program violated the Age
Discrimination in Employment Act (ADEA) and the Employee
Retirement Income Security Act (ERISA), and alleged the same acts
gave rise to common law breach of contract and breach of
fiduciary duty claims.
The Plaintiffs invoked the federal question jurisdiction under 28
U.S.C. Section 1331 over the federal claims and supplemental
jurisdiction over the state law claims under 28 U.S.C. Section
1367. The Romero I action began as a putative class action and
the original Romero I Plaintiffs included two citizens of
Illinois, where Allstate is incorporated and is the principal
place of business of Allstate Corp. No party claimed diversity
subject matter jurisdiction, nor could they.
After years of litigation, the Romero I Plaintiffs moved for the
class certification on release issues under Federal Rule of Civil
Procedure 23(c)(4). On Oct. 6, 2014, the Hon. Ronald L.
Buckwalter denied class certification. On Jan. 6, 2015, after
considering the Plaintiffs' motions to clarify and reconsider his
order denying class certification, Judge Buckwalter ordered all
statutes of limitations to resume running on March 2, 2015. By
March 2, 2015, Allstate employees formerly included as putative
class members could no longer argue the class action protected
their interests.
On Feb. 26, 2015, the Plaintiffs moved for leave to file a Third
Amended Complaint to add over 360 Release-signing former employee
agents or their successors-in-interest in Romero I. Judge
Buckwalter granted their motion to file a Third Amended Complaint
on April 20, 2015.
Other groups of former Allstate employee agents filed complaints
in the District, including Abell v. Allstate Insurance Company on
Feb. 27, 2015 and Anzivine v. Allstate Insurance Company on June
1, 2015. Both complaints allege common law breach of contract
and breach of fiduciary duty claims arising out of the Program,
mirroring the state law claims asserted in Romero I.
After reassignment to the Court after Judge Buckwalter's
retirement, it consolidated the cases and directed the Plaintiffs
to file a Consolidated Amended Complaint. The Plaintiffs filed
the Consolidated Amended Complaint on May 20, 2016. Again, the
Plaintiffs did not invoke diversity jurisdiction, nor could they
given the Illinois Plaintiffs and the Defendants. The Plaintiffs
invoked federal question and supplemental jurisdiction.
Of the nearly 500 Plaintiffs in the Consolidated Amended
Complaint, the parties judicially admit all but 31 have now
settled in principal with Allstate. Seeking to winnow claims
before finalizing the individual cases in a proper venue,
Allstate moves for summary judgment to dismiss the state law
breach of contract and breach of fiduciary duty claims of 12 of
the remaining 31 Plaintiffs because they did not file state law
claims until 2010 or later.
Judge Kearney declines to ignore Congress' tolling mandate for
claims within the Court's supplemental jurisdiction. The
putative class Plaintiffs possessed state law "claims" until
Judge Buckwalter denied class certification and restarted the
statute of limitations. At that stage, the putative class
Plaintiffs knew they could no longer rely upon their state law
claims preserved in the class action.
He finds no authority interpreting Congress' use of "claim" in
Section 1367(d) as excluding a claim included within the named
Plaintiffs' supplemental jurisdiction. Otherwise, the named
Plaintiff in a class action asserting supplemental jurisdiction
over her state law claims would risk being "atypical" or lacking
common questions under Rule 23 -- at least as to her state law
claims. The parties do not offer, and he cannot find, support
for this proposition under either Rule 23 or Section 1367(d).
Judge Kearney holds that Congress mandates the Court tolls the
statute of limitations for a state law claim over which it enjoys
supplemental jurisdiction while the claim is pending. Given
Congress' mandate and the fundamental differences between state
law claims brought before the Court under its supplemental
jurisdiction as opposed to its diversity jurisdiction where it
may apply state law under Erie R.R. Co. v. Tompkins, the Judge
agrees with the U.S. Court of Appeals for the Sixth Circuit and
holds that the Plaintiffs' state law claims originally filed as
part of the case before Judge Buckwalter denied class
certification are timely and may proceed. Accordingly, he denied
Allstate's motion for partial summary judgment in the
accompanying Order.
A full-text copy of the Court's May 22, 2018 Memorandum is
available at https://is.gd/CTDwiG from Leagle.com.
GENE R. ROMERO, JAMES T. BEVER, RICHARD A. CARRIER, PAUL R. COBB,
CRAIG K. CREASE, SYLVIA CREWS-KELLY, RONALD W. HARPER, MICHAEL P.
KEARNEY, THOMAS A. KEARNEY, LARRY H. LANKFORD, SR., DAVID C.
LAWSON, NATHAN R. LITTLEJOHN, II, REBECCA R. MASLOWSKI, JAMES E.
MOOREHEAD, RICHARD E. PETERSON, PAUL L. SHIRLEY, DONALD L.
TRGOVICH, RICHARD S. WANDNER, TIMOTHY WEISMAN, ANTHONY T. WIKTOR,
JOHN W. WITTMAN, RALPH J. WOLVERTON & CAROLYN L. PENZO,
Plaintiffs, represented by JOHN V. GORMAN --
john.gorman@morganlewis.com -- MORGAN LEWIS & BOCKIUS, MARY ELLEN
SIGNORILLE, AARP FOUNDATION LIT., MICHAEL D. LIEDER, SPRENGER &
LANG, MICHAEL WILSON, MORGAN LEWIS & BOCKIUS LLP, STEVEN H. DOTO
-- sdoto@lauletta.com -- LAULETTA, BIRNBAUM, LLC., BRIAN M.
ERCOLE -- brian.ercole@morganlewis.com -- MORGAN LEWIS, COLEEN M.
MEEHAN -- coleen.meehan@morganlewis.com -- MORGAN, LEWIS &
BOCKIUS LLP, DAVID W. MARSTON, Jr. --
david.marston@morganlewis.com -- MORGAN, LEWIS AND BOCKIUS LLP,
JACQUELINE C. GORBEY -- jacqueline.gorbey@morganlewis.co --
MORGAN LEWIS & BOCKIUS LLP, JAMES P. WALSH, Jr. --
james.walsh@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP,
MARISEL ACOSTA -- marisel.acosta@morganlewis.com -- MORGAN LEWIS
& BOCKIUS, PAUL ANTON ZEVNIK -- paul.zevnik@morganlewis.com --
MORGAN LEWIS & BOCKIUS LLP & WILLIAM P. QUINN, Jr. --
william.quinn@morganlewis.com -- MORGAN, LEWIS & BOCKIUS.
JOSEPH L. BENOIT, Plaintiff, represented by COLEEN M. MEEHAN,
MORGAN, LEWIS & BOCKIUS LLP, BRIAN M. ERCOLE, MORGAN LEWIS, DAVID
W. MARSTON, Jr., MORGAN, LEWIS AND BOCKIUS LLP, JACQUELINE C.
GORBEY, MORGAN LEWIS & BOCKIUS LLP, MARISEL ACOSTA, MORGAN LEWIS
& BOCKIUS, MICHAEL D. LIEDER, SPRENGER & LANG, PAUL ANTON ZEVNIK,
MORGAN LEWIS & BOCKIUS LLP & WILLIAM P. QUINN, Jr., MORGAN, LEWIS
& BOCKIUS.
MARY JANE PILCHAK, AS SUCCESSOR FOR THE ESTATE OF JAMES PILCHAK,
Plaintiff, represented by DAVID W. MARSTON, Jr., MORGAN, LEWIS
AND BOCKIUS LLP, JACQUELINE C. GORBEY, MORGAN LEWIS & BOCKIUS LLP
& WILLIAM P. QUINN, Jr., MORGAN, LEWIS & BOCKIUS.
A. BURTON ENGLISH, SOLE HEIR OF DWIGHT F. ENGLISH, Plaintiff,
represented by BRIAN M. ERCOLE, MORGAN LEWIS, COLEEN M. MEEHAN,
MORGAN, LEWIS & BOCKIUS LLP, DAVID W. MARSTON, Jr., MORGAN, LEWIS
AND BOCKIUS LLP, JACQUELINE C. GORBEY, MORGAN LEWIS & BOCKIUS
LLP, MARISEL ACOSTA, MORGAN LEWIS & BOCKIUS, MICHAEL D. LIEDER,
SPRENGER & LANG & WILLIAM P. QUINN, Jr., MORGAN, LEWIS & BOCKIUS.
JOHN P. AELLEN, III, Plaintiff, represented by COLEEN M. MEEHAN,
MORGAN, LEWIS & BOCKIUS LLP, DAVID W. MARSTON, Jr., MORGAN, LEWIS
AND BOCKIUS LLP & JACQUELINE C. GORBEY, MORGAN LEWIS & BOCKIUS
LLP.
JOHN JUNKNIEWITZ, Intervenor Plaintiff, represented by JULIA
MUNLEY , MUNLEY LAW, COLEEN M. MEEHAN, MORGAN, LEWIS & BOCKIUS
LLP, DAVID W. MARSTON, Jr., MORGAN, LEWIS AND BOCKIUS LLP,
JACQUELINE C. GORBEY, MORGAN LEWIS & BOCKIUS LLP, JAMES C.
MUNLEY, MUNLEY LAW, PC, JOHN M. MULCAHEY , MUNLEY LAW PC & KATIE
NEALON -- knealon@munley.com -- MUNLEY LAW PC.
LEONARD GREGONLINE & THOMAS HAWKINS, Intervenor Plaintiffs,
represented by COLEEN M. MEEHAN, MORGAN, LEWIS & BOCKIUS LLP,
DAVID W. MARSTON, Jr., MORGAN, LEWIS AND BOCKIUS LLP, JACQUELINE
C. GORBEY, MORGAN LEWIS & BOCKIUS LLP, JAMES ALDO VAGNINI --
jvagnini@vkvlawyers.com -- VALLI KANE & VAGNINI LLP, MARISEL
ACOSTA, MORGAN LEWIS & BOCKIUS, ROBERT J. VALLI --
rvalli@vkvlawyers.com -- VALLI KANE & VAGNINI, LLP, SARA WYN KANE
-- skane@vkvlawyers.com -- VALLI KANE & VAGNINI LLP & SIDNEY L.
GOLD -- SGold@DiscrimLaw.net -- SIDNEY L. GOLD & ASSOCIATES, PC.
EDWARD M. LIDDY, IN HIS CAPACITY AS PRESIDENT, CHAIRMAN AND CHIEF
EXECUTIVE OFFICER OF THE ALLSTATE CORPORATION AND ALLSTATE
INSURANCE COMPANY, Defendant, represented by EDWARD F. MANNINO ,
AKIN GUMP STRAUSS HAUER & FELD LLP, JOHN B. LANGEL , BALLARD
SPAHR ANDREWS & INGERSOLL LLP, KATHERINE M. KATCHEN , AKIN GUMP
STRAUSS HAUER & FELD, LLP, CHRISTOPHER TODD COGNATO , BALLARD
SPAHR LLP, ERICA ZOLNER , KIRKLAND & ELLIS LLP, JORDAN M. HEINZ ,
KIRKLAND & ELLIS LLP & RICHARD C. GODFREY , KIRKLAND & ELLIS.
ALLSTATE INSURANCE COMPANY, ALLSTATE INSURANCE COMPANY,
Defendant, represented by ANNA CARRON -- anna.carron@kirkland.com
-- KIRKLAND & ELLIS LLP, BENJAMIN O'CONNOR --
benjamin.oconnor@kirkland.com -- KIRKLAND & ELLIS LLP, DONNA M.
WELCH -- donna.welch@kirkland.com -- KIRKLAND & ELLIS, EDWARD F.
MANNINO, AKIN GUMP STRAUSS HAUER & FELD LLP, HARIKLIA KARIS --
hariklia.karis@kirkland.com -- KIRKLAND & ELLIS LLP, JENNA STUPAR
-- jenna.stupar@kirkland.com -- KIRKLAND & ELLIS LLP, KATHERINE
M. KATCHEN -- kkatchen@akingump.com -- AKIN GUMP STRAUSS HAUER &
FELD, LLP, PETER A. BELLACOSA, KIRKLAND & ELLIS, RICHARD C.
GODFREY -- richard.godfrey@kirkland.com -- KIRKLAND & ELLIS, TIA
T. TROUT PEREZ -- tia.trout-perez@kirkland.com -- KIRKLAND &
ELLIS, W. RANDOLPH TESLIK -- rteslik@akingump.com -- AKIN GUMP
STRAUSS HAUER & FELD LLP, BRIAN BORCHARD --
brian.borchard@kirkland.com -- KIRKLAND & ELLIS LLP, ERIC FIELD -
- efield@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD, ERICA
ZOLNER -- erica.zolner@kirkland.com -- KIRKLAND & ELLIS LLP,
GREGORY TSONIS -- gregory.tsonis@kirkland.com -- KIRKLAND & ELLIS
LLP, JORDAN M. HEINZ -- jordan.heinz@kirkland.com -- KIRKLAND &
ELLIS LLP & SCOTT W. FOWKES -- scott.fowkes@kirkland.com --
KIRKLAND & ELLIS LLP.
THE ALLSTATE CORPORATION, THE ALLSTATE CORPORATION, Defendant,
represented by DONNA M. WELCH, KIRKLAND & ELLIS, DREW G.A. PEEL,
RACHLIS DUFF ADLER & PEEL LLC, EDWARD F. MANNINO , AKIN GUMP
STRAUSS HAUER & FELD LLP, KATHERINE M. KATCHEN, AKIN GUMP STRAUSS
HAUER & FELD, LLP, PETER A. BELLACOSA, KIRKLAND & ELLIS, RICHARD
C. GODFREY, KIRKLAND & ELLIS, W. RANDOLPH TESLIK, AKIN GUMP
STRAUSS HAUER & FELD LLP, ERICA ZOLNER, KIRKLAND & ELLIS LLP,
GREGORY TSONIS, KIRKLAND & ELLIS LLP, JORDAN M. HEINZ, KIRKLAND &
ELLIS LLP & SCOTT W. FOWKES , KIRKLAND & ELLIS LLP.
EEOC, Interested Party, represented by CARL FELIX MILLER , EQUAL
EMPLOYMENT U.S. OPPORTUNITY COMMISSION, IRIS SANTIAGO FLORES --
iris.santiago-flores@eeoc.gov -- EQUAL EMPLOYMENT OPPORTUNITY
COM, BRIAN M. ERCOLE, MORGAN LEWIS, COLEEN M. MEEHAN, MORGAN,
LEWIS & BOCKIUS LLP, DAVID W. MARSTON, Jr. , MORGAN, LEWIS AND
BOCKIUS LLP, JACQUELINE C. GORBEY, MORGAN LEWIS & BOCKIUS LLP &
MICHAEL D. LIEDER, SPRENGER & LANG.
AMERICAN EXPRESS: Ameriprise May Enforce "Benacquisto" Deal
-----------------------------------------------------------
In the case, Lesa Benacquisto, Daniel Benacquisto, Richard
Thoresen, Elizabeth Thoresen, Arnold Mork, Isabella Mork, Ronald
Melchert and Susan Melchert, on behalf of themselves and all
others similarly situated, Plaintiffs, v. American Express
Financial Corporation, American Express Financial Advisors,
American Centurion Life Assurance Company, American Enterprise
Life Insurance Company, American Partners Life Insurance Company,
IDS Life Insurance Company and IDS Life Insurance Company of New
York, Defendants, Civil No. 00-1980(DSD) (D. Minn.), Judge David
S. Doty of the U.S. District Court for the District of Minnesota
granted in part the motions to enforce class-action settlement
and judgment and for sanctions by Defendant Ameriprise Financial
Services, Inc.
On May 15, 2001, the Court issued a final order and judgment in
the case, the Benacquisto Action, approving the class action
settlement and dismissing the complaint. Charles Fotheringham is
a class member who is bound by the terms of the final judgment
and settlement
On June 24, 2015, Fotheringham filed a complaint in New York
state court against Defendants RiverSource Life Insurance Co. and
Ameriprise. He alleged that, when he bought a life insurance
policy in 1997, the Defendants falsely stated that his monthly
premium was $1,200.
On Nov. 10, 2015, the Court enjoined Fotheringham from pursuing
the state court action because it found that his claims arose
from, or were at least related to, the same misrepresentations in
1997 that were covered by the settlement. Pursuant to the
Court's enforcement order, the New York state court dismissed the
complaint, and the Appellate Division of the New York State
Supreme Court affirmed.
On Dec. 20, 2017, Fotheringham filed a Statement of Claim before
the Financial Industry Regulatory Authority ("FINRA") alleging
that Ameriprise violated various FINRA rules by (1) recommending
unsuitable investment and insurance products; (2) failing to
advise him of the increasing costs of the 1997 life insurance
policy; and (3) failing to establish an adequate supervisory
system.
Ameriprise now moves to enforce the settlement agreement, arguing
that it precludes the FINRA claims.
Judge Doty finds that the Estate's argument that its claims are
based on Ameriprise's 2005-2015 conduct is misleading. Although
the Statement of Claim focuses on 2005-2015 conduct, the alleged
conduct began earlier. According to Fotheringham's state-court
complaint, later enjoined by the court, Ameriprise advised
Fotheringham to purchase the life insurance policy and falsely
represented to him that the premiums would be covered by the
increase in value of his investment assets when Fotheringham
initially purchased the policy in 1997. Indeed, the allegations
in the Statement of Claim and the enjoined state-court complaint
are nearly identical, except that the Statement of Claim gives
the false impression that the alleged conduct did not occur until
2005. As a result, the Judge finds that the claims in the FINRA
arbitration are precluded by the class action settlement.
In addition, the Judge does not find that sanctions are
warranted. Although the Estate and its attorneys continued to
litigate the state court claims after being enjoined by the
court, they did so on the question of whether a federal court has
jurisdiction to enjoin a state-court action, rather than the
merits of the claim. He does finds that such an argument was
nonfrivilous and, therefore, not sanctionable.
Whether the Estate and its attorneys should be sanctioned for
pursuing the FINRA arbitration is a closer case. The allegations
in the enjoined state-court complaint and the FINRA arbitration
are nearly identical, and the Estate's attempt to distinguish the
two borders on being frivolous. He says it is not clear,
however, that the Estate pursued this litigation with the
intention of unreasonably and vexatiously multiplying the
litigation. The Estate and its attorneys are warned, however,
that the Court is strongly inclined to impose sanctions if there
is continued litigation regarding the claims covered under the
settlement agreement.
Accordingly, Judge Doty granted in part the Defendant's motion to
enforce settlement and sanctions. The Estate will dismiss the
FINRA arbitration within 14 days of the Order. Judgment will be
entered accordingly.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/8kJZMm from Leagle.com.
Lesa Benacquisto, Plaintiff, represented by Andrew Lustigman --
alustigman@olshanlaw.com -- Andrew S. Friedman --
afriedman@bffb.com -- Barry A. Weprin -- bweprin@milberg.com --
Milberg Weiss & Bershad LLP, Brad N. Friedman, Milberg Weiss,
David Grossman, Donald R. McNeil, Jr. -- dmcneil@heleyduncan.com
-- Heley, Duncan & Melander, PLLP, Jack L. Chestnut, Chestnut
Cambronne, PA, Janine L. Pollack -- pollack@whafh.com -- Wolf
Haldenstein Adler Freeman & Herz, LLP, Joseph F. Henderson --
nfo@jfhendersonlaw.com -- J F Henderson Law, PLLC, Karl L.
Cambronne -- kcambronne@chestnutcambronne.com -- Chestnut
Cambronne, PA, Katheryn A. Andresen -- kandresen@nilanjohnson.com
-- Hellmuth & Johnson, PLLC, Melvyn I. Weiss, Milberg Weiss LLP,
Regina L. LaPolla , LaPolla Law Firm LLP, Richard A. Lockridge --
ralockridge@locklaw.com -- Lockridge Grindal Nauen PLLP, Robert
R. Sparks, Parry Deering Futscher & Sparks PSC, Ronald R. Parry -
- rrparry@strausstroy.com -- Parry Deering Futscher & Sparks,
Ronald A. Uitz, Sheldon S. Lustigman -- slustigman@olshanlaw.com
-- Stephen L. Hubbard, Hubbard & Biederman & Thomas P. Willcutts,
Willcutts Law Group LLC, pro hac vice.
Daniel Benacquisto, Plaintiff, represented by Andrew Lustigman,
Andrew S. Friedman, Barry A. Weprin, Milberg Weiss & Bershad LLP,
David Grossman, Donald R. McNeil, Jr., Heley, Duncan & Melander,
PLLP, Jack L. Chestnut, Chestnut Cambronne, PA, Janine L.
Pollack, Wolf Haldenstein Adler Freeman & Herz, LLP, Joseph F.
Henderson, J F Henderson Law, PLLC, Karl L. Cambronne, Chestnut
Cambronne, PA, Katheryn A. Andresen, Hellmuth & Johnson, PLLC,
Melvyn I. Weiss, Milberg Weiss LLP, Regina L. LaPolla, LaPolla
Law Firm LLP, Richard A. Lockridge, Lockridge Grindal Nauen PLLP,
Robert R. Sparks, Parry Deering Futscher & Sparks PSC, Ronald R.
Parry, Parry Deering Futscher & Sparks, Ronald A. Uitz, Sheldon
S. Lustigman, Stephen L. Hubbard, Hubbard & Biederman & Thomas P.
Willcutts, Willcutts Law Group LLC, pro hac vice.
Richard Thoresen, Elizabeth Thoresen, Arnold Mork, Isabella Mork
& Susan Melchert, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by Andrew Lustigman,
Andrew S. Friedman, Barry A. Weprin, Milberg Weiss & Bershad LLP,
David Grossman, Donald R. McNeil, Jr., Heley, Duncan & Melander,
PLLP, Jack L. Chestnut, Chestnut Cambronne, PA, Janine L.
Pollack, Wolf Haldenstein Adler Freeman & Herz, LLP, Joseph F.
Henderson, J F Henderson Law, PLLC, Karl L. Cambronne, Chestnut
Cambronne, PA, Katheryn A. Andresen, Hellmuth & Johnson, PLLC,
Melvyn I. Weiss, Milberg Weiss LLP, Regina L. LaPolla, LaPolla
Law Firm LLP, Richard A. Lockridge, Lockridge Grindal Nauen PLLP,
Robert R. Sparks, Parry Deering Futscher & Sparks PSC, Ronald R.
Parry, Parry Deering Futscher & Sparks, Ronald A. Uitz, Sheldon
S. Lustigman, Stephen L. Hubbard, Hubbard & Biederman & Thomas P.
Willcutts, Willcutts Law Group LLC, pro hac vice.
Ronald Melchert, Plaintiff, represented by Andrew Lustigman,
Andrew S. Friedman, Barry A. Weprin, Milberg Weiss & Bershad LLP,
David Grossman, Donald R. McNeil, Jr., Heley, Duncan & Melander,
PLLP, Jack L. Chestnut, Chestnut Cambronne, PA, Janine L.
Pollack, Wolf Haldenstein Adler Freeman & Herz, LLP, Joseph F.
Henderson, J F Henderson Law, PLLC, Karl L. Cambronne, Chestnut
Cambronne, PA, Katheryn A. Andresen, Hellmuth & Johnson, PLLC,
Melvyn I. Weiss, Milberg Weiss LLP, Regina L. LaPolla, LaPolla
Law Firm LLP, Richard A. Lockridge, Lockridge Grindal Nauen PLLP,
Robert R. Sparks, Parry Deering Futscher & Sparks PSC, Ronald R.
Parry, Parry Deering Futscher & Sparks, Ronald A. Uitz, Sheldon
S. Lustigman, Stephen L. Hubbard, Hubbard & Biederman & Thomas P.
Willcutts, Willcutts Law Group LLC, pro hac vice.
Steven A Creaturo, Plaintiff, represented by Clair M. Carlin,
Carlin Law Office.
Paul and Tyva Russell, Plaintiff, represented by Robert E.
Austin, Jr. -- info@raeszlaw.com -- Robert E. Austin, Jr Law
Offices & William G. Carpenter -- bill@briollaw.com -- Briol &
Associates.
American Express Financial Corporation, Sued As: American Express
Financial Service Corp, Defendant, represented by Charles C.
Platt -- charles.platt@wilmerhale.com -- Wilmer Cutler Pickering
Hale and Dorr LLP, Fiona B. Ruthven, Minnesota Attorney General's
Office, George F. McGunnigle, Hennepin County District Court,
Jane F. Godfrey, Stinson Leonard Street LLP, Randall M. Fox,
LeBoeuf Lamb Greene & MacRae & Sydney H. Crowder, Ameriprise
Financial Services, Inc. General Counsel's Organization.
American Express Financial Advisors, Inc., Defendant, represented
by Charles C. Platt, Wilmer Cutler Pickering Hale and Dorr LLP,
Fiona B. Ruthven, Minnesota Attorney General's Office, Gary R.
Irwin , Gary Irwin & Associates, LLC, George F. McGunnigle,
Hennepin County District Court, Jane F. Godfrey, Stinson Leonard
Street LLP, Randall M. Fox , LeBoeuf Lamb Greene & MacRae, Robert
L. Schnell, Jr. , Faegre Baker Daniels LLP, Susan E. Sheely,
Ameriprise Financial Services, Inc. & Sydney H. Crowder,
Ameriprise Financial Services, Inc. General Counsel's
Organization.
American Centurion Life Assurance Company of New York, Sued As:
American Centurion Life Assurance Company, American Enterprise
Life Insurance Company & American Partners Life Insurance
Company, Defendants, represented by Charles C. Platt, Wilmer
Cutler Pickering Hale and Dorr LLP, George F. McGunnigle ,
Hennepin County District Court, Jane F. Godfrey , Stinson Leonard
Street LLP & Randall M. Fox, LeBoeuf Lamb Greene & MacRae.
IDS Life Insurance Company, Defendant, represented by Charles C.
Platt, Wilmer Cutler Pickering Hale and Dorr LLP, Fiona B.
Ruthven, Minnesota Attorney General's Office, George F.
McGunnigle , Hennepin County District Court, Jane F. Godfrey ,
Stinson Leonard Street LLP, Randall M. Fox, LeBoeuf Lamb Greene &
MacRae & Susan E. Sheely, Ameriprise Financial Services, Inc.
IDS Life Insurance Company of New York, Defendant, represented by
Charles C. Platt, Wilmer Cutler Pickering Hale and Dorr LLP,
George F. McGunnigle, Hennepin County District Court, Jane F.
Godfrey, Stinson Leonard Street LLP, Randall M. Fox, LeBoeuf Lamb
Greene & MacRae & Susan E. Sheely, Ameriprise Financial Services,
Inc.
G. Allen West, Defendant, represented by James M. Gary --
jgary@weberrose.com -- Weber & Rose, PSC & Robert S. Halagan,
Halagan Law Firm, Ltd.
Mary M Campbell, Respondent, represented by Gail E. Boliver,
Boliver Law Firm & Patrick M. Anderson, FIdelity National Title
Group.
Katherine Caradori, Respondent, represented by Gail E. Boliver,
Boliver Law Firm.
Richard & Lois Schipper, Respondent, represented by Sandra J.
Budnick, The Budnick Law Firm PLC, pro hac vice & William G.
Carpenter, Briol & Associates.
Richard M. Kalac & Trudy A Kalac, Claimants, represented by David
M. Cialkowski -- david.cialkowski@zimmreed.com -- Zimmerman Reed,
PLLP.
AMERICAN FAMILY: Ct. Partly Dismisses Chiropractic Clinic's Suit
----------------------------------------------------------------
In the case, MARVIN'S MIDTOWN CHIROPRACTIC CLINIC, LLC,
individually and on behalf of others similarly situated,
Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant, Case
No. 4:17-CV-0996-DGK (W.D. Mo.), Judge Greg Kays of the U.S.
District Court for the Western District of Missouri, Western
Division, granted in part the Defendant's Motion to Dismiss the
Amended Complaint.
The putative class action stems from Plaintiff Marvin's
allegation that American Family negligently issued and delivered
insurance payments made pursuant to an assignment of benefits.
The Amended Complaint contends that, under Mo. Rev. Stat. Section
376.427, American Family was required to send payment directly to
Marvin's (or any other providers who obtained an assignment of
benefits from an insured) once Marvin's provided the assignment
form to American Family. The Complaint maintains this statutory
language gives American Family no discretion to send payment for
benefits to any party except for the 'Provider.'
The Complaint alleges American Family insured three individuals
who received treatment from Marvin's and executed an assignment
of benefits in favor of Marvin's. Marvin's subsequently provided
these assignments to American Family along with supporting
documentation and a bill. American Family then issued and
delivered payment to the insured or their attorneys, not to
Marvin's. The Complaint claims that by issuing and delivering
payment to the insureds, American Family inflicted significant
financial losses to Marvin's and other class members because of
non-payment for services rendered pursuant to an assignment of
benefits, and loss of time and expenses in attempting to collect
for services rendered.
Count I alleges American Family acted negligently with respect to
the Plaintiff and the other class members by: (1) failing to
issue payments in the provider's name pursuant to an assignment
of benefits; and (2) delivering payments directly to the insured
or their attorneys instead of the provider. Similarly, Count II
alleges that American Family committed negligence per se by: (1)
failing to issue payments in the provider's name pursuant to an
assignment of benefits; and (2) delivering payments directly to
the insured or their attorneys instead of the provider.
Now before the Court is American Family's Motion to Dismiss the
Amended Complaint for lack of standing and failure to state a
claim.
Judge Kays finds that the Complaint alleges that by issuing
payment directly to the insured or their attorneys instead of to
Marvin's, American Family caused significant financial losses to
Marvin's and other class members from non-payment for services
rendered pursuant to an assignment of benefits, and loss of time
and expenses in attempting to collect for services rendered.
While these allegations may or may not be true, he says, they are
plausible and sufficient for Article III standing. The
allegations establish: (1) an injury in fact, namely economic
damages from non-payment for services rendered and collection
costs; (2) that this injury is directly traceable to American
Family's failure to send payment directly to Marvin's; and (3)
this injury can be redressed by a judgment in Marvin's favor.
Accordingly, the Complaint establishes Article III standing.
The Judge next finds that as a matter of law, American Family did
not owe Marvin's a common law duty to deliver payment directly to
it. Marvin's does not dispute that Missouri common law does not
impose a duty on American Family based on its relationship to
Marvin's. There was no contract or other agreement between
Marvin's and American Family from which a duty of care could
arise. Accordingly, that portion of Count I alleging American
Family was negligent by not delivering payment directly to
Marvin's will be dismissed. But because American Family did not
brief whether it owed a common law duty to issue payment to
Marvin's, the he declines to dismiss the remaining portion of
Count I at this time.
Finally, the Judge finds that Section 376.427 is not a statute on
which negligence per se can be premised. First, the case does
not involve personal injury or physical injury to property; it
concerns purely financial damages. Second, even if the Court
could extend Missouri law where its Supreme Court has declined,
there is no evidence that the legislature even intended to
provide a private right of action in purely economic damage
cases. Third and finally, although creating a private right of
action would probably further the statute's primary goal,
Missouri law does not favor the creation of private rights of
action by the judiciary. Consequently, Marvin's claim for
negligence per se is not cognizable and must be dismissed.
Because there is no private right of action under Section
376.427, he will not address American Family's alternate claim
that the assignments utilized by Marvin's are void as a matter of
public policy.
For these reasons Judge Kays granted in part the Defendants'
motion. The portion of Count I alleging American Family was
negligent by not delivering payment directly to Marvin's is
dismissed, and Count II is dismissed in its entirety.
A full-text copy of the Court's May 22, 2018 Order is available
at https://is.gd/6JhxLs from Leagle.com.
Marvin's Midtown Chiropractic Clinic, LLC, Individually and as
Class Representative, Plaintiff, represented by J. Kent Emison --
kent@lelaw.com -- Langdon & Emison, Brett A. Emison --
brett@lelaw.com -- Langdon & Emison, Cory L. Atkins , Langdon &
Emison & Robert L. Langdon -- bob@lelaw.com -- Langdon & Emison.
American Family Insurance Company, Defendant, represented by W.
Perry Brandt -- Perry.Brandt@bclplaw.com -- Bryan Cave Leighton
Paisner, LLP & Catesby Ann Major -- Catesby.Major@bclplaw.com --
Bryan Cave, LLP.
AMERICARE INC: Court Conditionally Certifies "Heredia" FLSA Class
-----------------------------------------------------------------
In the case, ESTHEFANY HEREDIA, ESLAINI FERNANDEZ, and ESTELA
TAVERAS, individually and on behalf of all other persons
similarly situated, Plaintiffs, v. AMERICARE, INC., et al.,
Defendants, Case No. 17cv6219 (S.D. N.Y.), Judge William H.
Pauley, III, of the U.S. District Court for the Southern District
of New York (i) granted the Plaintiffs' motion to certify a Fair
Labor Standards Act ("FLSA") collective, and (ii) denied their
motion to certify Rule 23 classes.
The Plaintiffs and the classes they seek to represent are home
health aides ("HHAs") employed by Americare in New York City.
Defendant Martin Kleinman is Americare's owner and chief
executive officer. Americare provides healthcare services to
individuals in their homes.
The Plaintiffs claim they (1) worked numerous 24-hour shifts, but
were paid for only 13 hours per shift; (2) worked more than 40
hours per week, but were not paid time-and-a-half for any
overtime work; and (3) were not paid an extra hour of pay for
hours worked over a "spread" of 10 hours per day. As such, they
seek unpaid minimum wages, overtime wages, and spread-of-hour
wages. The Plaintiffs further allege that they did not receive
appropriate FLSA or NYLL notices from Americare.
The Plaintiffs seek to certify (1) a FLSA collective and a Rule
23 class of employees who were not paid time and one half their
regular hourly rates for overtime work performed on or after Jan.
1, 2015, the effective date of the new regulations; (2) a Rule 23
class of all HHAs who worked more than 40 hours per week on or
after Aug. 16, 2011 and were not paid time-and-a-half at the New
York minimum wage rate for overtime work in violation of the
NYLL; and (3) a Rule 23 class of employees who did not receive
proper Wage Theft Prevention Act ("WTPA") notices. The
Plaintiffs allege that there are at least 40 members of the
putative class.
Judge Pauley conditionally certified a FLSA collective of
employees who were not paid time and one half their regular
hourly rates for overtime work performed on or after Jan. 1,
2015. He says the Plaintiffs demonstrate an identifiable factual
nexus between the named Plaintiffs and proposed collective
members. Through their affidavits and exhibits, they show that
the three named Plaintiffs and at least 40 similarly situated
HHAs were neither paid the minimum wage nor the overtime rate for
overtime work.
As to the post-Jan. 1, 2015 class, the Judge finds that while the
Plaintiffs frame the class definition in terms of their overtime
claims, they bring a potpourri of other wage claims, including
those for unpaid minimum wage and unpaid wages for all 24 hours
of their 24-hour shifts. Whether a 24-hour shift consists of 13
hours or 24 hours is integral to whether Americare properly paid
the overtime rate or minimum wage. And that analysis turns on
whether an employee received eight hours of sleep per night (as
long as five of those hours were uninterrupted) and three hours
of meal breaks. This requires a tailored review of each
Plaintiff's meal breaks and hours slept, varying down to the
particular shift. As a result, common questions do not
predominate.
For the post-Aug. 16, 2011 Class, the Plaintiffs argue that they
were not paid time-and-a-half at the minimum wage for overtime
work performed from Aug. 16, 2011 through 2014 because the
Defendants failed to include all 24 hours of 24-hour shifts in
their calculation of overtime. The Judge finds that the thrust
of these claims hinges on whether Americare was required to pay
HHAs for all 24 hours of 24-hour shifts. For the reasons stated,
common questions do not predominate on this issue.
Finally, as to WTPA Notice Class, the Judge finds that the
affidavits by the named Plaintiffs are the only evidence that
Americare had a policy of failing to provide proper WTPA notice.
But the averments are conclusory and judges in this District have
denied class certification for identical classes where plaintiffs
provided "scant record evidence." Accordingly, the Plaintiffs'
motion to certify a class of employees who did not receive proper
WTPA notices will be denied.
For these reasons, Judge Paulet granted in part and denied in
part the Plaintiffs' motion to certify Rule 23 classes and a FLSA
collective. He certified a FLSA collective of Americare
employees who were not paid time-and-a-half at their regular
hourly rates on or after Jan. 1, 2015. He denied the Plaintiffs'
motion to certify Rule 23 classes.
A full-text copy of the Court's May 23, 2018 Opinion and Order is
available at https://is.gd/8MWzyX from Leagle.com.
Esthefany Heredia, Individually and on Behalf of All Other
Persons Similarly Situated, Eslaini Fernandez, Individually and
on Behalf of All Other Persons Similarly Situated & Estela
Taveras, Individually and on Behalf of All Other Persons
Similarly Situated, Plaintiffs, represented by William Coudert
Rand -- wcrand@wcrand.com -- Law Office of William Coudert Rand.
Americare, Inc. & Martin Kleinman, Defendants, represented by
Joseph Michael Vento -- jvento@pecklaw.com -- Peckar & Abramson,
P.C., Kevin Joseph O'Connor, Sr. -- koconnor@pecklaw.com --
Peckar & Abramson, P.C. & Shannon Danielle Azzaro --
sazzaro@pecklaw.com -- Peckar & Abramson, P.C..
AN DA NJ: "Wang" Suit Seeks Minimum & Overtime Wage under FLSA
--------------------------------------------------------------
YA TAO WANG, and WEITIAN ZHANG, on their own behalf and on behalf
of others similarly situated, the Plaintiffs, v. AN DA NJ
CONSTRUCTION LLC; AN DA EMPIRE LLC; AN DA EASTERN LLC; AN DA
GREEN ENERGY LLC; BO LING WU a/k/a Boling Wu, DAI BAO WU, RUOBO
CHEN, CHIAN WEI WU, and SHING WOAN WU a/k/a Jimmy Wu, the
Defendants, Case No. 2:18-cv-11347 (D.N.J., July 3, 2018), seeks
to recover unpaid minimum wage, unpaid overtime wages, liquidated
damages, prejudgment and post-judgement interest; and/or
attorney's fees and cost, pursuant to the Fair Labor Standards
Act and the New Jersey Wage and Hour Law.
According to the complaint, the Defendants have willfully and
intentionally committed widespread violations of the FLSA and
NJWHL by engaging in pattern and practice of failing to pay its
employees, including Plaintiffs, minimum wage for each hour
worked and overtime compensation for all hours worked over 40
each workweek.[BN]
Attorney for the Plaintiffs, proposed FLSA Collective and
potential Rule 23 Class:
Aaron Schweitzer, Esq.
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762 1324
AQUA METALS: Glancy Prongay to Lead in Securities Fraud Suit
------------------------------------------------------------
In the case, In Re: Aqua Metals Securities Litigation, Case No.
17-cv-07142-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the
U.S. District Court for the Northern District of California (i)
denied Andrew Singer's motion seeking appointment of himself as
the lead Plaintiff and approval of Faruqi & Faruqi, LLP as the
lead counsel; (2) denied Paul Jordan's motion seeking appointment
of himself as the lead Plaintiff and approval of Glancy Prongay &
Murray LLP as the lead counsel; and (3) granted the motion filed
by Plymouth County Retirement Association and Denis and Theresa
Taillefer's private company 1103371 Ontario Ltd., seeking
appointment of the Plymouth Group as the lead Plaintiff and
approval of Berman Tabacco and Levi & Korsinsky as the co-lead
counsel.
Aqua Metals is a company purportedly formed to recycle lead
through a process called "AquaRefining." The Defendants
allegedly made materially false or misleading statements and
failed to disclose problems Aqua Metals was having in ramping up
their lead recycling processes. As a result of their alleged
omissions, when Aqua Metals stock price declined, the Plaintiffs
(who acquired Aqua Metals securities at artificially inflated
prices during the Class Period) suffered financial losses.
On Nov. 9, 2017, after a series of allegedly incomplete
disclosures in May, August, and October of 2017, Aqua Metals made
an announcement revealing its struggles to become fully
operational. Aqua Metals stock declined by approximately 26%,
24%, 28%, and 2% following the May, August, October, and November
announcements, respectively. By Nov. 14, 2017, Aqua Metals's
stock closed at $3 per share, down from $16.65 per share in early
May.
On Dec. 15, 2017, Plaintiff Arlis Hampton filed the securities
class action lawsuit individually and on behalf of others who
acquired common stock of Aqua Metals during the period between
May 19, 2016 and Nov. 9, 2017, and consequently suffered damages.
The complaint asserts claims under Sections 10(b) and 20(a) of
the Exchange Act and Rule 10b-5.
The complaint names the following Defendants: Aqua Metals, Aqua
Metals' CEO, Stephen R. Clarke; Aqua Metals' Chief Financial
Officer until Aug. 10, 2017, Thomas Murphy; and Aqua Metals'
Chief Financial Officer from Aug. 10, 2017 until the end of the
class period, Mark Weinswig.
Three competing motions for appointment as the lead Plaintiff and
approval of the lead counsel are pending: (1) a motion filed by
Singer, seeking appointment of himself as the lead Plaintiff and
approval of Faruqi & Faruqi, LLP as the lead counsel; (2) a
motion filed by Jordan, seeking appointment of himself as the
lead Plaintiff and approval of Glancy Prongay & Murray LLP as the
lead counsel; and (3) a motion filed by the Plymouth Group,
seeking appointment of the Plymouth Group as the lead Plaintiff
and approval of Berman Tabacco and Levi & Korsinsky as the co-
lead counsel.
Judge Gilliam finds that the Plymouth Group claims to have
suffered losses totaling $741,295 as a result of the purchase of
Aqua Metals stock during the class period. Therefore, it has the
most to gain from the lawsuit. He also finds that typicality is
satisfied because the claims and defenses of the Plymouth Group
are typical of the claims and defenses of the class. Adequacy is
satisfied because the Plymouth Group will fairly and adequately
protect the interests of the class. And having previously served
as a lead and co-lead Plaintiff in similar cases, the Plymouth
County Retirement Association is particularly well-suited to
represent the putative class in the matter.
The Judge defers to the Plymouth Group's choice of the lead
counsel because its choice is not so irrational, or so tainted by
self-dealing or conflict of interest, as to cast genuine and
serious doubt on its willingness or ability to perform the
functions of the lead plaintiff. Berman Tabacco and Levi &
Korsinsky both have extensive experience as the lead counsel in
securities class actions. Approval of the Plymouth Group's
selection of lead counsel is therefore merited.
Nonetheless, he says, Berman Tabacco and Levi & Korsinsky should
allocate litigation responsibilities in a way that promotes the
efficient representation of the putative class. While he will
not order the two appointed firms to play particular roles in the
litigation, it does order that the Defendants' counsel may rely
upon all agreements made with any appointed counsel, or other
duly authorized representative of appointed counsel, and such
agreements will be binding on all the Plaintiffs.
For the foregoing reasons, Judge Gilliam (i) denied the Singer
and Jordan motions; and (ii) granted the Plymouth Group's motion.
The Plymouth Group is appointed as the lead Plaintiff for the
putative class. Berman Tabacco and Levi & Korsinsky are approved
as the lead counsel for the putative class. The Judge set a case
management conference on June 5 at 2:00 p.m. to discuss setting a
case schedule. The parties are directed to meet and confer, and
file a joint case management statement with proposed schedules on
or before May 31, 2018.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/6z1IAw from Leagle.com.
Arlis Hampton, Plaintiff, represented by Charles Henry Linehan --
clinehan@glancylaw.com -- Glancy Prongay and Murray LLP, Lesley
F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray
LLP, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay
& Murray LLP & Robert Vincent Prongay -- rprongay@glancylaw.com -
- Glancy Prongay & Murray LLP.
Aqua Metals, Inc., Stephen R. Clarke, Thomas Murphy & Mark
Weinswig, Defendants, represented by Michael Ross Hogue --
hoguem@gtlaw.com -- Greenberg Traurig.
Ronald Ordway, Movant, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.
Andrew Singer, Movant, represented by Benjamin Heikali --
bheikali@faruqilaw.com -- Faruqi and Faruqi LLP.
Jesse L. Peterson, Movant, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP.
Paul Jordan, Movant, represented by Robert Vincent Prongay,
Glancy Prongay & Murray LLP & Kano S. Sams, II --
esams@glancylaw.com -- Glancy Prongay & Murray LLP.
Plymouth County Group, Movant, represented by Aidan Chowning
Poppler -- cpoppler@bermantabacco.com -- Berman Tabacco, Kristin
J. Moody -- kmoody@bermantabacco.com -- Berman Tabacco, Nicole
Catherine Lavallee -- nlavallee@bermantabacco.com -- Berman
Tabacco & Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky
LLP.
AUDIBLE INC: Seeks Ninth Circuit Review of Ruling in "McKee" Suit
-----------------------------------------------------------------
Defendant Audible Inc. filed an appeal from a court ruling in the
lawsuit entitled Grant McKee, et al. v. Audible Inc., Case No.
2:17-cv-01941-GW-E, in the U.S. District Court for the Central
District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
accuses Audible of bait-and-switch tactics and false advertising.
The Plaintiffs allege that the audiobook seller and its parent
company Amazon.com lure subscribers into buying monthly "credits"
they may never be able to exchange for e-books.
Former Audible subscriber Grant McKee says he trusted Audible's
promise that the audiobook credits he bought with his monthly fee
would never expire -- only to discover that unused credits expire
after six months and vanished instantly when he canceled his
membership.
The appellate case is captioned as Grant McKee, et al. v. Audible
Inc., Case No. 18-55773, in the United States Court of Appeals
for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 12, 2018;
-- Transcript is due on August 13, 2018;
-- Appellant Audible Inc.'s opening brief is due on
September 20, 2018;
-- Appellees Grant McKee, Michael Rogawski and Eric Weber's
answering brief is due on October 22, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees GRANT MCKEE, ERIC WEBER and MICHAEL
ROGAWSKI, individually and on behalf of all others similarly
situated, are represented by:
Jamin S. Soderstrom, Esq.
SODERSTROM LAW PC
3 Park Plaza, Suite 100
Irvine, CA 92614
Telephone: (949) 667-4700
E-mail: jamin@soderstromlawfirm.com
Defendant-Appellant AUDIBLE INC. is represented by:
Matthew Becker, Esq.
Annasara Purcell
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone: (650) 335-7930
E-mail: mbecker@fenwick.com
apurcell@fenwick.com
- and -
Armen Nercess Nercessian, Esq.
Jedediah Wakefield, Esq.
FENWICK & WEST LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 875-2300
E-mail: anercessian@fenwick.com
jwakefield@fenwick.com
BASF CORP: Isaac Industries Alleges Foam Chemicals Price-Fixing
---------------------------------------------------------------
ISAAC INDUSTRIES, INC., on behalf of itself and all others
similarly situated, the Plaintiff, v. BASF CORPORATION; BASF SE;
COVESTRO, AG; COVESTRO, LLC; THE DOW CHEMICAL COMPANY; HUNTSMAN
INTERNATIONAL LLC; WANHUA CHEMICAL GROUP CO., LTD., and WANHUA
CHEMICAL (AMERICA), LTD., the Defendants, Case No. 2:18-cv-12089-
SJM-MKM (E.D. Mich., July 3, 2018), alleges conspiracy among
Defendants and certain unnamed co-conspirators to fix, raise,
maintain or stabilize prices and to allocate customers and
markets for two critical and related chemicals used to
manufacture foam -- methylene diphenyl diisocyanate or MDI and
toluene diisocyanate or TDI.
According to the complaint, in the earlier part of this decade,
the prices of Diisocyanates experienced a period of relative
stability with minimal fluctuation of price. Then, during the
time period relevant to this complaint, the prices of
Diisocyanates embarked on a vertiginous ascent. These price
increases cannot be explained by increases in the prices of raw
materials, energy, or any other potentially legitimate factors.
Instead, the cause of the dramatic Diisocyanates price increases
is the Defendants' unlawful price-fixing conspiracy alleged in
this complaint.[BN]
Attorneys for Isaac Industries, Inc. and the proposed class:
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
THE MILLER LAW FIRM, P.C.
950 W. University Dr., Suite 300
Rochester, MI 48307
Telephone: (248) 841 2200
Facsimile: (248) 652 2852
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
- and -
Steve W. Berman, Esq.
Anthony D. Shapiro, Esq.
Ronnie Seidel Spiegel, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eight Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623 7292
Facsimile: (206) 623 0594
E-mail: steve@hbsslaw.com
tony@hbsslaw.com
ronnie@hbsslaw.com
- and -
Jason A. Zweig, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
455 N. Cityfront Plaza Drive, #2410
Chicago, IL 60611
Telephone: (708) 628 4958
Facsimile: (708) 628 4950
E-mail: jasonz@hbsslaw.com
- and -
Michael E. Criden, Esq.
KEVIN BRUCE LOVE
CRIDEN & LOVE, P.A.
7301 SW 57th Court, Suite 515
South Miami, FL 33143
Telephone: (305) 357 9010
Facsimile: (305) 357 9050
E-mail: klove@cridenlove.com
- and -
Simon B Paris, Esq.
Patrick Howard, Esq.
SALTZ MONGELUZZI BARRETT & BENDESKY PC
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, PA 19103
Telephone: (215) 496 828
Facsimile: (215) 496 0999
E-mail: sparis@smbb.com
phoward@smbb.com
- and -
Daniel E. Gustafson, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333 8844
Facsimile: (612) 339 6622
E-mail: dgustafson@gustafsongluek.com
- and -
Steven J. Greenfogel, Esq.
LITE DEPALMA GREENBERG LLC
1835 Market Street, Suite 2700
Philadelphia, PA 19103
Telephone: (267) 519 8306
Facsimile: (973) 623 0858
E-mail: sgreenfogel@litedepalma.com
BUENA VISTA: Thompson Files Appeal to 10th Circuit
--------------------------------------------------
In the lawsuit captioned Larry Allen Thompson, the Plaintiff, v.
Jason Lengerich, Warden, Buena Vista Corr. Fac.; Jason (I)
Lengerich; Jennifer Hansen, BVCF Security Svc. Captain; Jennifer
(I) Hansen; and William Cattell, BVCF East Unit Supervisor, the
Defendants, Case No. 1:18-cv-00588-LTB (D. Colo., June 19, 2018),
the Plaintiff filed an appeal to the United States Court of
Appeals for the Tenth Circuit from the judgment/order of
dismissal issued by Senior Judge Lewis T. Babcock on May 31,
2018.
The appellate proceedings is In Re: Thompson v. Lengerich, et
al., 18-1257 (10th Cir.).
On April 2, 2018, the Plaintiff's Motion for Class Action
Certification Pursuant to Fed. R. Civ. P. 23(a) was denied.[BN]
The Plaintiff appears pro se.
CAPITAL ONE: Website not Accessible to Blind, Duncan Says
---------------------------------------------------------
EUGENE DUNCAN, on behalf of himself and all others similarly
situated, the Plaintiffs, v. CAPITAL ONE FINANCIAL CORPORATION,
the Defendant. Case No. 1:18-cv-06052 (S.D.N.Y., July 3, 2018),
alleges that Defendant failed to design, construct, maintain, and
operate its website -- www.capitalone.com -- to be fully
accessible to and independently usable by Plaintiff and other
blind or visually-impaired people, in violation of Americans with
Disabilities Act.
According to the complaint, the Plaintiff is a visually-impaired
and legally blind person who requires screen-reading software to
read website content using his computer. The Plaintiff uses the
terms "blind" or "visually-impaired" to refer to all people with
visual impairments who meet the legal definition of blindness in
that they have a visual acuity with correction of less than or
equal to 20 x 200. Some blind people who meet this definition
have limited vision. Others have no vision.
Capital One Financial Corporation is a bank holding company
specializing in credit cards, auto loans, banking and savings
products headquartered in McLean, Virginia.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, N.Y. 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, N.Y. 100032461
Telephone: (212) 228 9795
Facsimile: (212) 982 6284
E-mail: nyjg@aol.com
danalgottlieb@aol.com
CARING SENIOR: Faces "Matzura" Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Caring Senior
Service Franchise Partnership, L.P. The case is styled as Steven
Matzura, on behalf of himself and all others similarly situated,
Plaintiff v. Caring Senior Service Franchise Partnership, L.P.,
Defendant, Case No. 1:18-cv-06298 (S.D. N.Y., July 11, 2018).
Caring Senior Service Franchise Partnership, L.P. is non-medical
senior care business.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
CHARTER COMMUNICATIONS: Underpays Call Center Agents, Suit Says
---------------------------------------------------------------
LA SONJI DAVIS, individually and on behalf of all others
similarly situated, Plaintiff v. CHARTER COMMUNICATIONS, INC.
f/k/a TIME WARNER CABLE; and DOES 1-10, inclusive, Case No.
1:18-cv-5730 (S.D.N.Y., June 25, 2018) is an action against the
Defendants for unpaid regular hours, overtime hours, minimum
wages, wages for missed meal and rest periods.
The Plaintiff worked for the Defendants' call center in Irving,
Texas from May 2014 to January 2017.
Charter Communications, Inc., through its subsidiaries, provides
cable services to residential and commercial customers in the
United States. Charter Communications, Inc. was founded in 1999
and is based in Stamford, Connecticut. [BN]
The Plaintiff is represented by:
Paul N. Schlemmer, Esq.
THE SCHLEMMER FIRM, LLC
830 Third Avenue, Fifth Floor
New York, NY 10022
Telephone: (212) 390-8030
Facsimile: (212) 390-8010
E-mail: paul@schlemmerfirm.com
CLARK COUNTY, NV: Court Extends Expert Witness Deposition
---------------------------------------------------------
The United States District Court for the District of Nevada
issued an Order to Continue Expert Witness Depositions and
Dispositive Motion and Deadlines in the case captioned JOHN and
JANE DOE I, Guardians Ad Litem for JOANN DOE I, a minor,
individually and on behalf of all those similarly situated, and
JOHN and JANE DOE II, Guardians Ad Litem for JOANN DOE II, a
minor, individually and on behalf of all those similarly
situated; Plaintiffs, v. JEREMIAH MAZO; CLARK COUNTY SCHOOL
DISTRICT; DOES 1 through 20; DOE 1 through 20; ROE CORPORATIONS 1
through 20; Defendants, Case No. 2:16-cv-00239-APG-PAL (D. Nev.).
Alleging abuse of students by a former CCSD teacher, Jeremiah
Mazo, and bringing claims under Title IX against CCSD and state
tort claims against all defendants.
The parties request the extension to allow the depositions of the
parties' expert and rebuttal expert witness depositions. The
parties have diligently engaged in discovery and request an
extension to allow for the outstanding depositions to take place.
The parties have been working together to schedule expert
depositions, and are exploring the possibility of bringing many,
if not all of them, to Las Vegas, Nevada for their depositions.
A full-text copy of the District Court's May 3, 2018 Order is
available at https://tinyurl.com/ycu83g2s from Leagle.com.
John Doe I, Guardian Ad Litem, Jane Doe I, Guardian Ad Litem,
Joann Doe I, a minor, individually and on behalf of all those
similarly situated, John Doe II, Guardian Ad Litem, Jane Doe II &
Joann Doe II, a minor, individually and on behalf of all those
similarly situated, Plaintiffs, represented by Aaron D. Ford,
Eglet Prince, Artemus W. Ham, IV, Eglet Prince, Richard Hy &
Robert T. Eglet, Eglet Prince, Robert T. Eglet Advocacy Center.
Jeremiah Mazo, Defendant, represented by John G. George, John
George, Clark County School District, Defendant, represented by
Kara B. Hendricks -- hendricksk@gtlaw.com -- Greenberg Traurig
LLP, Mark E. Ferrario -- ferrariom@gtlaw.com -, Greenberg
Traurig, Michelle R. Schwarz, Hall Jaffe & Clayton, LLP, Moorea
L. Katz -- katzmer@gtlaw.com -- Greenberg Traurig, LLP, Steven T.
Jaffe, Hall Jaffe & Clayton, LLP, & Whitney Welch --
welchkirmsew@gtlaw.com -- c/o Greenberg Traurig.
Clark County School District, Cross Claimant, represented by Kara
B. Hendricks, Greenberg Traurig LLP, Mark E. Ferrario, Greenberg
Traurig, Michelle R. Schwarz, Hall Jaffe & Clayton, LLP, Moorea
L. Katz, Greenberg Traurig, LLP & Steven T. Jaffe, Hall Jaffe &
Clayton, LLP.
Jeremiah Mazo, Cross Defendant, represented by John G. George,
John George.
COMPREHENSIVE HEALTH: Alvelo Seeks Overtime Pay under FLSA
----------------------------------------------------------
DIANNE ALVELO, individually and on behalf of all others similarly
situated, the Plaintiff, v. COMPREHENSIVE HEALTH MANAGEMENT,
INC., the Defendant, Case No. 7:18-cv-06067 (S.D.N.Y., July 3,
2018), alleges that Defendant willfully misclassifying their
Operations Account Representatives as exempt employees, thereby
avoiding the obligation and failing to pay such employees any
overtime compensation for hours worked over forty in each work
week, pursuant to the Fair Labor Standards Act.
According to complaint, Ms. Alvelo is one such employee. The
Defendant willfully engaged in a pattern, policy and practice of
unlawful conduct, in violation of the federal and state rights of
the Ms. Alvelo, and all similarly situated current and former
Operations Account Representatives of Defendant.[BN]
Comprehensive Health Management, Inc. supervises and manages the
day-to-day operations of health plans in Florida.
Attorneys for Plaintiff and the Putative Collective and Class:
Donald Sapir, Esq.
Howard Schragin, Esq.
SAPIR SCHRAGIN LLP
399 Knollwood Road, Suite 310
White Plains, NY 10603
Telephone: (914) 328 0366
Facsimile: (914) 682 9128
E-mail: dsapir@sapirschragin.com
hschragin@sapirschragin.com
CORONA REGIONAL: 9th Cir. Flips Denial of Class Certification
-------------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, reversed the
District Court's judgment denying Plaintiffs' Motion for Class
Certification in the case captioned MARLYN SALI and DEBORAH
SPRIGGS, on behalf of themselves, all others similarly situated
and the general public, Plaintiffs-Appellants, v. CORONA REGIONAL
MEDICAL CENTER; UHS OF DELAWARE INC., Defendants-Appellees, No.
15-56460 (9th Cir.).
Marlyn Sali and Deborah Spriggs appeal the district court's
denial of class certification in this putative class action
alleging employment claims against Corona Regional Medical Center
and UHS of Delaware, Inc.
They assert that a number of Corona's employment policies and
practices with respect to RNs violate California law and have
resulted in underpayment of wages. They allege Corona violated
California law by (1) failing to pay all regular hourly wages;
(2) failing to pay time-and-a-half for all overtime; (3) failing
to pay double time for all hours worked in excess of twelve hours
in a day; (4) not providing compliant meal and rest breaks; (5)
failing to timely pay all wages due to separated former employees
within seventy two hours of separation; and (6) failing to
provide accurate itemized wage statements.
Sali and Spriggs moved for certification of the seven classes.
The district court denied certification on the basis that (1)
Federal Rule of Civil Procedure 23(a)'s typicality requirement is
not satisfied for any of the proposed classes because Sali and
Spriggs failed to submit admissible evidence of their injuries;
(2) Plaintiff Spriggs and proposed class counsel have not
demonstrated they will adequately represent the proposed classes;
and (3) several proposed classes fail to satisfy Rule 23(b)(3)'s
predominance requirement.
The issues on appeal here concern only Rule 23's typicality,
adequacy, and predominance requirements: Sali and Spriggs appeal
the district court's determinations that (1) Sali and Spriggs
failed to demonstrate their injuries were typical of the proposed
classes; (2) plaintiff Spriggs is not an adequate class
representative; (3) attorneys from the firm Bisnar Chase have not
demonstrated they will adequately serve as class counsel; and (4)
the proposed rounding-time, wage-statement, and waiting-time
classes fail Rule 23(b)(3)'s predominance requirement.
The district court's typicality determination was premised on an
error of law.
The district court concluded that Sali and Spriggs have not
carried their burden of demonstrating that the injuries allegedly
inflicted by the Defendants on the Plaintiffs are similar to the
injuries of the putative class members because they do not offer
any admissible evidence of their injuries in their motion for
class certification.
This was error, the Ninth Circuit said. At this preliminary
stage, a district court may not decline to consider evidence
solely on the basis that the evidence is inadmissible at trial.
The district court erred by striking the Ruiz declaration on the
basis of inadmissibility
The present case aptly illustrates why the Ninth Circuit license
greater evidentiary freedom at the class certification stage: By
relying on formalistic evidentiary objections, the district court
unnecessarily excluded proof that tended to support class
certification. Corona did not dispute the authenticity of the
payroll data underlying Ruiz's analysis, nor did it directly
dispute the accuracy of his calculations. Instead, Corona argued
that Ruiz's declaration and spreadsheet were inadmissible because
Ruiz extracted data without explaining his methods, and the
district court agreed.
But by relying on admissibility alone as a basis to strike the
Ruiz declaration, the district court rejected evidence that
likely could have been presented in an admissible form at trial.
In fact, when Sali and Spriggs submitted their own sworn
declarations to authenticate the payroll data and vouch for its
accuracy, the district court again leaned on evidentiary
formalism in striking those declarations as new evidence
submitted in reply.
The Ninth Circuit said that that narrow approach tells it nothing
about the satisfaction of the typicality requirement whether
other members have the same or similar injury, whether the action
is based on conduct which is not unique to the named plaintiffs,
and whether other class members have been injured by the same
course of conduct. The district court should have considered the
declarations of Ruiz, Sali, and Spriggs in determining whether
the typicality prerequisite was satisfied.
When conducting its rigorous analysis into whether the Rule 23(a)
requirements are met, the district court need not dispense with
the standards of admissibility entirely. The court may consider
whether the plaintiff's proof is, or will likely lead to,
admissible evidence. Indeed, in evaluating challenged expert
testimony in support of class certification, a district court
should evaluate admissibility under the standard set forth in
Daubert. But admissibility must not be dispositive. Instead, an
inquiry into the evidence's ultimate admissibility should go to
the weight that evidence is given at the class certification
stage. This approach accords with our prior guidance that a
district court should analyze the persuasiveness of the evidence
presented at the Rule 23 stage.
The Ninth Circuit found that the district court abused its
discretion here by declining to consider the Ruiz declaration
solely on the basis of inadmissibility. Because the district
court applied the wrong standard for evaluating the plaintiffs'
evidence, the Ninth Circuit does not reach whether the plaintiffs
have in fact demonstrated typicality and leave it to the district
court to resolve in the first instance.
Spriggs is not an adequate class representative, but Sali remains
as an adequate representative plaintiff.
The district court concluded that plaintiff Spriggs is not an
adequate class representative because she is not a member of any
class she seeks to represent. The district court reasoned that
Spriggs cannot represent a class including all current and former
RNs of Defendants who were classified by Defendants as either
full-time or full-time equivalent employees, given that she was
not classified as a full-time employee.
The Ninth Circuit agreed.
A named plaintiff must be a member of the class she seeks to
represent and Spriggs does not qualify. Nevertheless, because
Plaintiff Sali remains as an adequate class representative,
Spriggs's inadequacy is not a basis to deny class certification.
The district court abused its discretion by concluding that
attorneys from Bisnar Chase cannot serve as adequate class
counsel.
The district court concluded that proposed class counsel failed
to demonstrate they would adequately serve as class counsel. The
district court noted that attorneys from Bisnar Chase failed to
attend any of the depositions of Plaintiffs' putative class
witnesses' (four scheduled depositions), failed to produce
Plaintiffs' expert, Falkenhagen, for a deposition despite being
ordered to do so by a Magistrate Judge, and, as detailed in the
typicality analysis, failed to submit any sworn testimony from
Plaintiffs in support of the class certification motion. The
court also noted that Bisnar Chase submitted nearly identical
declarations from twenty-two putative class members attesting to
their personal experiences with Corona's employment practices.
The district court found that Plaintiffs' counsel's lax approach
to personalizing declarations, ensuring that declarants knew and
understood what they were signing, and verifying the accuracy of
the statements is unacceptable conduct.
At this early stage of the litigation, the district court's
decision that attorneys from Bisnar Chase could not adequately
serve as class counsel was premature and an abuse of discretion.
However, the district court is not precluded from considering
counsel's prior sanctions as evidence of inadequacy if Bisnar
Chase attorneys continue to neglect their duties.
The district court erred by denying certification of the proposed
rounding-time and wage-statement classes on the basis that they
failed Rule 23(b)(3)'s predominance requirement.
Because the district court concluded that the predominance
requirement was met by the proposed regular-rate class, and
because the parties agree that the waiting-time class is entirely
derivative of other proposed classes, the Ninth Circuit reviewed
the district court's predominance analysis with respect to the
rounding-time and wage-statement classes only.
The district court's determination that individual questions
predominated in the claims of the proposed rounding-time class
was based on an error of law.
Sali and Spriggs allege that Corona's rounding-time policy
resulted in systematic underpayment of RNs. They seek
certification of a rounding-time class consisting of:
All current and former nurses who work or worked for
Defendants during the Proposed Class Period who were not paid all
wages due them, including straight time, overtime, double time,
meal premiums, and rest premiums due to Defendants' rounding time
policy.
The district court did not abuse its discretion to the extent it
concluded that individualized questions predominate on whether
the RNs fall within the second category, which amounts to a
question of whether they engaged in work activities even if they
were not required to do so.
But the district court erred by assuming that was the only
question to be decided.
Under California law, the RNs were also actually working if they
were subject to Corona's control even if they were not engaging
in work activities, for example, if they were required to remain
on the hospital premises during that time. The district court
failed to consider whether the RNs could establish on a class-
wide basis that they were subject to Corona's control during the
grace period even if the RNs were not always engaged in work-
related activities during that time.
This employer control question necessarily requires an employer-
focused inquiry into whether Corona had a policy or practice that
restricted RNs in a manner that amounted to employer control
during the period between their clock-in and clock-out times and
their rounded shift-start and shift-end times. The types of
activities RNs generally engaged in during this period are
certainly relevant, but the activities of any particular RN are
not dispositive of whether he or she was under Corona's control.
Determination of this question does not depend on individualized
factual questions and is capable of class-wide resolution.
Accordingly, the district court abused its discretion by denying
certification of the rounding-time class on the basis of
predominance.
The district court's determination that individual questions
predominate in the claims of the proposed wage-statement class
was premised on legal error.
The district court erred by concluding that damages for members
of the wage statement class would require an individualized
determination. Because the Code specifies that a violation of
Section 226 is a per se injury, there is no individualized issue
of damages. If Corona knowingly and intentionally failed to
provide the name of the legal entity that was the class members'
employer, each class member was injured in precisely the same
manner by each paystub in which Corona failed to provide that
information. Moreover, even if there is variation in the amount
of each class members' damages, this is an insufficient basis by
itself to deny certification.
The district court abused its discretion by denying certification
on the basis that individual questions predominate in the claims
of the proposed wage-statement class.
Accordingly, the district court's denial of class certification
is reversed and remanded for further proceedings.
A full-text copy of the Ninth Circuit's May 3, 2018 Opinion is
available at https://tinyurl.com/ybhwl594 from Leagle.com.
Jerusalem F. Beligan -- jbeligan@bisnarchase.com -- (argued) and
Brian D. Chase -bchase@bisnarchase.com -- Bisnar Chase LLP,
Newport Beach, California, for Plaintiffs-Appellants.
Christina H. Hayes -- chayes@littler.com -- (argued), Khatereh
Sage Fahimi -- sfahimi@littler.com -- and Stacey E. James --
sjames@littler.com -- Littler Mendelson P.C., San Diego,
California, for Defendants-Appellees.
CORRECT CARE: Bid to Dismiss "Woodcock" Denied
----------------------------------------------
Judge Gregory F. Van Tatenhove of the U.S. District Court for the
Eastern District of Kentucky, Central Division, Frankfort, denied
the Defendants' Motion to Dismiss the case, BRIAN WOODCOCK, et
al., Plaintiffs, v. CORRECT CARE SOLUTIONS, LLC, et al.,
Defendants, Civ. No. 3:16-CV-00096-GFVT (E.D. Ky.).
The Plaintiffs in the matter are inmates, incarcerated with the
Kentucky Department of Corrections ("KDOC"). Each of them have
been diagnosed with the Hepatitis C virus ("HCV"). Defendant
James Erwin is the current Commissioner of the KDOC, responsible
for its operations, policies, and employment. The original
Plaintiffs did not sue Mr. Erwin, but he was added to the lawsuit
by Intervening Plaintiff Jessica Lawrence. Defendants Rodney
Ballard and LaDonna Thompson are former Commissioners of the
KDOC. Defendant Doug Crall, M.D., is the Medical Director of the
KDOC, responsible for policies, procedures, and employment
concerning the inmates' medical care. Defendant Cookie Crews is
the Health Services Administrator of the KDOC. Defendant
Frederick Kemen, M.D., is responsible for managing the HCV
treatment plan for KDOC inmates. Defendants Correct Care
Solutions, Inc., provides medical services to inmates of the
KDOC. All the Defendants were sued in their individual, not
official, capacities.
The Plaintiffs believe they were not provided treatment for their
HCV infections that complied with the appropriate standard of
care. According to their complaint, the Defendants did not
employ qualified individuals, did not adequately train these
employees, and did not create or enforce necessarily policies and
procedures to ensure proper care.
The Plaintiffs sue the Defendants on four separate theories.
First, they sue the Defendants under Section 1983 for violations
of the Eighth and Fourteenth Amendments to the United States
Constitution. Also, they claim the Defendants violated the
Americans with Disabilities Act and the Rehabilitation Act of
1978 for failure to reasonably accommodate their infections.
Based on the failure to meet the standard of care, they believe
the Defendants acted with negligence and gross negligence.
Finally, the Plaintiffs sue for Intentional Infliction of
Emotional Distress. Intervening Plaintiff Lawrence joins in each
of these claims except for Intentional Infliction of Emotional
Distress. They seek both injunctive relief for care and damages
for lack of treatment.
The case began in 2015 in Franklin Circuit Court in Franklin
County, Kentucky. Mr. Salinas filed a Petition for Writ of
Mandamus against then-Commissioner LaDonna Thompson, seeking the
Court to order treatment for his HCV infection. On Nov. 14,
2016, Mr. Salinas filed an Amended Class Action Complaint, naming
additional Plaintiffs and Defendants. The case was removed to
the Court on Dec. 7, 2016.
On Aug. 18, 2017, Ms. Lawrence moved to intervene, adding Mr.
Erwin as an additional Defendant. Magistrate Judge Edward B.
Atkins permitted intervention. Nearly a month later, Mr.
Ballard, Dr. Crall, Ms. Crews, Mr. Erwin, and Ms. Thompson filed
a joint Motion to Dismiss. The Court has construed the motion to
be a motion to dismiss both the First Amended Class Action
Complaint and the Intervening Complaint.
Judge Van Tatenhove finds, among other things, that (i) the
Defendants fail to provide any reasons for their assertion that
the Court lacks standing to address the matter; (ii) the
Defendants are not entitled to absolute immunity, but may be
entitled to qualified immunity, so long as their conduct did not
clearly violate the rights of the Plaintiffs; (iii) the
Plaintiffs' preliminary demonstration that they have satisfied
these administrative remedies is enough for their complaints to
survive a motion to dismiss; and (iv) because the Plaintiffs have
not brought a respondeat superior claim against the Defendants
who have moved to dismiss the action, such a claim cannot be
dismissed.
Most of the arguments made by Defendants are best determined
after discovery has been completed. While the Plaintiffs may
ultimately fail on the merits, they have filed a complaint
sufficient to survive a motion to dismiss. Accordingly, for the
aforementioned reasons, Judge Van Tatenhove denied without
prejudice the Motion to Dismiss filed by Defendants Ballard,
Thompson, Crall, Crews, and Erwin. The Plaintiffs will
effectuate proper service on Defendants Ballard, Thompson, Crall,
Crews, and Erwin within 30 days of the entry of the Order,
otherwise the matter may be dismissed without prejudice as to
those Defendants.
A full-text copy of the Court's May 23, 2018 Memorandum Opinion
and Order is available at https://is.gd/hHzklh from Leagle.com.
Brian Woodcock, Individually and on behalf of all others
similarly situated, Ruben Rios Salinas, Individually and on
behalf of all others similarly situated & Keath Bramblett,
Individually and on behalf of all others similarly situated,
Plaintiffs, represented by Camille Bathurst --
camillebathurst@aol.com -- Belzley Bathurst, Attorneys & Gregory
Allen Belzley -- gbelzley@aol.com -- Belzley Bathurst, Attorneys.
Rodney Ballard, Individually, LaDonna Thompson, Individually,
Doug Crall, MD, Individually & Cookie Crews, Individually,
Defendants, represented by Linda Marion Keeton, Office of Legal
Services - Dept of Corrections.
Dr. Frederick Kemen, MD, Individually & Correct Care Solutions,
LLC, Defendants, represented by Megan Pullem O'Reilly --
moreilly@bdblawky.com -- Blackburn, Domene & Burchett PLLC &
William Ellis Sharp -- wsharp@bdblawky.com -- Blackburn, Domene &
Burchett PLLC.
Jessica Lawrence, Intervenor Plaintiff, represented by Aaron
Joseph Bentley -- abentley@craighenrylaw.com -- Craig Henry, PLC
& Gregory Allen Belzley, Belzley Bathurst, Attorneys.
Commonwealth of Kentucky, through its agency, James Erwin, KDOCs,
Rodney Ballard, Commissioner of KDOC, LaDonna Thompson,
Commissioner of KDOC, Doug Crall, MD, Medical Director of KDOC &
Cookie Crews, Health Services Administrator of KDOC, Intervenor
Defendants, represented by Linda Marion Keeton, Office of Legal
Services - Dept of Corrections.
Dr. Frederick Kemen, MD & CorrectCare Solutions, Inc., Intervenor
Defendants, represented by William Ellis Sharp, Blackburn, Domene
& Burchett PLLC.
COSTCO WHOLESALE: Partial Summary Judgment Bid in "Canela" Denied
-----------------------------------------------------------------
In the case, LILIANA CANELA, individually and on behalf of all
others similarly situated, Plaintiff, v. COSTCO WHOLESALE
CORPORATION, and DOES 1 through 10, inclusive, Defendants, Case
No. 13-cv-03598-BLF (N.D. Cal.), Judge Beth Labson Freeman of the
U.S. District Court for the Northern District of California, San
Jose Division, denied Costco's motion for partial summary
judgment.
Canela brings the action against Costco for allegedly failing to
provide suitable seats to employees in violation of Labor Code
Section 1198 pursuant to California's Private Attorneys General
Act ("PAGA"). Canela filed the action on July 1, 2013. Her
complaint asserts only this cause of action. According to the
complaint, Section 1198 does not permit an employer to employ a
worker under conditions of labor that are prohibited by an
applicable wage order. The applicable wage order at issue is Wage
Order 7-2001 ("Seating Wage Order").
On Aug. 2, 2013, Costco removed the action to the District under
the Class Action Fairness Act ("CAFA"). Thereafter, the action
was stayed for over two years pending the California Supreme
Court's issuance of an order answering suitable seating questions
certified by the Ninth Circuit in Kilby v. CVS Pharmacy (12-
56130) and Henderson v. JPMorgan Chase (13-56095). The stay was
lifted on May 5, 2016.
On Sept. 20, 2017, the parties filed a joint status report.
Canela reported that she would not seek class certification and
suggested that the Court lacks subject matter jurisdiction for
that reason. The Court ordered the parties to brief whether the
Court retained jurisdiction. After reviewing the parties'
briefs, it concluded that subject matter jurisdiction exists
because Canela's representation that she would not seek class
certification does not divest the Court's jurisdiction over the
action that was properly removed under CAFA. Based on Canela's
failure to seek class certification, Costco filed its motion for
partial summary judgment.
Costco moves for partial summary judgment that: (1) Canela lacks
standing in federal court under Article III of the U.S.
Constitution to represent unnamed third parties; (2) Canela
cannot represent unnamed third parties in federal court without
Rule 23 certification; and (3) Canela cannot represent unnamed
third parties at trial because her representative claims in this
action are unmanageable.
Judge Freeman concludes that the qui tam attributes of PAGA
actions confer Article III standing to a plaintiff who has not
obtained class action certification. Accordingly, Costco's
motion for summary judgment that Canela lacks standing in federal
court under Article III of the U.S. Constitution to represent
unnamed third parties is denied.
The Judge also concludes that a plaintiff is not required to
obtain Rule 23 class certification to assert PAGA claims in
federal court. Accordingly, Costco's motion for summary judgment
that Canela cannot represent unnamed third parties because she
did not obtain Rule 23 class certification is denied.
Finally, she concludes that that Costco has not shown that
Canela's representative action is necessarily unmanageable.
While Costco has raised strong arguments, she is unable to
conclude that Canela cannot provide evidence showing that other
aggrieved employees were entitled to seats under the Seating Wage
Order. Accordingly, Costco's motion for summary judgment that
Canela cannot represent unnamed third parties at trial because
her representative claims are unmanageable is denied.
For the foregoing reasons, Judge Freeman denied Costco's motion
for partial summary judgment.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/jY92Ui from Leagle.com.
Liliana Canela, individually and on behalf of all others
similarly situated, Plaintiff, represented by Kevin J. McInerney
-- kevin@mcinerneylaw.net -- Kevin J. McInerney, Esq.
Costco Wholesale Corporation, Defendant, represented by Emily E.
Schroeder -- eschroeder@seyfarth.com -- Seyfarth Shaw, David D.
Kadue -- dkadue@seyfarth.com -- Seyfarth Shaw LLP, Kenwood
Youmans -- kyoumans@seyfarth.com -- Seyfarth Shaw, Thomas J.
Wybenga -- twybenga@seyfarth.com -- Seyfarth Shaw LLP, pro hac
vice & William James Dritsas -- wdritsas@seyfarth.com -- Seyfarth
Shaw LLP.
DITECH FINANCIAL: Court Denies Bid to Dismiss TAC in "Scally"
-------------------------------------------------------------
The United States District Court for the Southern District of
California denied Defendant's Motion to Dismiss the Third Amended
Complaint in the case captioned KENDALL SCALLY, individually and
on behalf of all others similarly situated, Plaintiff, v. DITECH
FINANCIAL, LLC, Defendant, Case No. 16cv1992-WQH-WVG (S.D. Cal.).
On August 9, 2016, Plaintiff Kendall Scally initiated this action
against Defendant Ditech Financial alleging causes of action
under the Fair Debt Collection Practices Act ("FDCPA") and the
Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act").
On September 30, 2016, the Plaintiff filed a first amended
complaint alleging the same causes of action against the
Defendant. On January 26, 2017, the Court issued an Order
granting a motion to dismiss and dismissing the first amended
complaint without prejudice. The Court concluded that the
Plaintiff's claims were precluded by the Bankruptcy Code because
they hinged on allegations that the Defendant was attempting to
collect a debt previously discharged in bankruptcy.
On May 30, 2017, the Plaintiff filed a second amended class
action complaint against the Defendant alleging a cause of action
for violations of the FDCPA and a cause of action for violations
of the Rosenthal Act on behalf of himself and others similarly
situated. The second amended complaint did not include
allegations about the bankruptcy proceedings related to the
underlying debt. On November 21, 2017, the Court issued an Order
granting a motion to dismiss and dismissing the second amended
complaint without prejudice. The Court concluded that the
Plaintiff failed to alleged sufficient facts to establish that he
had been the object of collection activity arising from a
consumer debt covered by the FDCPA, as required to state a claim
under the FDCPA and Rosenthal Act.
On January 3, 2018, the Plaintiff filed a third amended class
action complaint for violations of the FDCPA and violations of
the Rosenthal Act on behalf of himself and others similarly
situated. On January 17, 2018, the Defendant filed a motion to
dismiss for failure to state a claim.
As currently pleaded, the third amended complaint challenges only
that the language of the collection notices violate the Rosenthal
Act and the FDCPA. The Defendant provides a copy of a Bankruptcy
Discharge Order filed in United States Bankruptcy Court for the
Eastern District of Washington in In Re Kendall John Scally, Case
No. 98-3485-PCW7. This document does not establish that the
underlying debt at issue in this litigation was discharged in
bankruptcy prior to the Defendant's alleged collection activity
in 2016, the Court said. The Plaintiff's claims may ultimately
be precluded by the Bankruptcy Code to the extent they turn on
the discharged nature of the underlying debt.
However, at this stage in the proceedings and based on the
material the Court may properly consider on a Rule 12(b)(6)
motion, the Court cannot conclude that the Plaintiff's claims as
pleaded in the third amended complaint are precluded by the
Bankruptcy Code.
Accordingly, the motion to dismiss the third amended complaint
filed by Defendant Ditech Financial, LLC, is denied.
A full-text copy of the District Court's May 3, 2018 Order is
available at https://tinyurl.com/y9bqr6mu from Leagle.com.
Kendall Scally, individually and on behalf of all others
similarly situated, Plaintiff, represented by Asil A. Mashiri --
alexmashiri@yahoo.com -- Mashiri Law Firm A Professional
Corporation, Babak Semnar, Semnar & Hartman, LLP & Jared M.
Hartman, Semnar & Hartman LLP.
Ditech Financial, LLC, Defendant, represented by Matthew McKenna
Wrenshall -- mwrenshall@reedsmith.com -- Reed Smith LLP & Perry
Anthony Napolitano -- pnapolitano@reedsmith.com -- Reed Smith
LLP, pro hac vice.
DISTRICT OF COLUMBIA: Court Dismisses "Ejonga" Inmates Suit
-----------------------------------------------------------
The United States District Court, District of Columbia, dismissed
with prejudice the complaint in the case captioned Jojo
Deogracias Ejonga et al., Plaintiffs, v. Rod Rosenstein et al.,
Defendants, Civil Action No. 17-2813 (UNA)(D.D.C.).
Plaintiffs are three Washington state prisoners incarcerated at
the state penitentiary in Walla Walla, Washington. They have
sued Deputy U.S. Attorney General Rod Rosenstein, Special Counsel
Robert Mueller, former FBI Deputy Director Andrew McCabe, and
other federal officials in what is styled as a "Class Action
Civil Complaint." The Amended Complaint consists of a narrative
about the 2016 presidential election and the ensuing post-
election investigations, which are ongoing. The Plaintiffs'
alleged facts are essentially reiterations of news accounts of
those events.
The Court finds that the Plaintiffs have not alleged any personal
injury based on the alleged acts or omissions, nor can they
credibly do so. And where, as in this case, the asserted harm is
a generalized grievance shared in substantially equal measure by
a large class of citizens, that harm alone normally does not
warrant exercise of jurisdiction, the Court says. The Plaintiffs
can allege no plausible facts to cure the standing deficiency;
therefore, this case will be dismissed with prejudice.
A full-text copy of the District Court's May 3, 2018 Memorandum
Opinion is available at https://tinyurl.com/ya2kjfs5 from
Leagle.com.
DEANTHONY FRANKS, Plaintiff, pro se.
JOJO DEOGRACIAS EJONGA, Plaintiff, pro se.
LEE PATRICK-JOHNSON, Plaintiff, pro se.
DS SERVICES: Morrow Seeks Overtime Pay under FLSA
-------------------------------------------------
DEREK MORROW, on behalf of himself and all other similarly
situated persons in the Seventh Circuit, known and unknown, the
Plaintiff, v. DS SERVICES OF AMERICA, INC. d/b/a HINCKLEY
SPRINGS, the Defendant, Case No. 1:18-cv-04610 (N.D. Ill., July
3, 2018), alleges that Defendant improperly misclassified
Plaintiff and Collective Class members as exempt employees, thus
ensuing failure to pay them at an overtime rate for all hours
worked in excess of 40 per workweek, pursuant to the Fair Labor
Standards Act, and the Illinois Minimum Wage Law.
DS Services of America, Inc. produces and distributes bottled
water and water filtration coolers for homes, offices,
workplaces, and retail establishments in Southern California,
Texas, and Arizona.[BN]
The Plaintiff is represented by:
Alejandro Caffarelli, Esq.
Lorrie T. Peeters, Esq.
Alexis D. Martin, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 S. Michigan Ave., Ste. 300
Chicago, IL 60604
Telephone: (312) 763 6880
DWYER GROUP: Faces "Matzura" Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against The Dwyer Group,
Inc. The case is styled as Steven Matzura, on behalf of himself
and all others similarly situated, Plaintiff v. The Dwyer Group,
Inc. doing business as: Molly Maid, Defendant, Case No. 1:18-cv-
06292-ER (S.D. N.Y., July 11, 2018).
The Dwyer Group, Inc., together with its subsidiaries, provides
commercial and residential restoration and cleaning services. The
company offers plumbing and drain cleaning services; and provides
installation, maintenance, and repair of heating, ventilation,
air conditioning, and indoor air quality systems. It also
provides electrical installation and repair services; full-
service appliance service and repairs; glass replacement
services; auto glass replacement services; and landscaping, lawn
care, and snow removal services.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
EAST COAST POLYTECHNIC: Parris Sues over Unsolicited Messages
-------------------------------------------------------------
KEVIN C. PARRIS, on behalf of himself and all others similarly
situated, the Plaintiff, v. EAST COAST POLYTECHNIC INSTITUTE, aka
ECPI UNIVERSITY, the Defendant, Case No. 3:18-cv-01523-WQH-BLM
(S.D. Cal., July 3, 2018), seeks to recover damages, and other
legal and equitable remedies, resulting from the illegal actions
of Defendant in negligently, knowingly, and/or willfully
contacting Plaintiff and the Class Members on their cellular
telephones without their prior express consent within the meaning
of the Telephone Consumer Protection Act.
According to the complaint, the Defendant markets its educational
programs and services throughout the country by regularly using
the telephone to contact prospective customers and prospective
students about its programs. It does so by making calls to
cellphones using an automatic telephone dialing system and by
sending text messages advertising those courses and services, in
doing so, it contacted Plaintiff and the class members on their
cell phones, both by making calls and by sending text
messages.[BN]
Attorneys for Plaintiff and the Proposed Class:
Douglas J. Campion, Esq.
LAW OFFICES OF DOUGLAS J. CAMPION, APC
17150 Via Del Campo, Suite 100
San Diego, CA 92127
Telephone: (619) 299 2091
Facsimile: (619) 858 0034
E-mail: doug@djcampion.com
- and -
Michael P. Sousa, Esq.
LAW OFFICES OF MICHAEL P. SOUSA, APC
3232 Governor Dr., Suite A
San Diego, CA 92122
Telephone: (858) 453-6122
Facsimile: (858) 453-2155
E-mail: msousa@msousalaw.com
ENCORE RECEIVABLE: Reynolds Appeals D.N.J. Decision to 3rd Cir.
---------------------------------------------------------------
Plaintiff Melissa Reynolds filed an appeal from a court ruling in
the lawsuit entitled Melissa Reynolds v. Encore Receivable
Management Inc., Case No. 2-17-cv-02207, in the U.S. District
Court for the District of New Jersey.
The nature of suit is stated as consumer credit.
The appellate case is captioned as Melissa Reynolds v. Encore
Receivable Management Inc., Case No. 18-2269, in the United
States Court of Appeals for the Third Circuit.[BN]
Plaintiff-Appellant MELISSA REYNOLDS, On behalf of herself and
all others similarly situated, is represented by:
Joseph K. Jones, Esq.
Benjamin J. Wolf, Esq.
JONES, WOLF & KAPASI, LLC
375 Passaic Avenue
Fairfield, NJ 07004
Telephone: (973) 227-5900
E-mail: jkj@legaljones.com
bwolf@legaljones.com
Defendant-Appellee ENCORE RECEIVABLE MANAGEMENT INC. is
represented by:
Peter Cipparulo, III, Esq.
LAW OFFICES OF PETER CIPPARULO, III, LLC
349 Route 206
Hillsborough, NJ 08844
Telephone: (908) 275-8777
Facsimile: (973) 737-1617
E-mail: petercipparulo@cipplaw.com
EOG RESOURCES: "Qualls" Stayed Pending Arbitration with Bedrock
---------------------------------------------------------------
In the case, MARCUS QUALLS, Plaintiff, v. EOG RESOURCES, INC., et
al., Defendants, Civil Action No. H-18-666 (S.D. Tex.), Judge
Gray H. Miller of the U.S. District Court for the Southern
District of Texas, Houston Division, granted EOG's motion to
stay, and granted in part and denied in part Qualls' motion for
equitable tolling.
In this Fair Labor Standards Act ("FLSA") case, Qualls worked as
a consultant for EOG. Qualls interviewed and was hired through a
third party, Bedrock PC 1099. He alleges that EOG misclassified
him as an independent contractor even though he was actually an
employee. During his time working with EOG, Qualls typically
worked over 40 hours a week but was not paid overtime.
On Sept. 7, 2017, Qualls sued EOG, Bedrock, and Bedrock's CEO,
Jonathan Falcon, for violating the FLSA and the New Mexico Wage
Act by failing to properly pay him for the time worked. His
complaint included collective action allegations under the FLSA
and class action allegations under Rule 23 of the Federal Rules
of Civil Procedure.
Both classes consisted of all oilfield workers hired by Bedrock
and working for EOG in New Mexico during the past 3 years who
were classified as independent contractors and paid a day-rate
and/or straight time with no overtime.
Bedrock and Falcon filed a motion to dismiss for lack of personal
jurisdiction, motion to transfer venue, and motion to compel
arbitration and stay proceedings. In response, Qualls filed an
amended complaint dismissing Bedrock and Falcon. Qualls then
filed another suit against Bedrock in the Southern District of
Texas and the parties agreed to submit their case to arbitration.
Then, EOG moved to transfer the case to the Southern District of
Texas, and Qualls did not oppose.
In the instant motions, EOG asks the Court to stay the
proceedings pending the arbitration between Qualls and Bedrock,
and Qualls asks the Court to toll the statute of limitations for
the FLSA opt-in Plaintiffs from the date EOG filed its motion to
stay until the Court rules on a motion to certify the class.
Judge Miller finds that a discretionary stay is appropriate
because the non-arbitrable claims will require the resolution of
issues that will be resolved during arbitration. For example,
the arbitration must determine whether Bedrock or EOG was
Qualls's employer or if they were co-employers. Additionally,
the arbitration will determine whether the proposed class
consists of similarly situated individuals. The pending
litigation and arbitration are essentially the same claims
arising from the same facts against two alleged employers. As
such, he says, the resolution of issues in one case will affect
the other. He will tailor the stay so as not to prejudice Qualls
or any other potential litigants by tolling the statute of
limitations for potential class members during the stay.
Accordingly, EOG's motion to stay will be granted.
The Judge agrees with Qualls that the statute of limitations
should be tolled during the pendency of the stay. The stay is a
rare and exceptional circumstance that warrants tolling. While
the case is stayed, the potential class members will be unable to
discover essential information bearing on the existence of their
claims because the case will not be moving forward. Indeed,
Qualls will be unable to move for conditional certification and
provide notice to potential class members regarding the claims
against EOG. And more importantly, potential class members will
be unable to opt in during the pendency of the stay. Thus, some
class members' claims may be barred due to the stay even if they
diligently pursued their claims.
Regarding EOG's argument that opt-in Plaintiffs would somehow be
protected due to the arbitration, the Judge disagrees. The
arbitration could conclude that Bedrock is not an employer and
thus dismiss Qualls's, and the potential opt-in Plaintiffs',
claims against Bedrock. Such a result would not protect the opt-
in Plaintiffs' rights to potentially recover against EOG.
Because Qualls demonstrates rare and exceptional circumstances to
warrant tolling, his motion will be granted in part.
For these reasons, Judge Miller granted EOG's motion to stay. He
stayed the cause of action and administratively (statistically)
closed. The parties may move to reinstate the case on the
Court's active docket at such time in the future as deemed
appropriate. A copy of the Order will be attached as an exhibit
to any motion to reinstate.
The Judge granted in part and denied in part Qualls' motion for
equitable tolling. He ordered that the statute of limitations
for all members of the proposed FLSA collective action is tolled
from the date of the Order until the case is reinstated.
A full-text copy of the Court's May 22, 2018 Memorandum Opinion
and Order is available at https://is.gd/qDBQJi from Leagle.com.
Marcus Qualls, individually and on behalf of all others similarly
situated, Plaintiff, represented by Joshua Charles Borsellino --
josh@dfwcounsel.com -- Borsellino, P.C.
EOG Resources Inc, Defendant, represented by Carter Crow --
carter.crow@nortonrosefulbright.com -- Norton Rose Fulbright,
Jesika Blanco -- jesika.blanco@nortonrosefulbright.com -- Norton
Rose Fullbright, John Karl Ziegler , Conklin Woodcock Ziegler PC,
Kimberly Frances Cheeseman --
kimberly.cheeseman@nortonrosefulbright.com -- Norton Rose
Fulbright US LLP, Michael Carter Crow --
carter.crow@nortonrosefulbright.com -- Norton Rose Fulbright US
LLP & Robert C. Conklin -- rcc@conklinfirm.com -- Conklin
Woodcock Ziegler PC.
EOS CCA: Troyanovsky Sues over Debt Collection Practices
--------------------------------------------------------
MAYA TROYANOVSKY, individually and on behalf of all others
similarly situated, Plaintiff v. EOS CCA, Defendant, Case No.
1:18-cv-03677 (E.D.N.Y., June 25, 2018) seeks to stop the
Defendant's unfair and unconscionable means to collect debt.
EOS CCA is a multinational debt purchaser and collection agency
which was founded in 1991. The business's U.S. headquarters are
located in Norwell, Massachusetts. The debt collection agency was
initially called Collection Company of America. In 2001, it
became a part of Hamburg, Germany-based EOS Group, which has
locations in over 25 nations. It took the title EOS CCA in 2009.
[BN]
The Plaintiff is represented by:
Daniel A. Louro, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza W, 12th Floor
Brooklyn, NY 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: dlouro@cml.legal
EPIC SYSTEMS: SCOTUS Rules for Arbitration Agreement Enforcement
----------------------------------------------------------------
The Supreme Court of the United States reversed the Opinion in
favour of Class or Collective Action over Arbitration in the
cases captioned EPIC SYSTEMS CORPORATION, Petitioner, v. JACOB
LEWIS; ERNST & YOUNG LLP, ET AL., Petitioners v. STEPHEN MORRIS,
ET AL.; AND NATIONAL LABOR RELATIONS BOARD, Petitioner v. MURPHY
OIL USA, INC., ET AL., Nos. 16-285, 16-300, 16-307 (U.S.).
The question before the Supreme Court is: Should employees and
employers be allowed to agree that any disputes between them will
be resolved through one-on-one arbitration? Or should employees
always be permitted to bring their claims in class or collective
actions, no matter what they agreed with their employers?
In Ernst & Young LLP v. Morris, 834 F.3d 975 (2016), and one of
its junior accountants, Stephen Morris, entered into an agreement
providing that they would arbitrate any disputes that might arise
between them. The agreement stated that the employee could choose
the arbitration provider and that the arbitrator could grant any
relief that could be granted by a court in the relevant
jurisdiction. The agreement also specified individualized
arbitration, with claims pertaining to different employees to be
heard in separate proceedings. After his employment ended, and
despite having agreed to arbitrate claims against the firm, Mr.
Morris sued Ernst & Young in federal court. He alleged that the
firm had misclassified its junior accountants as professional
employees and violated the federal Fair Labor Standards Act
(FLSA) and California law by paying them salaries without
overtime pay. Although the arbitration agreement provided for
individualized proceedings, Mr. Morris sought to litigate the
federal claim on behalf of a nationwide class under the FLSA's
collective action provision, 29 U. S. C. Section 216(b). He
sought to pursue the state law claim as a class action under
Federal Rule of Civil Procedure 23. Ernst & Young replied with a
motion to compel arbitration. The district court granted the
request, but the Ninth Circuit reversed this judgment. The Ninth
Circuit recognized that the Arbitration Act generally requires
courts to enforce arbitration agreements as written. But the
court reasoned that the statute's saving clause removes this
obligation if an arbitration agreement violates some other
federal law. And the court concluded that an agreement requiring
individualized arbitration proceedings violates the NLRA by
barring employees from engaging in the concerted activity of
pursuing claims as a class or collective action. Judge Ikuta
dissented. In her view, the Arbitration Act protected the
arbitration agreement from judicial interference and nothing in
the Act's saving clause suggested otherwise. Neither, she
concluded, did the NLRA demand a different result. Rather, that
statute focuses on protecting unionization and collective
bargaining in the workplace, not on guaranteeing class or
collective action procedures in disputes before judges or
arbitrators.
Congress adopted the Arbitration Act in 1925 in response to a
perception that courts were unduly hostile to arbitration. No
doubt there was much to that perception. Before 1925, English and
American common law courts routinely refused to enforce
agreements to arbitrate disputes. But in Congress's judgment
arbitration had more to offer than courts recognized not least
the promise of quicker, more informal, and often cheaper
resolutions for everyone involved. So Congress directed courts
to abandon their hostility and instead treat arbitration
agreements as valid, irrevocable, and enforceable.
Not only did Congress require courts to respect and enforce
agreements to arbitrate; it also specifically directed them to
respect and enforce the parties' chosen arbitration procedures.
Still, the employees suggest the Arbitration Act's saving clause
creates an exception for cases like theirs. By its terms, the
saving clause allows courts to refuse to enforce arbitration
agreements upon such grounds as exist at law or in equity for the
revocation of any contract.
"The problem with this line of argument is fundamental. Put to
the side the question whether the saving clause was designed to
save not only state law defenses but also defenses allegedly
arising from federal statutes," the Supreme Court said.
"Put to the side the question of what it takes to qualify as a
ground for revocation of a contract. Put to the side for the
moment, too, even the question whether the NLRA actually renders
class and collective action waivers illegal. Assuming, but not
granting, the employees could satisfactorily answer all those
questions, the saving clause still can't save their cause," the
decision noted.
This is where the employees' argument stumbles. They don't
suggest that their arbitration agreements were extracted, say, by
an act of fraud or duress or in some other unconscionable way
that would render any contract unenforceable. Instead, they
object to their agreements precisely because they require
individualized arbitration proceedings instead of class or
collective ones. And by attacking only the individualized nature
of the arbitration proceedings, the employees' argument seeks to
interfere with one of arbitration's fundamental attributes.
The dissent proceeds to argue that its expansive reading of the
NLRA conflicts with and should prevail over the Arbitration Act.
The NLRA leaves the Arbitration Act without force, the dissent
says, because it provides the more pinpointed direction. Even
taken on its own terms, though, this argument quickly faces
trouble. The dissent says the NLRA is the more specific provision
because it supposedly "speaks directly to group action by
employees, while the Arbitration Act doesn't speak to such
actions.
But the question before the Supreme Court is whether courts must
enforce particular arbitration agreements according to their
terms. And it's the Arbitration Act that speaks directly to the
enforceability of arbitration agreements, while the NLRA doesn't
mention arbitration at all. So if forced to choose between the
two, we might well say the Arbitration Act offers the more on-
point instruction. Of course, there is no need to make that call
because, as precedents demand, the Supreme Court has sought and
found a persuasive interpretation that gives effect to all of
Congress's work, not just the parts it might prefer.
Ultimately, the dissent retreats to policy arguments. It argues
that the Supreme Court should read a class and collective action
right into the NLRA to promote the enforcement of wage and hour
laws. But it's altogether unclear why the dissent expects to
find such a right in the NLRA rather than in statutes like the
FLSA that actually regulate wages and hours. Or why the Supreme
Court should read the NLRA as mandating the availability of class
or collective actions when the FLSA expressly authorizes them yet
allows parties to contract for bilateral arbitration instead.
While the dissent is no doubt right that class actions can
enhance enforcement by spreading the costs of litigation, it's
also well known that they can unfairly place pressure on the
defendant to settle even unmeritorious claims. The respective
merits of class actions and private arbitration as means of
enforcing the law are questions constitutionally entrusted not to
the courts to decide but to the policymakers in the political
branches where those questions remain hotly contested. Just
recently, for example, one federal agency banned individualized
arbitration agreements it blamed for under enforcement of certain
laws, only to see Congress respond by immediately repealing that
rule. This Court is not free to substitute its preferred economic
policies for those chosen by the people's representatives.
The policy may be debatable but the law is clear: Congress has
instructed that arbitration agreements like those before us must
be enforced as written. While Congress is of course always free
to amend this judgment, the Supreme Court said it sees nothing
suggesting it did so in the NLRA, much less that it manifested a
clear intention to displace the Arbitration Act.
"Because we can easily read Congress's statutes to work in
harmony, that is where our duty lies," the high court said.
Accordingly, the judgments in Epic, No. 16-285, and Ernst &
Young, No. 16-300, are reversed, and the cases are remanded for
further proceedings consistent with this opinion. The judgment
in Murphy Oil, No. 16-307, is affirmed.
Justice GORSUCH, delivered the opinion of the Court. Justice
THOMAS, concurring.
Justice GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR,
and JUSTICE KAGAN join, dissenting.
The dissent held that, "[t]he inevitable result of today's
decision will be the underenforcement of federal and state
statutes designed to advance the well-being of vulnerable
workers."
The probable impact on wage and hours claims of the kind asserted
in the cases now before the Court is all too evident. Violations
of minimum-wage and overtime laws are widespread. One study
estimated that in Chicago, Los Angeles, and New York City alone,
low-wage workers lose nearly $3 billion in legally owed wages
each year. The U. S. Department of Labor, state labor
departments, and state attorneys general can uncover and obtain
recoveries for some violations. Because of their limited
resources, however, government agencies must rely on private
parties to take a lead role in enforcing wage and hours laws.
If employers can stave off collective employment litigation aimed
at obtaining redress for wage and hours infractions, the
enforcement gap is almost certain to widen. Expenses entailed in
mounting individual claims will often far outweigh potential
recoveries. Fear of retaliation may also deter potential
claimants from seeking redress alone. Further inhibiting single-
file claims is the slim relief obtainable, even of the injunctive
kind. The upshot: Employers, aware that employees will be
disinclined to pursue small-value claims when confined to
proceeding one-by-one, will no doubt perceive that the cost-
benefit balance of underpaying workers tips heavily in favor of
skirting legal obligations.
In stark contrast to today's decision, the Court has repeatedly
recognized the centrality of group action to the effective
enforcement of anti-discrimination statutes. With Court
approbation, concerted legal actions have played a critical role
in enforcing prohibitions against workplace discrimination based
on race, sex, and other protected characteristics. In this
context, the Court has comprehended that government entities
charged with enforcing anti-discrimination statutes are unlikely
to be funded at levels that could even begin to compensate for a
significant drop-off in private enforcement efforts. That
reality, as just noted, holds true for enforcement of wage and
hours laws.
Justice Ginsburg held that she does not read the Court's opinion
to place in jeopardy discrimination complaints asserting
disparate-impact and pattern-or-practice claims that call for
proof on a group-wide basis. It would be grossly exorbitant to
read the FAA to devastate Title VII of the Civil Rights Act of
1964, 42 U. S. C. Section 2000e et seq., and other laws enacted
to eliminate, root and branch, class-based employment
discrimination. With fidelity to the Legislature's will, the
Court could hardly hold otherwise.
Justice Ginsburg noted, finally, that individual arbitration of
employee complaints can give rise to anomalous results.
Arbitration agreements often include provisions requiring that
outcomes be kept confidential or barring arbitrators from giving
prior proceedings precedential effect. As a result, arbitrators
may render conflicting awards in cases involving similarly
situated employees -- even employees working for the same
employer. Arbitrators may resolve differently such questions as
whether certain jobs are exempt from overtime laws. With
confidentiality and no-precedential-value provisions operative,
irreconcilable answers would remain unchecked.
"If these untoward consequences stemmed from legislative choices,
I would be obliged to accede to them. But the edict that
employees with wage and hours claims may seek relief only one-by-
one does not come from Congress. It is the result of take-it-or-
leave-it labor contracts harking back to the type called "yellow
dog," and of the readiness of this Court to enforce those
unbargained-for agreements. The FAA demands no such suppression
of the right of workers to take concerted action for their
"mutual aid or protection," Justice Ginsburg held.
Accordingly, Justice Ginsburg reversed the judgment of the Fifth
Circuit in No. 16-307 and affirmed the judgments of the Seventh
and Ninth Circuits in Nos. 16-285 and 16-300.
A full-text copy of the Supreme Court's May 21, 2018 Opinion is
available at https://tinyurl.com/yafo622o from Leagle.com.
Neal Kumar Katyal, Hogan Lovells US LLP --
neal.katyal@hoganlovells.com -- Attorney for Petitioner, Epic
Systems Corporation and respondent Murphy Oil USA, Inc., et al.
Paul D. Clement, Kirkland & Ellis LLP --
paul.clement@kirkland.com -- Attorney for Petitioner, Epic
Systems Corp.
Daniel Roy Ortiz -- dortiz@law.virginia.edu -- David C. Zoeller,
Hawks Quindel, S.C. -- dzoeller@hq-law.com -- Attorneys for
Respondents, Jacob Lewis.
Harold C. Becker -- cbecker@aflcio.org -- Attorney for
Respondent, Sheila M. Hobson.
Max Folkenflik, Folkenflik & McGerity, LLP --
mfolkenflik@fmlaw.net -- Attorney for Respondent, Stephen Morris
and Kelly McDaniel.
Jeffrey A. Schwartz, Jackson Lewis P.C. --
jschwartz@jacksonlewis.com -- Attorney for Respondent, Murphy Oil
USA, Inc., et al.
Kannon K. Shanmugam, Williams & Connolly LLP -- kshanmugam@wc.com
-- Attorney for Respondent, Ernst & Young LLP and Ernst & Young
U.S. LLP.
David M. Axelrad, Horvitz and Levy LLP --
daxelrad@horvitzlevy.com -- for DRI-The Voice of the Defense Bar.
Noel J. Francisco, Solicitor General, United States Department of
Justice -- SupremeCtBriefs@USDOJ.gov -- for The United States.
David C. Frederick, Kellogg, Hansen, Todd, Figel & Frederick,
PLLC -- dfrederick@kellogghansen.com -- for Labor Law Professors.
FACEBOOK INC: Faces "Kopecky" Suit in N.D. California
-----------------------------------------------------
A class action lawsuit has been filed against Facebook Inc. The
case is styled as Tracey Kopecky, on behalf of herself and all
others similarly situated, Plaintiff v. Facebook Inc., Cambridge
Analytica LLC, a Delaware limited liability company and Does 1-
100, Defendants, Case No. 3:18-cv-04125-VC (N.D. Cal., July 11,
2018).
Facebook is an American online social media and social networking
service company based in Menlo Park, California.[BN]
The Plaintiff is represented by:
Charles J Kocher, Esq.
Saltz Mongeluzzi
1650 Market Street
One Liberty Place, 52nd Floor
Philadelphia, PA 19103
Tel: (215) 575-3985
Email: ckocher@smbb.com
FEDERAL HOUSING: Dismissal of Net Worth Sweep Suit Affirmed
-----------------------------------------------------------
The United States Court of Appeals, Seventh Circuit, affirmed the
judgment of the District Court granting Defendants' Motion to
Dismiss the case captioned CHRISTOPHER ROBERTS, et al.,
Plaintiffs-Appellants, v. FEDERAL HOUSING FINANCE AGENCY, et al.,
Defendants-Appellees, No. 17-1880 (7th Cir.).
At the height of the 2008 financial crisis, Congress created the
Federal Housing Finance Agency (the Agency) and authorized it to
place into conservatorship two critical government-sponsored
enterprises, the Federal National Mortgage Association and the
Federal Home Loan Mortgage Corporation, commonly known as Fannie
Mae and Freddie Mac. To stabilize Fannie and Freddie, along with
the broader financial markets, Congress empowered the U.S.
Treasury to purchase their obligations and other securities
through the end of 2009.
That net-worth dividend, sometimes called the Net Worth Sweep, is
at the heart of this litigation. The plaintiffs are private
shareholders of Fannie and Freddie. They sued Treasury and the
Agency, claiming that the Agency violated its duties in two ways:
by agreeing to the net-worth dividend and by unlawfully
succumbing to the direction of Treasury. They fault Treasury
both for exceeding its statutory authority and failing to follow
proper procedures.
The district court granted both the defendants' motion to dismiss
the complaint, finding that 12 U.S.C. Section 4617(f) precluded
the relief requested.
The Seventh Circuit holds that in the present case, the Agency
neither exceeded its powers nor acted as other than a conservator
in agreeing to the Third Amendment. The plaintiffs' argument to
the contrary rests primarily on their assertion that the Third
Amendment dissipated corporate assets in violation of the
Agency's purportedly mandatory duties as a conservator to
preserve and conserve the assets and property of Freddie and
Fannie and to place the companies in a sound and solvent
condition. The problem with this contention is two-fold: first,
the Housing and Economic Recovery Act (HERA) does not impose such
mandatory duties on conservators; and second, the factual
assertions in the plaintiffs' complaint could not establish that
agreeing to the Third Amendment necessarily contravened those
duties.
Apart from the powers granted to it elsewhere in HERA, the Agency
has the authority as conservator to undertake any additional
action or means as may be (i) necessary to put the regulated
entity in a sound and solvent condition; and (ii) appropriate to
carry on the business of the regulated entity and preserve and
conserve its assets. Section 4617(b)(2)(D). The preservation and
conservation of assets does impose a limitation of sorts but only
when the Agency has to rely on section 4617(b)(2)(D) because it
can find no other source of power in HERA. In the present case,
however, the Agency can point to several independent sources of
authority to enter into the Third Amendment, including its power
to operate Fannie and Freddie with all the powers of their
shareholders, directors, and officers.
Thus, by agreeing to the Third Amendment, the Agency did not
violate its duty to conserve Fannie and Freddie's assets, because
it had no rigid duty to do so. The plaintiffs' fundamental error
is to mistake the point of an Agency conservatorship: its purpose
is the reorganizing, rehabilitation, or winding up of the
companies' affairs not just the preservation of assets.
Even accepting for the sake of argument the plaintiffs'
construction of section 4617(b)(2)(D) as imposing a mandatory
duty, their complaint does not establish that the Third Amendment
contravened this obligation. The question under section 4617(f)
is not whether the Agency made a poor business judgment, but
rather whether it took an action fundamentally inconsistent with
its powers as a conservator.
The plaintiffs fail to appreciate that the Agency's
conservatorship of the companies has no fixed expiration date.
Even if the Amendment has benefited Treasury thus far and the
Agency could anticipate its having done so that does not
establish that the Amendment will ultimately place the companies
in a worse financial position than they would have been in under
prior versions of the agreement.
In short, the plaintiffs have failed, both as a matter of
statutory interpretation and as a matter of facts alleged, to
state a claim that the Agency acted outside its authority as a
conservator and thereby lost the protection of section 4617(f).
Two other statutory provisions also preclude the plaintiffs'
absolutist reading of section 4617(a)(7), at least insofar as it
concerns their attack on the original Purchase Agreements. First,
the Agency may contract for assistance in fulfilling any
function, activity, action, or duty of the Agency as conservator
or receiver. Thus, to the extent that the Agency agreed to
Purchase Agreements permitting Treasury to exercise functions
related to the Agency's role as conservator by, for example,
giving Treasury a role in the termination of conservatorship,
transfer of assets, or assumption of debt, the Agency acted
within its statutory authority.
Second, to the extent that the plaintiffs challenge the original
Purchase Agreement, their claim is time-barred by the six-year
statute of limitations in the Administrative Procedure Act. Their
attempt to avoid the statute of limitations through the discovery
rule is unconvincing. The terms of the original Purchase
Agreements were apparent long before the Third Amendment.
A full-text copy of the Seventh Circuit's May 3, 2018 Opinion is
available at https://tinyurl.com/y7vbftgm from Leagle.com.
Charles J. Cooper -- ccooper@cooperkirk.com -- for Plaintiff-
Appellant.
Christian D. Ambler, for Plaintiff-Appellant.
David Thompson -- dthompson@cooperkirk.com -- for Plaintiff-
Appellant.
Peter A. Patterson -- ppatterson@cooperkirk.com -- for Plaintiff-
Appellant.
Abby Christine Wright, for Defendant-Appellee.
Howard N. Cayne -- howard.cayne@arnoldporter.com -- for
Defendant-Appellee.
Gerard Sinzdak -- gsinzdak@gmail.com -- for Defendant-Appellee.
Brian W. Barnes, for Plaintiff-Appellant.
Alex H. Hartzler, for Defendant-Appellee.
FEDEX GROUND: Court Partly Grants Bid to Dismiss "Roy" FLSA Suit
----------------------------------------------------------------
In the case, JORDAN ROY, ANGEL SULLIVAN-BLAKE, and JUSTIN
TRUMBULL, on behalf of themselves and others similarly situated,
Plaintiffs, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant,
Civil Action No. 3:17-cv-30116-KAR (D. Mass.), Magistrate Judge
Katherine A. Robertson of the U.S. District Court for the
District of Massachusetts granted FedEx Ground's motion to
dismiss as to Sullivan-Blake's claim, but denied it as to Roy's
and Trumbull's claims.
In this putative collective action, "Roy, Sullivan-Blake and
Trumbull, each assert a single claim against the Defendant, for
unpaid overtime pursuant to the Fair Labor Standards Act. As
delivery drivers for FedEx Ground, the Plaintiffs had to report
each morning to a FedEx Ground terminal to pick up the packages
that they would be responsible for delivering that day. At each
of the FedEx Ground terminals to which they reported, package
handlers employed by FedEx Ground would set out the FedEx Ground
packages that each driver was assigned to deliver that day. At
times, a FedEx Ground manager would require Roy or Trumbull to
return to the FedEx Ground terminal in Chicopee to pick up an
extra package for delivery. The Plaintiffs were eligible to
receive overtime and regularly worked over 40 hours per week
delivering packages for FedEx Ground. Yet, they were not paid
time-and-a-half their regular rate for those hours.
The Defendant has filed a motion to dismiss for want of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
Magistrate Judge Robertson granted FedEx Ground's motion to
dismiss as to Sullivan-Blake's claim, but denied it as to Roy's
and Trumbull's claims. In so ruling, she notes that her
Memorandum and Order only addresses the Court's personal
jurisdiction over FedEx Ground as to the claims of the three
named Plaintiffs, to whose claims the Defendant's motion was
directed. It does not address whether the same personal
jurisdiction analysis would apply as to the claims of opt-in
Plaintiffs.
The Magistrate Judge declines to issue a ruling that would
encompass those claims in the absence of full briefing by the
parties on the issue, where district courts in other
jurisdictions are divided on the question as to whether the court
must assess personal jurisdiction as to opt-in Plaintiffs or
whether it is sufficient that FedEx Ground is subject to personal
jurisdiction in Massachusetts as to the claims brought by named
Plaintiffs Roy and Trumbull.
She directed the Clerk's Office to set a status conference in
this matter at the parties' earliest convenience.
A full-text copy of the Court's May 22, 2018 Memorandum and Order
is available at https://is.gd/HEoVg7 from Leagle.com.
Jordan Roy, Angel Sullivan-Blake & Justin Trumbull, Plaintiffs,
represented by Richard E. Hayber -- rhayber@hayberlawfirm.com --
The Hayber Law Firm, LLC, pro hac vice, Shannon E. Liss-Riordan -
- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Peter M.
Delano -- pdelano@llrlaw.com -- Lichten & Liss-Riordan, P.C.
FedEx Ground Package Systems, Inc., Defendant, represented by
Kenneth D. Sansom -- ksansom@spotswoodllc.com -- Spotswood,
Sansom & Sansbury LLC, Morgan B. Franz -- mfranz@spotswoodllc.com
-- Spotswood Sansom & Sansbury LLC, pro hac vice & Jeffrey A.
Dretler -- jdretler@fisherphillips.com -- Fisher & Phillips LLP.
FIDELITY MANAGEMENT: Court Won't Amend Judgment in ERISA Suit
-------------------------------------------------------------
The United States District Court for the District of
Massachusetts denied Plaintiffs' Motion to Amend the Judgment and
for Leave to File an Amended Complaint in the case captioned
KATHERINE FLEMING, EDWARD R. HADUCK, and VICTORIA WENDEL,
Plaintiffs, v. FIDELITY MANAGEMENT TRUST COMPANY and FIDELITY
INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC., Defendants,
Civil Action No. 16-cv-10918-ADB (D. Mass.).
The Court has granted the Defendants' motion to dismiss the
Plaintiffs' putative class action asserting violations of the
Employee Retirement Income Security Act of 1974 (ERISA) for
failure to state a claim.
The Plaintiffs now move to vacate the order of dismissal and to
alter it to be without prejudice, such that the Plaintiffs may
file their proposed amended complaint.
The Defendants oppose the motion on the grounds that the
Plaintiffs fail to meet their burden to vacate and amend the
judgment and that their new allegations do not cure the
deficiencies of the original complaint.
The Court finds that the Plaintiffs fail to show that the facts
and evidence that purportedly address the deficiencies in the
original complaint were not reasonably available prior to the
entry of judgment. This is particularly true given that the
motion to dismiss identified the relevant deficiencies and that
over a year passed between the filing of the motion to dismiss
and its resolution.
While taking the position that the original complaint was well-
pleaded, the Plaintiffs do not otherwise attempt to demonstrate a
manifest error of law, nor do they provide any basis for the
Court to accept their wait and see approach as one of the rare
circumstances where relief is warranted to avoid a manifest
injustice or under Rule 60(b)(6)'s catch-all provision.
The Plaintiffs first argue that it would be a manifest injustice
to deny them the opportunity to amend the complaint, at least
once, in light of their new allegations, the importance of the
substantive issues to Plaintiffs and the putative class, and the
complexity inherent in ERISA litigation. The Plaintiffs though
had notice and ample opportunity to request leave to amend during
the pendency of the motion to dismiss. It is not the denial of
the instant motion that deprives the Plaintiffs of the
opportunity to amend but their strategic choice to go all-in on
their original complaint. Denial of the motion to vacate and
amend the judgment therefore presents no manifest injustice or
other exceptional circumstances.
Accordingly, in the absence of newly discovered evidence, a
manifest legal error, or other exceptional circumstances, the
Court finds that the Plaintiffs have failed to meet their burden
under Rule 59(e) or Rule 60(b).
A full-text copy of the District Court's May 3, 2018 Memorandum
and Order is available at https://tinyurl.com/y7rofmu6 from
Leagle.com.
Katherine Fleming & Victoria Wendel, Plaintiffs, represented by
Christopher T. Micheletti -- cmicheletti@zelle.com -- Zelle LLP,
pro hac vice, Ellen T. Noteware -- enoteware@bm.net -- Berger &
Montague PC, pro hac vice, Garrett W. Wotkyns --
gwotkyns@schneiderwallace.com -- Schneider Wallace Cottrell
Konecky LLP, pro hac vice, Heather T. Rankie -- hrankie@zelle.com
-- Zelle LLP, pro hac vice, John J. Nestico --
jnestico@schneiderwallace.com -- Schneider Wallace Cottrell
Konecky Wotkyns LLP, pro hac vice, Mark T. Johnson --
MJohnson@schneiderwallace.com -- Schneider Wallace Cottrell
Brayton Konecky LLP, pro hac vice, Shanon J. Carson --
scarson@bm.net -- Berger & Montague, P.C., pro hac vice, Todd S.
Collins -- tcollins@bm.net -- Berger & Montague, pro hac vice,
Todd Schneider -- tschneider@schneiderwallace.com -- Schneider
Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Todd M.
Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace
Cottrell Brayton Konecky LLP, pro hac vice, Jeffrey A. Gordon --
jgordon@zelle.com -- Zelle LLP & Paul T. Sullivan --
psullivan@zelle.com -- Zelle LLP.
Edward R Haduck, Plaintiff, represented by Christopher T.
Micheletti, Zelle LLP, pro hac vice, Ellen T. Noteware, Berger &
Montague PC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace
Cottrell Konecky LLP, pro hac vice, Heather T. Rankie, Zelle LLP,
pro hac vice, John J. Nestico, Schneider Wallace Cottrell Konecky
Wotkyns LLP, pro hac vice, Mark T. Johnson, Schneider Wallace
Cottrell Brayton Konecky LLP, pro hac vice, Todd S. Collins,
Berger & Montague, pro hac vice, Todd Schneider, Schneider
Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Todd M.
Schneider, Schneider Wallace Cottrell Brayton Konecky LLP, pro
hac vice, Jeffrey A. Gordon, Zelle LLP & Paul T. Sullivan, Zelle
LLP.
Fidelity Management Trust Company & Fidelity Investments
Institutional Operations Company, Inc., Defendants, represented
by James R. Carroll -- james.carroll@skadden.com -- Skadden,
Arps, Slate, Meagher & Flom LLP, Michael S. Hines --
michael.hines@skadden.com -- Skadden, Arps, Slate, Meagher & Flom
LLP, Alison V. Douglass -- adouglass@goodwinlaw.com -- Goodwin
Procter, LLP & Jaime A. Santos -- jsantos@goodwinlaw.com --
Goodwin Procter LLP.
FLORIDA: Dismissal of Amended "Bassett" Suit Recommended
-------------------------------------------------------------
In the case, CRAIG LEWIS BASSETT, D.O.C. #W26112, Plaintiff, v.
GOVERNOR RICK SCOTT, Defendant, Case No. 4:17cv487-RH/CAS (N.D.
Fla.), Magistrate Judge Charles A. Stampelos of the U.S. District
Court for the NOrthern District of Florida, Tallahassee Division,
recommended the dismissal of the Plaintiff's amended complaint,
and the denial of his pending motions be denied.
The Plaintiff, proceeding pro se, was granted leave to proceed in
forma pauperis and assessed an initial partial filing fee. He
has paid the partial filing fee, and it is now appropriate to
review his amended civil rights complaint which was filed under
42 U.S.C. Section 1983 against the Governor of the State of
Florida.
Prior to review of his allegations, the Plaintiff has filed a
motion requesting the fee be waived due to insufficient funds.
As the fee was paid four days before his motion was filed, the
motion should be denied as moot. Additionally, reducing the
balance of an inmate bank account by purchasing items in the
commissary does not provide good cause to relieve the Plaintiff
of his obligation to pay the filing fee.
Also pending in the case is the Plaintiff's motion requesting
class action certification. The Magistrate Judge holds that it
is well established that pro se plaintiffs cannot be an adequate
class representative. Therefore, the Plaintiff's motion should
be denied because he cannot bring a pro se complaint as a class
action lawsuit.
The Plaintiff's amended complaint asserts that in October of
2004, he asked his defense counsel to inform the jury of the
mandatory life without parole sentence he would face if he was
convicted. He was informed that judicial rules forbid doing so
and he was subsequently found guilty. He alleges that years
later he discovered that was incorrect and the law in Florida
mandated a jury penalty instruction. Even accepting those
alleged facts as true and correct, the Magistrate Judge holds
that those events reveal no involvement by Gov. Rick Scott, the
only Defendant named in the case.
The only factual allegations alleged which pertain to Gov. Scott
were that in December 2015, the Plaintiff notified the governor
of the illegal paradox that existed, and requested he should use
his executive powers to intervene. He said he received "no
response." Then in March 2017, the Plaintiff alleged that he
sent a notice of intent to file suit but, once again, the
Governor did not respond.
Those facts, according to the Magistrate Judge, do not reveal
that the Defendant Governor violated the Plaintiff's
constitutional rights. Because the Plaintiff lacks a
constitutional right to have the Governor respond to his
communications, he has not alleged facts sufficient to state a
claim under Section 1983 against the Governor.
Moreover, he finds that it appears that the Plaintiff brought
this civil rights action in an attempt to pursue habeas relief.
The Plaintiff seeks a declaratory judgment invalidating either
Section 918.10 or Rule 3.390(a) which will allow the deprivation
of the penalty instruction to be raised in state courts. The
Plaintiff has challenged the constitutionality of the state
statutes under which he was convicted and sentenced. The
Plaintiff does not face future injury from this statute but,
rather, his harm is from its past operation. Judicial notice is
taken that the Plaintiff is currently serving a life sentence and
he does not show any likelihood of future injury. Hence, the
Plaintiff lacks standing to seek a declaratory judgment.
Furthermore, the civil rights case cannot challenge either
Section 918.10 or Rule 3.390(a) as it was applied during the
Plaintiff's criminal trial because that is a habeas claim.
Moreover, it case cannot be converted into a habeas petition
because the Plaintiff has previously, and unsuccessfully, sought
habeas relief in a federal district court some seven years ago.
The Plaintiff has not shown that he has obtained an order from
the Eleventh Circuit Court of Appeals authorizing the Court to
consider a second or successive petition. Accordingly, the case
should be dismissed.
Magistrate Judge Stampelos respectfully recommended that the
Plaintiff's amended complaint be dismissed because the Plaintiff
lacks standing to seek declaratory relief, and the Plaintiff's
pending motions be denied.
A full-text copy of the Court's May 22, 2018 Report &
Recommendation is available at https://is.gd/e2AV8c from
Leagle.com.
CRAIG LEWIS BASSETT, Plaintiff, pro se.
FRITO-LAY INC: Martinez Seeks Unpaid Wages under Labor Code
-----------------------------------------------------------
MICHAEL J. MARTINEZ, on behalf of himself, all others similarly
situated, the Plaintiff, v. FRITO-LAY, INC, a Delaware
corporation; ROLLING FRITO-LAY SALES, LP, Delaware limited
partnership; and DOES 1 through 50, inclusive, the Defendants,
Case No. 18CV330459 (Cal. Super. Ct., June 21, 2018), seeks to
recover unpaid wages, restitution and related relief pursuant to
the California Labor Code.
The Plaintiff alleges that Defendants have failed to provide him
and all other similarly situated individuals with meal
periods; failed to provide them with rest periods; failed to pay
them premium wages for missed meal and/or rest periods; failed to
pay them at least minimum wage for all hours worked; failed to
pay them overtime wages at the correct rate; failed to pay them
double time wages at the correct rate; failed to pay them for all
vested vacation pay; failed to provide them with accurate written
wage statements; and failed to pay them all of their final wages
following separation of employment.
Frito-Lay, Inc. is an American subsidiary of PepsiCo that
manufactures, markets, and sells corn chips, potato chips, and
other snack foods.[BN]
The Plaintiff is represented by:
Shaun Setareh, Esq.
Thomas Segal, Esq.
William M. Pao, Esq.
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone (310) 888 7771
Facsimile (310) 888 0109
E-mail: shaun@setarehlaw.com
thomas@setarehlaw.com
wiiliam@setarehlaw.com
G4 INVESTMENTS: Faces "Britschgi" Suit in Calif. Super. Court
-------------------------------------------------------------
A class action lawsuit has been filed against G4 Investments
Corp. The case is styled as Robert Britschgi, on behalf of
himself and others similarly situated, Plaintiff v. G4
Investments Corp and Does 1-50, Defendants, Case No. 34-2018-
00236721-CU-OE-GDS (Cal. Super. Ct., July 11, 2018).
G4 Investments Corp. is a real estate investment firm.[BN]
The Plaintiff is represented by:
Eric B Kingsley, Esq.
Kingsley & Kingsley Lawyers
16133 Ventura Blvd, Ste 1200
Encino, CA 91436
Tel: (818) 990-8300
Email: websitekingsleykingsley.com
GALLAGHER BASSETT: Court Dismisses Prompt-Pay Suit
--------------------------------------------------
The Superior Court of Delaware granted Defendant's Motion to
Dismiss the case captioned FIRST STATE ORTHOPAEDICS, P.A., on
behalf of itself and all others similarly situated, Plaintiff, v.
GALLAGHER BASSETT SERVICES, INC., Defendant, C.A. No. N17C-06-320
WCC (Del. Super.).
FSO brings this proposed class action on behalf of itself and all
Delaware health care providers who submitted health care invoices
to Gallagher Bassett for care provided to Delaware workers'
compensation claimants. The Complaint alleges Gallagher Bassett
routinely failed to pay the statutory interest that accrued on
claims the Defendant failed to timely contest within 30 days of
receipt as well as claims it unsuccessfully disputed in the
utilization review process allowing the 30-day deadline to pass.
Gallagher Bassett rejects the Plaintiff's arguments and
reiterates its claims from the Motion to Dismiss that Gallagher
Bassett is not an insurance carrier under the Prompt-Pay Statute
and if it falls under the Prompt-Pay Statute, the Plaintiff's
claim must first go to the Industrial Accident Board (IAB).
Section 2322F(h) was enacted in 2007 along with other reforms to
the Delaware Workers' Compensation Act to help create standards
for billing and payment of health care services. Section 2322F(h)
specifically implements prompt payment of health care expenses
for non-preauthorized care.
In the instant case, the Court finds the statutory language to be
unambiguous. The Workers' Compensation Act clearly defines the
terms insurance carrier and employer, making it unsusceptible to
different interpretations. FSO argues that Gallagher Bassett
engages in the business of insurance by processing and paying
valid claims. While they may process claims, such an attempt to
rewrite the statute to include Third-Party Claims Adjusters
(TPAs) like Gallagher Bassett is flawed for several reasons.
There is no clear legislative history or intent to suggest that
the General Assembly meant to include TPAs. The Act has been
amended on many occasions to reflect the current intent of the
General Assembly and to ensure the Act is effectuating the
original purpose of workers' compensation benefits. In various
amendments since 2007, the definition Section 2301 and Section
2322F of the Act were amended, and none of these amendments
contemplated TPAs. In fact, the most recent amendment in 2015,
which occurred after Gallagher Bassett had already assumed the
role as a TPA for insurers, did not propose a change in the
definition of an insurance carrier to broaden the scope of
statutory interest.
Because of the plain language of the Act and a lack of
legislative intent to suggest otherwise, the Court cannot extend
the scope of the definition. That is a job for the legislature.
If it is necessary in order to continue to achieve the goals of
the Act, especially if the insurance carriers are not making the
ultimate decision to pay or deny the workers' compensation
claims, then it is a legislative remedy that must be pursued and
not a rewrite by the judiciary.
This Court believes that despite the Plaintiff's best attempts to
categorize Gallagher Bassett as an insurance carrier under the
Act, Gallagher Bassett simply cannot be held liable for the
statutory interest imposed under the Prompt-Pay Statute. This
does not mean that the insurance carriers/employers, who are
identified in the explanation of benefits (EOB), can evade
liability. In fact, it means exactly the opposite. If the TPA's
with whom the insurance carrier/employer has contracted with do
not timely process workers' compensation claims, the statutory
penalty must be imposed on the insurance carrier/employer. The
insurance carrier/employer will remain responsible for
noncompliance with the Prompt-Pay Statute because the Act clearly
places this liability upon them.
In other words, the insurance company/employer cannot avoid the
statutory mandate by contracting its claim processing to a third
party. If the insurance carrier/employer are penalized due to the
malfeasance of the TPA, that is an issue between those entities
to resolve. It will not displace who is liable under the Act.
Based on this finding the Court need not discuss a private cause
of action or the viability of a class certification because the
Plaintiff has filed suit against the wrong defendants. If
Plaintiff desires to continue pursuing legal remedies, FSO must
file suit against the proper defendants the respective insurance
carriers and/or employers.
This Court has previously held an agent liable for non-
performance only when, an agent who transacts business on behalf
of another at the time of entering into the transaction fails to
disclose his agency as well as the identity of his principal. The
Court agrees with Defendant Gallagher Bassett, that the proper
employer or insurance carrier is not hidden from the Plaintiff.
While it may take some administrative effort to find the
information, it is not a situation where there is an intentional
non-disclosure of that information.
FSO in its answering brief asserts that Gallagher Bassett is
liable for the statutory interest because it acted as a joint
venturer with the undisclosed insurance carriers.
For a joint venture to exist under Delaware law, there must be,
(1) a community of interest in the performance of a common
purpose, (2) joint control or right of control, (3) a joint
proprietary interest in the subject matter, (4) a right to share
in the profits, [and] (5) a duty to share in the losses.
In its Complaint, the Plaintiff states Gallagher Bassett's role
as joint venturer entailed the handling, evaluation, processing,
payment or denial of claims for workers' compensation benefits.
Plaintiff also states that Gallagher Bassett held a pecuniary
interest in optimizing the financial condition of the
(unidentified) insurers responsible for providing workers'
compensation insurance to FSO's patients, by containing, reducing
or minimizing costs associated with such patients' workers'
compensation claims.
However even if these assertions are true, it does not make the
TPA and the employer/insurance carrier they contracted with joint
venturers. If the Court was to accept the Plaintiff's logic, it
would encompass nearly every contractual relationship. And
clearly, there is nothing to suggest that TPAs split profits, or
share losses with their customers.
Gallagher Bassett may have a pecuniary interest to insure their
contractual relationship continued, but it is not in an effort to
reduce losses they share or to participate in the profit of the
employer/insurance carrier. Instead there is nothing to suggest
this relationship is other than a contractual one for which the
Defendant receives a contracted fee. Thus, the Court is unwilling
to find the Plaintiff has alleged sufficient facts to support
this contention.
The Plaintiff has filed suit against the wrong defendant(s).
Gallagher Bassett simply does not fall under the definition of an
insurance carrier and if the Court were to find that Gallagher
Bassett did, not only would the Court be broadening the scope of
the Act, it would be engaging in judicial legislating, which the
Court may not do. FSO's remedy here is to address this issue
legislatively and to also clarify through legislation their right
to redress this issue through the legal process and not
administratively.
Thus, because the Court finds that FSO's claim against Gallagher
Bassett fails, FSO's proposed class action must be denied.
A full-text copy of the Superior Court's May 3, 2018 Memorandum
Opinion is available at https://tinyurl.com/y8upukrn from
Leagle.com.
John S. Spadaro, Esquire, John Sheehan Spadaro, LLC, Attorney for
Plaintiff.
Kevin J. Connors, Esquire -- kjconnors@mdwcg.com -- Marshall
Dennehey Warner Coleman & Goggin, Nemours Building, Attorney for
Defendant.
Tiffany Power -- tiffany.powers@alston.com -- Esquire, Andrew
Hatchett, -- andrew.hatchett@alston.com -- Esquire, Alston & Bird
LLP, Attorneys for Defendant.
GLOBAL TEL-LINK: "McNeil" Moved to M.D. Ark. for Consolidation
--------------------------------------------------------------
Judge Matthew W. Brann of the U.S. District Court for the Middle
District of Pennsylvania (i) adopted Magistrate Judge Joseph F.
Saporito, Jr.'s Report and Recommendation recommending the
transfer of the case, TERRY MCNEIL, Plaintiff, v. GLOBAL TEL-
LINK, et al., Defendants, Case No. 3:15-CV-01243 (M.D. Pa.) to
the U.S. District Court for the Western District of Arkansas for
consolidation with the substantively identical class action
pending before it, or In re Global Tel*Link Corp. ICS Litig.,
Civil Action No. 5:14-cv-5275-TLB (W.D. Ark.).
Before the Court for disposition, is a Report and Recommendation
filed by Magistrate Judge Saporito. In his Report, Magistrate
Judge Saporito recommends that the action be transferred pursuant
to 28 U.S.C. Section 1404(a) to the U.S. District Court for the
Western District of Arkansas for consolidation with the
substantively identical class action pending before it, namely In
re Global Tel*Link Corp. ICS Litig. The Plaintiff has not filed
Objections to the Report and Recommendation within the applicable
briefing schedule.
Following independent review of the record, Judge Brann is
satisfied that the Report and Recommendation contains no clear
facial error. In the interests of judicial economy, he will not
rehash Magistrate Judge Saporito's sound reasoning and legal
citation. The Court is in full agreement that the action should
be transferred to the Western District of Arkansas for
consolidation with the substantively identical class action
pending before it, or In re Global Tel*Link Corp. ICS Litig.,
Civil Action No. 5:14-cv-5275-TLB (W.D. Ark.).
Accordingly, he adopted Magistrate Judge's Report in its entirety
and directed the Clerk to transfer the case to the U.S. District
Court for the Western District of Arkansas for consolidation with
the substantively identical class action pending before it, or In
re Global Tel*Link Corp. ICS Litig.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/JRMXr1 from Leagle.com.
Terry McNeil, Plaintiff, pro se.
GROGG'S HEATING: Must Strike "Faubel" Deal Confidentiality Term
---------------------------------------------------------------
In the case, ERIC FAUBEL, DEVEON SMITH, and TRINITY UPPOLE,
individually and on behalf of all other similarly situated
individuals, Plaintiffs, v. GROGG'S HEATING & AIR CONDITIONING,
INC., Defendant, Civil Action No. 2:17-cv-02410 (S.D. W.V.),
Judge John T. Copenhaver, Jr. of the U.S. District Court for the
Southern District of West Virginia, Charleston Division, has
entered an order regarding the parties' joint motion, filed March
1, 2018, for approval of a settlement agreement and for dismissal
of the action with prejudice.
The Plaintiffs initiated the action in the Court on April 19,
2017, charging Defendant Grogg's Heating & Air Conditioning, Inc.
("GHAC"), with alleged violations of the Fair Labor Standards Act
("FLSA"). The Plaintiffs, former employees of GHAC, claimed that
GHAC owed them and all other similarly situated individuals back
wages for unpaid meal breaks.
On Oct. 2, 2017, the Plaintiffs filed a motion for conditional
certification as a collective action pursuant to section 16(b) of
the FLSA. At a hearing held before the Court on Nov. 29, 2017,
and as reflected in the Court's subsequent order of Dec. 4, 2017,
the Court expressed its hesitance to conditionally certify a
collective action under the facts presented. In particular, GHAC
produced evidence casting doubt on (1) the possibility that any
similarly situated individuals existed and (2) the viability of
the named Plaintiffs' claims as a general matter. Thus, the
Court directed the parties to identify and depose two current or
former employees of GHAC, other than named Plaintiffs, who would
fall within the class definition if the class were conditionally
certified.
Instead, on Feb. 6, 2018, the parties filed a notice of
settlement in principle, and the Court continued the issue of
conditional certification. The parties later filed the pending
motion, seeking approval of a settlement that would dismiss with
prejudice each of the named Plaintiffs' individual claims.
Attached to the motion is the proposed settlement agreement,
signed by each party individually.
Judge Copenhaver turns to the three requirements for approving
the settlement of an FLSA claim for back wages. After
consideration of the agreement submitted by the parties, first,
the Judge finds that the FLSA issues are actually in dispute.
Simply put, the Plaintiffs allege that they are owed back wages;
GHAC disagrees. To be sure, the proposed settlement agreement
states that GHAC denies liability for the Plaintiffs' claims.
Second, the relevant factors from Rule 23's assessment for
fairness and reasonableness are satisfied. Third, the award of
attorneys' fees is reasonable.
Despite satisfying the three requirements for approving the
settlement of an FLSA claim for back wages, the Judge nonetheless
cannot approve of the agreement presented. He concludes that the
settlement may be approved as written, subject to one condition.
While the agreement satisfies the three requirements, the
agreement contains a confidentiality provision that is
inconsistent with FLSA jurisprudence and is unenforceable. The
parties may, however, salvage the agreement if they file a joint
stipulation within 14 days of the entry of the Order agreeing to
strike the confidentiality provision. The Judge will approve the
agreement at that time.
A full-text copy of the Court's May 22, 2018 Memorandum Opinion
and Order is available at https://is.gd/tEFrJf from Leagle.com.
Eric Faubel, Deveon Smith & Trinity Uppole, individually and on
behalf of all other similarly situated individuals, Plaintiffs,
represented by Kera L. Paoff -- kera@wflaw.com -- WIDMAN &
FRANKLIN.
Grogg's Heating & Air Conditioning, Inc., Defendant, represented
by Jeffrey Todd Bergstrom -- tbergstrom@littler.com -- LITTLER
MENDELSON & Richard M. Wallace -- rwallace@littler.com -- LITTLER
MENDELSON.
HARTMAN AND TYNER: Removes Tocco Suit to S.D. Florida
-----------------------------------------------------
The Defendants in the case of EDWARD TOCCO, and GEORGE SCHIFINO,
individually and on behalf of all others similarly situated,
Plaintiffs v. HARTMAN AND TYNER, INC., and HEIDI WENOKUR,
Defendants, filed a notice to remove the lawsuit from the Circuit
Court of the State of Florida, County of Broward, to the U.S.
District Court for the Southern District of Florida on June 25,
2018, and assigned Case No. 0:18-cv-61421 (S.D. Fla., June 25,
2018). The case is assigned to Judge Kathleen M. Williams, and
referred to Judge Alicia O. Valle.
Hartman and Tyner, Inc. engages in real estate management and
development. The company also engages in the construction of
apartments and buildings. Hartman And Tyner, Inc. was
incorporated in 1953 and is based in Southfield, Michigan. [BN]
The Defendants are represented by:
Alec H. Schultz, Esq.
Jeremy L. Kahn, Esq.
LEON COSGROVE LLP
255 Alhambra Circle, Suite 800
Coral Gables, FL 33134
Telephone: (305) 740-1975
Facsimile: (305) 437-8158
E-mail: aschultz@leoncosgrove.com
jkahn@leoncosgrove.com
eperez@leoncosgrove.com
HEALTHPORT TECHNOLOGIES: Removes "Bowden" Suit to W.D. Missouri
---------------------------------------------------------------
The Defendants in the case of JEFFREY BOWDEN, individually and on
behalf of all others similarly situated, Plaintiff, v. HEALTHPORT
TECHNOLOGIES, LLC; IOD INCORPORATED; CIOX HEALTH, LLC, d/b/a IOD
INCORPORATED and HEALTHPORT TECHNOLOGIES, LLC; and CENTERPOINT
MEDICAL CENTER OF INDEPENDENCE, LLC d/b/a CENTERPOINT MEDICAL
CENTER, Defendants, filed a notice to remove the lawsuit from the
Circuit Court of the State of Missouri, County of Jackson (Case
No. 1816-CV12410) to the U.S. District Court for the Western
District of Missouri and assigned Case No. Case No. 4:18-cv-489
(W.D. Mo., June 22, 2018).
HealthPort Technologies, LLC provides release of information
services, and audit management and tracking technology to
healthcare organizations in the United States. HealthPort
Technologies, LLC was formerly known as Smart Document Solutions,
LLC and changed its name to HealthPort Technologies, LLC in
October 2007. The company was founded in 1976 and is based in
Alpharetta, Georgia. As of June 15, 2007, HealthPort
Technologies, LLC operates as a subsidiary of CT Technologies
Holdings, LLC. [BN]
The Defendants are represented by:
Jonathan B. Potts, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
211 N. Broadway, Suite 3600
St. Louis, MO 63102
Telephone: (314) 259-2000
Facsimile: (314) 259-2020
E-mail: jonathan.potts@bclplaw.com
HILL COUNTRY CHICKEN: $30K Settlement in "Flores" Has Approval
--------------------------------------------------------------
In the case, SOTERO NELI FLORES and CORNELIO GUERRERO,
individually and on behalf of others similarly situated
Plaintiffs, v. HILL COUNTRY CHICKEN NY, LLC d/b/a HILL COUNTRY
CHICKEN and MARC GLOSSERMAN, Defendants, Case No. 16 Civ. 2916
(HBP) (S.D. N.Y.), Magistrate Judge Henry Pitman of the U.S.
District Court for the Southern District of New York granted the
parties' joint application to approve their Fourth Revised
Proposed Settlement Agreement.
The action was brought by two individuals who worked at the
Defendants' restaurant; Flores worked for the Defendants from
approximately Aug. 5, 2013 through approximately Jan. 24, 2016
and Guerrero worked for them beginning in approximately November
2013 until approximately Feb. 12, 2016. Although they were
employed as delivery workers, each maintains that he spent more
than 20% of his workday performing non-tipped work. The
Plaintiffs brought the action under the Fair Labor Standards Act
("FLSA"), and the New York Labor Law ("NYLL"), claiming that they
were paid less than the minimum wage and did not receive all the
overtime premium pay to which they were entitled.
The Plaintiffs' total alleged damages, exclusive of pre-judgment
interest and attorney's fees and costs, are $49,064.45. Of this
amount, Flores claims that he is owed $19,466, and Guerrero
claims that he is owed $29,598.45. Using these damages figures,
Flores' pro rata share of the total damages claimed is
approximately 39.7% and Guerrero's is approximately 60.3%.
The Defendants deny the Plaintiffs' claims. They assert that the
Plaintiffs were tipped deliverymen who performed tip work almost
exclusively each day. The Defendants argue that they lawfully
paid the Plaintiffs at the reduced tip credit rate and that, in
any event, in recent years they began the Plaintiffs at the full
minimum wage rate. The Defendants maintain that the Plaintiffs
did not spend any of their own money on tools of the trade and
that they complied with notice requirements under NYLL at all
times.
This is the fourth time that the parties have sought judicial
approval of a proposed settlement. Judge Pitman rejected the
parties' previous proposed settlement agreements. On May 2,
2018, the parties submitted the proposed settlement agreement
currently before him, claiming to have revised it in accordance
with my most recent Opinion and Order in the matter, dated April
2, 2018 (Opinion and Order of the Judge, dated Apr. 2, 2018.
Under the proposed settlement agreement, the Defendants agree to
pay the Plaintiffs $30,000 in full and final satisfaction of the
Plaintiffs' claims. The parties also agree that the Plaintiffs'
counsel will receive $10,600 of the settlement fund for
attorney's fees and costs.
First, Judge Pitman finds that the Plaintiffs total settlement,
after deduction of fees and costs, represents approximately 39.5%
of their total alleged damages, exclusive of pre-judgment
interest. Given the risks these issues present, the settlement
amount is reasonable. Second, the settlement will entirely avoid
the expense and aggravation of litigation. Third, the settlement
will enable the Plaintiffs to avoid the risk of litigation.
Fourth, the counsel represents that the settlement is the product
of arm's-length bargaining between experienced counsel and that
the counsel advocated zealously on behalf of their respective
clients during negotiations. Fifth there are no factors that
suggest the existence of fraud.
Finally, the Judge finds that the settlement fund will be
distributed to plaintiffs on a pro rata basis approximately
identical to the proportion of each the Plaintiff's individual
claim to the total alleged damages. Flores' claimed pro rata
share of the total damages alleged, exclusive of pre-judgment
interest, is approximately 39.40% and Guerrero's is 60.33%.
Under the settlement agreement, Flores will receive approximately
41.24% of the settlement and Guerrero will receive 58.76%. Thus,
the Plaintiffs will receive approximately their claimed
proportional share of potential damages.
Accordingly, for all these reasons, Judge Pitman approved the
settlement in the matter. In light of the settlement, he
dismissed with prejudice the case and without costs.
A full-text copy of the Court's May 23, 2018 Opinion and Order is
available at https://is.gd/JkcUc1 from Leagle.com.
Sotero Neri Flores, individually, Sotero Neri Flores, on behalf
of others similarly situated, Cornelio Guerrero, individually &
Cornelio Guerrero, on behalf of others similarly situated,
Plaintiffs, represented by Jesse S. Barton --
jbarton@faillacelaw.com -- Michael Faillace & Associates, P.C.,
Joshua S. Androphy -- JAndrophy@Faillacelaw.com -- Michael
Faillace & Associates, P.C., Raquel Amalia Gutierrez, Michael
Faillace & Associates, P.C. & Michael Antonio Faillace --
Michael@Faillacelaw.com -- Michael Faillace & Associates, P.C.
Hill Country Chicken NY, LLC, doing business as Hill Country
Chicken & Marc Glosserman, Defendants, represented by Carolyn
Diane Richmond -- crichmond@foxrothschild.com -- Fox Rothschild,
LLP & Alexander Wilde Leonard -- aleonard@foxrothschild.com --
Fox Rothschild, LLP.
HOMETOWN AMERICA: "Miller" Suit Moved to N.D. California
--------------------------------------------------------
The case, CAM FOLKS and ELEANOR MILLER, on behalf of themselves
and all others similarly situated, the Plaintiffs, v. HOMETOWN
AMERICA MANAGEMENT CORPORATION, a Delaware corporation; HOMETOWN
AMERICA MANAGEMENT L.P., a Delaware partnership; HOMETOWN AMERICA
MANAGEMENT LLC, a Delaware limited liability company, dba THE
ORCHARD MOBILEHOME COMMUNITY; DANI CRAWFORD; and DOES 1 through
20, the Defendants, was transferred to the U.S. District Court
for the Northern District of California and assigned Case No.
3:18-cv-03702-MEJ (N.D. Cal., June 21, 2018). It was originally
filed in the Superior Court for Sonoma County, California (Case
No. SCV262471).[BN]
Attorneys for Plaintiffs and the Proposed Class:
Mark P. Robinson, Jr., Esq.
ROBINSON CALCAGNIE, INC.
19 Corporate Plaza Drive
Newport Beach, CA 92660
Telephone: (949) 720 1288
Facsimile: (949) 720 1292
E-mail: mrobinson@robinsonfirm.com
- and -
Mary Alexander, Esq.
MARY ALEXANDER & ASSOCIATES, P.C.
44 Montgomery Street, Suite 1303
San Francisco, CA 94104
Telephone: (415) 433 4440
Facsimile: (415) 433 5440
E-mail: malexander@maryalexanderlaw.com
Attorneys for Hometown America Management Corp., Hometown America
Management L.P., and Hometown America Management LLC:
W. Scott Simpson, Esq.
Jonathan Beling, Esq.
SIMPSON, MCMAHAN GLICK & BURFORD, PLLC
2700 Highway 280, Suite 203W
Birmingham, AL 24112
Telephone: (205) 876 1600
E-mail: wsimpson@smgblawyers.com
jbeling@smgblawyers.com
- and -
Lee E. Bains, Jr., Esq.
Thomas W. Thagard, Esq.
James C. Lester, Esq.
Linda B. Oliver, Esq.
MAYNARD, COOPER & GALE, P.C.
1901 Sixth Avenue North, Suite 2400
Birmingham, AL 35203
Telephone: (205) 254 1000
E-mail: lbains@maynardcooper.com
tthagard@maynardcooper.com
jlester@maynardcooper.com
loliver@maynardcooper.com
IDEMIA IDENTITY: Removes Rueda et al. Suit to N.D. California
-------------------------------------------------------------
The Defendants in the case of Connie Rueda; Jessica Cotton;
Shelia Spender, individually and on behalf of all others
similarly situated, Plaintiffs v. Idemia Identity & Security USA,
LLC; and Morphotrust USA, LLC, Defendants,, filed a notice to
remove the lawsuit from the Superior Court of the State of
California, County of Alameda (Case No. RG18905995) to the U.S.
District Court for the Northern District of California on June
25, 2018, and assigned Case No. 3:18-cv-03794 (N.D. Cal., June
25, 2018). The case is assigned to Magistrate Judge Jacqueline
Scott Corley.
MorphoTrust USA, LLC. provides identity solutions. MorphoTrust
USA, LLC. was formerly known as MorphoTrust USA, Inc. and changed
its name in 2014. The company was founded in 1996 and is based in
Billerica, Massachusetts. As of July, 2011 MorphoTrust USA, LLC.
operates as a subsidiary of IDEMIA France SAS. [BN]
The Plaintiffs are represented by:
Bryan Jeffrey Schwartz, Esq.
Rachel Meyers Terp, Esq.
BRYAN SCHWARTZ LAW
1330 Broadway Ste 1630
Oakland, CA 94612
Telephone: (510) 444-9300
E-mail: bryan@bryanschwartzlaw.com
rachel@bryanschwartzlaw.com
The Defendants are represented by:
Michael D. Thomas, Esq.
Brian Davis Berry, Esq.
Douglas J. Farmer, Esq.
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.
Steuart Tower One Market Plaza, Suite 1300
San Francisco, CA 94105
Telephone: (415) 369-3554
Facsimile: (415) 442-4870
E-mail: michael.thomas@ogletreedeakins.com
brian.berry@ogletree.com
doug.farmer@ogletree.com
INFUSED CREATIONS: Edibles Contain Less THC, Lambert Complains
--------------------------------------------------------------
TINA LAMBERT, an individual and on behalf of all others similarly
situated, the Plaintiff, v. INFUSED CREATIONS, INC., a California
Corporation; and DOES 1 through 100, inclusive, the Defendants,
Case No. 37-2018-00031120-CU-BT-CTL (Cal. Super. Ct., June 21,
2018), alleges that Defendants engaged in unlawful, deceptive and
unfair course of conduct by manufacturing, marketing, and/or
selling variety of Edibles to consumers falsely advertising the
amount of Tetrahydrocannabinol (THC) in their products.
The Defendants' Edibles allegedly contain materially less THC
than advertised to consumers on product packaging. After
purchasing Defendants' Edibles on prior occasions, the Plaintiff
commissioned independent laboratory testing that confirmed that
the amount of THC actually contained in Defendants Edible
products were significantly lower than Defendant's falsely
advertised THC representation on its packaging, in violation of
California's Unfair Competition Law codified at Business &
Professions Code Section 17200 et seq. As such, Defendants cannot
lawfully sell their Edibles and falsely claim that it contains
150 mg of THC.[BN]
The Plaintiff is represented by:
John H. Donboli, Esq.
Raquel S. Mor, Esq.
DONBOLI LAW GROUP, APC
11682 El Camino Real, Suite 100
San Diego, CA 92130
Telephone: (858) 252 2015
Facsimile: (858) 724 1490
ITT CORP: "Lee" Settlement Has Preliminary Approval
--------------------------------------------------------
In the case, RICKY ALLEN LEE, et al., Plaintiffs, v. ITT
CORPORATION, et al., Defendants, Case No. C10-0618-JCC (W.D.
Wash.), Judge John C. Coughenour of the U.S. District Court for
the Western District of Washington, Seattle, granted the parties'
joint motion for preliminary approval of class settlement.
The litigation involves breach of contract claims brought by the
Defendants' former employees for alleged wage and hour violations
that occurred while they were working under a General Maintenance
and Supply Services ("GMASS") contract to provide services to the
U.S. Army in Kuwait.
The Court previously certified a class of all employees of
Defendant ITT or its subsidiaries who performed work under the
'GMASS' contract in Kuwait on or after April 12, 2009. After an
interlocutory appeal, the Ninth Circuit affirmed the Court's
certification order. The Court granted a stay of proceedings
while the Defendants appeal was pending. The Court now ordered
its stay of proceedings lifted.
Presented to the Court for preliminary approval is a settlement
of the litigation as against all the Defendants. The terms of
the settlement are set forth in the class action settlement
agreement, executed by the counsel on May 10, 2018 on behalf of
all of the Plaintiffs and the Defendants.
Upon reviewing the Settlement Agreement, Judge Coughenour granted
the parties' joint motion. He will hold a fairness hearing on
the parties' motion for final approval of the proposed class
settlement on Oct. 16, 2018, at 9:00 a.m. The parties will file
their materials in support of final approval, including the class
counsel's request for an award of attorney fees and litigation
expenses, on or before Sept. 1, 2018. Should Defendants oppose
any portion of the class counsel's request for attorney fees
and/or litigation expenses, their opposition will be filed within
two weeks of the class counsel's motion. The class counsel will
then have one week to file any reply.
The Judge directed the class counsel to mail out notice of the
proposed settlement to the class members. The notice will be in
the form that was attached to the joint motion, except that the
date and time for the hearing on the motion for final approval
will be filled in where appropriate. The notice will be
accompanied by a request for exclusion in the form that was
attached to the joint motion.
A full-text copy of the Court's May 22, 2018 Order is available
at https://is.gd/Y10G2J from Leagle.com.
Ricky Allen Lee & Paul Vernon Rigsby, individually and on behalf
of all others similarly situated, Plaintiffs, represented by
Daniel E. Williams, THOMAS WILLIAMS & PARK, LLP, pro hac vice &
William Harold Thomas.
ITT Corporation, an Indiana corporation & ITT Federal Services
International Corporation, a Delaware corporation, Defendants,
represented by David R. Goodnight -- david.goodnight@stoel.com --
STOEL RIVES, James C. Dale -- james.dale@stoel.com -- STOEL
RIVES, pro hac vice & Jill Diane Bowman -- jill.bowman@stoel.com
-- STOEL RIVES.
JDJ INVESTMENTS: Fleck Sues over Debt Collection Practices
----------------------------------------------------------
GREGORY FLECK, individually and on behalf of all others similarly
situated, the Plaintiff, v. JDJ INVESTMENTS, INCORPORATED d/b/a
CREDIT BUREAU SERVICES, the Defendant, Case No. 6:18-cv-00325
(E.D. Tex., July 3, 2018), seeks to recover damages under the
Fair Debt Collection Practices Act.
According to the complaint, on or about July 7, 2017, CBS sent
the Plaintiff a collection letter. The Defendant failed to state
effectively "the name of the creditor to whom the debt is owed."
The least sophisticated consumer is left confused as to who the
creditor is in this case Plaintiff suffered injury-in-fact by
being subjected to unfair and abusive practices of the Defendant.
The Plaintiff suffered actual harm by being the target of the
Defendant's misleading debt collection communications. The
Defendant violated the Plaintiff's right not to be the target of
misleading debt collection communications. The Defendant violated
the Plaintiff's right to a truthful and fair debt collection
process. The Defendant used materially false, deceptive,
misleading representations and means in its attempted collection
of Plaintiff's alleged debt.[BN]
The Plaintiff is represented by:
Joel S. Halvorsen, Esq.
HALVORSEN KLOTE
680 Craig Road, Suite 104
St. Louis, MO 63141
Telephone: (314) 451 1314
Facsimile: (314) 787 4323
E-mail: joel@hklawstl.com
JPMORGAN CHASE: Court Won't Review "Blake" Suit Dismissal
---------------------------------------------------------
In the case, CHRISTOPHER BLAKE and CIVIL ACTION JAMES ORKIS,
individually and on behalf of all others similarly situated,
Plaintiffs. v. JPMORGAN CHASE BANK, N.A., CHASE BANK USA, N.A.,
JPMORGAN CHASE & CO., and CROSS COUNTRY INSURANCE COMPANY,
Defendants, Case No. 13-6433 (E.D. Pa.), Judge Lawrence F.
Stengel of the U.S. District Court for the Eastern District of
Pennsylvania (i) denied the Plaintiffs' motion for
reconsideration of the Court's dismissal of the amended
complaint, and (ii) denied James and Samantha Dudley's motion to
intervene.
This is a putative class action brought by homeowners claiming
violations of the Real Estate Settlement Procedures Act
("RESPA"). The Plaintiffs claim that the Defendants carried on a
"captive reinsurance scheme," through which they enjoyed
kickbacks, referrals, and fees that are prohibited by RESPA. On
June 14, 2017, the Defendants filed a motion to dismiss the
amended complaint which Judge Stengel granted by Memorandum and
Order dated March 28, 2018.
The Plaintiffs now move for reconsideration of that Order. The
Defendants filed a response in opposition. The Plaintiffs also
filed a motion to intervene on behalf of James Dudley and
Samantha Dudley which the Defendants oppose.
The Plaintiffs argue that the Judge committed clear error of law
in holding that they forfeited their right to tolling under
American Pipe when they filed the instant action before the final
disposition in Samp, et al. v. JPMorgan Chase Bank, N.A., et al.,
No. 11-1950 (C.D. Cal). They argue, for the first time, that
where a class has not been certified, American Pipe tolling does
not extend through the pendency of an appeal.
The Judge finds this argument fails for several reasons. First,
he says the Plaintiffs did not advance this argument in their
numerous briefs in opposition to the Defendants' motion. Second,
the forfeiture of American Pipe tolling is a novel issue with no
controlling law. And third, the case law cited by the Plaintiffs
in their motion for reconsideration is taken out of context and
does not stand for the proposition they asserted. He finds, as
he did in his Memorandum and Order granting the Defendants'
motion to dismiss, that the Plaintiffs forfeited their right to
tolling when they filed the instant action before the final
resolution in Samp.
To argue now that American Pipe tolling should apply to the
Plaintiffs' individual claims entirely misses the mark. The
Judge finds that the Plaintiffs did not file an individual suit.
They filed a putative class action suit with individual claims.
To permit their individual claims to survive would nullify the
purpose of the rule and undercut his holding. Absent the benefit
of tolling, the Plaintiffs' claims are untimely and are
dismissed.
Finally, the Judge concludes that the proposed intervenors could
not rely on Rule 24(b) because permissive intervention cannot be
used to cure jurisdictional defects. The class was not certified
before he concluded that the Plaintiffs' claims were untimely
filed and he dismissed all claims against the Defendants. Now,
following dismissal, there is no entity with which the Dudleys
may intervene as of right under Rule 24(a). What is more, the
Dudleys will not prejudiced by this finding, nor will their
rights be impeded because they were not parties to the Blake
action and therefore are not bound by principles of res judicata.
The case law dictates that there is no case or controversy and
this Court does not have subject matter jurisdiction. Therefore,
the Dudleys' motion for intervention is denied.
A full-text copy of the Court's May 23, 2018 Memorandum is
available at https://is.gd/fjtsUi from Leagle.com.
CHRISTOPHER BLAKE & JAMES ORKIS, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by JOSEPH
H. MELTZER -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check,
LLP, TERENCE S. ZIEGLER -- tziegler@ktmc.com -- Kessler Topaz
Meltzer & Check, LLP & NATALIE LESSER -- nlesser@ktmc.com --
KESSLER TOPAZ MELTZER & CHECK, LLP.
JPMORGAN CHASE BANK, N.A., CHASE BANK USA, N.A., JPMORGAN CHASE &
CO. & CROSS COUNTRY INSURANCE COMPANY, Defendants, represented by
ANN DESEAR WILES -- awiles@buckleysandler.com -- BUCKLEYSANDLER
LLP, MATTHEW P. PREVIN -- mprevin@buckleysandler.com -- BUCKLEY
SANDLER LLP, SAMANTHA L. SOUTHALL -- samantha.southall@bipc.com -
- BUCHANAN INGERSOLL & ROONEY PC & SAMUEL W. BRAVER --
samuel.braver@bipc.com -- GORDON & REES LLP.
JAMES DUDLEY & SAMANTHA DUDLEY, Movants, represented by JOSEPH H.
MELTZER, Kessler Topaz Meltzer & Check, LLP, TERENCE S. ZIEGLER,
Kessler Topaz Meltzer & Check, LLP & NATALIE LESSER, KESSLER
TOPAZ MELTZER & CHECK, LLP.
JV ENTERPRISES: Underpays Delivery Drivers, Hungerford Claims
-------------------------------------------------------------
DAKOTA HUNGERFORD, individually and on behalf of all others
similarly situated, Plaintiff v. JV ENTERPRISES OF ILLINOIS,
INC., and JOHN ADDIS, Defendants, Case No. 3:18-cv-50224 (N.D.
Ill., June 25, 2018) seeks to recover unpaid minimum wages and
overtime hours pursuant to the Fair Labor Standard Act.
The Plaintiff Hungerford was employed by the Defendants as
delivery driver from November 2016 to November 2017.
JV Enterprises of Illinois Inc. operates as a pizza hut
restaurant. The Company offers pan pizza, hand tossed, crispy,
and stuffed crust pizza. [BN]
The Plaintiff is represented by:
J. Forester, Esq.
Matthew Haynie, Esq.
FORESTER HAYNIE PLLC
1701 N. Market Street, Suite 210
Dallas, TX 75202
Telephone: (214) 210-2100
Facsimile: (214) 346-5909
LIBERTY MUTUAL: Mosley Sues over Uninsured Motorist coverage
------------------------------------------------------------
TYREL MOSLEY, Individually & on Behalf of All Others Similarly
Situated, the Plaintiff, v. LIBERTY MUTUAL FIRE INS. CO., the
Defendant, Case No. 2:18-cv-00269-JRG (E.D. Tex., July 3, 2018),
seeks to enjoin the Defendant from denying the existence of Texas
uninsured motorist coverage on the affected policies in an amount
equal to the policies' limits of bodily injury liability
insurance coverage.
Liberty Mutual is a foreign fire & casualty company.[BN]
The Plaintiff is represented by:
James A. Holmes, Esq.
THE LAW OFFICE OF JAMES HOLMES, P.C.
212 South Marshall
Henderson, TX 75654
Telephone: (903) 657 2800
Facsimile: (903) 657 2855
E-mail: jh@JamesHolmesLaw.com
LOMA NEGRA: Faces "Kohl" Suit in New York Supreme Court
-------------------------------------------------------
A class action lawsuit has been filed against Loma Negra Compania
Industrial Argentina Sociedad Anonima. The lawsuit is captioned
DAN KOHL, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, v. LOMA NEGRA COMPANIA INDUSTRIAL
ARGENTINA SOCIEDAD ANONIMA, LOMA NEGRA HOLDING GMBH, SERGIO
FAIFMAN, MARCO GRADIN, RICARDO FONSECA DE MENDONCA LIMA, LUIZ
AUGUSTO KLECZ, PAULO DINIZ, CARLOS BOERO HUGHES, DIANA MONDINO,
SERGIO DANIEL ALONSO, BRADESCO SECURITIES INC., CITIGROUP GLOBAL
MARKETS INC., HSBC SECURITIES (USA) INC., ITAU BBA USA
SECURITIES, INC., MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED AND MORGAN STANLEY & CO. LLC, the Defendants, Case
No. 653114/2018 (N.Y. Sup. Ct., June 21, 2018).[BN]
The Plaintiff is represented by:
Seannon L. Hopkins, Esq.
Sebastiano Tornatore, Esq.
LEVI 4 KORSINSKY LLP
733 Summer Street, Suite 304
Stamford, CT 06901
Telephone: (203) 992 4523
Facsimile: (212) 363 7171
E-mail: shopkins@zlk.com
stornatore@zlk.com
LONDON TERRACE: Loses Bid to Stay Order of "Dugan" Class Notice
---------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, denied Defendant's-Appellant's Motion to Stay in the
case captioned WILLIAM DUGAN, ET AL., Plaintiffs-Respondents, v.
LONDON TERRACE GARDENS, L.P., Defendant-Appellant, Motion No. M-
1071, Index No. 603468/09 (N.Y. Super App.).
The Defendant-Appellant having moved for (1) a stay of the order,
which directed that notice of this class action be given to
tenants and former tenants; (2) a stay of any obligation to
implement the calculation of rents based on the formula contained
in the order entered, or for alternative relief.
A full-text copy of the N.Y. App. Div.'s May 3, 2018 Opinion is
available at https://tinyurl.com/yd5hf3c2 from Leagle.com.
LOUISIANA MEDICAL: "Barnett" Peremptory Exception Ruling Upheld
---------------------------------------------------------------
In the case, OLIVER BARNETT, ET AL. Plaintiffs-Appellants, v.
LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY D/B/A LAMMICO,
Defendant-Appellee, Case No. 51,908-CA (La. App.), Judge Henry
Newton Brown, Jr. of the Court of Appeal of Louisiana for the
Second Circuit affirmed the trial court's judgment granting the
peremptory exception of res judicata filed by Defendant LAMMICO
and dismissing with prejudice the action filed by the Plaintiffs.
The Plaintiffs, approximately 243 persons (divided into two
groups of claimants), have settled their medical malpractice
claims against a qualified health care provider, his insurer,
LAMMICO, and the Patients' Compensation Fund.
A document entitled "Settlement Agreement" which expressed, inter
alia, the parties' intent to terminate the original malpractice
litigation by a group settlement or any other reasonably agreed
upon settlement process as contemplated therein, was perfected on
Dec. 2, 2014, with an effective date of Dec. 3, 2014. All
parties signed the Settlement Agreement on or before the
effective date.
The parties' attorneys did not reach a final agreement on the
form of the Receipt and Release document until Feb. 3, 2015,
approximately 60 days after the Settlement Agreement was
executed. In the Receipt and Releases, the Plaintiffs also
acknowledged that the settlement and release made and effected
herein is a compromise settlement of the Released Parties with
Appearer(s), and the terms and conditions of the Settlement
Agreement dated Dec. 3, 2014, are specifically referenced and
incorporated by reference therein.
Furthermore, by signing the Receipt and Releases, each claimant
was acknowledging that he or she may be entitled to no payment,
but that he or she was given the opportunity to participate in
the resolution process and make claims upon those settlement
funds established and funded pursuant to that certain Settlement
Agreement the receipt, sufficiency and value to Appearer(s) of
which is therein acknowledged.
The parties also signed a Joint Motion and Judgment of Dismissal
to implement the terms of the parties' compromise agreement.
LAMMICO made a conditional tender of the settlement funds to the
mediator/facilitator on Jan. 14, 2015, and the funds were
released on Feb. 4, 2015.
The Plaintiffs filed the instant action seeking penalties and
damages, urging that LAMMICO failed to timely fund the settlement
when it did not unconditionally tender the agreed upon sums by
Jan. 3, 2015. LAMMICO filed a motion for summary judgment and
several exceptions, including a peremptory exception of res
judicata, asserting that its duty to tender the funds was not
triggered until the parties completed their global settlement
process. Additionally, by confessing the receipt and adequacy of
the settlement funds when they executed the Receipt and Release
portion of the compromise, the Plaintiffs waived any potential
claims related to the alleged late funding of the settlement.
Taking up the exception of res judicata first, the trial court
heard argument from the counsel and considered evidence at a
hearing on March 27, 2017. Finding that the doctrine of res
judicata applied to the Plaintiffs' claims for penalties and
damages, the trial court granted the Defendant's exception and
dismissed the Plaintiffs' claims with prejudice in a judgment
filed on April 4, 2017. It is from this adverse judgment that
the Plaintiffs have appealed.
According to the Plaintiffs, the trial court erred in finding
that the doctrine of res judicata precluded their suit for
penalties and damages for LAMMICO's late payment of the global
settlement amounts set forth in the parties' Dec. 3, 2014,
Settlement Agreement. AMMICO urges the Court to affirm the
ruling of the trial court.
Judge Brown finds that in the Receipt and Release executed as
part of the compromise agreement by each claimant, not only did
he or she confess the receipt and adequacy of LAMMICO's
settlement funds, conditionally tendered to the
mediator/facilitator on Jan. 14, 2015, and deposited by him on
Feb. 4, 2015, as soon as the form of the Receipt and Release was
agreed upon by the parties' attorneys, each claimant released
LAMMICO from any claims he or she could have brought. Had the
Plaintiffs' counsel desired to reserve any potential claims for
penalties and damages arising out of the alleged late
establishment of the two Group settlement funds, specific
language to that effect should have been included in the Receipt
and Release. As it was not, he finds no error in the trial
court's conclusion that the language used by the parties in the
release was broad enough to cover all claims, including the
instant action, and that the doctrine of res judicata mandates
dismissal of the Plaintiffs' lawsuit.
The parties in the case apparently were able to convince the
trial court to seal the entirety of this record. Neither party,
however, made any motions in the Court to seal either the
appellate record or the briefs, nor has there been a request that
its opinion be unpublished. Having no valid reason to extend the
trial court's order sealing the record, he declines to do so.
For the reasons set forth, Judge Brown affirmed the trial court's
judgment granting the peremptory exception of res judicata filed
by the Defendant, and dismissing with prejudice the action filed
by the Plaintiffs. Costs are assessed to the Plaintiffs.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/J0EQ4I from Leagle.com.
NELSON & HAMMONS, ALC, By: John L. Hammons, William W. Murray,
Jr., A. Cornell Flournoy, KELLY & TOWNSEND, By: William L.
Townsend, III -- billt@keltownlaw.com -- Kennan K. Kelly --
keenan@keltownlaw.com -- Counsel for Appellants.
MILLING BENSON WOODWARD, LLP, By: Normand F. Pizza --
npizza@millinglaw.com -- Chadwick W. Collings --
ccollings@millinglaw.com -- Andrew R. Capitelli --
acapitelli@millinglaw.com -- Thomas S. Schneidau --
tschneidau@millinglaw.com -- Counsel for Appellee.
MAGYAR ALLAMVASUTAK: 7th Cir. Won't Reopen "Fischer" Suit
---------------------------------------------------------
Judge Michael Y. Scudder of the U.S. Court of Appeals for the
Seventh Circuit dismissed Fischer's appeal from a district
court's order denying his motion to reopen the case, PAUL CHAIM
SHLOMO FISCHER, et al., Plaintiffs-Appellants, v. MAGYAR
ALLAMVASUTAK ZRT., Defendant-Appellee, Case No. 17-3487 (7th
Cir.).
The litigation began in 2010, and now makes its third visit to
the Court. In 2012, the Court issued multiple opinions
addressing aspects of claims that Hungarian survivors of the
Holocaust brought in the Northern District of Illinois against
several Hungarian banks and the Hungarian national railway.
Relevant here is the class-action complaint Fischer and 20 other
individuals filed against the Hungarian national railway.
Fischer alleged that in 1944 the railway, known as Magyar
Allamvasutak, transported him and up to 500,000 other Jews from
Hungary to Auschwitz and other concentration camps. In terms
jarring and difficult to read, Fischer's complaint recounted
allegations of horrific personal harm and losses of valuable and
treasured personal possessions experienced by Hungarian Jews
forcibly transported to concentration camps by the national
railway.
In 2012, the Court concluded that the Plaintiffs, including
Fischer, had neither exhausted remedies that may be available in
Hungary nor established that the national railway is engaged in
commercial activity in the United States -- requirements
necessary to support the district court's exercise of subject
matter jurisdiction under the FSIA's expropriation exception.
The Court reached the same conclusion three years later, holding
that the district court (on remand from its first opinion)
committed no error in determining that the Plaintiffs had failed
to offer a compelling reason for foregoing the pursuit of
remedies in Hungary. Its 2015 opinion also took care to qualify
the bounds of the exhaustion mandate that if the Plaintiffs
attempt to bring suit in Hungary and are blocked arbitrarily or
unreasonably, United States courts could once again be open to
these claims against the national railway and bank.
In February 2016, Iren Gittel Kellner, a member of the putative
class defined in the amended complaint, filed her own complaint
against the Hungarian national railway in Budapest's Capital
Regional Court. She sought to recover for losses of personal
property, including religious articles, currency and clothing,
and family photographs, as well as for other harm (resulting from
the intentional infliction of emotional distress and false
imprisonment) experienced while traveling to Auschwitz in an
overcrowded national railcar with her father, mother, and eight
siblings.
In October 2016, the Hungarian court issued a written decision
dismissing Kellner's case. The court determined that Hungarian
law required Kellner to support her claim to recover for any
losses of personal property with evidence independent of her own
testimony (for example, documentary evidence of some kind). As
for Kellner's claim for damages for personal injuries, the
Hungarian court concluded that any Holocaust-related claim for
noneconomic damages based upon events alleged to have occurred
before March 1978 was not cognizable under the applicable
provision of the Hungarian Civil Code.
What transpired next gave rise to the appeal. In June 2017, the
district court received a three-page motion styled "Motion to
Reinstate." While purportedly brought by the "Plaintiff," the
motion sought the reinstatement of the previously dismissed
amended complaint on the basis of "class member" Kellner's
efforts to exhaust remedies in Hungary. Those efforts, the
motion urged, demonstrated that Ms. Kellner's efforts on behalf
of herself and other Plaintiffs, to obtain remedies before
Hungarian courts have been frustrated unreasonably or
arbitrarily, within the meaning of the standard articulated in
our 2015 opinion.
The district court treated the motion as filed by Kellner and
issued a summary order declining to reinstate the complaint.
Foregoing a path of reconsideration, Fischer -- not Kellner --
then chose to notice the appeal and seek the Court's review of
the district court's order.
Briefing ensued with Fischer and the Hungarian national railway
focused, first, on whether the district court properly found that
Kellner filed the motion and, second, whether Kellner experienced
any unreasonable or arbitrary frustration of her attempt to
pursue remedies in Hungary. Concerned that appellate
jurisdiction may be lacking, the Court then sought supplemental
briefing on whether the district court had entered a final
decision within the meaning of 28 U.S.C. Section 1291 and, more
specifically, whether the district court's order denying the
motion to reinstate constituted a "clear legal bar" to the
revival of the claims brought against the Hungarian national
railway.
Judge Scudder finds that the Court lacks authority to consider
Fischer's appeal. He explains that the district court treated
the motion to reinstate as coming solely from Kellner. Yet it is
Fischer who seeks the Court's review. Fischer, however, has
suffered no "adverse effect" from the denial of the motion to
reinstate on the ground that Kellner lacked standing, so he
cannot appeal the basis for that decision. He says nothing
changes if they view the appeal before the Court as being filed
not just by Fischer but by all the Plaintiffs named in the
amended complaint, for the district court's order applies only to
Kellner who was not a named Plaintiff.
He also knows of no authority permitting the Court to interchange
or modify the parties to an appeal without regard to the
standards for substitution in Federal Rule of Appellate Procedure
43. And, while sympathetic to Fischer's urgency to prosecute
what all agree are very serious claims arising out of one of the
worst atrocities in the history of humankind, the Court remains a
court of limited jurisdiction. He must ensure their authority
over a specific case or controversy covers the party seeking
their review. Here, he says, that essential requirement is
lacking.
By its terms, the Judge says, the district court's order denying
Kellner's motion to reinstate contains no reference to Fischer
or, for that matter, any other Plaintiff named in the amended
complaint. In no way did the district court's summary order
close the courthouse door on Fischer or another named Plaintiff.
In the end, he says it will be up to the district court to
determine whether the Plaintiffs have made the showing requisite
to establish subject matter jurisdiction. Informed by the
Court's two prior opinions and resolution here, the district
court, perhaps among other issues, will need to consider the
adequacy of efforts to exhaust any remedies in Hungary, including
whether one individual's efforts to exhaust can satisfy another's
obligation, as well as whether the commercial-nexus requirement
of the expropriation exception to the FSIA discussed but left
unresolved by the Court's 2012 opinion has been demonstrated.
For these reasons, Judge Scudder dismissed Fischer's appeal for
lack of jurisdiction.
A full-text copy of the Seventh Circuit's May 23, 2018 Order is
available at https://is.gd/dvyvWE from Leagle.com.
Robert James Pavich, for Plaintiff-Appellant.
Konrad L. Cailteux -- konrad.cailteux@weil.com -- for Defendant-
Appellee.
Gregory Silbert -- gregory.silbert@weil.com -- for Defendant-
Appellee.
MAINE: Gladu Files Suit v. MDOC Officials
-----------------------------------------
A class action lawsuit has been filed against Joseph Fitzpatrick.
The case is styled as Nicholas A Gladu and Others Similarly
Situated, Plaintiff v. Joseph Fitzpatrick, Individually and in
his official capacity as Commissioner of MDOC, Ryan Thornell,
Individually and in his official capacity as Deputy Commissioner
of MDOC, Randall Liberty, individually and in his official
capacity as Warden of MSP, Troy Ross, individually and in his
official capacity as Deputy Warden of Security at MSP, Gladys
Cassese, individually and in her official capacity as SMU Unit
Mgr, Jeremiah Manning, individually and in his official capacity
as SMU Sgt, Michael Burns, individually and in his official
capacity as SMU Sgt, Defendants, Case No. 1:18-cv-00274-GZS (D.
Me., July 11, 2018).
Joseph Fitzpatrick sued in his official capacity as Commissioner
of Maine Department of Corrections.[BN]
The Plaintiff appears PRO SE.
MAID BRIGADE: Faces "Matzura" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Maid Brigade, Inc.
The case is styled as Steven Matzura, on behalf of himself and
all others similarly situated, Plaintiff v. Maid Brigade, Inc.,
Defendant, Case No. 1:18-cv-06296 (S.D. N.Y., July 11, 2018).
Maid Brigade Systems, Inc. provides maid and cleaning services to
residential customers. It offers general services, such as vacuum
floor surfaces, vacuum furniture in family room, clean sliding
glass doors, remove cobwebs, dust windowsills and baseboards,
spot clean light switch plates, make beds, tidy rooms, dust all
furnishings and decorative items within reach, dust ceiling fans
within reach, dust window blinds, and empty trash.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MAIDPRO INC: Faces "Burbon" Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Maidpro, Inc. The
case is styled as Luc Burbon, on behalf of herself and all others
similarly situated, Plaintiff v. Maidpro, Inc., Defendant, Case
No. 1:18-cv-06290 (S.D. N.Y., July 11, 2018).
MaidPro provides professional customized house cleaning and
guarantees satisfaction.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MARITZCX RESEARCH: "Begay" Suit Seeks Damages under TCPA
--------------------------------------------------------
Marlene Begay, on behalf of herself and all others similarly
situated v. MaritzCX Research, LLC, and MaritzCX Holdings,
LLC, Case No. 5:18-cv-03842 (N.D. Calif., June 27, 2018), seeks
injunctive relief and statutory damages pursuant to the Telephone
Consumer Protection Act.
The Plaintiff is a resident of Los Altos, California and a
citizen of the State of California.
The Defendants are research marketing firms that conduct consumer
research. The Defendants' principal place of business is in
Fenton, Missouri. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
Thomas A. Reyda, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Tel: (925) 300-4455
E-mail: ltfisher@bursor.com
jsmith@bursor.com
treyda@bursor.com
MATTRESS FIRM: Underpays Sales Consultants, Crabtree Claims
-----------------------------------------------------------
RHONDA CRABTREE, individually and on behalf of all others
similarly situated, Plaintiff v. MATTRESS FIRM, INC.; and DOES
through 100, Defendants, Case no. 37-2018-00031612 (Cal. Super.,
San Diego Cty., June 25, 2018) is an action against the
Defendants for unpaid regular hours, overtime hours, minimum
wages, wages for missed meal and rest periods.
The Plaintiff Crabtree was employed by the Defendants as sales
consultant from March 2015 to April 2017.
Mattress Firm, Inc. was incorporated in 2002 and is based in the
United States. Mattress Firm, Inc. operates as a subsidiary of
Mattress Firm Holding Corp. [BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Sean M. Blakely, Esq.
Daniel J. Brown, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Suite 1550
El Segundo, CA 90245
Telephone: (424) 292-2350
Facsimile: (424) 292-2355
E-mail: phaines@haineslawgroup.com
sblakely@haineslawgroup.com
dbrown@haineslawgroup.com
MAXIM HEALTHCARE: Remove "Duran" Suit to C.D. California
--------------------------------------------------------
The Defendant in the case of Maria Duran, individually and on
behalf of all others similarly situated, Plaintiff v. Maxim
Healthcare Services, Inc., Defendant, filed a notice to remove
the lawsuit from the Superior Court of the State of California,
County of Los Angeles, (Case No. BC705663) to the U.S. District
Court for the Central District of California on June 25, 2018,
and assigned Case No. 2:18-cv-05619 (C.D. Cal., June 25, 2018).
The case is assigned to Judge Andre Birotte Jr., and referred to
Magistrate Judge Charles F. Eick.
Maxim Healthcare Services Inc. provides home health, medical
staffing, and wellness services. The Company offers homecare,
non-medical care, healthcare staffing, flu, wellness, and therapy
services. [BN]
The Plaintiff is represented by:
Ari Emanuel Moss, Esq.
Jeremy F Bollinger
MOSS BOLLINGER LLP
15300 Ventura Boulevard Suite 207
Sherman Oaks, CA 91403
Telephone: (310) 982-2984
Facsimile: (310) 861-0389
E-mail: ari@mossbollinger.com
jeremy@mossbollinger.com
- and -
Sahag Majarian, II, Esq.
SAHAGMAJARIAN II LAW OFFICES
18250 Ventura Boulevard
Tarzana, CA 91356
Telephone: (818) 609-0807
Facsimile: (818) 609-0892
E-mail: sahagii@aol.com
The Defendant is represented by:
Alexander L Grodan, Esq.
MORGAN LEWIS AND BOCKIUS LLP
600 Anton Boulevard Suite 1800
Costa Mesa, CA 92626-7653
Telephone: (714) 830-0600
Facsimile: (714) 830-0700
E-mail: alexander.grodan@morganlewis.com
- and -
Linda Z Shen, Esq.
MORGAN LEWIS AND BOCKIUS LLP
2049 Century Park East Suite 700
Los Angeles, CA 90067
Telephone: (310) 907-1000
Facsimile: (310) 907-1001
E-mail: linda.shen@morganlewis.com
- and -
John S Battenfeld, Esq.
MORGAN LEWIS AND BOCKIUS LLP
300 South Grand Avenue 22nd Floor
Los Angeles, CA 90071-3132
Telephone: (213) 612-2500
Facsimile: (213) 612-2501
E-mail: jbattenfeld@morganlewis.com
MDL 2820: Wapsie Farms Suit vs. Monsanto Consolidated
-----------------------------------------------------
WAPSIE FARMS, on behalf of itself and others similarly situated,
the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No.
6:18-cv-02039, was transferred from the U.S. District Court for
the Northern District of Iowa, to the U.S. District Court for the
Eastern District of Missouri (Cape Girardeau) on July 3, 2018.
The Eastern District of Missouri Court Clerk assigned Case No.
1:18-cv-00162-SNLJ to the proceeding. The case is assigned to the
Hon. Judge Stephen N. Limbaugh, Jr.
The Wapsie case is being consolidated with MDL 2820 in re:
Dicamba Herbicides Litigation. The MDL was created by Order of
the United States Judicial Panel on Multidistrict Litigation on
February 2, 2018. The actions share factual questions arising
from allegations concerning the development, testing, and
marketing of Monsanto's dicamba-resistant Xtend seeds and three
dicamba herbicides -- XtendiMax, Engenia, and FeXapan -- as well
as allegations of injury from the use of those 2 herbicides,
either alone or in conjunction with the Xtend seeds.
In its Feb. 2 Order, the MDL Panel found that centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other
pretrial matters, and conserve judicial and party resources. In
particular, discovery concerning the development, testing,
marketing, and regulatory histories of the herbicides and seed
products -- including expert discovery on such matters as the
chemical composition of the herbicides and the mechanism of
injury -- appears likely to be extensive. Plaintiffs' allegations
that defendants conspired with one another to conceal the risks
and misrepresent the characteristics of their products to
regulators and the public also may necessitate significant
discovery into defendants' various business agreements and
arrangements. The lead case is 1:18-md-02820-SNLJ.[BN]
The Plaintiff is represented by:
Ward A. Rouse, Esq.
ROUSE LAW PC
4940 Pleasant Street
West Des Moines, IA 50266
Telephone: (515) 223 9000
E-mail: wardrouse@rouselaw.us
MDL 2857: Credit Suisse et al. Move 4 Cases to S.D. New York
------------------------------------------------------------
In the class action lawsuit, RE: XIV ETN LITIGATION, defendants
Credit Suisse AG, Credit Suisse Group AG, David R. Mathers,
Tidjane Thiam, and Janus Index & Calculation Services LLC ask the
Judicial Panel on Multi-District Litigation for an order
transferring and centralizing for consolidated or coordinated
pretrial proceedings in the United States District Court for the
Southern District of New York three securities class actions and
one individual securities complaint, each alleging violations of
the securities laws in connection with Credit Suisse's offering
of VelocityShares Daily Inverse VIX Short Term exchange traded
notes (the "XIV ETNs").[BN]
Attorney for Defendants Credit Suisse AG, Credit Suisse Group AG,
David R Mathers, and Tidjane Thiam:
David G. Januszewski, Esq.
CAHILL GORDON &REINDEL LLP
80 Pine Street
New York, NY 10005
Telephone: (212) 701 3000
Facsimile: (212) 259 5420
E-mail: djanuszewski@cahill.com
Attorney for Defendant Janus Index & Calculation Services LLC:
Jason M. Halper, Esq.
CADWALADER, WICKERSHAM & TAFT LLP
200 Liberty Street
New York, NY 10281
Telephone: (212) 504 6000
Facsimile: (212) 504 6000
E-mail: jason.halper@cwt.com
MERCHANTS CREDIT: "Taylor" Suit Settlement Has Final Approval
-------------------------------------------------------------
In the case, JANNETTE TAYLOR, on behalf of herself and all others
similarly situated; Plaintiff, v. MERCHANTS CREDIT ADJUSTORS,
INC., and PANSING, HOGAN, ERNST & BACHMAN, L.L.P., Defendants,
Case No. 8:16CV452 (D. Neb.), Judge Joseph F. Bataillon of the
U.S. District Court for the District of Nebraska granted the
Plaintiff's motion for final approval of a class action
settlement.
This is a class action for alleged violations of the Fair Debt
Collection Practices Act ("FDCPA"). The Defendants Merchants
Credit Adjusters, Inc. and Pansing, Hogan, Ernst & Bachman, LLP
do not oppose the Plaintiff's motion.
Under the terms of the proposed settlement, Pansing will pay
$23,320 to the class members in the class designated FDCPA Fund 1
and $75,000 to the class members in the class designated NCPA
Fund 2. The Defendants will be released from the individual and
the class claims alleged in the lawsuit.
The Court finds the proposed settlement satisfies all of the
requirements for class certification under Fed. R. Civ. P. 23 and
is fair, adequate and reasonable. It has granted the Plaintiff's
unopposed motion for an award of attorneys' fees in the amount of
$57,000 and for statutory penalties and incentive payments to the
class representative in the amount of $6,000.
The parties have shown that payments to members of Settlement
Fund 2 for the NCPA class range from $746.77 to $4.54 and the
total amount paid to the class members from Settlement Fund 2 is
$34,919.44. The balance of $40,080.56 from the Actual Damages
class will be paid on a pro rata basis to the 2,504 members of
the FDCPA class. The parties have shown that each of the over
2,500 FDCPA Fund 1 class members will receive a check for
approximately $25.
The Court approves payment to all the class members of the FDCPA
Class No. 1 and the FDCPA Class No. 2 in the amount of each class
member's pro rata share of Settlement Fund No. 1 plus the funds
remaining after payment of claims from Settlement Fund No. 2. It
also approves the distribution to the members of the NCPA Class
No. 1 and the NCPA Class No. 2 that is set forth in Filing No. 81
and in the Spreadsheet at Filing No. 78-5.
The settlement provides that any funds remaining from settlement
checks un-cashed (i.e., checks not cashed 90 days after the check
date) or other undistributed funds will be awarded to the
mutually agreed-upon cy pres recipient. The Court approves Legal
Aid of Nebraska as the cy pres recipient. At the final fairness
hearing, the Plaintiff orally moved for approval of payments from
cy pres funds to the seven class members who submitted claims
after the deadline. The Defendants are not opposed to that
distribution. The Court finds that request should be approved.
Judge Bataillon now finds the settlement should be granted final
approval. He finds that the providing some monetary compensation
to the class members, the proposed settlement provides the
important benefit of injunctive relief in that the Defendants
have altered their business practices. There are no objections
to the settlement. Under the circumstances, he finds the
settlement is fair, reasonable, adequate and in the best
interests of the class.
Accordingly, the Judge granted the Plaintiff's motion for final
approval of a class action settlement. A final order of approval
of the class action settlement and a judgment will issue this
date.
Pursuant to Federal Rule of Civil Procedure 23(b)(3), the case is
finally certified, for settlement purposes only, as a class
action on behalf of the Class Members with respect to the claims
asserted in the action:
A. (i) All persons with addresses in Nebraska (ii) against
whom the Defendants filed a county court collection complaint in
the form of Exhibit A attached to the Plaintiff's complaint (iii)
in an attempt to collect an alleged debt (iv) which was for
personal, family, or household purposes (v) during the period one
year prior to the date of filing the action.
B. (i) All persons with addresses in Nebraska (ii) to whom
the Defendants sent, or caused to be sent Requests for Admissions
in the form of Exhibit C attached to the Plaintiff's complaint
(iii) in an attempt to collect an alleged debt (iv) which was for
personal, family, or household purposes (v) during the period one
year prior to the date of filing the action.
C. (i) All persons with addresses in Nebraska (ii) against
whom the Defendants filed a county court collection complaint in
the form of Exhibit A (iii) in an attempt to collect an alleged
debt (iv) which was for personal, family, or household purposes
(v) during the period four years prior to the date of filing the
action.
D. (i) All persons with addresses in Nebraska (ii) to whom
the Defendants sent, or caused to be sent Requests for Admissions
in the form of Exhibit C (iii) in an attempt to collect an
alleged debt (iv) which was for personal, family, or household
purposes (v) during the period four years prior to the date of
filing the action.
Pursuant to Rule 23, Judge Bataillon finally certified Plaintiff
Jannette Taylor as the Class Representative and William L.
Reinbrecht and Pamela A. Car of the law firm Car & Reinbrecht and
Tregg R. Lunn of the Law Office of Tregg R. Lunn, as the Class
Counsel.
Mary K. Vannoy opted out of the class and therefore is not bound
by the Order.
The claims administrator is authorized to make payment to all the
class members of the FDCPA Class No. 1 and FDCPA Class No. 2 in
the amount of each class member's pro rata share of Settlement
Fund No. 1 plus the funds remaining after payment of claims from
Settlement Fund No. 2. The claims administrator is further
authorized to distribute Settlement Fund No. 2 to the members of
NCPA Class No. 1 and NCPA Class No. 2 and the Spreadsheet.
The class members who submitted untimely claims may be paid from
cy pres funds. If there are insufficient funds to be used from
the cy pres award the class members submitting untimely claims
will be paid on a pro rata basis from the available cy pres
funds.
A full-text copy of the Court's May 23, 2018 Memorandum and Order
is available at https://is.gd/AM6EDK from Leagle.com.
Jannette Taylor, on behalf of herself and all others similarly
situated, Plaintiff, represented by Pamela A. Car --
pacar@cox.net -- CAR, REINBRECHT LAW FIRM, Tregg R. Lunn --
tregg@tregglunnlaw.com -- LAW OFFICE OF TREGG LUNN & William L.
Reinbrecht, CAR, REINBRECHT LAW FIRM.
Merchants Credit Adjustors, Inc., Defendant, represented by
Joshua C. Dickinson -- jdickinson@spencerfane.com -- SPENCER,
FANE LAW FIRM & Shilee T. Mullin -- smullin@spencerfane.com --
SPENCER, FANE LAW FIRM.
Pansing, Hogan, Ernst & Bachman, L.L.P., Defendant, represented
by Lauren R. Goodman -- lgoodman@mcgrathnorth.com -- MCGRATH,
NORTH LAW FIRM & William F. Hargens -- whargens@mcgrathnorth.com
-- MCGRATH, NORTH LAW FIRM.
METEOR LEARNING: Has Made Unsolicited Calls, "Hicks" Suit Says
--------------------------------------------------------------
DEANNA HICKS, individually and on behalf of all others similarly
situated, Plaintiff v. METEOR LEARNING INC., Defendant, Case No.
1:18-cv-11325 (D. Mass., June 26, 2018) seeks to stops the
Defendant's practice of sending unwanted calls to telephones of
the Plaintiff without her prior express written consent.
Meteor Learning, Inc. provides online competency-based education
programs for working professionals. Meteor Learning, Inc. was
formerly known as Educate Online, Inc. and changed its name to
Meteor Learning, Inc. in April 2016. The company was founded in
2001 and is based in Baltimore, Maryland. [BN]
The Plaintiff is represented by:
Jason Campbell Esq.
250 First Avenue, Unit 602
Charlestown, MA 02129
Telephone: (617) 872-8652
E-mail: jasonrcampbell@ymail.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
- and -
Stefan Coleman, Esq.
201 S. Biscayne Blvd, 28 th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
MOLTO BENE BELLMORE: Fails to Pay OT to Cooks, Vazquez Alleges
--------------------------------------------------------------
HUMBERTO V. VAZQUEZ, individually and on behalf of all others
similarly situated, Plaintiff v. MOLTO BENE BELLMORE, INC. d/b/a
MOLTO BENE; and KARINA J. TERRAZAS, Defendants, Case No. 2:18-cv-
03681 (E.D.N.Y., June 25, 2018) seeks to recover from the
Defendants unpaid wages, unpaid overtime compensation, liquidated
damages, pre-judgment and post-judgment interest, attorney's fees
and costs.
Mr. Vazquez was employed by the Defendants as cook from March
2016 to May 20, 2018.
Molto Bene Bellmore, Inc. is a domestic business corporation
organized and existing under the laws of the State of New York.
[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
708 Third Avenue, 6th Floor
New York, NY 10017
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: pcooper@jcpclaw.com
MONSANTO COMPANY: Kings Sue over Sale of Herbicide Roundup
----------------------------------------------------------
JAMES O. KING, III, and CARA M. KING, the Plaintiffs, v. MONSANTO
COMPANY, the Defendant, Case No. 3:18-cv-00416-CHB (W.D. Ky.,
June 29, 2018), seeks to recover damages suffered by Plaintiffs
as a direct and proximate result of Defendant negligent and
wrongful conduct in connection with the design, development,
manufacture, testing, packaging, promoting, marketing,
advertising, distribution, labeling, and/or sale of the herbicide
Roundup (TM), containing the active ingredient glyphosate.
According to the complaint, the Plaintiffs maintain that Roundup
(TM) and/or glyphosate is defective, dangerous to human health,
unfit and unsuitable to be marketed and sold in commerce, and
lacked proper warnings and directions as to the dangers
associated with its use. The Plaintiffs' injuries, like those
striking thousands of similarly situated victims across the
country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
and Roundup Original 2k herbicide.
Monsanto Company is an agrochemical and agricultural
biotechnology corporation. It was headquartered in Creve Coeur,
Greater St. Louis, Missouri.[BN]
The Plaintiffs are represented by:
Ashton Rose Smith, Esq.
Jennifer A. Moore, Esq.
GROSSMAN & MOORE, PLLC
One Riverfront Plaza
401 West Main Street, Suite 1810
Louisville, KY 40202
Telephone: (502) 657 7100
Facsimile: (502) 657 7111
E-mail: jmoore@gminjurylaw.com
asmith@gminjurylaw.com
MOULTON NIGUEL: Dismissal of Inverse Condemnation Suit Upheld
-------------------------------------------------------------
The Court of Appeals of California, Fourth District, Division
Three, affirmed the trial court's judgment granting Defendant's
Motion to Dismiss the case captioned LISA WILLIAMS, et al.,
Plaintiffs and Appellants, v. MOULTON NIGUEL WATER DISTRICT, et
al., Defendants and Respondents, No. G053002 (Cal. App.).
After a bifurcated bench trial on certain legal issues, the trial
court entered judgment for the water districts, finding the
plaintiffs' causes of action for nuisance and inverse
condemnation were pre-empted by federal and state laws, and
otherwise insufficient on the merits. The plaintiff homeowners
appealed.
Plaintiff homeowners allege the copper piping in their homes was
damaged by a chemical the defendant water districts added to tap
water.
The parties stipulated to sever five threshold legal issues for
trial on the merits, four of which are at issue here. Those
issues were:
a. Are the Plaintiffs' causes of action pre-empted by federal
Safe Drinking Water Act?
b. Are the Plaintiffs' causes of action pre-empted by the
California Safe Drinking Water Act; and/or application of
Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, and In re
Groundwater Cases (2007) 154 Cal.App.4th 659?
c. As a matter of law, can the occurrence of pinhole leaks in
residential copper plumbing give rise to inverse condemnation
liability allegedly caused by the treatment and delivery of
drinking water?
d. As a matter of law, does the Defendants' compliance with
statutory and regulatory mandates bar plaintiffs' public and/or
private nuisance claims?
The Plaintiffs contend the Water Districts are liable for damage
to their copper pipes on the theory of nuisance. The court was
tasked with answering the question: As a matter of law, does the
Defendants' compliance with statutory and regulatory mandates bar
plaintiffs' public and/or private nuisance claims?
In Varjabedian v. City of Madera (1977) 20 Cal.3d 285
(Varjabedian) the court found Civil Code section 3482 did not
immunize liability for an alleged nuisance from odors emanating
from a sewage treatment plant. A statutory sanction cannot be
pleaded in justification of acts which by the general rules of
law constitute a nuisance, unless the acts complained of are
authorized by the express terms of the statute under which the
justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can
be fairly stated that the Legislature contemplated the doing of
the very act which occasions the injury.
Similarly, in Wilson v. Southern California Edison Co. (2015) 234
Cal.App.4th 123 (Wilson), the court rejected an electric utility
company's invocation of Civil Code section 3482 where stray
voltage from an electrical substation was entering the
plaintiffs' home and shocking her.
In considering these cases, it is helpful to distinguish the act
or condition constituting the nuisance from the consequences of
the act or condition, such as being injurious to health or
indecent or offensive to the senses, or constituting an
obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or proper. Civil Code section
3482 immunizes liability for the acts that are done or maintained
pursuant to the express terms of a statute.
Thus, in Varjabedian the act that was done or maintained was
allowing the odors to escape. That act was not authorized by
statute, so Civil Code section 3482 did not immunize nuisance
liability. In Wilson, the act that was done or maintained was
allowing the stray voltage to exist. That act was likewise not
authorized by statute, so Civil Code section 3482 did not
immunize nuisance liability. But in Farmers, the act that was
done or maintained was the spraying of the pesticide. That act
was expressly authorized by statute, so Civil Code section 3482
immunized nuisance liability for that conduct.
Here, the act at issue is the inclusion of chloramines in the
water. That precise act was plainly authorized. Accordingly,
Civil Code section 3482 bars plaintiffs' nuisance claim, which
was properly dismissed.
The Plaintiffs' inverse condemnation claim amounts to an
assertion that they have suffered damage to their water pipes as
an incidental consequence of government action in furtherance of
a public purpose, namely, the furnishing of drinking water made
safe for public consumption by its treatment with chloramines.
First, as the plaintiffs freely acknowledge, It is well settled
that the fundamental policy underlying inverse condemnation is
that the cost of damage to a private property owner resulting
from a public use that benefits the community should be spread
among those benefited rather than allocated to a single member of
the community. Stated differently, "The decisive consideration is
whether the owner of the damaged property if uncompensated would
contribute more than his proper share to the public undertaking."
The Court agree with plaintiffs' premise, but it does not help
them.
Second, compensation for the damage alleged here would also
expand compensation outside the traditional realm of eminent
domain because the plaintiffs invited the water into their
plumbing systems, the delivery was consensual. Unsurprisingly,
water damage has been a frequent subject of published appellate
opinions on inverse condemnation. The Plaintiffs cite several
cases on the subject. However, all of the cases finding inverse
condemnation liability share one common trait: they involve
uninvited water onto the plaintiff's property, usually in the
form of flooding.
The Plaintiffs' theory of liability is akin to a traditional
product liability theory. The treated water they purchased
arguably suffered from a design defect, or perhaps liability
could be asserted based on a failure to warn of the water's
effect on copper pipes, or perhaps liability could be established
under a simple negligence theory. As the Customer court
explained, however, whether a tort theory of recovery on this or
other potential bases of liability should be allowed is a
decision for the Legislature. But the taken or damaged language
of section 19 has never been extended to apply outside the realm
of eminent domain or public works to impose a Constitution-based
liability.
The Court declines to be the first court to allow such a free-
ranging theory of tort liability under the guise of inverse
condemnation.
Accordingly, the judgment is affirmed.
A full-text copy of the Cal. App.'s May 3, 2018 Opinion is
available at https://tinyurl.com/yahw347q from Leagle.com.
Callahan, Thompson, Sherman & Caudill; Robert W. Thompson --
rthompson@ctsclaw.com -- Brett E. Bitzer -- bbitzer@ctsclaw.com -
- Lee A. Sherman -- lsherman@ctsclaw.com -- and Erin M. Mallon
for Plaintiffs and Appellants.
Marcia Skully, Heather C. Beatty, Jill C. Teraoka, Heriberto F.
Diaz ; Greines, Martin, Stein & Richland and Timothy T. Coates
for Defendant and Respondent Metropolitan Water District of
Southern California.
Lewis, Brisbois, Bisgaard & Smith; Charles L. Harris, Stephen L.
Culp and Gary M. Lape for Defendant and Respondent Irvine Ranch
Water District.
Law Offices of Robert J. Gokoo and Robert J. Gokoo for Defendant
and Respondent Moulton Niguel Water District.
Best Best & Krieger and Jeffrey V. Dunn for Amicus Curiae
Association of California Water Agencies, League of California
Cities, San Diego County Water Authority, Las Virgenes Municipal
Water District, Upper San Gabriel Valley Municipal Water
District, Municipal Water District of Orange County, Foothill
Municipal Water District, and West Basin Municipal Water
District.
MRS. BLOOM'S: "Saavedra" Suit Settlement Enforceable
----------------------------------------------------
In the case, MONICA LUNA SAAVEDRA, et al., Plaintiffs, v. MRS.
BLOOM'S DIRECT, INC., et al., Defendants, Case No. 17-CV-2180
(OTW) (S.D. N.Y.), Magistrate Judge Ona T. Wang of the U.S.
District Court for the Southern District of New York granted the
Plaintiff's motion to enforce the terms of the parties'
agreement.
Saavedra was employed by Defendants Mrs. Bloom's Direct, Inc.,
Mrs. Bloom's Mobile LLC, Oren Shapiro, and Maybelly Gamineo.
Defendants Mrs. Bloom's Direct Inc. and Mrs. Bloom's Mobile LLC
are flower businesses that sell flowers in Manhattan and have a
business office in Elmsford, New York. Defendants Shapiro and
Gamineo are the owners, managers, or principals of the flower
businesses.
The Plaintiff alleged that she was employed as a flower cutter,
flower arranger, water changer, counter attendant, and delivery
worker, and that the Defendants failed to pay her the proper
overtime compensation rates under the Fair Labor Standards Act
("FLSA"), failed to pay her proper overtime compensation rates
under the New York Labor Law ("NYLL"), failed to provide her with
certain notices required by the NYLL, and failed to provide her
with wage statements under the NYLL. She further alleged that
the Defendants unlawfully misappropriated and retained tips that
she received from customers, and that the Defendants required her
to pay, without reimbursement, for certain "tools of the trade"
required for her job, all in violation of the NYLL.
The parties consented to Judge Peck's authority to conduct all
proceedings and to order the entry of a final judgment, which was
approved and ordered by Judge Schofield. The parties
unsuccessfully engaged in mediation and a bench trial was
scheduled for Dec. 5, 2017. But instead of trial, the parties
reached a settlement the morning trial was supposed to start.
The parties agreed that the Defendants would pay the Plaintiff
$25,000 over four months, starting Jan. 5, 2018. The Defendants
agreed to make payments in monthly installments, with the total
settlement made up of one-third, $8,250, for attorneys' fees,
$13,500 on a W2 basis, and the balance on a 1099 basis. The
effect of this structure meant that Defendants would pay FICA and
any other taxes, as the settlement amount was largely for wages
not paid on a W2.
Months after the parties reached the settlement and the case was
dismissed on consent, The Plaintiff moved the Court to enforce
the terms of the settlement, alleging that she issued a formal
notice of default on April 10, 2018 and that the Defendants'
counsel has no present intention of making any payments under the
agreement.
The Defendants responded to the Plaintiff's letter, alleging that
since the Plaintiff had previously obtained employment with the
Defendants under false pretenses and through the submission of
phony and falsified documents, presumably as an undocumented
person, the Defendants required the Plaintiff's counsel submit to
the Defendants proper identification so that the terms of the
settlement could be met. The Defendants' letter further claims
that the Plaintiff submitted IRS Forms W-4 and W-9 that it knew
or should have known were also falsified, that these forms
contained taxpayer identification numbers (TINs) instead of
Social Security numbers (SSNs), and that the Plaintiff did not
submit USCIS Form I-9.
The Defendants explained to the Court that they will not pay the
Plaintiff under the terms of the settlement unless and until the
proper forms and documentation are received because the Social
Security Administration ("SSA") requires them to first obtain a
valid SSN from an employee prior to paying W-2 or 1099 wages and
that a TIN is not acceptable as a substitute. They also
expressed fear that employing or paying wages to an illegal alien
without verifying work authorization status is a misdemeanor and
they thus may be subject to criminal penalties. The Defendants
cross-moved the Court to nullify the settlement if the Plaintiff
is indeed an illegal alien.
Taking the arguments out of order, Magistrate Judge Wang finds
that the precedent in the Circuit is clear that the immigration
status of a plaintiff-worker is irrelevant under the FLSA, and
that payment under the terms of the settlement to an undocumented
worker neither condones nor continues a violation of immigration
law. She says she will not nullify or void a binding contract
between two parties, especially when the Defendants entered into
the settlement already believing that the Plaintiff was
undocumented.
As to the Defendants' first argument, the Magistrate Judge finds
that there is nothing in the plain language of the parties'
agreement that requires the Plaintiff to provide these forms.
The settlement requires the Defendants to pay the Plaintiff
$13,500 on a W-2 basis; how they do so and what paperwork they
require is outside of the terms of the agreement. Finally, she
is concerned about the Defendants' good faith (or lack thereof)
when they entered into the settlement.
Although the law in the Circuit is clear that a plaintiff's
immigration status has no bearing on her rights to recover unpaid
wages under the FLSA or New York Labor Law, the Defendants are
attempting to use the Plaintiff's alleged status to avoid
performance of an agreement they previously negotiated and
represented to this tribunal that they accepted.
For the reasons discussed, Magistrate Judge Wang granted the
Plaintiff's motion, and denied the Defendants' cross-motion. She
directed the Plaintiff to submit a proposed judgment within seven
days.
A full-text copy of the Court's May 23, 2018 Opinion and Order is
available at https://is.gd/fmhscS from Leagle.com.
Monica Luna Saavedra, individually & Monica Luna Saavedra, on
behalf of others similarly situated, Plaintiffs, represented by
Colin James Mulholland, Michael Faillace & Associates, P.C.,
Shawn Raymond Clark -- sclark@faillacelaw.com -- Michael Faillace
& Associates, P.C. & Michael Antonio Faillace --
Michael@Faillacelaw.com -- Michael Faillace & Associates, P.C.
Mrs. Bloom's Direct, Inc., doing business as, Mrs. Bloom's Mobile
LLC, doing business as, Oren Shapiro & Maybelly Gamineo,
Defendants, represented by Jeffrey Kevin Davis --
Jeff@JeffDavisEsq.com -- Daniels & Norelli P.C.
MRS BPO: Faces "Castro" Suit in N.D. Illinois
---------------------------------------------
A class action lawsuit has been filed against MRS BPO, L.L.C. The
case is styled as George Castro, individually and on behalf of
all others similarly situated, Plaintiff v. MRS BPO, L.L.C. dba
MRS Associates of New Jersey and John Does 1-25, Defendants, Case
No. 1:18-cv-04746 (N.D. Ill., July 11, 2018).
MRS BPO, LLC, a debt collection agency, provides accounts
receivables solutions.[BN]
The Plaintiff appears PRO SE.
MTC TRANSPORTATION: Runyan et al. Suit Moved to W.D. Washington
---------------------------------------------------------------
The class action lawsuit titled Bruce Runyan, Robert Sampson,
and John Caleb Goss, on behalf of themselves and on behalf
of all others similarly situated, and on behalf of the MTC
Transportation 401(k) Plan, the Plaintiffs, v. MTC
Transportation, Inc. doing business as: Mark Clemons a California
corporation; HI Pro Inc., a California corporation; and Mark
Clemons individually and/or the marital community composed of
Mark Clemons and Jane Doe Clemons, the Defendants, Case No. 18-
00002-12384-4-SEA, was removed from the King County Superior
Court, to the U.S. District Court for the Western District of
Washington (Seattle) on June 21, 2018. The District Court Clerk
assigned Case No. 2:18-cv-00915-MJP to the proceeding. The case
is assigned to the Hon. Judge Marsha J. Pechman.
MTC Transportation was founded in 1978. The company's line of
business includes providing trucking transportation services.[BN]
The Plaintiffs are represented by:
Erika L. Nusser, Esq.
Maria Hoisington-Bingham, Esq.
Toby James Marshall, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Ste 300
Seattle, WA 98103-8869
Telephone: (206) 816 6603
Facsimile: (206) 319 5450
E-mail: enusser@terrellmarshall.com
mhoisington@terrellmarshall.com
tmarshall@terrellmarshall.com
- and -
Hardeep S. Rekhi, Esq.
REKHI & WOLK, P.S.
529 Warren Avenue N, Suite 201
Seattle, WA 98109
Telephone: (206) 388 5887
Facsimile: (206) 577 3924
E-mail: hardeep@rekhiwolk.com
Attorneys for HI Pro Inc.:
Jack Lovejoy, Esq.
CABLE LANGENBACH KINERK & BAUER
1000 2nd Ave. Ste 3500
Seattle, WA 98104
Telephone: (206) 292 8800
E-mail: jlovejoy@cablelang.com
- and -
Jordann Hallstrom, Esq.
CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 4th Ave., Ste 3900
Seattle, WA 98154-1051
Telephone: (206) 233 2868
E-mail: jhallstrom@corrcronin.com
- and -
Lawrence Ronald Cock, Esq.
CFL LAW GROUP LLP
1001 Fourth Avenue, Ste 3900
Seattle, WA 98154
Telephone: (206) 292 8800
E-mail: lrc@corrcronin.com
NEWELL BRANDS: "Barnett" Suit Alleges Exchange Act Violation
------------------------------------------------------------
Matthew Barnett, individually and on behalf of all others
similarly situated v. Newell Brands Inc., Michael B. Polk, Ralph
J. Nicoletti, and James L. Cunningham, III, Case No. 2:18-cv-
11132 (D. N.J., June 27, 2018), is brought against the Defendants
violations of the Securities Exchange Act of 1934.
This is a federal securities class action on behalf of purchasers
of Newell Brands securities between February 6, 2017 and January
24, 2018, inclusive.
The Plaintiff is a citizen of Montgomery County, Pennsylvania.
The Plaintiff purchased Newell Brands common stock during the
Class Period and has been damaged by alleged false and misleading
statements issued by the Defendants.
The Defendant Newell Brands is a global manufacturer and marketer
of name brand consumer products. The Company maintains its
headquarters in Hoboken, New Jersey and its common stock trades
on the NYSE under the symbol NWL.
The Individual Defendants are officers of Newell Brands. [BN]
The Plaintiff is represented by:
Bruce D. Greenberg, Esq.
LITE DEPALMA GREENBERG LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Tel: (973) 623-3000
Fax: (973) 623-0858
E-mail: bgreenberg@litedepalma.com
NOBU 57 LLC: Underpays Runners and Servers, "Hossen" Suit Alleges
-----------------------------------------------------------------
MOHAMMAD HOSSEN and JAIME GONZALEZ, individually and on behalf of
all others similarly situated, Plaintiff v. NOBU 57 LLC,
Defendant, Case No. 512953/2018 (N.Y. Sup., Kings Cty., June 22,
2018) seeks to recover proper minimum wages, proper overtime
compensation, and earned customer gratuities.
The Plaintiff Hossen was employed by the Defendant as runner from
the year 2005 to the present. The Plaintiff Gonzalez was employed
by the Defendant as server from the year 2005 to October 2016.
NOBU 57 LLC is a New York limited liability company doing
business in New York, New York. [BN]
The Plaintiffs are represented by:
Jeanne Christensen, Esq.
Tanvir H. Rahman, Esq.
WIGDOR LLP
85 Fifth Avenue
New York, NY 10003
Telephone: (212) 257-6800
Facsimile: (212) 257-6845
E-mail: jchristensen@wigdorlaw.com
trahman@wigdorlaw.com
OYSTER BAY: Faces "Mendez" Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against Oyster Bay Manor
Senior Residence, Inc. The case is styled as Himelda Mendez, on
behalf of herself and all others similarly situated, Plaintiff v.
Oyster Bay Manor Senior Residence, Inc., Defendant, Case No.
1:18-cv-06288 (S.D. N.Y., July 11, 2018).
Oyster Bay Manor Senior Residence, Inc. is an Assisted living
facility in Oyster Bay, New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
PACIFIC GAS: $6MMM Settlement in "Greer" Has Prelim Approval
------------------------------------------------------------
The United States District Court for the Eastern District of
California granted Plaintiffs' Unopposed Motion for Preliminary
Approval of Class Action Settlement in the case captioned BECKY
GREER, TIMOTHY C. BUDNIK, ROSARIO SAENZ, IAN CARTY, HALEY
MARKWITH, and MARCIA GARCIA PESINA, individually and as class
representatives, Plaintiffs, v. PACIFIC GAS AND ELECTRIC COMPANY,
IBEW LOCAL 1245, and DOES 1 through 10, inclusive, Defendants,
Case No. 1:15-cv-01066-EPG (E.D. Cal.).
Plaintiffs Becky Greer, Timothy C. Budnik, Rosario Saenz and Ian
Carty, as individuals and on behalf of themselves and all others
similarly situated, filed suit against PG&E alleging various
claims based on underpayment of wages for a purported class.
At the time of filing, the 3AC consisted of seven causes of
action (Counts 1-7) against PG&E, and one claim (Count 8) against
IBEW, as follows:
Count 1: Breach of Contract;
Count 2: Violation of California Labor Code Section 216;
Count 3: Knowing and Intentional Failure to Comply with
Itemized Employee Wage Statement Provisions in Violation of
California Labor Code Sections 226(a), 1174, and 1175;
Count 4: Promissory Fraud in Violation of California Civil
Code Section 1572(4);
Count 5: Promissory Estoppel;
Count 6: Violation of California Business and Professions Code
Section 17200 et seq.
Count 7: Violation of California Business and Professions Code
Section 17500 et seq.
Count 8: (in the alternative) Breach of Duty of Fair
Representation, 29 U.S.C. Section 185.
Preliminary Fairness Determination
The factors in a court's fairness assessment will naturally vary
from case to case, but courts generally must weigh: (1) the
strength of the plaintiffs case; (2) the risk, expense,
complexity, and likely duration of further litigation; (3) the
risk of maintaining class action status throughout the trial; (4)
the amount offered in settlement; (5) the extent of discovery
completed and the stage of the proceedings; (6) the experience
and views of counsel; (7) the presence of a governmental
participant; and (8) the reaction of the class members of the
proposed settlement.
Here, after balancing the relevant factors, the Court finds
preliminary approval of the proposed settlement is appropriate.
Nature of Settlement Negotiations; Extent of Discovery; Stage of
Proceedings; Experience and Views of Counsel
Based on the facts represented by the Plaintiffs, the Court
concludes that the settlement was the product of serious,
informed, arm's-length negotiations by the parties. An initial
presumption of fairness is usually involved if the settlement is
recommended by class counsel after arm's-length bargaining.
Risks of Continued Litigation
The Plaintiffs explain in their brief that the proposed
settlement represents a fair compromise, given the litigation
risks and uncertainties presented by continued litigation. If the
action were to continue without settlement, the Plaintiffs would
face vigorous and lengthy challenges to class certification and
the merits of their claims, which would be costly, time-consuming
and uncertain. The Plaintiffs estimate that continued litigation
could last for years (including potential appellate proceedings)
and would necessitate costly expert witness expenses as well as
additional costs and attorney fees. By contrast, the proposed
settlement would ensure timely relief and recovery of wages and
penalties to the proposed class.
The risks and uncertainties of continued litigation weigh in
favor of the proposed settlement.
The Amount Offered in Settlement
In determining whether the amount offered in settlement is fair
and reasonable, the court compares the proposed settlement amount
to the best possible outcome for the class.
Here, the proposed settlement provides $6,000,000 in total
monetary relief to the class, of which approximately
$3,661,200.00 will be distributed to the class as follows:
The proposed recovery represents 30% of the Plaintiffs'
reasonable estimate of the likely recovery at trial if they were
to prevail, which could range from $18 million. The Court finds
this degree of recovery to be fair and reasonable in light of
uncertainties the Plaintiffs face in this case.
Fees, Costs and Representative Service Payment
Attorney Fees and Costs
Under the terms of the proposed settlement agreement, the
Plaintiffs' counsel will not seek more than 33.33% of the
settlement amount in attorneys' fees and a maximum of $275,000.00
in costs. This fee amount is above the benchmark for this
circuit. However, the percentage is not unreasonable as an upper
bound. As such, the Court approves the attorneys' fee request on
a preliminary basis.
Representative Service Payment
A district court may award incentive payments to named plaintiffs
in class action cases.The purpose of incentive awards is to
compensate class representatives for work done on behalf of the
class, to make up for financial or reputational risk undertaking
in bringing the action, and, sometimes, to recognize their
willingness to act as a private attorney general.
Here, the proposed settlement agreement provides for a maximum
class representative payment of $35,000 between all six Plaintiff
class representatives. The Plaintiffs' receipt of this service
award is contingent upon executing a general release, not
required of the other class members. The service payment is
intended to compensate the class representatives for sitting for
depositions, responding to discovery, submitting declarations in
support of motions, and assisting in mediation/settlement. The
class representatives also assumed liability for litigation costs
in the event their claims were unsuccessful and a reputational
risk by bringing suit against their former employers.
The Court will approve the representative service payment request
on a preliminary basis.
A full-text copy of the District Court's May 3, 2018 Order is
available at https://tinyurl.com/ycdjgsbw from Leagle.com.
Becky Greer, Individually and as Class Representatives, Timothy
C. Budnik, Individually and as Class Representatives, Rosario
Saenz, Individually and as Class Representatives, Ian Carty,
Individually and as Class Representatives & Haley Markwith,
Plaintiffs, represented by Charles Swanston, Fitzpatrick, Spini &
Swanston, Erin Tsitidis Huntington --
ehuntington@wjhattorneys.com -- Wanger Jones Helsley PC, Lawrence
J.H. Liu -- lliu@wjhattorneys.com -- Wanger Jones Helsley PC,
Michael S. Helsley -- mhelsley@wjhattorneys.com -- Wanger Jones
Helsley PC & Patrick D. Toole -- ptoole@wjhattorneys.com --
Wanger Jones Helsley PC.
Maria Garcia Pesina, Plaintiff, represented by Charles Swanston,
Fitzpatrick, Spini & Swanston,Erin Tsitidis Huntington, Wanger
Jones Helsley PC, Michael S. Helsley, Wanger Jones Helsley PC &
Patrick D. Toole, Wanger Jones Helsley PC.
Pacific Gas and Electric Company, Defendant, represented by
Robert G. Hulteng -- rhulteng@littler.com -- Littler Mendelson,
Aurelio J. Perez -- aperez@littler.com -- Littler Mendelson,
P.C. & Joshua D. Kienitz -- jkienitz@littler.com -- Littler
Mendelson.
IBEW Local 1245, Defendant, represented by Philip C. Monrad --
pmonrad@leonardcarder.com -- Leonard Carder, LLP.
IBEW Local 1245 Union, Movant, represented by Alexander Jordan
Pacheco & Philip C. Monrad, Leonard Carder, LLP.
PEACHES BOUTIQUE: Fails to Pay Proper Wages, "Alamo" Suit Says
--------------------------------------------------------------
ALIESHA ALAMO, individually and on behalf of all others similarly
situated, Plaintiff v. PEACHES BOUTIQUE LLC; ROY SURDEJ; and
BARBARA SURDEJ, Defendants, Case No. 1:18-cv-04394 (N.D. Ill.,
June 25, 2018) seeks payment of proper wages from the Defendants.
As an employee of the Defendants, Ms. Alamo performed sales and
customer service duties.
Peaches Boutique LLC is an Illinois corporation engaged as a
retail store that sells clothing to customers. [BN]
The Plaintiff is represented by:
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 840
Chicago, IL 60604
Tel: (312) 853-1450
PHILLIPS HOLDINGS: Swistok Seeks Minimum Wage & OT under FLSA
-------------------------------------------------------------
MARGARET SWISTOK 3881 Crestview Ave. SE Warren, OH 44484, On
behalf of herself and all others similarly situated, the
Plaintiff, v. PHILLIPS HOLDINGS LLC d/b/a BUY THE BEACH c/o Cliff
Phillips 1358 Meadowood Circle Poland, OH 44514; SHANCLIFF
INVESTMENTS, LTD d/b/a BUY THE BEACH c/o Thomas C. Nader 155
South Park Avenue Warren, OH 44481; CDAM INVESTMENTS LLC d/b/a
BUY THE BEACH c/o Clifford Phillips 1358 Meadowood Circle Poland,
OH 44514; and CLIFF PHILLIPS 1358 Meadowood Circle Poland, OH
44514, the Defendants, Case No. 4:18-cv-01515 (N.D. Ohio, July 3,
2018), seeks to recover minimum wage and overtime provisions of
the Fair Labor Standards Act and the Ohio minimum wage and
overtime compensation statutes.
According to the complaint, the Defendants failed to pay
Plaintiff, the FLSA Collective, and the Ohio Class at least the
lawful minimum wage rate for all hours worked. For example,
though the Ohio minimum wage was $8.30 per hour in 2018, the
Defendants paid Plaintiff and members of the FLSA Collective and
Ohio Class a wage of $7.25 per hour.
Defendants own and operate Buy the Beach, a chain of tanning
salons located throughout Trumbull and Mahoning Counties, Ohio
including in Howland, Austintown, Canfield, Salem and Niles.[BN]
The Plaintiff is represented by:
Kevin M. McDermott II, Esq.
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912 2221
Facsimile: (216) 350 6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
PNC FINANCIAL: Website not Accessible to Blind, Duncan Says
-----------------------------------------------------------
EUGENE DUNCAN, on behalf of himself and all others similarly
situated, the Plaintiffs, v. THE PNC FINANCIAL SERVICES GROUP,
INC., the Defendant, Case No. 1:18-cv-06051 (S.D.N.Y., July 3,
2018), alleges that Defendant failed to design, construct,
maintain, and operate its website -- www.pnc.com -- to be fully
accessible to and independently usable by Plaintiff and other
blind or visually-impaired people.
According to the complaint, Defendant's denial of full and equal
access to its website, and therefore denial of its products and
services offered thereby and in conjunction with its physical
locations, is a violation of Plaintiff's rights under the
Americans with Disabilities Act. The Plaintiff is a visually-
impaired and legally blind person who requires screen-reading
software to read website content using his computer. The
Plaintiff uses the terms "blind" or "visually-impaired" to refer
to all people with visual impairments who meet the legal
definition of blindness in that they have a visual acuity with
correction of less than or equal to 20 x 200. Some blind people
who meet this definition have limited vision. Others have no
vision.
PNC Financial is a bank holding company and financial services
corporation based in Pittsburgh.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, N.Y. 11201
Telephone: (929) 575 4175
Facsimile: (929) 575 4195
E-mail: Joseph@cml.legal
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, N.Y. 10003-2461
Telephone: (212) 228 9795
Facsimile: (212) 982 6284
E-mail: nyjg@aol.com
danalgottlieb@aol.com
PRIMEFLIGHT AVIATION: Fails to Pay Proper Wages, "Kuhn" Suit Says
-----------------------------------------------------------------
HERTA GUADALUPE KUHN, individually and on behalf of all others
similarly situated, Plaintiff v. PRIMEFLIGHT AVIATION SERVICES,
INC. D/B/A PRIMEFLIGHT OF DE, INC.; PRIME FLIGHT AVITION
SERVICES, INC; and DOES 1 THROUGH 10, INCLUSIVE, Defendants, Case
No. 34-2018-00235596 (Cal. Super. Sacramento Cty., June 22, 2018)
is an action against the Defendants for unpaid regular hours,
overtime hours, minimum wages, wages for missed meal and rest
periods.
The Plaintiff Kuhn was employed by the Defendants as a non-
exempt, hourly employee in California.
PrimeFlight Aviation Services, Inc. provides airline, aircraft,
airport services. The Company offers ground handling, security,
ramp scrubbing, baggage transfer, maintenance, lavatory,
reconditioning, and terminal services. PrimeFlight Aviation
Services operates in the United States. [BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Meghan Maertz, Esq.
OTKUPMAN LAW FIRM,
A LAW CORPORATION
28632 Roadside Dr., Suite 203
Agoura Hills, CA 91301
Telephone: (818) 293-5623
Facsimile: (888) 850-1310
E-mail: Roman@OLFLA.com
Meghann@OLFLA.com
PROPERTY CARE: Perrys Sue Over Apartment Defects
------------------------------------------------
MINDY PERRY; LAYLA PERRY by and through her Guardian ad Litem
MINDY PERRY; JULIUS PERRY by and through his Guardian ad Litem
MINDY PERRY, the Plaintiffs, v. RUBEN BALDIVID, individually and
as trustee of the BALDIVID REVOCABLE TRUST; SHARON BALDIVID,
individually and trustee of the BALDIVID REVOCABLE TRUST; RICHARD
OLIVER; PROPERTY CARE INC.; and DOES 1-20, Inclusive, the
Defendants, Case No. RG18910105 (Cal. Super. Ct., June 21, 2018),
alleges that Defendants violated Health and Safety Code because
Defendants allowed an apartment premises to contain lack of
required ventilating equipment, dampness of habitable rooms,
general dilapidation or improper maintenance.
According to the complaint, the Defendants had adequate
opportunity and notice to repair the defects prior to Plaintiff
filing this complaint. The Defendants failed and refused to
repair the defects in the Premises. As a result of Defendants'
failure to make repairs, Plaintiffs suffered personal injury and
became sick from the mold exposure. The Plaintiff has suffered
emotional distress, over-payment of rent, and out-of-pocket
expenses. All of the above injuries were suffered as a result of
the aforementioned habitability defects and other acts and/or
omissions committed by Defendants.
The Plaintiffs were tenants of 34809 Starling Drive, Apartment 1,
Union City, California.[BN]
The Plaintiff is represented by:
Philip A. Segal, Esq.
Christopher S. Hicks, Esq.
KERN SEGAL & MURRAY
1388 Sutter Street, Suite 600
San Francisco, CA 94109
Telephone: (415) 474 1900
Facsimile: (415) 474 0302
QUALITY ENCLOSURES: Kislek Sues over Medical Leave
--------------------------------------------------
DONNA KISLEK, individually and on behalf of all others similarly
situated individuals, Plaintiff v. QUALITY ENCLOSURES, INC., and
QUALITY ENCLOSURES TEMPERING, INC., Defendants, Case No. 8:18-cv-
01528 (M.D. Fla., June 22, 2018) alleges that the Defendants
failed to provide the Plaintiff adequate notice of her rights
under the Family Medical Leave Act.
According to the complaint, the Plaintiff suffers from a
disability that is also a chronic severe health condition
entitling her to benefits under the FMLA. The Plaintiff made the
Defendants aware of her condition, her anticipated treatment
plan, and her need for leave. The Defendant's managers had
knowledge of her exigent request for leave and failed to provide
the Plaintiff notice of her FMLA rights or to designate her leave
request as FMLA protected leave.
Ms. Kislek was employed by the Defendants as office manager from
February 2013 to July 1, 2016.
Quality Enclosures, Inc. manufactures and fabricates shower and
tub enclosures. The company was founded in 1962 and is based in
Sarasota, Florida. [BN]
The Plaintiff is represented by:
Paul M. Botros, Esq.
MORGAN & MORGAN, P.A.
600 N. Pine Island Road, Suite 400
Plantation, FL 33324
Telephone: 954-318-0268
Facsimile: 954-327-3016
QUICKEN LOANS: Court Allows Amendment to "Mattson" TCPA Suit
-------------------------------------------------------------
In the case, ERIK MATTSON, individually and on behalf of all
others similarly situated, Plaintiff, v. QUICKEN LOANS, INC.; NEW
PENN FINANCIAL, LLC.; VISION QUEST LENDING; and UNITED MORTGAGE,
CORP., Defendant, Case No. 3:17-cv-01840-YY (D. Or.), Magistrate
Judge Youlee Yim You of the U.S. District Court for the District
of Oregon, Portland Division, grants Mattson's motion seeking
leave to amend the complaint.
Alleging receipt of calls and text messages in violation of the
Telephone Consumer Protection Act of 1991 ("TCPA"), Mattson filed
a class action complaint against Quicken Loans, New Penn, Vision
Quest, and United. The Defendants moved to dismiss for lack of
subject matter jurisdiction, lack of personal jurisdiction, and
failure to state a claim under FRCP 12(b)(1), (2), and (6). An
oral argument was held on March 13, 2018.
By order dated March 14, 2018, the Court held the motion to
dismiss in abeyance to allow Mattson to seek leave to amend the
complaint. Mattson was directed to address these deficiencies:
1. The allegation of multiple calls from the Defendants
fails the FRCP 8 test because it impermissibly lumps all of the
Defendants together without any supporting factual allegations
about date, time, content, source, number, or other information
about any single call.
2. The allegations fail to state a claim under 47 U.S.C.
Section 227, which requires more than one call in a 12-month
period. There is no allegation that any Defendant made more than
one call.
3. The personal jurisdiction allegations are insufficient.
The factual allegations regarding each Defendant's contact with
Oregon are required.
4. The allegations about agency are confusing and factually
unsupported. If, as was stated in the oral argument, the
Plaintiff is not alleging collusion, these allegations should be
removed.
5. The complaint fails to connect the Plaintiff's alleged
injury with any conduct of any specific Defendant. Pending
clarification of the allegations of coordination or collusion
between the Defendants, the Court deferred the decision on
whether this case is more appropriately filed as four separate
lawsuits.
On March 26, 2018, Mattson filed his motion for leave to amend,
attaching a copy of the proposed First Amended Complaint, in
accordance with the March 14, 2018 order and LR 15-1. The FAC
alleges that despite his registration with the national do not
call registry, Mattson began receiving automated calls on his
cellular telephone from various numbers offering refinanced
mortgage products, in violation of 47 U.S.C. 227(c).
Mattson alleges that, on Sept. 3, 2017, and Sept. 4, 2017, he
received text messages from Quicken Loans. He also alleges that
Quicken Loans called his cellular telephone on Sept. 6, 2017,
Nov. 16, 2017, and Nov. 20, 2017. He further alleges that on
Sept. 3, 2017, he received a text message from New Penn's
mortgage services, and that New Penn called his cellular
telephone on Oct. 9, 2017, and Oct. 31, 2017. Mattson alleges he
received a telephone call from United on Oct. 13, 2017, and that
United called him again on Nov. 6, 2017, Nov. 14, 2017, Nov. 17,
2017, and Dec. 6, 2017. Finally, he alleges he received
solicitation calls from Vision Quest on Sept. 5, 2017, and Sept.
11, 2017. Mattson claims he never provided any of the Defendants
with prior express consent to contact him on his cellular
telephone via a text message or a telephone call.
The FAC adds factual allegations regarding each Defendant's
contact with Oregon. It also deletes all allegations of agency,
collusion, or coordination among the Defendants. He specifically
alleges that the named Defendants are not in a joint marketing
scheme and are not agents of each other.
Taking the facts alleged in the FAC as true, Magistrate Judge You
finds that Mattson has sufficiently alleged a claim under 47
U.S.C. Section 227(c). Accordingly, he will grant the motion
seeking leave to amend, and will deny as moot the motion to
dismiss, previously held in abeyance.
The Magistrate Judge also finds that the FAC does not plead facts
to support a claim under 47 USC Section 227(d) or implementing
regulation 47 C.F.R. Section 64.1200(d). She notes, for purposes
of clarity, that the FAC states only a single claim under 47
U.S.C. 227(c). At oral argument, Mattson's counsel further
explained that this language was included for background
purposes, as a "contributing factor," i.e. "one of the factors
that caused the Defendants to call people on the do-not-call
list. The Defendants have raised concerns that leaving this
information in the complaint will lead to overly-broad discovery;
however, such a concern is speculative at this time. She says if
an issue of this nature arises, it can be addressed in the
context of a discovery dispute.
Finally, the Defendants urge the Court to deny leave to amend,
and to dismiss this action with prejudice because of misjoinder.
She finds that the FAC alleges distinct violations, on different
dates and times and by different means by different Defendants.
There are no allegations linking the activities of the Defendants
and no factual overlap is alleged. In such circumstances, claims
against the Defendants must be severed. She will therefore
direct Mattson to file four separate actions.
For these reasons, Magistrate Judge You granted Mattson's motion
seeking leave to amend the complaint. She ordered Mattson to
sever the allegations and file amended complaints against each of
the Defendants individually, as four separate actions with unique
case numbers. The Magistrate Judge denied as moot the motions to
dismiss currently held in abeyance.
A full-text copy of the Court's May 22, 2018 Opinion and Order is
available at https://is.gd/T8Mbnq from Leagle.com.
Erik Mattson, individually and on behalf of all others similarly
situated, Plaintiff, represented by Gregory K. Zeuthen --
gkz@zlawoffice.com -- Gregory K. Zeuthen, Attorney at Law PC,
Jarrett L. Ellzey -- info@hughesellzey.com -- Hughes Ellzey LLP,
pro hac vice & John P. Kristensen, Kristensen Weisberg, LLP, pro
hac vice.
Quicken Loans, Inc., Defendant, represented by Brooks R. Brown --
bbrown@goodwinlaw.com -- Goodwin Procter LLP, pro hac vice, James
P. Laurick -- jlaurick@kilmerlaw.com -- Kilmer Voorhees &
Laurick, PC & W. Kyle Tayman -- ktayman@goodwinlaw.com -- Goodwin
Procter LLP, pro hac vice.
New Penn Financial, LLC, Defendant, represented by Damon W. Suden
-- dsuden@kelleydrye.com -- Kelley Drye & Warren LLP, pro hac
vice, James B. Saylor -- jsaylor@kelleydrye.com -- Kelley Drye &
Warren LLP, pro hac vice, Lauri A. Mazzuchetti --
lmazzuchetti@kelleydrye.com -- Kelley Drye & Warren LLP, pro hac
vice, Jeffrey G. Bradford -- jeff.bradford@tonkon.com -- Tonkon
Torp LLP & Parna A. Mehrbani -- parna.mehrbani@tonkon.com --
Tonkon Torp LLP.
Vision Quest Lending, Defendant, represented by Joshua M. Sasaki
-- josh.sasaki@millernash.com -- Miller Nash Graham & Dunn LLP &
Nicholas H. Pyle -- nicholas.pyle@millernash.com -- Miller Nash
Graham & Dunn LLP.
United Mortgage Corp., Defendant, represented by Robert E. Sabido
-- rsabido@cosgravelaw.com -- Cosgrave Vergeer Kester, LLP.
REALHOME SERVICES: Faces "Walker" Suit over Background Checks
-------------------------------------------------------------
John Walker, Jr., individually and on behalf of all others
similarly situated, Plaintiff v. RealHome Services and Solutions,
Inc. d/b/a Owners.com, Defendant, Case No. 1:18-cv-03044 (N.D.
Ga., June 22, 2018) alleges violation of the Fair Credit
Reporting Act. The case is assigned to Judge Amy Totenberg and
referred to Magistrate Judge Walter E. Johnson.
RealHome Services and Solutions, Inc. d/b/a Owners.com is a tech-
enabled real estate brokerage that handles all key aspects of the
home buying and selling process. Launched in 1996, Owners.com
began as an online directory of for-sale-by-owner (FSBO) property
listings. In 2001, the company began offering FSBO sellers the
ability to add listings to their local multiple listing service
(MLS) for a fixed fee. [BN]
The Plaintiff is represented by:
James Marvin Feagle, Esq.
SKAAR AND FEAGLE
Suite B, 2374 Main Street
Tucker, GA 30084
Telephone: (404) 373-1970
Facsimile: (404) 601-1855
E-mail: jfeagle@skaarandfeagle.com
- and -
John Soumilas, Esq.
FRANCIS & MAILMAN, P.C.
100 South Broad Street
Philadelphia, PA 19110
Telephone: (215) 735-8600
E-mail: jsoumilas@consumerlawfirm.com
REV GROUP: Marinoff Alleges Securities Act Violations
-----------------------------------------------------
SETH MARINOFF, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, v. REV GROUP, INC., TIM SULLIVAN, and
DEAN NOLDEN, the Defendants, Case No. 2:18-cv-05095 (C.D. Cal.,
June 8, 2018), is a federal securities class action brought on
behalf of a class consisting of all persons and entities, other
than Defendants and their affiliates, who purchased or otherwise
acquired publicly traded securities of REV Group pursuant and/or
traceable to the Company's initial public offering on or about
January 27, 2017.
On October 24, 2016, the Company filed a registration statement
on Form S-1 with the Securities and Exchange Commission in
connection with its IPO. The registration statement was
subsequently amended, with the final amended registration
statement on Form S-1/A filed on January 17, 2017. The
Registration Statement was declared effected by the SEC on
January 26, 2017.
The Registration Statement contained a preliminary prospectus.
The final prospectus was dated January 26, 2017. The Prospectus
was filed with the SEC on January 30, 2017. On or about January
27, 2017, the Company completed its IPO, selling about 12.5
million shares at $22 per share and raising approximately $275
million in proceeds.
Pursuant to the Securities Act, the Defendants are strictly
liable for material misstatements in the Offering Materials
issued in connection with the IPO. The Securities Act claims
specifically exclude any allegations of fraud, knowledge,
recklessness or scienter, do not "sound in fraud" and based
solely on strict liability and negligence.
REV Group is an American manufacturer of specialty vehicles the
in Fire & Emergency, Recreational Vehicles, and Bus & Industrial
sectors.[BN]
Counsel for Plaintiff:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785 2610
Facsimile: (213) 226 4684
E-mail: lrosen@rosenlegal.com
RINCON CRIOLLO: "Agrinzones" Suit Alleges FLSA Violations
---------------------------------------------------------
Ana Rosa Alfonso Agrinzones, and all others similarly situated v.
Rincon Criollo Restaurant and Cafeteria Inc., Antonio J.
Gonzalez, and Barbara Gonzalez, Case No. 1:18-cv-22599 (S.D.
Fla., June 27, 2018), is brought against the Defendants for
minimum wage and overtime violations under the Fair Labor
Standards Act.
The Plaintiff worked for the Defendants as a waitress from
September 18, 2017 through June 20, 2018.
The Defendants own and operate a restaurant in Miami-Dade County.
[BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
E-mail: zabogado@aol.com
ROTH DIVERSIFIED: Lopez Seeks Overtime Wages under FLSA
-------------------------------------------------------
ELIO LOPEZ, and all others similarly situated, the Plaintiff, v.
ROTH DIVERSIFIED CONSTRUCTION, INC., a Florida Corporation, and
PHILLIP Y ROTH, individually, the Defendants, Case No. 0:18-cv-
61505-RNS (S.D. Fla., July 3, 2018), seeks to recover monetary
damages, liquidated damages, interests, costs and attorney's fees
under the Fair Labor Standards Act.
According to the complaint, the Plaintiff worked between 48 and
56 hours per week. The Plaintiff was not paid overtime wages when
he worked more than 40 hours per week. The Plaintiff claims the
halftime rate for each hour worked over 40 hours weekly.
Roth Diversified Construction is a full-service custom home
design and remodeling construction company.[BN]
The Plaintiff is represented by:
Daniel T. Feld, Esq.
LAW OFFICE OF DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Telephone: (954) 361 8383
E-mail: DanielFeld.Esq@gmail.com
- and -
Isaac Mamane, Esq.
MAMANE LAW LLC
10800 Biscayne Blvd., Suite 350A
Miami, FL 33161
Telephone (305) 773 6661
E-mail: mamane@gmail.com
RUSHMORE LOAN: Boin Alleges Wrongful Debt Collections
-----------------------------------------------------
JOYCE RYAN BOIN, individually and on behalf of all others
similarly situated, Plaintiff v. RUSHMORE LOAN MANAGEMENT
SERVICES LLC, Defendant, Case No. 1:18-cv-04360 (N.D. Ill., June
22, 2018) seeks to stop the Defendant's unfair and unconscionable
means to collect a debt.
Rushmore Loan Management Services LLC provides residential
mortgage loan servicing and customer support for performing,
re-performing, and non-performing loans in the United States and
Puerto Rico. The company also provides wholesale loan origination
services. It serves borrowers, broker clients, homeowners, and
investors. The company was incorporated in 2008 and is based in
Irvine, California. [BN]
The Plaintiff is represented by:
James C. Vlahakis, Esq.
Joseph S. Davidson, Esq.
Mohammed O. Badwan, Esq.
SULAIMAN LAW GROUP, LTD.
2500 South Highland Avenue, Suite 200
Lombard, IL 60148
Telephone: (630) 575-8181
E-mail: jvlahakis@sulaimanlaw.com
jdavidson@sulaimanlaw.com
mbadwan@sulaimanlaw.com
S&HH 2018: Rashid Seeks Overtime Wages under FLSA
-------------------------------------------------
DIDAR RASHID, and all others similarly situated, the Plaintiff,
v. S&HH 2018 LLC, d/b/a SO BEE FOOD MART, a Florida Corporation,
NASEEM HUMAIR, individually, and SAEED MUHAMMAD, individually,
the Defendants , Case No. 1:18-cv-22679-MGC (S.D. Fla., July 3,
2018), seeks to recover monetary damages, liquidated damages,
interests, costs and attorney's fees for willful violations of
overtime wages under the laws of the United States, and the Fair
Labor Standards Act.
According to the complaint, the Plaintiff worked approximately 74
to 84 hours per week. The Defendants were required to pay
Plaintiff overtimes wages. Plaintiff was not paid overtime wages
at a rate of time and one half, when he worked more than 40 hours
per week. The Plaintiff was not paid any wages when he worked
more than 40 hours per week. The Plaintiff claims the time-and-a-
half rate for each hour worked over 40 hours weekly.[BN]
The Plaintiff is represented by:
Daniel T. Feld, Esq.
LAW OFFICE OF DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Telephone: (954) 361 8383
E-mail: DanielFeld.Esq@gmail.com
- and -
Isaac Mamane, Esq.
MAMANE LAW LLC
10800 Biscayne Blvd., Suite 350A
Miami, FL 33161
Telephone (305) 773 6661
E-mail: mamane@gmail.com
SAMSUNG ELECTRONICS: Kerkorian Sues over POWERbot Vacuum Defects
----------------------------------------------------------------
PAUL KERKORIAN, an individual, on behalf of himself and all
others similarly situated, the Plaintiffs, v. SAMSUNG ELECTRONICS
AMERICA, INC., a New Jersey corporation, and DOES 1 through 25,
inclusive, the Defendants, Case No. 1:18-cv-00870-DAD-SKO (E.D.
Cal., June 21, 2018), alleges that Samsung Electronics America,
Inc. produced, sold, and advertised a line of vacuum cleaners
called POWERbot. Samsung allegedly advertised that five of the
six vacuum cleaners in the POWERbot line were remotely operable
and compatible with the Amazon Alexa, and that all six vacuum
cleaners in the POWERbot line were remotely operable and
compatible with iOS and Android mobile devices. But the Samsung
Connect and Samsung Smart Home applications do not reliably
connect to Samsung's servers or the POWERbot device as
advertised, do not save credentials for users as advertised, only
works on certain router bands (forcing users to change their home
internet settings), and periodically deletes itself from the
user's mobile device.[BN]
Attorneys for Plaintiff, individually and on behalf of all others
similarly situated:
Lenden F. Webb, Esq.
Christopher E. Nichols, Esq.
WEBB LAW GROUP, APC
466 W. Fallbrook Ave. Suite 102
Fresno, CA 93711
Telephone: (559) 431 4888
Facsimile: (559) 821 4500
E-mail: LWebb@WBLawGroup.com
CNichols@WBLawGroup.com
- and -
Christopher A. Olsen, Esq.
OLSEN LAW OFFICES, APC
1010 San Diego Ave., Suite 1835
San Diego, CA 92101
Telephone: (619) 550 9352
Facsimile: (619) 923 2747
E-mail: CAOlsen@CAOlsenLawOffices.com
SCREEN ACTORS GUILD: Faces "Risto" Suit over Music Service Fees
---------------------------------------------------------------
KEVIN RISTO, individually and on behalf of all others similarly
situated, Plaintiff v. SCREEN ACTORS GUILD-AMERICAN FEDERATION OF
TELEVISION AND RADIO ARTISTS; AMERICAN FEDERATION OF MUSICIANS OF
THE UNITED STATES AND CANADA; RAYMOND M. HAIR, JR.; TINO
GAGLIARDI; DUNCAN CRABTREE-IRELAND; STEPHANIE TAUB; JON JOYCE;
BRUCE BOUTON; and DOE DEFENDANTS 1-10, Defendants, Case No.
BC710739 (Cal. Super., Los Angeles Cty., June 22, 2018) asks the
Court to compel the Defendants to revert back to the Intellectual
Property Rights Distribution Fund the 3% Service Fee, and cease
the collection of the 3% Service Fee.
The Defendants operate the Intellectual Property Rights
Distribution Fund, which collects and distributes royalties for
streaming and satellite radio services. The Fund serves musicians
who are both union and non-union members. The Plaintiff is a non-
union member.
According to the Plaintiff, the Defendants began collecting a 3%
Service Fee from the Fund in 2013. The Defendants have collected
more than $5 million in fees in exchange for providing data and
for administering the Fund, thereby reducing the pool of money
available to performers. However, the Defendants violated their
duties when authorizing the Service Fee and diverting funds away
from the Fund. Additionally, the Defendants effectively began
paying themselves for services they were already performing, and
that those services do not benefit the non-union performers.
Screen Actors Guild-American Federation of Television and Radio
Artists is a corporation organized and existing under the laws of
the state of Delaware and conducts business in the County of Los
Angeles, California. [BN]
The Plaintiff is represented by:
Paul R. Kiesel, Esq.
Mariana A. McConnell, Esq.
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211-2910
Telephone: (310) 854-4444
Facsimile: (310) 854-0812
E-mail: kiesel@kiesel.law
mcconnell@kiesel.law
- and -
Neville L. Johnson, Esq.
Douglas L. Johnson, Esq.
Jordanna G. Thigpen, Esq.
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, CA 90210
Telephone: (310) 975-1080
Facsimile: (310) 975-1095
E-mail: njohnson@jjllplaw.com
djohnson@jjllplaw.com
jthigpen@jjllplaw.com
SERVIS ONE: Court Consolidates Couple's Consumer Class Suits
------------------------------------------------------------
In the cases, RUDOLF SANCHEZ; SYLVIA SANCHEZ, Plaintiffs, v.
SERVIS ONE, INC., dba BSI FINANCIAL SERVICES; RESIDENTIAL CREDIT
SOLUTIONS, INC.; NATIONSTAR MORTGAGE LLC; HOMEWARD RESIDENTIAL;
AURORA BANK, FSB; EQUIFAX INFORMATION SERVICES LLC; and TRANS
UNION LLC, Defendants, Case Nos. 18cv0586 JM(JMA), 18cv0587 JM
(JMA) (S.D. Cal.), Judge Jeffrey T. Miller of the U.S. District
Court for the Southern District of California granted Residential
Credit Solutions, Inc. ("RCS")'s motion to consolidate the
separately filed consumer class action complaints filed
individually by Plaintiff Rudolf Sanchez in 18cv0586 JM (JMA) and
Plaintiff Sylvia Sanchez in 18cv0587 JM (JMA).
On March 20, 2018, the Plaintiffs commenced these actions by
alleging three claims for relief: (1) violation of the Fair
Credit Reporting Act ("FCRA"); (2) violation of the California
Consumer Credit Reporting Agencies Act ("CCRAA"); and (3)
violation of the automatic bankruptcy stay provision. The FCRA
claim is alleged against all Defendants except RCS; the CCRAA
claim is alleged against all the Defendants; and the violation of
the automatic stay claim is alleged against RCS and BSI.
Defendant Nationstar is not a named Defendant in 18cv0587. All
other Defendants are the same in both actions.
In the main, the Plaintiffs' complaints set forth over one
hundred generalized allegations, including general policy
arguments and statements of law related to their statutory
claims. Defendants BSI, RCS, Nationstar, Homeward, and Aurora
("Furnisher-Defendants") are alleged furnishers of information
for purposes of the FCRA. Defendants Equifax and TransUnion
("Credit Bureaus") are alleged consumer reporting agencies for
purposes of the FCRA.
On Aug. 28, 2012, the Plaintiffs filed for a Chapter 13
bankruptcy in the Southern District of California and, on March
13, 2013, the bankruptcy court approved their repayment plan. On
Dec. 17, 2012, the Plaintiffs filed a Motion to Value Real
Property, Treat Claim as Unsecured and Avoid Junior Lien
regarding a junior lien held by RCS. On Oct. 12, 2018, the
Plaintiffs' bankruptcy successfully discharged.
The Plaintiffs allege that the Furnisher-Defendants caused to be
reported inaccurate information after the Bankruptcy was filed on
their credit reports. Such conduct allegedly violated bankruptcy
court orders, constituted an illegal collection activity, and
constituted a materially misleading statement for purposes of the
FCRA and CCRAA. The Furnisher-Defendants also are alleged to
have reported inaccurate derogatory information based upon pre-
bankruptcy contract terms no longer enforceable after discharge.
The Credit Bureaus, BSI, Nationstar, Homeward, and Aurora are
also alleged to have reported, or caused to be reported,
inaccurate information in the Plaintiffs' credit reports
(primarily by reporting on alleged debts extinguished in
bankruptcy, or otherwise rendered unenforceable).
Pursuant to Fed.R.Civ.P. 42(a), RCS moves to consolidate the
separately filed consumer class action complaints. The
Plaintiffs oppose the motion.
As a threshold issue, Judge Miller notes that the term
"consolidation" for purposes of Rule 42(a) has several different
meanings. The majority of courts hold that consolidation does
not merge the separate lawsuits into a single consolidated
action. In the district, two different procedures apply to
related actions.
First, the low number rule of L.R. 40.1 generally provides for
the coordinated treatment of actions that arise from
substantially identical transactions, involve the same parties or
property, or call for resolution of the same or substantially
identical issues of law and fact. L.R. 40.1(b). Here, he finds
that the Sylvia Sanchez action (18cv0857) has been low numbered
to the Rudolf Sanchez action (18cv0856). As a consequence,
coordinated discovery and case management procedures have already
been implemented for these cases.
The second procedure provides for consolidation of two actions,
as if they were the same case. Where two related actions present
the same factual and legal issues, consolidation provides that
the two cases proceed under a single case number. Here, he finds
that the legal claims are identical, the same underlying
transaction or occurrence underlies both complaints, and the
evidence to support or negate the Plaintiffs' claims applies
equally to all claims. Further, no management concerns are
identified by the parties, even though Nationwide is a Defendant
only in 18cv0856 and each Plaintiff possesses an individual
credit report. Moreover, the Plaintiffs do not identify any
prejudice should the cases be consolidated as one. Accordingly,
the Judge finds that consolidation of the two actions will bring
additional efficiencies.
In sum, Judge Miller granted the motion to consolidate, and
instructed the parties and the Clerk of Court to file all future
filings in the low number action, 18cv856 JM (JMA).
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/i67FdC from Leagle.com.
Rudolf Sanchez & Sylvia Sanchez, Plaintiffs, represented by Clark
Ovruchesky -- co@colawcalifornia.com -- C.O. LAW, APC & Stephan
Andrew Hoover -- stephan@hooverlawsd.com -- Law Office of Stephan
A. Hoover.
Servis One, Inc., doing business as BSI Financial Services,
Defendant, represented by Sonia Plesset Edwards, Wright, Finlay &
Zak, LLP.
Residential Credit Solutions, Inc., Defendant, represented by
Simon M. Feng -- simon.feng@lockelord.com -- Locke Lord LLP.
Nationstar Mortgage LLC, Defendant, represented by Dalar Abolian
-- dabolian@reedsmith.com -- Reed Smith LLP.
Homeward Residential, Defendant, represented by Kristin S. Webb -
- Webbk@bclplaw.com -- Bryan Cave LLP.
Trans Union LLC, Defendant, represented by Donald E. Bradley --
d.bradley@musickpeeler.com -- Musick Peeler and Garrett.
SHOPLINK INC: Court Dismisses "Tatintsian" Securities Suit
----------------------------------------------------------
In the case, GARY TATINTSIAN, on his own behalf and for the:
benefit of Shoplink, Inc. Plaintiff, v. MIKHAIL VOROTYNTSEV, and
ELENA VOROTYNTSEV, Defendants, and, SHOPLINK, Inc. Nominal
Defendant, No. 1:16-cv-7203-GHW (S.D. N.Y.), Judge Gregory H.
Woods of the U.S. District Court for the Southern District of New
York granted the Defendants' Motion to Dismiss.
Mikhail Vorotyntsev and Tatintsian have known each other for over
20 years. Shortly after Vorotyntsev convinced Tatintsian to
invest in Vorotyntsev's software start-up, ShopLink, Tatintsian
began to suspect that Vorotyntsev was up to no good.
Tatintsian's suspicions were confirmed by ShopLink's bank
statements, which revealed that Vorotyntsev and his wife had
misappropriated hundreds of thousands of dollars from the company
to fund their "lavish lifestyle."
The Vorotyntsevs allegedly used company funds for rental payments
on their luxury apartment and for car insurance payments, and
also spent tens of thousands of dollars on high-end goods from
stores like Barneys and Chanel. Upon making this discovery,
Tatintsian did not waste time filing a complaint against the
Vorotyntsevs.
Tatintsian initiated the lawsuit on Sept. 15, 2016 against
Defendants Mikhail and Elena Vorotyntsev, and Nominal Defendant
ShopLink. The Complaint contains five claims: (1) a direct claim
against Mikhail Vorotyntsev for committing securities fraud in
violation of Section 10(b) of the Exchange Act; (2) a derivative
claim against Mikhail Vorotyntsev for breach of fiduciary duty;
(3) a derivative claim against Mikhail Vorotyntsev for committing
waste; (4) a derivative claim against Elena Vorotyntsev for
aiding and abetting breach of fiduciary duty; and (5) a
derivative claim against both Mikhail and Elena Vorotyntsev for
unjust enrichment.
The Defendants moved to dismiss Tatintsian's derivative claims on
the grounds that Federal Rule of Civil Procedure 23.1 bars a
plaintiff from bringing direct claims and derivative claims in
the same action when it creates a conflict of interest.
Alternatively, they contend that if Tatintsian is permitted to
proceed on his derivative claims, then he must post security for
ShopLink pursuant to New York Business Corporation Law Section
627, which requires a shareholder with less than a 5% share in a
company to post security for a company's expenses related to any
derivative action brought by that shareholder, including
attorneys' fees. Tatintsian filed his opposition thereafter.
Judge Woods finds that an actual conflict of interest exists
because any recovery for Tatintsian on the direct claim might
reduce the recovery for the company and its shareholders on the
derivative claims. Although Tatintsian brings the direct claim
against the Vorotyntsevs, and ShopLink is a nominal defendant in
the action, any recovery on the direct claim could still come
from ShopLink because of a mandatory indemnification clause in
the company's bylaws. Because Vorotyntsev must be indemnified
pursuant to these bylaws, recovery for the direct and derivative
claims could ultimately come from the same pool of money.
Accordingly, an actual conflict of interest exists between
Tatintsian's direct and derivative claims.
Furthermore, he finds that none of the circumstances where courts
have allowed both direct and derivative claims to proceed in
tandem exist in the case. Tatintsian alleges that ShopLink has
been looted, but there is no allegation that ShopLink has been
liquidated or dissolved. Neither are Tatintsian and Vorotyntsev
the sole shareholders of the company. Tatintsian makes a number
of arguments why, nevertheless, there is no conflict between his
direct and derivative claims.
Judge Woods holds that because there is an actual conflict of
interest between the Plaintiff's direct claim and his derivative
claims, he needs not reach the Defendants' alternative argument
concerning the need for the Plaintiff to post security for his
derivative claims. Accordingly, he granted the Defendants'
motion to dismiss, and dismissed the Plaintiff's derivative
claims -- Counts Two, Three, Four, and Five of the Complaint.
A full-text copy of the Court's May 22, 2018 Memorandum Opinion
and Order is available at https://is.gd/lQa1TL from Leagle.com.
Gary Tatintsian, On his own behalf & Gary Tatintsian, For the
benefit of Shoplink Inc., Plaintiffs, represented by Eric Samuel
Olney -- eolney@shapiroarato.com -- Shapiro, Arato & Isserles
LLP, Kristen Marie Santillo, Gelber & Santillo PLLC & Fabien
Manohar Thayamballi -- fthayamballi@shapiroarato.com -- Shapiro
Arato LLP.
Mikhail Vorotyntsev & Elena Vorotyntsev, Defendants, represented
by Frank J. Franzino, Jr. -- ffranzino@franzscherlaw.com --
Franzino & Scher, LLC.
Shoplink Inc., Nominal Defendant, represented by David Matthew
Pohl -- david.pohl@parkerpohl.com -- Pohl LLP.
Mikhail Vorotyntsev, ThirdParty Plaintiff, represented by Frank
J. Franzino, Jr., Franzino & Scher, LLC.
Mikhail Vorotyntsev, Counter Claimant, represented by Frank J.
Franzino, Jr., Franzino & Scher, LLC.
Gary Tatintsian, On his own behalf & Gary Tatintsian, For the
benefit of Shoplink Inc., Counter Defendants, represented by Eric
Samuel Olney, Shapiro, Arato & Isserles LLP, Kristen Marie
Santillo, Gelber & Santillo PLLC & Fabien Manohar Thayamballi,
Shapiro Arato LLP.
Dmitriy Khmaladze & ITAdapter Corporation, Inc., ThirdParty
Defendants, represented by Partha Pratim Chattoraj --
pchattoraj@abv.com -- Allegaert Berger & Vogel LLP & Vera
Pavlovna Zolotaryova , Allegaert Berger & Vogel LLP.
Shoplink Inc., Cross Claimant, represented by David Matthew Pohl,
Pohl LLP.
Shoplink Inc., Counter Claimant, represented by David Matthew
Pohl, Pohl LLP.
SIBANYE GOLD: "Brandel" Suit Alleges Exchange Act Violations
------------------------------------------------------------
Kevin Brandel, individually and on behalf of all others similarly
situated v. Sibanye Gold Limited, Neal Froneman, and Charl
Keyter, Case No. 1:18-cv-03721 (E.D. N.Y., June 27, 2018), seeks
to recover compensable damages caused by the Defendants'
violations of the federal securities laws under the Securities
Exchange Act of 1934.
This is a class action on behalf of persons or entities who
purchased or otherwise acquired publicly traded Sibanye
securities between April 7, 2017 and June 26, 2018, inclusive.
The Plaintiff purchased Sibanye securities during the class
period.
The Defendant Sibanye operates as a precious metals mining
company in South Africa, Zimbabwe, and the United States. Sibanye
is incorporated and has its principal executive offices in the
Republic of South Africa. Sibanye's sponsored ADRs trade on the
New York Stock Exchange under the ticker symbol "SBGL".
The Defendant Neal Froneman has served as the Company's Chief
Executive Officer during the Class Period.
The Defendant Charl Keyter has served as the Company's Chief
Financial Officer during the Class Period. [BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel: (212) 686-1060
Fax: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
SILICON VALLEY SECURITY: Fails to Pay Wages & OT, Taylor Says
-------------------------------------------------------------
RAYMOND TAYLOR on behalf of himself, all others similarly
situated, and on behalf of the general public, the Plaintiffs, v.
SILICON VALLEY SECURITY & PATROL, INC. and DOES 1-100, the
Defendants, Case No. RG 18909530 (Cal. Super. Ct., June 20,
2018), seeks to recover unpaid straight time wages and overtime
wages under the California Labor Code.
According to the complaint, for at least four years prior to the
filing of this action and through to the present, the Defendants
have had consistent policy and/or practice of not paying
Plaintiff and its Non-Exempt Employees for all of the hours they
worked.
Silicon Valley Security & Patrol, Inc. was founded in 1994. The
company's line of business includes providing detective, guard,
and armored car services.[BN]
The Plaintiff is represented by:
William Turley, Esq.
David Mara, Esq.
Jill Vecchi Esq.
Matthew Crawford, Esq.
THE TURLEY & MARA LAW FIRM, APLC
7428 Trade Street
San Diego, CA 92121
Telephone: (619) 234 2833
Facsimile: (619) 234 4048
SOURCE PROVIDERS: Guerriero Seeks Overtime Pay under FLSA
---------------------------------------------------------
MICHAEL GUERRIERO, on behalf of himself and others similarly
situated, the Plaintiff, v. SOURCE PROVIDERS, INC., the
Defendant, Case No. 4:18-cv-01506 (N.D. Ohio, July 3, 2018),
challenges policies and practices of Defendant that violated the
Fair Labor Standards Act and the Ohio wage-and-hour statute.
According to the complaint, the Defendant provides warehousing
and logistics services to the automotive industry, including the
Lordstown Assembly Complex. The Plaintiff worked at Defendant's
Austintown, Ohio location. The Defendant unlawfully excluded the
nondiscretionary bonus payments and shift differential pay that
it paid to its hourly employees in determining their "regular
rates" for purposes of overtime compensation. The Defendant
thereby miscalculated and underpaid the overtime compensation it
paid to hourly employees, including Plaintiff, the Potential Opt-
Ins and members of the Ohio Class.[BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470 4428
Facsimile: (330) 754 1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
SPOTIFY USA: Settlement in "Ferrick" Suit Has Final Approval
-------------------------------------------------------------
In the case, Ferrick, et al., Plaintiffs, v. Spotify USA Inc., et
al., Defendants, Case No. 16-cv-8412 (AJN) (S.D. N.Y.), Judge
Alison J. Nathan of the U.S. District Court for the Southern
District of New York granted the Plaintiffs' Motion for Final
Approval of the Class Action Settlement and their Application for
Award of Attorneys' Fees and Expenses and Incentive Award for
Class Representatives.
A hearing was held on Dec. 1, 2017, during which time the Court
heard the Plaintiffs' Motion for Final Approval of the Class
Action Settlement and their Application for Award of Attorneys'
Fees and Expenses and Incentive Award for Class Representatives.
The Court had, on June 28, 2017, entered an Order of Preliminary
Approval approving notice to the Class, establishing deadlines
for objections, and preliminarily approving the Settlement.
The Class Counsel seeks an attorneys' fee award of $15,860,000.
It also initially requested reimbursement for $632,111.92 in
litigation expenses, and now requests an additional $86,124.88
for expenses incurred from Nov. 10, 2017 through March 31, 2018,
for a total of $718,236.80. The Class Counsel also now requests
that the Court establish a fund of $231,000 for future expert
expenses that will be incurred by the Class Counsel during the
claims administration process and in supporting the Future
Royalty Payments Program. Finally, its requests incentive awards
of $25,000 for each Class Plaintiff.
Michelman & Robinson LLP, the counsel for David Lowery, Victor
Krummenacher, Greg Lisher, and David Faragher, also seek
$3,699,148.75 in attorneys' fees and $30,590.91 in costs.
Although Michelman & Robinson sought to be appointed the Class
Counsel, Susman Godfrey and Gradstein & Marzano, were appointed
instead.
Having considered the written submissions of the parties, having
held a final fairness hearing, and having considered the
arguments offered at the final fairness hearing, Judge Nathan
ordered that the Class is finally certified and the Settlement is
finally approved. However, she reduced the attorneys' fee award
to $13,035,000 and costs in the amount of $718,236.80. He
rejected the Class Counsel's request to establish a $231,000 fund
for expert expenses.
The reduction in attorneys' fees will come from the portion of
the fee payment taken from the settlement fund rather than from
the $5 million that Spotify has agreed to pay for attorneys' fees
over and above the net settlement amount.
Although Michelman & Robinson filed the first complaint in the
action and committed time and effort to investigating potential
claims, that commitment was not unique to Michelman & Robinson;
to the contrary, the Class Counsel took similar actions.
Moreover, Michelman & Robinson declined to share information with
Class Counsel once they were appointed. Accordingly, Michelman &
Robinson did not provide any unique or substantial benefit to the
class. The Judge thus denied their request for attorneys' fees.
The Class is defined as all persons or entities who own
copyrights in one or more musical compositions (a) for which a
certificate of registration has been issued or applied for on or
before the Preliminary Approval Date; and (b) that was made
available by Spotify for interactive streaming and/or limited
downloads during the Class Period (Dec. 28, 2012 through the
Preliminary Approval Date) without a license.
A full-text copy of the Court's May 22, 2018 Memorandum Opinion
and Order is available at https://is.gd/Gvv1fv from Leagle.com.
David Lowery, individually and on behalf of himself and all
others similarly situated & Greg Lisher, individually and on
behalf of themselves and all others similarly situated,
Plaintiffs, represented by Mona Z. Hanna -- mhanna@mrllp.com --
Michelman and Robinson LLP, Andrew Scott MacKay --
amackay@donahue.com -- Donahue Fitzgerald LLP, David Crockett
Lee, Michelman and Robinson LLP, Ilse Chandalar Scott --
iscott@mrllp.com -- Michelman and Robinson LLP, Kathryn Tondel
Lundy -- klundy@mrllp.com -- Michelman & Robinson, LLP, Melanie
Natasha Howard, Michelman & Robinson, LLP & Sanford L. Michelman
-- smichelman@mrllp.com -- Michelman and Robinson LLP.
Victor Krummenacher, individually and on behalf of themselves and
all others similarly situated, Plaintiff, represented by Mona Z.
Hanna, Michelman and Robinson LLP, David Crockett Lee, Michelman
and Robinson LLP, Ilse Chandalar Scott, Michelman and Robinson
LLP, Kathryn Tondel Lundy, Michelman & Robinson, LLP, Melanie
Natasha Howard, Michelman & Robinson, LLP & Sanford L. Michelman,
Michelman and Robinson LLP.
David Faragher, individually and on behalf of themselves and all
others similarly situated, Plaintiff, represented by Mona Z.
Hanna, Michelman and Robinson LLP, David Crockett Lee, Michelman
and Robinson LLP, Ilse Chandalar Scott, Michelman and Robinson
LLP, Jonathan Mcneil Wong -- jmwong@donahue.com -- Donahue
Fitzgerald LLP, Kathryn Tondel Lundy, Michelman & Robinson, LLP,
Melanie Natasha Howard, Michelman & Robinson, LLP, Sanford L.
Michelman, Michelman and Robinson LLP & Timothy Gerard Ronan --
tronan@pullcom.com -- Pullman & Comley, LLC.
Melissa Ferrick, Plaintiff, represented by Daniel Boris Lifschitz
-- dlifschitz@gradstein.com -- Gradstein and Marzano PC, Geng
Chen -- gchen@susmangodfrey.com -- Susman Godfrey LLP, Harvey W.
Geller -- hgeller@gradstein.com -- Carlton Fields Jorden Burt,
LLP, Henry D. Gradstein -- hgradstein@gradstein.com -- Gradstein
& Marzano, P.C., Jacob W. Buchdahl -- jbuchdahl@susmangodfrey.com
-- Susman Godfrey LLP, Kalpana Srinivasan --
ksrinivasan@SusmanGodfrey.com -- Susman Godfrey LLP, Krysta
Kauble Pachman -- kpachman@susmangodfrey.com -- Susman Godfrey
LLP, pro hac vice, Marc M. Seltzer -- mseltzer@SusmanGodfrey.com
-- Susman Godfrey, L.L.P., Maryann R. Marzano --
mmarzano@gradstein.com -- Gradstein and Marzano PC, Maryann Rose
Marzano, Gradstein & Marzano, P.C., Stephen Edward Morrissey --
smorrissey@SusmanGodfrey.com -- Susman Godfrey LLP & Steven
Gerald Sklaver -- ssklaver@SusmanGodfrey.com -- Susman Godfrey
LLP.
Jaco Pastorius, Inc., Plaintiff, represented by Daniel J. Schacht
-- dschacht@donahue.com -- Donahue Fitzgerald LLP, Andrew Scott
MacKay, Donahue Fitzgerald LLP, Geng Chen, Susman Godfrey LLP,
Henry D. Gradstein, Gradstein & Marzano, P.C., Jacob W. Buchdahl,
Susman Godfrey LLP, Kalpana Srinivasan, Susman Godfrey LLP,
Krysta Kauble Pachman, Susman Godfrey LLP, pro hac vice, Maryann
Rose Marzano, Gradstein & Marzano, P.C., Stephen Edward
Morrissey, Susman Godfrey LLP, Steven Gerald Sklaver, Susman
Godfrey LLP & Maryann R. Marzano, Gradstein and Marzano PC.
Gerencia 360 Publishing, Inc., Plaintiff, represented by Geng
Chen, Susman Godfrey LLP, Henry D. Gradstein, Gradstein &
Marzano, P.C., Jacob W. Buchdahl, Susman Godfrey LLP, Kalpana
Srinivasan, Susman Godfrey LLP, Krysta Kauble Pachman, Susman
Godfrey LLP, pro hac vice, Maryann Rose Marzano, Gradstein &
Marzano, P.C., Stephen Edward Morrissey, Susman Godfrey LLP,
Steven Gerald Sklaver, Susman Godfrey LLP & Maryann R. Marzano,
Gradstein and Marzano PC.
Willard, Adam and 537 Additional Entities Listed on Exhibit A,
Adam Willard and 537 Additional Entities Listed on Exhibit A,
Objector, represented by Andrew Scott MacKay, Donahue Fitzgerald
LLP, Daniel J. Schacht, Donahue Fitzgerald LLP & Jonathan Mcneil
Wong, Donahue Fitzgerald LLP.
Tracy Silverman, Regent T St. Clair, Jones Lee Rickie & Rio Cali
Music Co., Objectors, represented by Andrew Scott MacKay, Donahue
Fitzgerald LLP, Daniel J. Schacht, Donahue Fitzgerald LLP &
Jonathan Mcneil Wong, Donahue Fitzgerald LLP & Timothy Gerard
Ronan, Pullman & Comley, LLC.
Andrew Paley, Objector, represented by Nicholas A. Carlin --
nac@phillaw.com -- Phillips, Erlewine, Given & Carlin LLP, Andrew
Scott MacKay, Donahue Fitzgerald LLP, Daniel J. Schacht, Donahue
Fitzgerald LLP, David Milton Given -- dmg@phillaw.com --
Phillips, Erlewine & Given LLP & Jonathan Mcneil Wong, Donahue
Fitzgerald LLP.
KRISTIN DIABLE & TAMARA DEARING, Objectors, represented by Andrew
Scott MacKay, Donahue Fitzgerald LLP, George Willard Cochran, Jr.
, Law Office of George W. Cochran, Jonathan Mcneil Wong , Donahue
Fitzgerald LLP & Timothy Gerard Ronan, Pullman & Comley, LLC.
Watson Music Group, LLC, Objector, represented by Seth Peter
Robert, B. Alan Seidler, Esq.
Randall Wixen, Interested Party, represented by Andrew Scott
MacKay, Donahue Fitzgerald LLP & Jonathan Mcneil Wong, Donahue
Fitzgerald LLP.
Donahue Fitzgerald LLP, Interested Party, represented by Andrew
Scott MacKay, Donahue Fitzgerald LLP, Jonathan Mcneil Wong,
Donahue Fitzgerald LLP & Timothy Gerard Ronan, Pullman & Comley,
LLC.
SUPREME INDUSTRIES: Securities Fraud Suit Dismissed
---------------------------------------------------
In the case, In re SUPREME INDUSTRIES, INC. SECURITIES
LITIGATION, Case No. 3:17CV143PPS-MGG (N.D Ind.), Judge Philip P.
Simon of the U.S. District Court for the Northern District of
Indiana, South Bend Division, granted the Defendants' Motion to
Dismiss the First Amended Complaint.
This is a class action against Supreme and two of its officers
for alleged violations of federal securities laws.
The lead Plaintiff, Kenneth Fishman, purchased 3,000 shares of
Supreme common stock in September 2016 at prices of $18.26 and
$17.69. He sold all of his shares on Nov. 9, 2016 at $12.08 and
$12.03 per share, for a total loss of $12,570. Fishman alleges
that the Defendants engaged in a fraudulent scheme to
artificially inflate Supreme's stock price by misrepresenting the
true nature of the company's order backlog, which he claims is
the company's surest indicator of future financial success. He
also claims that the Defendants provided a prediction of the
company's future backlog even though they knew adverse facts that
undermined the prediction.
Fishman brings the action on behalf of himself and all similarly
situated purchasers of Supreme securities between Oct. 22, 2015
and Oct. 21, 2016.
The Defendants seek dismissal of the complaint.
Broadly speaking, Judge Simon finds that the first amended
complaint alleges that two statements constitute material
misrepresentations in violation of Section 10(b) and Rule 10b-5.
The first are the statements concerning Supreme's backlog from
the third quarter of 2015, in that they failed to disclose that
the increase in the backlog was due, in part, to anomalous fleet
orders and statements by the defendants creating the impression
that, in fact, there were no fleet orders in the backlog at that
time. The second category occurred on July 22, 2016 when Long
told analysts in a conference call that Supreme's backlog would
likely settle more towards the way it looked Q3 last year.
As to the third quarter 2015 statements, he holds that based on
the failure to detail how the statement was made misleading by
omission and to adequately plead a strong inference of scienter,
the claim against Supreme as it relates to the third quarter 2015
backlog statement must be dismissed. He doesn't see any evidence
suggesting a strong inference of scienter. The only evidence of
scienter is that the Defendants repeatedly designated backlog as
a critical metric and were aware that the investors relied on
backlog in assessing the company's performance. He can't see how
knowing that one metric is material and not disclosing it leads
to the conclusion that the Defendants must have known, or should
have known, that this failure to disclose would mislead
investors.
As to the second quarter of 2016 earnings call, he holds that
because he finds that there exists no strong inference of
scienter, Fishman's claim as it relates to the prediction must be
dismissed. Taking into account all of the facts leads him to
conclude that the inference of scienter is neither compelling nor
cogent. Even this "holistic" view urged by Fishman fails to
support a strong inference of scienter. The non-culpable
inference -- that the Defendants withheld information that they
had no reason to believe would mislead anyone and that, after
accounting for and providing to the public a substantial amount
of bad information, they made a prediction which turned out
simply to not be quite true -- is far more compelling.
The Judge also concludes that the Plaintiff's Section 20(a) claim
must also be dismissed. In order to state a claim under Section
20(a), plaintiffs must allege, among other things, a primary
securities violation. He has already found that there is no
primary violation.
The only remaining question is whether the dismissal of the case
should be with or without prejudice. Given the demanding
pleading requirements of PSLRA, the most prudent approach is to
give Fishman and his lawyers an opportunity to amend the
complaint in an effort to address the shortcomings in the present
complaint. Any amended complaint must be filed within 30 days.
If Fishman chooses not to file an amended complaint, he can so
notify the Court, and the Judge will at that point convert the
dismissal of the present complaint from a dismissal without
prejudice to one with prejudice so that an appeal can be taken if
Fishman so chooses.
Based on this, Judge Simon granted the Defendants' Motion to
Dismiss. He dismissed without prejudice all claims against the
Defendants. Any amended complaint must be filed within 30 days
of the Order.
A full-text copy of the Court's May 23, 2018 Opinion and Order is
available at https://is.gd/Y6kgnj from Leagle.com.
Andrew Leibs, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm PA & Richard E.
Shevitz -- rshevitz@cohenandmalad.com -- Cohen & Malad LLP.
Kenneth L. Fishman, Lead Plaintiff, Plaintiff, represented by
Lawrence P. Eagel -- eagel@bespc.com -- Bragar Eagel & Squire PC,
pro hac vice, Richard E. Shevitz, Cohen & Malad LLP, Todd Harris
Henderson -- henderson@bespc.com -- Bragar Eagel & Squire PC, pro
hac vice, Vess A. Miller -- vmiller@cohenandmalad.com -- Cohen &
Malad LLP, Ira M. Press -- ipress@kmllp.com -- Kirby McInerney
LLP, pro hac vice & Thomas W. Elrod -- telrod@kmllp.com -- Kirby
McInerney LLP, pro hac vice.
TD AMERITRADE: Wins Dismissal of "Antczak" Securities Suit
----------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania granted Plaintiffs' Motion to Dismiss the case
captioned MARIANNE ANTCZAK, on behalf of herself and other
similarly situated persons, v. TD AMERITRADE CLEARING, INC., TD
AMERITRADE, INC., TD AMERITRADE INVESTMENT MANAGEMENT, LLC,
ULTIMATE FINANCIAL INVESTMENTS, LLC and BRIDGET A. FERNANDEZ,
individually and professionally, Civil Action No. 17-4947 (E.D.
Pa.).
Plaintiff Marianne Antczak claims that she suffered losses
resulting from unsuitable investments in high risk, volatile
securities. She seeks to hold liable not only her registered
investment advisor, but also the custodian and the clearing house
for those securities, TD Ameritrade and its affiliated
corporations.
In addition to her claim against the TD Ameritrade defendants for
violations of Section 10(b) of the Securities Exchange Act of
1934, as amended, 15 U.S.C. Section 78j(b), and SEC Rule 10b-5,
Antczak brings state-law class action claims against the TD
Ameritrade defendants for breach of contract, breach of fiduciary
duty, negligence, conversion, and civil conspiracy.
Section 10(b) Unsuitability Claim
Antczak asserts Section 10(b) unsuitability claim under the
Securities Exchange Act of 1934 and SEC Rule 10b-5. Antczak
contends that the TD Ameritrade defendants enabled, facilitated,
and concealed UFI's unsuitable trading activity in her accounts,
causing losses under 15 U.S.C. Section 78j(b) and 17 C.F.R.
Section 240.10b-5.
To state an unsuitability securities fraud claim, a plaintiff
must aver that: (1) the securities purchased were unsuited to the
plaintiff's needs; (2) the defendant knew or had reason to
believe the securities were unsuitable; (3) the defendant
recommended or purchased the unsuitable securities; (4) the
defendant made, with scienter, material misrepresentations or,
owing a duty, failed to disclose material information relating to
the suitability of the securities; and (5) the plaintiff
justifiably relied to her detriment on the defendant's fraudulent
conduct.
The complaint describes the limited role played by the TD
Ameritrade defendants. TD Ameritrade provided custodial services
to UFI and Antczak. TDAC was merely a provider of clearing
services. Neither one made investment decisions or gave
investment advice. Although TDAIM offers investment advice to TD
Ameritrade's retail clients, it did not give any investment
advice to Antczak before or after her account was transferred
from the institutional platform to the retail platform. Indeed,
after the account was placed on the retail platform, Fernandez
continued to make all investment and trade decisions for Antczak.
An investor-directed account over which the broker-dealer has no
discretion cannot support an unsuitability claim against the
broker-dealer. Stated differently, where a broker-dealer does not
exercise discretion and the client or the client's advisor
directs the transactions, the broker-dealer cannot be liable for
unsuitable trades it did not make.
Because TD Ameritrade was only a custodian, TDAC performed only
clearing services, and TDAIM had nothing to do with Antczak's
trades and investment decisions, Antczak cannot state a Section
10(b) suitability claim against them.
SLUSA Preclusion
TD Ameritrade argues that the remaining state law class action
claims are precluded by the Securities Litigation Uniform
Standards Act of 1998 (SLUSA). Antczak counters that her state
law claims have nothing to do with a fraudulent act being
committed in connection with the purchase or sale of securities.
SLUSA provides that private state-law covered class actions
alleging untruth or manipulation in connection with the purchase
or sale of a 'covered' security may not be maintained in any
State or Federal court. SLUSA precludes (1) a covered class
action (2) brought under state statutory or common law (3)
alleging a misrepresentation or omission of a material fact (4)
in connection with the purchase or sale (5) of a covered
security.
Antczak alleges a fraudulent scheme involving the purchase and
sale of securities. Her losses were caused by unsuitable trading
in ETFs, a high-risk security. The fraudulent conduct, as alleged
by Antczak, is that the TD Ameritrade defendants failed to
monitor her accounts and to report UFI's unsuitable trades to
regulatory authorities. The accounts with TD Ameritrade were held
for the purpose of trading in securities. The claims arise out of
the TD Ameritrade defendants' relationship to Antczak which was
created to facilitate the purchase and sale of securities. Given
that all of Antczak's claims are related to the trading of
securities, her claims arise in connection with the purchase or
sale of securities.
In summary, Antczak's complaint is a covered class action brought
under state law alleging a material misrepresentation or omission
in connection with the purchase or sale of a covered security.
Therefore, pursuant to 15 U.S.C. Section 78bb(f)(1), her state
law class action claims are precluded by SLUSA.
Futility of Amendment
The Court finds that Antczak has not and cannot identify any duty
imposed on the TD Ameritrade defendants to report Fernandez to
the regulatory authorities. She argues that Financial Industry
Regulatory Authority (FINRA) regulations give rise to such a
duty. However, FINRA Regulatory Notice 09-31 describes a firm's
obligation regarding the suitability of leveraged ETFs and
imposes that obligation on only those recommending the purchase,
sale or exchange of a security. As counsel acknowledges, the TD
Ameritrade defendants made no trade recommendations.
Antczak's causes of action do not fail for want of factual
specificity. They fail because under the facts alleged in the
complaint and the amendments that she proposes, she cannot state
a cause of action that would not trigger SLUSA preclusion.
Therefore, the Court will dismiss this action against the TD
Ameritrade defendants.
A full-text copy of the District Court's May 21, 2018 Memorandum
Opinion is available at https://tinyurl.com/y7ybgdq9 from
Leagle.com.
MARIANNE ANTCZAK, ON BEHALF OF HERSELF AND OTHER SIMILARLY
SITUATED PERSONS, Plaintiff, represented by THEODOR A. SWANSEN -
- swansenllc@gmail.com -- TASWANSEN LLC.
ULTIMATE FINANCIAL INVESTMENTS, LLC, Defendant, pro se.
BRIDGET A. FERNANDEZ, Defendant, pro se.
TESLA MOTORS: Del. Refuses Elon Musk's Interlocutory Appeal
-----------------------------------------------------------
The Supreme Court of Delaware denied Defendant's-Appellant's
Appeal in the case captioned ELONMUSK, BRAD W. BUSS, ROBYN M.
DENHOLM, IRA EHRENPREIS, ANTONIO J. GRACIAS, STEPHEN T.
JURVETSON, and KIMBAL MUSK, Defendants Below, Appellants, and
TESLA, INC., Nominal Defendant Below, Appellant, v. ARKANSAS
TEACHER RETIREMENT SYSTEM, BOSTON RETIREMENT SYSTEM, ROOFERS
LOCAL 149 PENSION FUND, OKLAHOMA FIREFIGHTERS PENSION AND
RETIREMENT SYSTEM, KBC ASSET MANAGEMENT NV, ERSTE-SPARINVEST
KAPITALANLAGEGESELLSCHAFT M.B.H., STICHTING BLUE SKY ACTIVE LARGE
CAP EQUITY FUND USA, and AARON ROCKE, Plaintiffs Below,
Appellees, No. 221, 2018, Consolidated C.A. No. 12711 (Del.).
The defendants-appellants seek interlocutory review of the Court
of Chancery's opinion of March 28, 2018, denying their motion to
dismiss the plaintiffs-appellees' second amended verified class
action and derivative complaint under Court of Chancery Rule
12(b)(6) (In re Tesla Motors, Inc. S'holder Litig., 2018 WL
1560293 (Del. Ch. Mar. 28, 2018).
The state Supreme Court concludes that the application for
interlocutory review does not meet the strict standards for
certification under Rule 42(b).
A full-text copy of the state Supreme Court's May 3, 2018 Order
is available at https://tinyurl.com/y7y6h48o from Leagle.com.
TJX COMPANIES: Sweeney Files 9th Circuit Appeal in "Chester" Suit
-----------------------------------------------------------------
Objector Patrick S. Sweeney filed an appeal from a court ruling
in the lawsuit titled Staci Chester, et al. v. The TJX Companies,
Inc., et al., Case No. 5:15-cv-01437-ODW-DTB, in the U.S.
District Court for the Central District of California, Riverside.
The appellate case is captioned as Staci Chester, et al. v. The
TJX Companies, Inc., et al., Case No. 18-55786, in the United
States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, Judge Otis
D. Wright, II, granted the Plaintiffs' Unopposed Motion for
Preliminary Approval of Class Action Settlement and Certification
of Settlement Class.
In the operative Consolidated Amended Class Action Complaint,
filed on Sept. 3, 2015, the Plaintiffs allege that from July 17,
2011, to the present, the Defendants have engaged in a deceptive
scheme advertising "sale" prices that were substantially lower
than the advertised "Compare At" prices for the products sold in
the Defendants' stores. They further allege that the higher
Compare At prices were deceptive because they were not based on
actual prices that identical items sold for either in the
Defendants' stores or other retailers, and that Defendants failed
to adequately disclose to consumers what its Compare At reference
prices were intended to represent. The Plaintiffs raise claims
under California Business & Professions Code Section 17200,
Section 17500, False Advertising Law, and California Civil Code
Section 1750, California Consumer Legal Remedies Act.
The parties' Settlement Agreement provides that TJX will
contribute $8,500,000, in return for a release of claims against
TJX. The Monetary Component will be used to pay: (i) the actual
costs incurred in providing notice of the settlement to the Class
Members and the administration thereof, but not to exceed
$1,000,000; (ii) the award of reasonable attorneys' fees for the
class counsel, not to exceed 25% of the Monetary Component, plus
costs, not to exceed $50,000; and (iii) an incentive award to
each class representative in the amount of $7,500.
Objector-Appellant Patrick S. Sweeney of Madison, Wisconsin,
appears pro se.[BN]
Plaintiffs-Appellees STACI CHESTER, DANIEL FRIEDMAN, ROBIN
BERKOFF and THERESA METOYER, individually and on behalf of all
others similarly situated, are represented by:
Douglas Caiafa, Esq.
DOUGLAS CAIAFA, A PROFESSIONAL LAW CORP.
11845 W. Olympic Boulevard, Suite 1245
Los Angeles, CA 90064
Telephone: (310) 444-5240
E-mail: dcaiafa@caiafalaw.com
- and -
Greg Hafif, Esq.
LAW OFFICE OF HERBERT HAFIF
269 West Bonita Avenue
Claremont, CA 91711
Telephone: (909) 624-1671
E-mail: ghafif@hafif.com
- and -
Christopher J. Morosoff, Esq.
LAW OFFICE OF CHRISTOPHER J. MOROSOFF
77305 California Drive
Palm Desert, CA 92211
Telephone: (760) 469-5986
E-mail: cjmorosoff@morosofflaw.com
Defendants-Appellees THE TJX COMPANIES, INC., a Delaware
corporation; TJ MAXX OF CA, LLC, a Delaware limited liability
company; MARSHALLS OF CA, LLC; and HOMEGOODS, INC., are
represented by:
Benjamin O. Aigboboh, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
1901 Avenue of the Stars
Los Angeles, CA 90067-6001
Telephone: (310) 228-3700
E-mail: baigboboh@sheppardmullin.com
jramsey@sheppardmullin.com
- and -
John P. Bueker, Esq.
ROPES & GRAY LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
Telephone: (617) 951-7000
E-mail: John.Bueker@ropesgray.com
TOYOTA MOTOR: Loses Bid to Dismiss FAC in Rav 4 Suit
----------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, granted Defendant's Motion to
Dismiss the First Amended Complaint in the case captioned YAN MEI
ZHENG-LAWSON, et al., Plaintiffs, v. TOYOTA MOTOR CORPORATION, et
al., Defendants, Case No. 17-cv-06591-BLF (N.D. Cal.).
Plaintiffs Yan Mei Zheng-Lawson, Yuanteng Pei, and Joanne E.
Ferrara allege that they each purchased a 2016 Toyota Rav 4 XLE
based on misrepresentations contained in the 2016 Rav 4 brochure
available at Toyota dealerships and on the Internet, referred to
in the FAC as the Brochure. The Plaintiffs plead the following
claims on behalf of a Nationwide Class, a California Subclass, a
New York Subclass, and a Pennsylvania Subclass, inter alia: (1)
Deceptive Trade Practices in violation of General Business Law
Section 349 on behalf of New York Subclass; (2) Deceptive Trade
Practices in violation of General Business Law Section 350 on
behalf of New York Subclass; (3) Breach of Express Warranty in
violation of California Commercial Code Section 2313 on behalf of
Nationwide Class or, alternatively, California Subclass.
The Court informed the Plaintiffs on the record of the defects in
the FAC, including the following:
Failure to Differentiate Between Defendants
The Plaintiffs have not made particularized allegations against
any of the defendant entities in this case. The Plaintiffs must
allege facts adequate to put each defendant on notice regarding
the bases of the claims against it. If the relevant facts relate
to alter ego, agency, or some other relationship giving rise to
liability of one entity for the conduct of another, the
relationship should be explained in sufficient detail to allege
plausibly that each defendant is liable for the specified
conduct.
Failure to Plead Breach of Express Warranty
In Counts III, IV, and V, the Plaintiffs plead claims for breach
of express warranty under the laws of California, New York, and
Pennsylvania. The claims are based on alleged statements in the
Brochure referenced throughout the FAC. However, the Plaintiffs
neither attach a copy of the Brochure to their pleading nor plead
its contents verbatim. The Defendants provide copies of multiple
versions of the Brochure, which the Court considers under the
incorporation by reference doctrine.
The Defendants argue that under any version of the Brochure, the
Plaintiffs' express warranty claims are inadequate because the
Brochures contained disclaimers sufficient to negate the express
warranty claims. The Court is not prepared to take up that issue
at this stage of the proceedings, particularly where the
Plaintiffs have yet to allege with adequate specificity what
brochure contained the express warranty and that they all
reviewed the brochure prior to purchase of their vehicles.
Failure to Plead Violation of Consumer Protection Statutes
In Counts I, II, VI, VII, IX and X, the Plaintiffs allege
violations of the consumer protection laws of California, New
York, and Pennsylvania. The thrust of each of these claims is
that the Defendants' deceptive Brochure misled the Plaintiffs
into believing that the vehicles they purchased were equipped
with automatic on/off headlights when in fact the vehicles did
not have that feature. Because the claims are grounded in fraud,
they are subject to the heightened pleading requirements of
Federal Rule of Civil Procedure 9(b). The Plaintiffs have not
identified in their pleading which Brochure contained the
deceptive statements. At the bare minimum, the Plaintiffs must
allege precisely which statements are at issue and why those
statements are misleading.
Failure to Plead Violation of Song-Beverly Consumer Warranty Act
The Plaintiffs concede the Defendants' motion with respect to
Count VIII for violation of California's Song-Beverly Consumer
Warranty Act. The Plaintiffs' request for leave to replace Count
III with a new claim under California's Secret Warranty Law was
granted on the record.
Unjust Enrichment
Count XI asserts a claim for unjust enrichment. The Defendants
argue that to the extent the claim is asserted under California
law, it fails because California does not recognize a standalone
cause of action for unjust enrichment.
The Court declines to take up the Defendants' argument that the
Plaintiffs have not adequately alleged that they received a
benefit unless and until the Plaintiffs make clear which state's
law on unjust enrichment is to be applied.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/y93abvjx from Leagle.com.
Yan Mei Zheng-Lawson, Yuanteng Pei & Joanne E. Ferrara,
Plaintiffs, represented by James Robert Noblin, Green and Noblin,
P.C., Robert S. Green, Green & Noblin, P.C., Gary S. Graifman,
Kantrowitz Goldhamer & Graifman, P.C., pro hac vice & Lynda J.
Grant, The Grant Law Firm, PLLC, pro hac vice.
Toyota Motor Corporation, Toyota North America, Inc. & Toyota
Motor Sales U.S.A., Inc., Defendants, represented by Jeffrey
Brian Margulies -jeff.margulies@nortonrosefulbright.com -- Norton
Rose Fulbright US LLP, Christine Alegrado Robles --
christine.robles@nortonrosefulbright.com -- Norton Rose Fulbright
US LLP & Stacey A. Martinez --
stacey.martinez@nortonrosefulbright.com -- Norton Rose Fulbright
US LLP, pro hac vice.
TRANSCANADA: PERS Mississippi Sues over Columbia Pipeline Spinoff
-----------------------------------------------------------------
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, Individually
and on Behalf of All Others Similarly Situated, the Plaintiff, v.
ROBERT C. SKAGGS, JR., STEPHEN P. SMITH, SIGMUND L. CORNELIUS,
MARTY R. KITTRELL, W. LEE NUTTER, DEBORAH S. PARKER, TERESA A.
TAYLOR, LESTER P. SILVERMAN, and TRANSCANADA CORPORATION, the
Defendants, Case No. 2018-0484 (Del. Ch., July 3, 2018),
challenges a disloyal plan by fiduciaries of Columbia Pipeline to
spin the Company off from its former parent, NiSource Inc., and
force a sale to their preferred buyer, TransCanada, in order to
cash in on lucrative change-in-control benefits.
NiSource is an energy company that, as of mid-2014, operated two
largely distinct businesses: (i) a regulated utility business
providing energy to end-users, and (ii) a midstream natural gas
business. NiSource's midstream natural gas business was viewed,
both internally and by the market, as having immense growth
potential. In 2014, multiple potential buyers expressed interest
in acquiring NiSource's midstream business.
According to complaint, the TransCanada actively and knowingly
participated in the Individual Defendants' disloyal plan to spin-
off, and then sell, Columbia Pipeline in order to cash in on
lucrative change-in-control benefits by, inter alia, (i)
following Lazard's instructions to avoid bidding until after the
Spin-Off and (ii) colluding with Smith during the process leading
to the Merger to gain an unlawful advantage over other bidders
for Columbia Pipeline.[BN]
The Plaintiff is represented by:
Ned Weinberger, Esq.
Thomas Curry, Esq.
300 Delaware Ave., Suite 1340
Wilmington, DE 19801
Telephone: (302) 573 2540
- and -
Eric Belfi, Esq.
Ira A. Schochet, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907 0700
Facsimile: (212) 818 0477
TRANS UNION: Court Denies Bid to Alter $200 Sanction in "Letren"
----------------------------------------------------------------
The United States District Court for the District of Maryland
granted issued a Memorandum Opinion denied Plaintiff's Motion to
Alter or Amend Court's Sanctions Order in the case captioned NEIL
F. LETREN, On behalf of himself and all others Similarly
situated, Plaintiff, v. TRANS UNION, LLC, Defendant, Civil Action
No. PX-15-3361 (D. Md.).
This civil action stems from a mortgage loan reported by J.P.
Morgan Chase Bank, N.A., to Plaintiff Neil F. Letren's Trans
Union credit report. On October 6, 2015, Letren, proceeding pro
se, filed a class action complaint, alleging violations of the
Fair Credit Reporting Act (FCRA) against Experian Information
Solutions, Inc., Equifax Information Services, LLC, and Trans
Union. The Complaint asserted that Trans Union falsely reported
the Chase Account as due and owing when the Chase Account was
discharged in bankruptcy. The Complaint provided no allegations
of a duplicate account -- specifically, no allegations involving
Homeward Residential, or a third mortgage loan company, AHMA.
The Court issued a Memorandum Opinion and Order granting Trans
Union's motion for sanctions pursuant to Rule 11 of the Federal
Rule of Civil Procedure and the inherent powers of the Court. The
Court ordered that Letren pay $200 and that his attorney Kevin L.
Chapple pay $4,000 to the Defendant as sanction.
Letren's argument is that the "unclean hands doctrine" bars the
Court from awarding sanctions to Trans Union because Trans Union
violated its duties under the FCRA, and made it nearly impossible
for Letren to obtain information in this case by its objections
to Letren's interrogatories. Notably, Letren provides no legal
support from within this Circuit to support this assertion. Nor
does the argument amount to anything more than an attempt, once
again, to re-litigate the merits of Trans Union's purported
liability under the FCRA. The Court will not indulge this
argument any further.
A full-text copy of the District Court's May 21, 2018 Memorandum
Opinion is available at https://tinyurl.com/y82xofx2 from
Leagle.com.
Neil F. Letren, Plaintiff, represented by Kevin L. Chapple,
Chapple Law Firm, & Quinn Breece Lobato, Lobato Law.
Trans Union, LLC, Defendant, represented by Henry Mark Stichel,
Astrachan Gunst Thomas, P.C., Robert J. Schuckit --
rschuckit@schuckitlaw.com -- Schuckit & Associates, P.C. &
Katherine Carlton Robinson -- krobinson@schuckitlaw.com --
Schuckit and Associates PC, pro hac vice.
TRANSWORLD SYSTEMS: Tingey Alleges Wrongful Debt Collections
------------------------------------------------------------
JESSICA TINGEY; WILLIAM E. DUDGEON; and TRAVONEY HARRIS,
individually and on behalf of all others similarly situated,
Plaintiffs v. TRANSWORLD SYSTEMS, INC.; WELTMAN, WEINBERG & REIS,
CO., LPA, aka WELTMAN, WEINBERG & REIS CO. OF MICHIGAN; and
SHERMETTA LAW GROUP, PLLC, Defendants, Case No. 5:18-cv-11980
(E.D. Mich., June 24, 2018) seeks to stop the Defendant's unfair
and unconscionable means to collect a debt. The case is assigned
to Judge Judith E. Levy and referred to Magistrate Judge
Stephanie Dawkins Davis.
Transworld Systems Inc. provides accounts receivable, debt
recovery, and past due accounts services for businesses, medical
companies, dental companies, education facilities, Fortune 500
companies, and small businesses in the United States and
internationally. The company has strategic alliances with
athenahealth, eClinicalWorks, LeonardoMD, MDeverywhere,
QuickBooks, Sikka Software Corporation, and TotalMD. Transworld
Systems Inc. was founded in 1970 and is based in Horsham,
Pennsylvania. [BN]
The Plaintiffs are represented by:
Brian P. Parker, Esq.
LAW OFFICES OF BRIAN P. PARKER, P.C.
2000 Town Center, Suite 1900
Southfield, MI 48075
Tel: (248) 342-9583
TRI-STAR RESTAURANT: "Trawick" Wage Suit Remains in Federal Court
-----------------------------------------------------------------
Judge Leslie E. Kobayashi of the U.S. District Court for the
District of Hawaii denied the Plaintiffs' Motion to Remand the
case, ELLESAR M. TRAWICK, individually and on behalf of all
others similarly situated, Plaintiffs, v. TRI-STAR RESTAURANT
GROUP, LLC; TRI-STAR RESTAURANT GROUP III, LLC d/b/a/ SARENTO'S
TOP OF THE 'I'; TRI-STAR RESTAURANT GROUP III, LIMITED LIABILITY
COMPANY; TRI-STAR RESTAURANT GROUP IV, LLC d/b/a NICK'S
FISHMARKET MAUI; and JOHN DOES 1-10; JANE DOES 1-10, DOE LIMITED
LIABILITY CORPORATIONS 1-10, AND DOE OTHER ENTITIES 1-10,
Defendants, Civil No. 17-00456 LEK-RLP (D. Haw.).
Trawick filed the original Complaint on July 25, 2017 in state
court. On Aug. 21, 2017, the First Amended Complaint was filed,
adding Stroetz as a Plaintiff. On Aug. 25, 2017, the Defendants
filed an answer to the original Complaint. Trawick was employed
by the Defendants as a waiter from approximately February 2015 to
December 2016. Stroetz was employed by the Defendants as a
server from December 2010 until he became a captain in 2014. As
of the filing of the First Amended Complaint, he was still
employed as a captain.
The Defendants are a restaurant group that operates five
restaurants on O'ahu and Maui. However, only Sarento's and the
Nick's Fishmarket Maui restaurant are referred to in the
substantive allegations of the First Amended Complaint. The
Plaintiffs bring the action as class action, but the issue of
class certification is not before the Court at this time.
The Plaintiffs are among the Defendants' tipped employees, which
includes waiters, bussers, and bartenders. The Defendants'
tipped employees are paid hourly and participate in a tip pooling
system. They participated in the tip pool, which also includes
management employees who do not usually receive tips, such as
roving captains. According to the Plaintiffs, roving captains
are actually assistant and general managers whose interactions
with customers are de minimus and who are responsible for
overseeing all of the restaurant's operations, the hiring and
firing staff, purchasing food, supplies and equipment, and
dealing with suppliers and vendors.
According to the Plaintiffs, the Defendants knowingly allowed
roving captains to participate in the tip pool; willfully and/or
recklessly failed to properly compensate the Plaintiffs, in
violation of Hawai'i law; and knew the Plaintiffs were being
under-compensated because they were splitting their tips with
non-tipped employees and their hourly rates fell below minimum
wage. Further, the Defendants add a pre-set service charge to
food and beverage bills for banquets, events, meetings, room
service, and in other instances, without clearly disclosing to
the Plaintiffs, and Tri-Star's customers that a portion of the
service charge was not distributed to the employees who provided
the food and beverage services to the customers. The
establishments also retained a portion of the service charges.
The Plaintiffs allege the following claims: violation of the
Hawai'i Wage and Hour Law ("Count I"); violation of the Hawai'i
Payment of Wages and Other Compensation Law ("Count II"); and
violation of Haw. Rev. Stat. Section 481B-14, which also
constitutes an unfair method of competition ("UMOC"), in
violation of Haw. Rev. Stat. Section 480-2 ("Count III"). The
Plaintiffs pray for the following relief: damages, including
unpaid wages; liquidated damages; double or treble damages;
prejudgment interest; attorney's fees and litigation
costs/expenses; and any other appropriate relief.
On Sept. 12, 2017, the Defendants removed this action based on
federal question jurisdiction because either: 1) the Plaintiffs'
claims under Chapters 387 and 388 are wholly dependent on and
require an interpretation of the Fair Labor Standards Act
("FLSA") and the federal tip pooling law and regulations; or 2)
the Plaintiffs' claims under Chapters 387 and 388 are baseless
because there is only a federal remedy for the alleged tip
pooling infractions. The Defendants also assert there is
supplemental jurisdiction over Count III.
The instant Motion followed. The Plaintiffs argue the removal
was improper because they assert claims under Hawai'i law, not
federal law. Even if their claims require the interpretation of
the FLSA, the federal issues are not so substantial as to create
federal question jurisdiction.
The matter came on for hearing on April 2, 2018. On April 30,
2018, the Court issued an entering order ruling on the Motion.
The instant Order supersedes that entering order.
Judge Kobayashi holds that to the extent the Plaintiffs' state
law claims are based upon allegedly improper tip pooling
practices, their claims necessarily raise stated federal issues
that will be "actually disputed" in the case, and that are
"substantial." Further, because Hawai'i does not have any
statute or case law governing tip pooling, the Court may consider
the federal issues in the Plaintiffs' claims without disturbing
any congressionally approved balance of federal and state
judicial responsibilities. The Plaintiffs' claims regarding the
Defendants' tip pooling practice are therefore deemed to arise
under federal law for purposes of federal question jurisdiction.
Federal question jurisdiction, pursuant to Section 1331, exists
over the Plaintiffs' claims regarding the Defendants' tip pooling
practice. Supplemental jurisdiction pursuant to 28 U.S.C.
Section 1367(a), exists over the Plaintiffs' state law claims
that do not implicate federal issues. The Defendants' removal of
the case was therefore proper.
On the basis of the foregoing, Judge Kobayashi denied the
Plaintiffs' Motion to Remand, filed Oct. 12, 2017.
A full-text copy of the Court's May 23, 2018 Order is available
at https://is.gd/cfVwvZ from Leagle.com.
Ellesar M. Trawick, individually and on behalf of all others
similarly situated, Plaintiff, represented by Brandee J. Faria --
bjkfaria@perkinlaw.com -- Perkin & Faria, Camille Fundora --
cfundora@bm.net -- Berger & Montague, P.C., pro hac vice, James
J. Wade -- jwade@perkinlaw.com -- Perkin and Faria LLLC, John F.
Perkin -- perkin@perkinlaw.com -- Perkin & Faria & Sarah R.
Schalman-Bergen -- sschalman-bergen@bm.net -- Berger & Montague,
P.C.
Tri-Star Restaurant Group, LLC, Tri-Star Restaurant Group III,
doing business as Sarento's Top of the "I", Tri-Star Restaurant
Group III, Limited Liability Company & Tri-Star Restaurant Group
IV, LLC, doing business as Nick's Fishmarket, Maui, Defendants,
represented by Christine K.D. Belcaid -- ckd@torkildson.com --
Torkildson Katz Moore Hetherington & Harris & John L. Knorek --
jlk@torkildson.com -- Torkildson Katz Moore Hetherington &
Harris.
UBER TECHNOLOGIES: Ninth Circuit Appeal Filed in "Antman" Suit
--------------------------------------------------------------
Plaintiffs Sasha Antman and Gustave Link filed an appeal from a
court ruling in their lawsuit styled Sasha Antman, et al. v. Uber
Technologies, Inc., Case No. 3:15-cv-01175-LB, in the U.S.
District Court for the Northern District of California, San
Francisco.
As previously reported in the Class Action Reporter, former Uber
driver Sasha Antman sued the ride-hailing company in March 2015,
claiming it failed to secure his personal information in the
attack and took too long to notify drivers their information had
been stolen. The attack led to an attempted theft of his
identity when someone applied for a Capital One credit card in
his name, he claims.
Gustave Link, a second ex-driver added to the lawsuit, claims the
Internal Revenue Service rejected his 2014 tax return because
someone used his stolen information to file a fraudulent return
in his name and to collect his tax refund.
The May 2014 data breach gave an unknown entity access to the
personal information of roughly 50,000 drivers, according to a
statement issued by Uber almost a year later.
The appellate case is captioned as Sasha Antman, et al. v. Uber
Technologies, Inc., Case No. 18-16100, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 9, 2018;
-- Transcript is due on August 7, 2018;
-- Appellants Sasha Antman and Gustave Link's opening brief is
due on September 17, 2018;
-- Appellee Uber Technologies, Inc.'s answering brief is due
on October 17, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants SASHA ANTMAN and GUSTAVE LINK, individually
and on behalf of all others similarly situated, are represented
by:
Robert Rafael Ahdoot, Esq.
Theodore Walter Maya, Esq.
Tina Wolfson, Esq.
AHDOOT & WOLFSON, P.C.
10728 Lindbrook Drive
Los Angeles, CA 90024
Telephone: (310) 474-9111
E-mail: rahdoot@ahdootwolfson.com
tmaya@ahdootwolfson.com
twolfson@ahdootwolfson.com
- and -
Keith A. Custis, Esq.
AHDOOT & WOLFSON, PC
1016 Palm Avenue
West Hollywood, CA 90069
Telephone: (310) 474-9111
E-mail: kcustis@ahdootwolfson.com
Defendant-Appellee UBER TECHNOLOGIES, INC., is represented by:
Thad A. Davis, Esq.
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street
San Francisco, CA 94105
Telephone: (415) 393-8251
E-mail: tdavis@gibsondunn.com
- and -
Joshua A. Jessen, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612
Telephone: (949) 451-3800
E-mail: jjessen@gibsondunn.com
- and -
Julie E. Schwartz, Esq.
James G. Snell, Esq.
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304
Telephone: (650) 838-4490
E-mail: jschwartz@perkinscoie.com
jsnell@perkinscoie.com
UBER TECHNOLOGIES: Latif Appeals Ruling in "Mohamed" Class Suit
---------------------------------------------------------------
Objectors Abdul Latif, et al., filed an appeal from a court
ruling in the lawsuit titled Abdul Mohamed, et al. v. Uber
Technologies, Inc., Case No. 3:14-cv-05200-EMC, in the U.S.
District Court for the Northern District of California, San
Francisco.
The Objectors-Appellants are Bashiruddin Ahmad, Bash Alawdi, Cory
Allen, Humberto Armendariz, Artik Ashish, James Ball, James
Barnes, Samvel Basmajian, Dwayne Baudy, Mark Bella, Fernando
Blanco, Jose Bonilla, Marc Borgens, James Boswell, Harold Brower,
Tina Brown, Robert Burchfield, Hossain Chowdhury, Shawn Clark,
Tiffany Clark, William Clark, David Conrado, Cynthia Contreras,
Don Copeland, Carlos Cortez, Rolf Crudupt, David Cundiff, Sylvia
Danesh, Daniel Dellepiane, Brian Dequinia, Artur Dertsakyan,
Dashawan Devoe, Amadou Diouf, Chafik Djenadi, Felix Droz,
Magallanes Erese, Ali Esmaeilshirazi, Robert Figueroa, Miguel
Flores, Jose Gamez, Joel Garcia, Jose Garcia, Laura Gardner,
Robert Garitano, Robert Garrett, Vazgen Ghazarian, Angel
Gonzalez, Roger Gonzalez, Vito Grandolfo, Joshua Grimes, Darge
Gudura, Alberto Gutierrez, Shadi Hamad, Vahe Hamdilyan, Yoncella
Harris, Sharif Hasan, Mohammad Heidararabi, Jesus. Hernandez,
Sandra Hernandez, Waskar Hernandez, Lawrence Holliday, Debbie
Hunter, Mohamed Hussain, Brandon Jackson, Christopher Jones,
Tracey Jones, Art Kay, Steven Kelly, Margaret Largura, Abdul
Latif, Joseph Leon, Roger Lewis, Angel Lopez, Carlos Lopez,
Kalila Luja, Natisha Lupton, Michael Malloy, Eli Mamea, Anthony
Mangum, Victor Marin, Devin Martin, Lawrence Martin, Pamela
Martin, Will Martin, Arsen Matevosyan, Denise McWherter, Gerardo
Mendoza, Marlene Mendoza, Orlando Mendoza, Melad Mikhail,
Seyedmaziyar Mohsenpoorghzimahale, Daniel Molina, Francisco Mora,
Taqi Naqvi, Samer Nasser, Brent North, Mario Parada, Dreaney
Peaks, Walter Perez, Fateh Perleschi, Arturo Pimentel, Angel
Portillo, Sadeq Raheem, Luis Ramos, Damian Remus, Diego Restrepo,
Rick Ridinger, Richard Rivera, Cynthia Robinson, Ernest Robinson,
Jorge Rodriguez, Chris Romero, Hugo Romero, Mohammadreza Rostama,
Martin Ruiz, Abdourahman Saleh, Moahammad Saleh, Lauren Sebesta,
Eric Serratos, Azima Sharrieff, Emil Sheftolovich, Steven Sidler,
Alexandre Silva, Sureshkumar Sivaloganathan, Gwendolyn Smith,
Michelle Smith, Tiffany Smith, Lawrence Sumpter, Salim Surti,
Eric Swenson, Desiree Taylor, Thamilchelvan Theivendramoorthy,
Daniel Turner, K. C. Uddhab, Karibyan Vardkes, Raul Villa,
Richard Wajda, Anthony Walker, William Wallace, Sylvester
Williams, Sultan Yusufi, Reza Zakikhani, Alejandro Zegarra and
Faisal Zulfi.
As previously reported in the Class Action Reporter, former Uber
contractors Abdul Kadir Mohamed and Ronald Gillette sued Uber in
November 2014, claiming they were suddenly denied access to the
Uber system without reason. Mr. Mohamed claimed Uber told him he
could no longer drive after two years with the company because it
found new information in his background check, which it never
showed him. Mr. Gillette accused Uber of failing to pay
employees promptly upon termination and misclassifying drivers as
independent contractors.
The appellate case is captioned as Abdul Mohamed, et al. v. Uber
Technologies, Inc., Case No. 18-16097, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 9, 2018;
-- Transcript is due on August 6, 2018;
-- Appellants' opening brief is due on September 17, 2018;
-- Appellees Meghan Christenson, Brandon Farmer, Ronald
Gillette, Abdul Kadir Mohamed, Uber Technologies, Inc. and
Shannon Wise's answering brief is due on October 17, 2018;
and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees ABDUL KADIR MOHAMED, individually and on
behalf of all others similarly situated, RONALD GILLETTE, SHANNON
WISE, BRANDON FARMER and MEGHAN CHRISTENSON are represented by:
Robert Rafael Ahdoot, Esq.
Bradley Keith King, Esq.
Theodore Walter Maya, Esq.
Tina Wolfson, Esq.
AHDOOT & WOLFSON, P.C.
10728 Lindbrook Drive
Los Angeles, CA 90024
Telephone: (310) 474-9111
E-mail: RAhdoot@ahdootwolfson.com
bking@ahdootwolfson.com
tmaya@ahdootwolfson.com
twolfson@ahdootwolfson.com
- and -
Laura L. Ho, Esq.
Andrew P. Lee, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
300 Lakeside Drive
Oakland, CA 94612
300 Lakeside Drive
Oakland, CA 94612
Telephone: (510) 763-9800
E-mail: lho@gbdhlegal.com
lee@gbdhlegal.com
- and -
William C. Jhaveri-Weeks, Esq.
JHAVERI-WEEKS LAW
351 California Street, Suite 700
San Francisco, CA 94104
Telephone: (415) 723-2803
E-mail: wjw@jhaveriweeks.com
The Objectors-Appellants are represented by:
Mark Etheredge Burton, Jr., Esq.
AUDET & PARTNERS, LLP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 568-2555
E-mail: mburton@audetlaw.com
Defendant-Appellee UBER TECHNOLOGIES, INC., is represented by:
Theodore J. Boutrous, Jr., Esq.
Theane Evangelis, Esq.
Marcellus A. McRae, Esq.
Brandon Stoker, Esq.
Debra Wong Yang, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7804
E-mail: tboutrous@gibsondunn.com
tevangelis@gibsondunn.com
mmcrae@gibsondunn.com
bstoker@gibsondunn.com
dwongyang@gibsondunn.com
- and -
Joshua S. Lipshutz, Esq.
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street
San Francisco, CA 94105
Telephone: (415) 393-8383
E-mail: jlipshutz@gibsondunn.com
- and -
Dhananjay Manthripragada, Esq.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Telephone: (202) 955-8240
E-mail: dmanthripragada@gibsondunn.com
U & E BRAND: Abrego Seeks Overtime Wages under FLSA
---------------------------------------------------
CAROL MAVEL GUTIERREZ ABREGO, and all others similarly situated,
the Plaintiff, v. U & E BRAND, INC. d/b/a STREET TALK a/d/b/a
TALK N' FIX, a Florida Corporation, YEHUDA UDI YEHEZKEL,
individually, and ELAD YEHEZKEL, individually, the Defendants,
Case No. 1:18-cv-22677-FAM (S.D. Fla., July 3, 2018), seeks to
recover monetary damages, liquidated damages, interests, costs
and attorney's fees for willful violations of overtime wages
under the laws of the United States and the Fair Labor Standards
Act.
According to the complaint, the Plaintiff was not paid overtime
wages when she worked more than 40 hour per week. The Plaintiff
claims the halftime rate for each hour worked over 40 hours
weekly.[BN]
Daniel T. Feld, Esq.
LAW OFFICE OF DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Telephone: (954) 361 8383
E-mail: DanielFeld.Esq@gmail.com
- and -
Isaac Mamane, Esq.
MAMANE LAW LLC
10800 Biscayne Blvd., Suite 350A
Miami, FL 33161
Telephone (305) 773 6661
E-mail: mamane@gmail.com
UNICHEM PHARMACEUTICALS: Faces "Johnson" Suit in N.D. Mississippi
-----------------------------------------------------------------
A class action lawsuit has been filed against Unichem
Pharmaceuticals (USA), Inc. The case is styled as Andrea L.
Johnson, administratrix of the estate of Arthur Lee Johnson,
deceased on behalf of themselves and all others similarly
situated, Plaintiff v. Unichem Pharmaceuticals (USA), Inc., CVS
Mississippi Pharmacy, LLC and CVS Pharmacy, Inc., Defendants,
Case No. 4:18-cv-00140-DMB-JMV (N.D. Miss., July 11, 2018).
Unichem Pharmaceuticals (USA), Inc. is a Pharmaceutical company
in Rochelle Park, New Jersey.[BN]
The Plaintiff is represented by:
Ellis Turnage, Esq.
P. O. Box 216
Cleveland, MS 38732
Tel: (601) 843-2811
Email: eturnage@etlawms.com
UNION PACIFIC: Court Grants Dismissal of "Tinder-Howell"
--------------------------------------------------------
The United States District Court for the District of Nevada
issued an Order of Dismissal in the case captioned CHERYL A.
TINDER-HOWELL, on behalf of herself and all others similarly
situated, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, successor
to SOUTHERN PACIFIC TRANSPORTATION COMPANY, SFPP, L.P. (formerly
known as SANTA FE PACIFIC PIPELINES, INC., formerly known as
SOUTHERN PACIFIC PIPELINES, INC. MORGAN OPERATING L.P. "D", and
KINDER MORGAN G.P., INC., Defendants, Case No. 3:15-cv-00317-LRH-
(VPC) (D. Nev.).
The Plaintiff and Defendants Union Pacific Railroad Company and
SFPP, L.P., Kinder Morgan Operating L.P. D, and Kinder Morgan
G.P., Inc., stipulate to dismiss all claims and counterclaims
asserted by either the Plaintiff or the Defendants with
prejudice.
A full-text copy of the District Court's May 3, 2018 Order is
available at https://tinyurl.com/ybmvxd3j from Leagle.com.
Cheryl A. Tinder-Howell, formerly known as Cheryl A. Howell,
Plaintiff, represented by Andrew G. Giacomini --
agiacomini@hansonbridgett.com -- Hanson Bridgett LLP, pro hac
vice, Angela M. Higgins -- higgins@bscr-law.com -- Baker Sterchi
Cowden & Rice LLC, pro hac vice, Barrett J. Vahle --
vahle@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice,
Ethan M. Lange -- lange@stuevesiegel.com -- Stueve Siegel Hanson
LLP, pro hac vice, John W. Cowden -- cowden@bscr-law.com -- Baker
Sterchi Cowden & Rice LLC, pro hac vice, John T. Cu --
jcu@hansonbridgett.com -- Hanson Bridgett, LLP, pro hac vice,
John R. Sears -- sears@bscr-law.com -- Baker Sterchi Cowden &
Rice LLC, pro hac vice, Nathan A. Metcalf --
nmetcalf@hansonbridgett.com -- Hanson Bridgett, LLP, Norman
Siegel -- siegel@stuevesiegel.com -- Stueve Siegel Hanson LLP,
pro hac vice, Thomas S. Stewart -- Stewart@swm.legal -- Stewart,
Wald & McCulley, LLC, pro hac vice, Elizabeth G. McCulley --
Mcculley@SWM.LEGAL -- Stewart, Wald & McCulley LLC, Francis A.
Bottini -- fbottini@bottinilaw.com -- Bottini & Bottini, Inc.,
pro hac vice, Matthew L. Sharp, Matthew L. Sharp, Ltd., 432 Ridge
St, Reno, NV 89501, Robert C. Maddox, Steven M. Wald, Stewart
Wald & McCulley LLC, pro hac vice & Michael J. Van Zandt --
mvanzandt@hansonbridgett.com -- Hanson Bridgett LLP.
Union Pacific Railroad Co., successor to Southern Pacific
Transportation Company; [107] Consolidated Class Action
Complaint, Defendant, represented by John K. Sherk, III --
jsherk@shb.com -- Shook Hardy & Bacon, LLP, pro hac vice, Tammy
Webb -- tbwebb@shb.com -- Shook Hardy & Bacon LLP, pro hac vice,
Joe Rebein -- jrebein@shb.com -- Shook, Hardy & Bacon, pro hac
vice, Robert J. Flummerfelt -- CanonLawServices@Gmail.com --
Canon Law Services, LLC & Tony M. Diab -tdiab@shb.com -- Shook,
Hardy & Bacon, pro hac vice.
UNION PACIFIC: Court Enters Final Judgment in "Fowler"
------------------------------------------------------
The United States District Court for the Central District of
California, Eastern Division, entered Final Judgment in the case
captioned RICHARD FOWLER and RICK HOLLIS, individually and on
behalf of all others similarly situated, Plaintiffs, v. UNION
PACIFIC RAILROAD COMPANY, a Delaware Corporation; and DOES 1-50,
Defendants, Class Action Case No. 5:17-CV-02451-JGB (SPx)(C.D.
Calif.).
The Court issued an Order granting Defendant Union Pacific
Railroad Company's Motion for Judgment on the Pleadings and
dismissing with prejudice Counts I, II and IV of the Plaintiffs'
First Amended Complaint, as well as those portions of Count V
related to or based on the Plaintiffs' theory that the Defendant
was required to provide rest periods.
Count III and portions of Count V related to the Plaintiffs'
claims regarding late payment of wages under California Labor
Code Section 203 are subject to a proposed settlement agreement,
which the parties intend to submit for final approval by the
Court.
Finding that there is no just cause for delay and that partial
final judgment may be entered under Federal Rule of Civil
Procedure 54(b), these claims are dismissed with prejudice.
A full-text copy of the District Court's May 21, 2018 Judgment is
available at https://tinyurl.com/y8vus4ug from Leagle.com.
Richard Fowler, individually and on behalf of all others
similarly situated & Rick Hollis, Plaintiffs, represented by
Craig J. Ackermann -- cja@ackermanntilajef.com -- Ackermann and
Tilajef PC, David S. Winston -- david@employmentlitigators.com --
Winston Law Group, P.C., Jonathan Melmed -- jm@melmedlaw.com --
Melmed Law Group PC & Sam Vahedi -- cja@ackermanntilajef.com --
Ackermann and Tilajef PC.
Union Pacific Railroad Company, a Delaware corporation,
Defendant, represented by Amanda C. Sommerfeld --
asommerfeld@jonesday.com -- Jones Day, Donald J. Munro -
dmunro@jonesday.com -- Jones Day, pro hac vice & Koree Blyleven -
- kblyleven@jonesday.com -- Jones Day.
UNITED COLLECTION: "Allberry" Suit Alleges FDCPA Violation
----------------------------------------------------------
Loretta A. Allberry, on behalf of herself and all others
similarly situated v. United Collection Bureau, Inc., Case No.
2:18-cv-03727 (E.D. N.Y., June 27, 2018), is brought against the
Defendant for violation of the Fair Debt Collection Practices
Act.
The Plaintiff resides at 228 Hudson Avenue, Lake Grove, NY 11755.
The Defendant UCB is an Ohio Domestic Business Corporation and a
New York Foreign Business Corporation with a principal business
address of 5620 Southwyck Boulevard, Toledo, OH 43614. The
Defendant operates as a debt collection agency. [BN]
The Plaintiff is represented by:
Mitchell L. Pashkin, Esq.
775 Park Avenue, Suite 255
Huntington, NY 11743
Tel: (631) 335-1107
UNITED STATES: Derivative Membership in ABC Class Denial Upheld
---------------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, affirmed the
District Court's judgment granting Defendant's Motion to Dismiss
the case captioned ERLIN TORRES RAMIREZ, Plaintiff-Appellant, v.
UNITED STATES OF AMERICA; UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, Defendants-Appellees, No. 16-56727 (9th
Cir.).
Erlin Torres Ramirez disputes the determination of the United
States Citizenship and Immigration Services (USCIS) that he is
not eligible for benefits under the class action settlement
approved in American Baptist Churches v. Thornburgh (ABC), 760
F.Supp. 796 (N.D. Cal. 1991). The district court granted the
Government's motion to dismiss, and Torres Ramirez appeals.
Torres Ramirez is not a member of the ABC class because it
included only "all Salvadorans in the United States as of
September 19, 1990" and "all Guatemalans in the United States as
of October 1, 1990." Torres Ramirez acknowledges he did not
enter the United States until 1994.
Torres Ramirez therefore seeks derivative membership in the class
on the basis of his mother's asylum application, on which he
claims to have been named as a derivative beneficiary, under the
Nicaraguan Adjustment and Central American Relief Act (NACARA),
That claim fails, however, because he does not allege that his
mother ever qualified and received benefits as a member of that
class. The district court correctly noted that Torres Ramirez
only alleges he was 15 years old at the time the application was
filed.
A full-text copy of the Ninth Circuit's May 21, 2018 Memorandum
is available at https://tinyurl.com/y7djj9sk from Leagle.com.
UNITED STATES: Padilla et al. Sue over Immigration Policies
-----------------------------------------------------------
YOLANY PADILLA; IBIS GUZMAN; and BLANCA ORANTES, individually and
on behalf of all others similarly situated, Plaintiffs-
Petitioners v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE");
U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND
BORDER PROTECTION ("CBP"); U.S. CITIZENSHIP AND IMMIGRATION
SERVICES ("USCIS"); U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
("HHS"); OFFICE OF REFUGEE RESETTLEMENT ("ORR"); THOMAS HOMAN,
ACTING DIRECTOR OF ICE; KIRSTJEN NIELSEN, SECRETARY OF DHS; KEVIN
K. MCALEENAN, ACTING COMMISSIONER OF CBP; L. FRANCIS CISSNA,
DIRECTOR OF USCIS; ALEX M. AZAR II, SECRETARY OF HHS; SCOTT
LLOYD, DIRECTOR OF ORR; AND MARC J. MOORE, SEATTLE FIELD OFFICE
DIRECTOR, ICE, Defendants-Respondents, Case No. 2:18-cv-928 (W.D.
Wash., June 25, 2018) is an action challenging the United States
government's forcible separation of parents from their minor
children for no legitimate reason and notwithstanding the threat
of irreparable psychological damage that separation causes
children.
According to the complaint, the Plaintiffs are parents who
entered the United Sates with their children seeking asylum. In
May 2018, the federal immigration authorities took their children
away from them and then transferred the Plaintiffs to immigration
detention in Washington State, thousands of miles from their
children. The Defendants have refused to release them or even
allow them to be reunited with their children during the pendency
of their civil immigration proceedings.
U.S. Immigration and Customs Enforcement (ICE) enforces federal
laws governing border control, customs, trade and immigration to
promote homeland security and public safety. ICE was created in
2003 through a merger of the investigative and interior
enforcement elements of the former U.S. Customs Service and the
Immigration and Naturalization Service. [BN]
The Plaintiffs are represented by:
Matt Adams, Esq.
Glenda M. Aldana Madrid, Esq.
Leila Kang, Esq.
NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Telephone: (206) 957-8611
(206) 957-8646
E-mail: matt@nwirp.org
glenda@nwirp.org
leila@nwirp.org
UNIVERSAL INSURANCE: Petitions for Writ of Certiorari Filed
-----------------------------------------------------------
The Plaintiffs in the lawsuit styled Best Auto Repair, Inc., et
al. v. Universal Insurance Group, et al., Case No. 17-1609, file
with the Supreme Court of the United States their petitions for a
writ of certiorari.
Responses were due on June 28, 2018.
The Lower Court Case is titled BEST AUTO REPAIR SHOP, INC.; ELVIS
MARTINEZ-EVANGELISTA Plaintiffs-Appellants and MARIA BETANCOURT-
BORIA, Plaintiff v. UNIVERSAL INSURANCE GROUP; UNIVERSAL
INSURANCE COMPANY; CARIBBEAN ALLIANCE INSURANCE COMPANY; EASTERN
AMERICA INSURANCE COMPANY; JUANITA ORTIZ; JOHN DOE; JANE DOE,
Defendants-Appellees, Case No. 16-1549, in the United States
Court of Appeals for the First Circuit.
The issue raised to the Supreme Court arises from the First
Circuit's decision entered on January 12, 2018, denying the
Plaintiffs' petition for rehearing and the petition for rehearing
en banc.
Plaintiffs Best Auto and Elvis Martinez-Evangelista appealed the
District Court's denial of their motion for reconsideration of
the District Court's grant of summary judgment dismissing all of
their claims in their lawsuit entitled BEST AUTO REPAIR SHOP,
INC., et al. v. UNIVERSAL INSURANCE GROUP, et al., Case No. 11-
2160 (PAD), in the U.S. District Court for the District of Puerto
Rico.
The Plaintiffs brought suit in the District Court against various
insurance companies and certain of those companies' employees --
including Juanita Ortiz -- pursuant to 42 U.S.C. Section 1981 and
Puerto Rico law. With respect to Section 1981, the suit alleges
that these Defendants had unlawfully interfered with the
Plaintiffs' right to "make or enforce" existing and prospective
contracts with the Defendants' insureds or third-party claimants.
Specifically, the suit alleges that these Defendants had
discriminated against Mr. Martinez and his business, Best Auto,
by excluding Best Auto as a repair shop for which the insurance
companies would reimburse repairs by their insureds or third-
party claimants, because he is black and Dominican.[BN]
Plaintiffs-Petitioners Elvis Martinez, et al., are represented
by:
Carlos Martin Sanchez, Esq.
SANCHEZ LA COSTA LAW
P.O. Box 9023027
San Juan, PR 00902
Telephone: (787) 729-4646
Facsimile: (787) 725-7272
E-mail: csanchez@sanchezlawpr.com
Defendants-Appellees UNIVERSAL INSURANCE GROUP, et al., are
represented by:
Juan J. Casillas-Ayala, Esq.
Israel Fernandez-Rodriguez, Esq.
CASILLAS, SANTIAGO & TORRES, LLC
53 Calle Palmeras, Suite 1601
San Juan, PR 00901-2419
Telephone: (787) 523-3434
Facsimile: (787) 523-3433
E-mail: jcasillas@cstlawpr.com
irernandez@cstlawpr.com
UNO RESTAURANT: Court Denies Certification of Bussers' Class
------------------------------------------------------------
The United States District Court, Southern District of Florida,
denies Plaintiff Jose Santos Alvarez's motions to conditionally
certify a collective action under 29 U.S.C. Section 216(b) in the
case captioned Jose Santos Alvarez, Plaintiff, v. Uno Restaurant
Associates, Inc. d/b/a Prime Italian and Myles Chefetz,
Defendants, Civil Action No. 17-24452-Civ-Scola (S.D. Fla.).
Alvarez worked as a busser for the Defendants in a restaurant
called Prime Italian in Miami Beach, Florida. He seeks, on behalf
of himself and others similarly situated, unpaid minimum wages
and overtime wages, liquidated damages, and a declaration of
rights. Alvarez brings certain claims on behalf of a proposed
FLSA collective action and others on behalf of a purported Rule
23 class.
Here, Alvarez asks the Court to certify an opt-in class comprised
of:
All bussers and servers (tipped employees) who worked for
the Defendants during the three (3) years preceding this lawsuit
and who, as a result of the Defendants' policy of requiring them
to share their tips with non-tipped employees, earned less than
the applicable minimum regular and overtime wage for one or more
weeks during the Relevant Time Period.
Alvarez claims that there are similarly-situated employees who
would want to opt into the class. He submits his own affidavit
and the affidavit of a former employee of the Defendants and opt-
in Plaintiff, Melvis Garcia, who was employed as a busser for the
Defendants.
In opposing Alvarez's motion, the Defendants argue that Alvarez
has failed to demonstrate that there are similarly-situated
employees who would want to join the class. They assert that
Alvarez's supporting affidavits fail to provide sufficient detail
about the alleged violations and how the alleged class members
are similarly situated, especially given that Alvarez wants to
include servers and bussers in the same class.
The Court holds that although the standard at this stage is
lenient, Alvarez has failed to meet it. The Court recognizes that
other courts have conditionally certified collective actions
based on only a handful of affidavits. However, it is not the
number of the affidavits that necessarily triggers conditional
certification, but instead the content of them that matters.
Neither the complaint nor the two affidavits Alvarez relies on
provide a reasonable basis for the Court to conditionally certify
a class and facilitate notice to them.
Importantly, Alvarez's complaint and his supporting affidavits
are devoid of any detail explaining how bussers and servers are
similarly situated and say nothing about the respective job
duties associated with either position. Alvarez also fails to
provide any evidence that a server would want to join the class
since no server has filed an affidavit or consent to join the
class.
It is not enough that Alvarez and the purported class members
were tipped employees who served restaurant patrons. Even if the
Court were to find that the complaint's allegations and
affidavits provide enough information to support that the
conclusion that Alvarez and the other tipped employees were
subject to the same payment provisions and alleged wrongs,
Alvarez has not provided the Court with enough information about
how the proposed class members are similarly situated.
Based on the information provided by Alvarez thus far, the Court
must deny his motion for conditional class certification and
notice.
Alvarez also asks the Court to certify a class comprised of:
All bussers and servers (tipped employees) who worked for
Defendants during the five (5) years preceding this lawsuit and
who, as a result of Defendants' policy of requiring them to share
their tips with non-tipped employees, earned less than the
applicable minimum wage for one or more weeks during the Relevant
Time Period.
The Defendants assert that Alvarez fails to meet any of Rule 23's
threshold requirements, so his motion to certify a class should
be denied.
Numerosity
Alvarez claims that the proposed class is estimated to be between
28 and 36 individuals, including himself, and that the numerosity
requirement of Rule 23(a)(1) is met because other factors, such
as the fact that this case arises from a restaurant context in
which there are generally high employee turnover rates, and that
the class members may be reluctant to sue for fear of being
black-listed, make joinder impractical. Even assuming that this
range represents an accurate count, the Court is not convinced
that joinder would be impractical. First, there is no evidence
that the proposed class members are geographically dispersed. In
fact, Alvarez does not argue that they are. The only evidence
present in the record suggests that the Defendants' restaurant
likely does not suffer from such turnover problems, as indicated
by the fact Alvarez and the employees who submitted affidavits on
the Defendants' behalf have worked at the restaurant for years,
making it that much easier to have the relevant employees join a
suit. Alvarez's unsupported claim that the class members may fear
being blacklisted or suffer from retaliation is insufficiently
convincing to meet the numerosity requirement.
Therefore, the Court finds that even the first Rule 23(a) factor
is not met. There is no basis for the numbers Alvarez provided to
the Court, and even taking those numbers at face value, the other
relevant factors indicate that joinder would not be impractical.
Commonality
Alvarez argues that there are common questions concerning whether
all servers and bussers were required to share their tips with
non-tipped employees and to participate in an improper tip pool.
Alvarez cites to his and Garcia's affidavits in support, and
makes no attempt to consider whether common answers will arise.
The Defendants respond with numerous bases for finding that the
Alvarez's proposed class does not satisfy the commonality
requirement set forth in Rule 23(a)(2). In particular, they argue
that their evidence indicates that there was no policy that
required bussers or servers to share their tips with non-tipped
employees, and that there are questions that would not generate
common answers, such as whether tipped employees were sharing
their tips voluntarily.
The Court concludes that Alvarez has failed to present sufficient
evidence to demonstrate that all of the purported class members
have suffered the same injury and that common answers will result
from a class action. First, Alvarez provides little detail about
how the Defendants "required" the tipped employees to share their
tips with non-tipped employees and how all class members were
impacted in the same way. The complaint and Alvarez's supporting
affidavits also do not account for the differing positions within
the class or the fact that there were no stockers employed at the
restaurant after 2015. This lack of information requires the
Court to conclude that Alvarez has not established that there is
a common injury presented by the purported class.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/y7nhc6e4 from Leagle.com.
JOSE SANTOS ALVAREZ, on behalf of himself and others similarly
situated & MELVIS GARCIA, Plaintiffs, represented by Robert
William Brock, II, Law Office of Lowell J. Kuvin.
UNO RESTAURANT ASSOCIATES, INC., a Florida for-profit corporation
& MYLES CHEFETZ, an individual, Defendants, represented by Jacob
Karl Auerbach, Gallup Auerbac.
US AIRWAYS: Angeles Appeals N.D. Calif. Decision to Ninth Circuit
-----------------------------------------------------------------
Plaintiffs Joseph Timbang Angeles and Noe Lastimosa filed an
appeal from a court ruling entered in their lawsuit styled Joseph
Angeles, et al. v. US Airways, Inc., Case No. 3:12-cv-05860-CRB,
in the U.S. District Court for the Northern District of
California, San Francisco.
The appellate case is captioned as Joseph Angeles, et al. v. US
Airways, Inc., Case No. 18-16096, in the United States Court of
Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, the
Plaintiffs filed an appeal from a court ruling in their lawsuit.
That appellate case is titled JOSEPH TIMBANG ANGELES and NOE
LASTIMOSA, individually and on behalf of others similarly
situated v. US AIRWAYS, INC., Case No. 17-15440.
The lawsuit arises from allegations made by unionized fleet
service workers employed by US Airways at the San Francisco
International Airport. In a complaint certified as a class-
action lawsuit, some 554 full- and part-time fleet service
workers allege they have been stiffed out of overtime pay and
meal breaks by their employer. According to California labor
code, workers are legally entitled to meal breaks and overtime
pay.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 13, 2018;
-- Transcript is due on August 13, 2018;
-- Appellants Joseph Timbang Angeles and Noe Lastimosa's
opening brief is due on September 21, 2018;
-- Appellee US Airways, Inc.'s answering brief is due on
October 22, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants JOSEPH TIMBANG ANGELES and NOE LASTIMOSA,
on behalf of themselves and on behalf of others similarly
situated, and the general public, are represented by:
Arlo Garcia Uriarte, Esq.
LIBERATION LAW GROUP
2760 Mission Street
San Francisco, CA 94110
Telephone: (415) 695-1000
Facsimile: (415) 695-1006
E-mail: arlo@liberationlawgroup.com
Defendant-Appellee US AIRWAYS, INC., is represented by:
Adam P. KohSweeney, Esq.
O'MELVENY & MYERS LLP
Two Embarcadero Center
San Francisco, CA 94111
Telephone: (415) 984-8700
Facsimile: (415) 984-8701
E-mail: akohsweeney@omm.com
- and -
Robert Alan Siegel, Esq.
O'MELVENY & MYERS LLP
400 South Hope Street, 18th Floor
Los Angeles, CA 90071
Telephone: (213) 430-6005
E-mail: rsiegel@omm.com
VIRGINIA: 4th Cir. Reverses "Stinnie" Dismissal
-----------------------------------------------
In the case, DAMIAN STINNIE, Individually, and on behalf of all
others similarly situated; DEMETRICE MOORE, Individually, and on
behalf of all others similarly situated; ROBERT TAYLOR,
Individually, and on behalf of all others similarly situated;
NEIL RUSSO, Individually, and on behalf of all others similarly
situated, Plaintiffs-Appellants, v. RICHARD D. HOLCOMB, in his
official capacity as the Commissioner of the Virginia Department
of Motor Vehicles, Defendant-Appellee. THE INSTITUTE FOR JUSTICE;
LAW PROFESSORS; VIRGINIA STATE CONFERENCE OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; ALABAMA
APPLESEED CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF VIRGINIA; CENTER FOR CIVIL JUSTICE; CENTER
FOR JUSTICE; COLORADO CENTER ON LAW AND POLICY; EQUAL JUSTICE
UNDER LAW; FLORIDA LEGAL SERVICES, INC.; KANSAS APPLESEED CENTER
FOR LAW AND JUSTICE; LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER
LAW; MISSISSIPPI CENTER FOR JUSTICE; NATIONAL CENTER FOR LAW AND
ECONOMIC JUSTICE; NORTH CAROLINA JUSTICE CENTER; PUBLIC JUSTICE
CENTER; SOUTH CAROLINA APPLESEED CENTER FOR LAW AND JUSTICE;
TEXAS APPLESEED; TZEDEK DC; WASHINGTON LAWYERS' COMMITTEE OF
CIVIL RIGHTS AND URBAN AFFAIRS; WESTERN CENTER OR LAW & POVERTY,
Amici Supporting Appellant, Case No. 17-1740 (4th Cir.), Judge
Henry Franklin Floyd of the U.S. Court of Appeals for the Fourth
Circuit (i) dismissed the Plaintiffs' appeal from the district
court's order dismissing their case without prejudice; and (ii)
remanded the case to the district court with instructions to
allow the Plaintiffs to amend their complaint.
In their complaint, the Plaintiffs alleged that they are indigent
Virginia residents who have had their driver's licenses suspended
for failure to pay court costs and fines imposed following their
convictions. They filed suit individually and on behalf of a
class of additional unnamed Plaintiffs similarly situated against
Virginia Department of Motor Vehicles ("DMV") Commissioner
Holcomb seeking declaratory and injunctive relief.
Notwithstanding the language of Virginia Code Section 46.2-395(B)
-- providing that the "court will forthwith suspend" the driver's
licenses -- the Plaintiffs alleged that it is the DMV, not the
state court, that actually implements and issues the orders of
suspension. Further, they alleged that to remove the license
suspensions, they have to pay the amount owed to the court or
establish an acceptable payment plan, and pay a reinstatement fee
to the DMV. Accordingly, the Plaintiffs claimed that Virginia
Code Section 46.2-395 violates the Due Process and Equal
Protection clauses. They asserted that it unfairly punishes them
for being poor, and traps them in a catch-22 because they do not
have money to pay court costs, they do not have driver's
licenses, and because they do not have driver's licenses, they
are unable to obtain employment which would allow them to pay the
court costs.
The Commissioner filed a motion to dismiss the complaint, and the
district court granted his motion without prejudice. It
concluded that it lacked jurisdiction over the claims against the
Commissioner because the claims were barred by the Rooker-Feldman
doctrine, the Commissioner was entitled to Eleventh Amendment
immunity, and the Plaintiffs lacked standing. In granting the
motion to dismiss, the district court was careful to note that it
may be possible to reconstitute the Plaintiffs' claims in a form
and against a defendant such that a lower federal court would
have jurisdiction.
The Plaintiffs then filed a Rule 59 and Rule 60 motion for
reconsideration, along with several supporting exhibits
purporting to demonstrate the court's jurisdiction. The
Commissioner opposed this motion, and filed a motion to strike
the exhibits. The district court denied the motion for
reconsideration and granted the motion to strike. The appeal
followed.
The Commissioner argues that the Court lacks jurisdiction to
consider the Plaintiffs' appeal because the district court's
dismissal without prejudice was not a final order. Judge Floyd
agrees. He explains that the grounds of the dismissal make clear
that no amendment could cure the defects in the plaintiff's case,
the order dismissing the complaint is final in fact and therefore
appealable, but a plaintiff may not appeal the dismissal of his
complaint without prejudice unless the grounds for dismissal
clearly indicate that no amendment in the complaint could cure
the defects in the plaintiff's case.
The Plaintiffs argue that the district court's dismissal was a
final order because it dismissed their "case" without prejudice
rather than merely dismissing their "complaint." The Court has
noted that whether the grounds of the dismissal make clear that
no amendment could cure the defects in the plaintiff's case, such
that the order dismissing the complaint is final in fact and
appellate jurisdiction exists. Thus, he says, the district
court's dismissal of the "case" without prejudice is not
dispositive of the Court's inquiry.
Finally, the Judge finds that although the parties disagree as to
whether the district court erred in its legal analysis in
granting the Commissioner's motion to dismiss, allowing appellate
jurisdiction to rest on an argument that the district court had
applied an improper legal analysis would paradoxically require
the Court to assess the merits of the district court's decision
in order to determine whether the Court has jurisdiction to do
so. Therefore, he expresses no opinion as to the correctness of
the district court's decision.
Because he concludes that that the Plaintiffs may be able to cure
the deficiencies identified by the district court by amending
their complaint, he concludes that the district court's dismissal
without prejudice was not a final, appealable order and that the
Court lacks appellate jurisdiction.
For the foregoing reasons, Judge Floyd dismissed the Plaintiffs'
appeal and remanded the case.
A full-text copy of the Court's May 23, 2018 Opinion is available
at https://is.gd/1Pl7Y7 from Leagle.com.
ARGUED: Tennille Jo Checkovich -- tcheckovich@mcguirewoods.com --
MCGUIREWOODS LLP, Richmond, Virginia, for Appellants.
Trevor Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
ON BRIEF: Jonathan T. Blank -- jblank@mcguirewoods.com --
MCGUIREWOODS LLP, Charlottesville, Virginia; Angela A. Ciolfi --
angela@justice4all.org -- Patrick S. Levy-Lavelle --
pat@justice4all.org -- Mario D. Salas -- mario@justice4all.org --
LEGAL AID JUSTICE CENTER, Charlottesville, Virginia; Leslie
Kendrick -- kendrick@virginia.edu -- UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellants.
Mark R. Herring, Attorney General, Matthew R. McGuire, Acting
Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.
William R. Maurer -- wmaurer@ij.org -- Bellevue, Washington,
Jeffrey Redfern -- jredfern@ij.org -- INSTITUTE FOR JUSTICE,
Arlington, Virginia, for Amicus The Institute for Justice.
Frederick Liu, HOGAN LOVELLS US LLP, Washington, D.C., for Amici
Law Professors.
Cynthia Cook Robertson -- cynthia.robertson@pillsburylaw.com --
Robert C.K. Boyd -- robert.boyd@pillsburylaw.com -- Washington,
D.C., Thomas V. Loran III -- thomas.loran@pillsburylaw.com --
PILLSBURY WINTHROP SHAW PITTMAN LLP, San Francisco, California,
for Amici The Virginia State Conference of the National
Association for the Advancement of Colored People, Alabama
Appleseed Center for Law and Justice, American Civil Liberties
Union Foundation of Virginia, Center for Civil Justice, Center
for Justice, Colorado Center on Law and Policy, Equal Justice
Under Law, Florida Legal Services, Inc., Kansas Appleseed Center
for Law and Justice, Lawyers' Committee for Civil Rights Under
Law, Mississippi Center for Justice, National Center for Law and
Economic Justice, North Carolina Justice Center, Public Justice
Center, South Carolina Appleseed Center for Law and Justice,
Texas Appleseed Center for Law and Justice, Tzedek DC, Washington
Lawyers' Committee for Civil Rights and Urban Affairs, and
Western Center on Law & Poverty.
WENNER MEDIA: Settlement in "Sullivan" Suit Has Final Approval
--------------------------------------------------------------
In the case, KYLE SULLIVAN and JEANNE SLOAN, individually and on
behalf of all others similarly situated, Plaintiffs, v. WENNER
MEDIA LLC, a Delaware corporation, Defendant, Case No. 1:16-cv-
00960-JTN-ESC (w.D. Mich.), Judge Janet T. Neff of the U.S.
District Court for the Western District of Michigan granted the
Representative Plaintiffs' motion for final approval of the
proposed class settlement.
On Dec. 19, 2017, the Court granted preliminary approval to the
proposed Settlement between Representative Plaintiffs and the
Defendant. The proposed Settlement resolves all of the
Settlement Class' claims against the Defendant in exchange for
the latter's agreement to provide certain monetary and non-
monetary relief to the Settlement Class Members as set forth in
the Agreement.
On May 22, 2018, the Court held a Settlement Hearing to consider
whether to grant final approval to the Settlement and to consider
the Class Counsel's application for an award of attorneys' fees
and costs, and Incentive Award to the Representative Plaintiffs.
The Court heard argument from the counsel in support of the
Settlement and/or the Fee Application.
Having read, reviewed and considered the papers filed in support
of final approval of the Settlement, including supporting
declarations, oral arguments of counsel, Class Counsel's Fee
Application, the Agreement, and the pleadings, Judge Neff entered
the Settlement Order and Final Judgment, which constitutes a
final adjudication on the merits of all claims of the Settlement
Class.
The Judge granted final approval to the Settlement. She
confirmed the proposed Settlement Class satisfies the
requirements of Fed. R. Civ. P. 23, as found in the Court's Order
Granting Preliminary Approval of Class Action Settlement.
Accordingly, she made final the conditional class certification
set forth in the Preliminary Approval Order.
She dismissed with prejudice all claims of members of the
Settlement Class against the Defendant that arise out of or
relate in any way to disclosure of the Settlement Class Members'
personal information.
As an incentive payment in compensation for the time, effort, and
risk they undertook as representatives of the Settlement Class,
the Judge awarded $ 5,000 each to Kyle Sullivan and Jeanne Sloan;
and approved the Class Counsel's Fee and Cost Application and
awarded to the Class Counsel fees and costs in the total
aggregate amount of $300,000. All such fees and costs are in
lieu of statutory fees and costs that the Representative
Plaintiffs and/or the Settlement Class might otherwise have been
entitled to recover.
The Defendant will pay the fee and cost award to the Class
Counsel and the Service Award to the Representative Plaintiffs,
as well as amounts due to eligible Settlement Class Members who
timely filed a claim under the Agreement, in accordance with and
at the times prescribed by the Agreement.
A full-text copy of the Court's May 22, 2018 Settlement Order and
Final Judgment is available at https://is.gd/J65IjG from
Leagle.com.
Kyle Sullivan & Jeanne Sloan, plaintiffs, represented by Daniel
O. Myers -- dmyers@domlawoffice.com -- The Law Offices of Daniel
O. Myers & Gary F. Lynch -- glynch@carlsonlynch.com -- Carlson
Lynch LTD.
Wenner Media LLC, a Delaware Corporation, defendant, represented
by J. Michael Huget -- mhuget@honigman.com -- Honigman Miller
Schwartz and Cohn LLP, Sarah Elizabeth Waidelich --
swaidelich@honigman.com -- Honigman Miller Schwartz and Cohn LLP
& Sharon L. Schneier -- sharonschneier@dwt.com -- Davis Wright
Tremaine LLP.
Facilitative Mediator, mediator, represented by Jed Melnick --
jmelnick@jamsadr.com -- JAMS.
WHIRLPOOL CORP: "Parsons" Transferred to N.D. Fla.
--------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, granted Defendant's Motion to
Transfer Venue of the case captioned JAMES PARSONS and DEBRA
PARSONS, Plaintiffs, v. WHIRLPOOL CORPORATION and ECOWATER
SYSTEMS LLC a/k/a ECODYNE, Defendants, Case No. 17-13561 (E.D.
Mich.).
The Defendants have moved to dismiss this action for lack of
personal jurisdiction and improper venue, and request in the
alternative that this Court transfer the action to the Northern
District of Florida.
Plaintiffs James and Debra Parsons allege that they suffered
property damage when their home was flooded due to a latent
defect in a water filtration system designed and manufactured by
Defendant Whirlpool Corporation (Whirlpool) and Defendant
EcoWater Systems LLC (EcoWater).
The Court finds that venue is not proper in the Eastern District
of Michigan. The Plaintiffs, who reside in Tennessee, have
alleged that they purchased the system in Florida, that it failed
after it was installed in their residential property in Florida,
and that it therefore caused them damages in Florida as well. In
their Response to the Defendants' Rule 12(b)(2)-(3) Motion, the
Plaintiffs identify three connections between their claims and
the state of Michigan: (1) the trademark licensing agreement
between EcoWater and Whirlpool; (2) the fact that EcoWater placed
its products in the national stream of commerce; and (3) the fact
that EcoWater maintains an interactive website that is accessible
to Michigan residents.
Only the first of these three asserted factors, EcoWater's
trademark licensing agreement with Whirlpool, is particular to
Michigan. It is undisputed that Whirlpool's principal place of
business is in Benton Harbor, Michigan. Benton Harbor is located
in Berrien County, Michigan and Berrien County is within the
Southern Division of the Western District of Michigan. Thus, the
only Michigan-specific connection that the Plaintiffs have shown
or alleged is to a location outside of the Eastern District of
Michigan.
Regardless of whether personal jurisdiction could be exercised
over EcoWater by the courts of Michigan (and therefore by the
federal courts that sit in Michigan) in this action, venue is not
proper in the Eastern District of Michigan.
The Court, accordingly, grants Defendants' motion to transfer
venue to the Northern District of Florida.
A full-text copy of the District Court's May 21, 2018 Opinion and
Order is available at https://tinyurl.com/y7r6pnrw from
Leagle.com.
James Parsons & Debra Parsons, Plaintiffs, represented by
Mitchell M. Breit -- mbreit@simmonsfirm.com -- Simmons Hanly
Conroy, LLP, Dennis A. Lienhardt -- dal@miller.law -- The Miller
Law Firm, P.C., Gregory F. Coleman, Greg Coleman Law PC, Mark E.
Silvey, Greg Coleman Law PC, Sharon S. Almonrode --
ssa@miller.law -- The Miller Law Firm, P.C. & E. Powell Miller --
epm@miller.law -- The Miller Law Firm.
Whirlpool Corporation, Defendant, represented by Edward A.
Salanga -- edward.salanga@quarles.com -- Quarles & Brady LLP &
Nicholas B. Gorga -- ngorga@honigman.com -- Honigman, Miller.
EcoWater Systems LLC, also known as, Defendant, represented by
Edward A. Salanga, Quarles & Brady LLP, Lynnyetta O. Keller --
lkeller@honigman.com -- Honigman Miller Schwartz and Cohn LLP &
Nicholas B. Gorga, Honigman, Miller.
WILLIAMS-SONOMA: "Rushing" Suit Moved to E.D. Kentucky
------------------------------------------------------
The class action lawsuit titled William Rushing, Individually &
on Behalf of all Others Similarly Situated, the Plaintiff, v.
Williams-Sonoma, Inc., doing business as: Williams-Sonoma, doing
business as: Williams-Sonoma Home, doing business as: Pottery
Barn a Delaware corporation; Williams-Sonoma Advertising, Inc., a
California Corporation, and John and Jane Does 1-30, the
Defendants, and The Pond Lady, LLC, the Movant, Case No. 3:16-cv-
1421, was transferred from the U.S. District Court for Northern
District of California to the U.S. District Court for the Eastern
District of Kentucky (Lexington) on June 21, 2018. The Eastern
District of Kentucky District Court Clerk assigned Case No. 5:18-
cv-00420-CHB to the proceeding. The case is assigned to the Hon.
Judge Claria Horn Boom.
Williams-Sonoma, Inc., is an American publicly traded consumer
retail company that sells kitchenwares and home furnishings. It
is headquartered in San Francisco, California, United States.[BN]
Attorneys for Plaintiff:
Amber Eck, Esq.
ZELDES HAEGGQUIST & ECK - SAN DIEGO
225 Broadway, Suite 2050
San Diego, CA 92101
Telephone: (619) 342 8000
- and -
Audra Petrolle, Esq.
Kathryn Honecker, Esq.
ROSE LAW GROUP, PC - AZ
7144 E. Stetson Drive, Suite 300
Scottsdale, AZ 85251
Telephone: (480) 505 3936
- and -
George Richard Baker, Esq.
BAKER LAW, PC - L.A.
436 N. Stanley Avenue
Los Angeles, CA 90036
Telephone: (323) 452 9685
Attorneys for Defendants:
Benjamin O. Aigboboh, Esq.
Eric J. DiIulio, Esq.
P. Craig Cardon, Esq.
SHEPPARD MULLIN RICHTER &
HAMPTON LLP SAN FRANCISCO
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111
Telephone: (415) 434 9100
Facsimile: (415) 434 3947
Attorneys for Pond Lady, LLC:
Scott T. Rickman, Esq.
MORGAN & POTTINGER, P.S.C. - LEXINGTON
175 E. Main Street, Suite 200
Lexington, KY 40507
Telephone: (859) 226 5282
Facsimile: (859) 255 2038
E-mail: str@m-p.net
WINN-DIXIE STORES: Loses Bid for Attorney's Fees in "Magee" Suit
----------------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana denied Defendant's Motion for Attorney's Fees in the
case captioned SCOTT MAGEE, on behalf of himself and all others
similarly situated, v. WINN-DIXIE STORES, INC., SECTION "R" (4),
Civil Action No. 17-8063 (E.D. La.).
The Plaintiff filed a class action complaint asserting violations
of the Americans with Disabilities Act (ADA). The complaint
alleged that the plaintiff attempted to use a water refill
station at the Winn-Dixie store located at 211 Veterans Memorial
Boulevard in Metairie, Louisiana. The Plaintiff alleged that he
was unable to use the water refill station during this visit
because the station did not utilize any braille markings or other
non-visual means for the plaintiff to interact with the machine.
The Defendant moves for attorneys' fees under the ADA's fee-
shifting provision.
The Defendant first argues that a fee award is warranted because
the plaintiff wrongly asserted that no braille was present on the
water refill station when he attempted to use the machine.
In its motion to dismiss, the defendant offered evidence for the
first time that the water refill station was outfitted with at
least some braille stickers at the time of the plaintiff's
alleged August 2017 visit. There is no indication in the record
that the defendant communicated this information to the plaintiff
before filing its motion. The Court granted the motion, and
dismissed the complaint. The Plaintiff did not have the
opportunity to press his claim any further, and the defendant has
therefore not shown that he unreasonably continued to litigate
after receiving notice that his claim was groundless.
Although the Court has reservations regarding the conduct of the
plaintiff and his counsel in this matter, the defendant has not
met the high bar to show that the plaintiff's suit was frivolous,
unreasonable, or groundless, or that he continued to litigate
after it clearly became so. The Court thus denies the defendant's
request for attorneys' fees under the ADA.
The Defendant also asks the Court to award attorneys' fees under
28 U.S.C. Section 1927 and the Court's inherent power.
The Court may also impose attorneys' fees as part of its inherent
power to sanction bad faith and vexatious conduct. But the Court
should ordinarily rely on its inherent power only when neither
the statute nor the Rules are up to the task. The ADA's fee-
shifting provision directly addresses the award of attorneys'
fees in frivolous suits, and the Court declines to impose
sanctions under its inherent power.
A full-text copy of the District Court's May 3, 2018 Order and
Reasons is available at https://tinyurl.com/y7y98d5o from
Leagle.com.
Scott Magee, individually and on behalf of all others similarly
situated, Plaintiff, represented by Roberto L. Costales --
costaleslawoffice@gmail.com -- Costales Law Office, Emily
Westermeier -- emily.costaleslawoofice@gmail.com -- Costales Law
Office & William Henry Beaumont, William H. Beaumont Law.
Winn-Dixie Stores, Inc., Defendant, represented by David Patron -
- david.patron@phelps.com -- Phelps Dunbar, LLP, Brett E. Coburn
-- brett.coburn@alston.com -- Alston & Bird, pro hac vice,
Charles Herrick Morgan -- charlie.morgan@alston.com -- Alston &
Bird, pro hac vice & Jeremy T. Grabill --
jeremy.grabill@phelps.com -- Phelps Dunbar, LLP.
WORKFORCE RESOURCES: "Jamil" Remains in Federal Court
-----------------------------------------------------
The United States District Court for the Southern District of
California denied Plaintiffs' Motion to Remand the case captioned
AHMAD JAWAD ABDUL JAMIL, et al., Plaintiffs, v. WORKFORCE
RESOURCES, LLC, et al., Defendants, Case No. 18-CV-27-JLS
(NLS)(S.D. Cal.).
The Plaintiffs worked for the Defendants as cultural
advisors/role players for members of the United States Armed
Forces. The Plaintiffs bring this action seeking recovery of
unpaid wages and penalties under California Business and
Professions Code (B&PC). The Defendants removed the case to this
Court. The Defendants state this court has original jurisdiction
over the case based on federal question jurisdiction pursuant to
28 U.S.C. Section 1331.
Under the Constitution, the United States has the power to
acquire land from the states for certain specified uses and to
exercise exclusive jurisdiction over such lands, which are known
as federal enclaves.
The Plaintiffs argue their Complaint alleges wage and hour
violations committed by the Defendants outside of any federal
enclave. In their Motion, but not mentioned in their Complaint,
the Plaintiff allege that while they were at the Defendants'
office at the beginning of the day, the Plaintiffs were given
their roles, clothing, and daily assignments. This, which took
approximately 1.5 hours, was done without compensation.
There is no question that some of the events alleged in the
Complaint took place on Camp Pendleton. The Plaintiffs allege
they were not given proper rest and meal breaks; this naturally
would have occurred while they were role playing at the Afghan
village on Camp Pendleton. Although the Plaintiffs' Complaint
does not mention the words Camp Pendleton, it states the
Plaintiffs began their day at the Defendants' office and were
shuttled to the military base. They were then shuttled back to
the office, thus, the majority of the work day logically occurred
at Camp Pendleton. The Plaintiffs also allege they were not given
breaks after five consecutive hours worked; these hours would
have taken place at Camp Pendleton, not at the Defendants'
office.
The Court finds that federal jurisdiction was properly pled in
the Plaintiffs' Complaint. Although some events took place on
Camp Pendleton and others took place at the Defendants' office,
it is clear that the majority of the pertinent events took place
on a federal enclave. The allegations stem from the Plaintiffs'
employment and work performed at Camp Pendleton. This is
sufficient for federal jurisdiction.
Because the Court determines that federal jurisdiction is proper
based on the federal enclave doctrine, the Court does not analyze
the Defendants' second basis for removal, the federal officer
removal statute.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/y726u7bk from Leagle.com.
Ahmad Jawad Abdul Jamil, Ahmad Jamshid Abdul Jamil & Ahmad Farhad
Abdul Jamil, individually and on behalf of all employees
similarly situated, Plaintiffs, represented by Treana L. Allen --
info@mahoney-law.net -- Mahoney Law Group, APC.
Workforce Resources, LLC, a California Limited Liability Company
& Bristol Bay Native Corporation, Defendants, represented by Amy
Todd-Gher -- atodd-gher@littler.com -- Littler Mendelson, P.C &
Matthew B. Riley -- mriley@littler.com -- Littler Mendelson, P.C.
Asbestos Litigation
ASBESTOS UPDATE: Liverpool Council Settles Asbestos Class Action
----------------------------------------------------------------
Cat Fredenburgh, writing for Lawyerly, reports that Sydney's
Liverpool council has reached a proposed settlement with
residents who claim their properties were harmed when soil
containing asbestos was dumped near nature strips around their
properties.
The plaintiffs have agreed to settle the case against the
Liverpool City Council for $200,000, according to an order of
proposed settlement filed June 15. The Council has admitted no
wrongdoing as part of the settlement.
A ten-day hearing was scheduled to begin July 30 in the Supreme
Court of New South Wales.
More than 20 plaintiffs are represented in the suit, brought in
June 2016 alleging the Council was negligent when it dumped 12
asbestos-containing mounds made of reprocessed soil/shale and
clay taken from a nearby Council depot in December 2014.
The Council breached its duty of care by not preventing the
initial contamination, not having a plan to minimise the impact
of the dumping, failing to take steps to reduce the
contamination, and failing the ensure the material was properly
inspected before dumping, the plaintiffs claim.
The plaintiff allege the Council was negligent in using asbestos
dust and fibre to create the material and that the Council
created a nuisance with the mounds. The class members claim
their property values were diminished as a result of the
Council's actions.
In its defence, the Council said the mounds were created to wall
off an area where previous unathorised dumping had occurred. It
also claimed it retained a consultant that tested the material
used in the mounds and found it to be asbestos-free.
The Council also said it never dumped material on nature strips.
However, if there was asbestos contamination, the case would be a
personal injury matter that should be heard in the Dust Diseases
Tribunal, the Council argued.
Objections to the settlement are due by June 29.
A hearing to approve the settlement has been scheduled for
July 6.
The plaintiffs are represented by Paramount Compensation Lawyers.
The Council is represented by Moray & Agnew.
ASBESTOS UPDATE: "Williams" Remanded for Summary Disposition
------------------------------------------------------------
The Court of Appeals of Michigan reversed trial court's order and
remanded the appealed case Troy Williams, Allesha Morris, Jose
Mireles, Kim Hopkins, Josh Lafave, Ryan Ebbinghaus, Mamuda Cham,
Kyle Smith, and Craig Walsh, Plaintiffs-Appellees, v. City Of
East Lansing, Wayne Beede, Todd Sneathen, and Cathryn Garnham,
Defendants-Appellants, Nos. 335467, 335662, (Mich. Ct. App.), for
entry of summary disposition in favor of defendants.
Plaintiffs were employed as pump operators and maintenance
specialists at East Lansing's Wastewater Treatment Plant (WWTP).
As part of their job duties, they were required to go through
tunnels where steam pipes had asbestos-containing insulation.
During their employment tenure, a three-ring binder existed on
the property that had been generated in 2007 when the city of
East Lansing retained Fibertec Industrial Hygiene Services, Inc.
to perform a comprehensive building inspection in order to assess
the status of their asbestos containment. The report from this
study indicated that some materials that were tested contained
asbestos, while others did not. Fibertec recommended, among other
things, that the city notify building personnel of the known and
assumed asbestos-containing materials on the property, that it
provide asbestos hazard awareness training, and that any
materials that might contain asbestos be labeled. Retired Process
Control Supervisor Charles Peterson stated that he did not inform
employees about asbestos or provide asbestos training, and
Retired Superintendent Jeffrey Johnson testified that materials
containing asbestos were not labeled and no warning signs were
placed. However, Peterson stated that abatements of friable
asbestos were performed between 2007 and 2010.
Plaintiffs Williams and LaFave testified that they discovered and
cleaned up pieces of asbestos insulation on the floor of the
tunnels starting in April 2013. Williams and LaFave testified
that defendant Beede, a maintenance supervisor, threatened to
fire them if they mentioned asbestos in the plant. Beede and
Johnson testified that most of the plant's insulation was
fiberglass, and Beede stated that he knew the difference between
fiberglass and asbestos insulation.
Plaintiffs filed a complaint, alleging in pertinent part one
count of intentional tort. Plaintiffs alleged that defendants
intentionally and continuously exposed plaintiffs to asbestos and
failed to warn plaintiffs of the asbestos in the plant.
Plaintiffs also alleged that various workers were exposed to
mercury, which was not properly cleaned up. Plaintiffs claimed
that, as a result, defendants had intentionally exposed workers
to asbestos and mercury, with actual knowledge of the dangers of
such exposure and with reckless disregard for plaintiffs' health
and safety.
Plaintiffs, Troy Williams, Allesha Morris, Jose Morales, Kim
Hopkins, Josh LaFave, Ryan Ebbinghaus, Mamuda Cham, Kyle Smith,
and Craig Walsh brought this action alleging that they were
exposed to asbestos and mercury between 2013 and 2014, during
their employment at the East Lansing Wastewater Treatment Plant.
Defendants, the City of East Lansing, Wayne Beede, Todd Sneathen,
and Cathryn Garnham, appeal by right the trial court's order
denying their motion for summary disposition under MCR
2.116(C)(7) on the basis of governmental immunity. Defendants
appeal by leave granted the same order, which also denied summary
disposition under MCR 2.116(C)(4) (subject-matter jurisdiction),
(8) failure to state a claim, and (10) no genuine issue of
material fact with respect to defendants' additional arguments
that plaintiffs' claims were barred by the exclusive remedy
provision of the Workers' Disability Compensation Act (WDCA), MCL
418.101 et seq., and that plaintiffs failed to demonstrate the
presence of an existing injury.
The Defendants moved for summary disposition under MCR
2.116(C)(4), (7), (8), and (10). Defendants alleged that the
WDCA's exclusive remedy provision, MCL 418.131(1), barred
plaintiffs' claims because plaintiffs had not demonstrated an
intentional tort as an exception to that provision. Defendants
argued that there was no evidence that they deliberately acted or
failed to act with actual knowledge of specific risks, or with
the purpose of injuring plaintiffs. Defendants also alleged that
plaintiffs' claims were barred by governmental immunity and
because plaintiffs had not established existing injuries. The
trial court denied defendants' motion on all grounds.
Specifically, the court denied East Lansing's motion for summary
disposition on the ground that the public building exception
barred the city's claim of governmental immunity, and the
individual defendants' motion for summary disposition on the
ground that the WDCA's exclusive remedy provision did not bar
plaintiffs' claims.
The Court agrees with Defendants, explaining that the right to
the recovery of benefits under the WDCA is the exclusive remedy
for employees against an employer for work-related injuries or
occupational disease. The sole exception to this provision allows
recovery if the employee can prove that the employer committed an
intentional tort.
The Court explains that establishing an intentional tort under
the WDCA requires employees to show that their employer "made a
conscious choice to injure an employee and. . . deliberately
acted or failed to act in furtherance of that intent." The
element of intent is a high hurdle that plaintiffs simply fail to
clear. Plaintiffs establish that defendants elected not to act on
their knowledge that the WWTP housed asbestos-containing
materials. However, they present no evidence that defendants
acted or failed to act with actual knowledge that injury was
certain to occur or that they created a continuously operative
dangerous condition that they knew would result in injury.
MCL 418.131(1) provides in relevant part: "An intentional tort
shall exist only when an employee is injured as a result of a
deliberate act of the employer and the employer specifically
intended an injury. An employer shall be deemed to have intended
to injure if the employer had actual knowledge that an injury was
certain to occur and willfully disregarded that knowledge." Thus,
to avoid the WDCA's exclusive remedy provision, employees must
present evidence that their employer undertook a deliberate act
with the specific intent that an injury would result.
The WDCA sets a high bar for plaintiffs to hurdle when seeking to
establish that their employer committed an intentional tort.
Because plaintiffs do not clear that bar, defendants are entitled
to summary disposition pursuant to MCR 2.116(C)(4).
With regard to defendant East Lansing, the Court finds undisputed
that the managers and supervisors who received Fibertec's 2007
asbestos survey and resulting report neither shared the report
with employees nor acted on the report's recommendations.
Fibertec derived its "recommendations" from the relevant
standards adopted by the federal government and incorporated by
reference into the Michigan Occupational Safety and Health Act,
MCL 408.1001 et seq., and the record shows that East Lansing's
failure to act on them rightly resulted in the appropriate
citations and fines. However, the fact that authorities cited and
fined East Lansing for health and safety violations relative to
its handling of asbestos-containing materials is not evidence
that East Lansing, through its managers and supervisors,
deliberately acted with specific intent to injure or with actual
knowledge that injury was certain to occur.
Additionally, the Court finds that the deposition testimony from
Peterson and from Michael Asher, the plaint's maintenance
supervisor from 2006 to 2009, indicates an awareness of the
general hazards of friable asbestos and an understanding that
abatements were unnecessary where the asbestos was undisturbed.
Nothing in the record suggests that the managers and supervisors
involved did not share the Fibertec study with employees or adopt
its recommendations with actual knowledge that injury was certain
to occur. Moreover, the Court notes that Fibertec collected and
analyzed clearance air samples in the tunnel following discovery
of the asbestos-containing insulation debris on the floor of the
tunnel and found the airborne fiber concentration below state
imposed levels.
With regard to the mercury spill, plaintiffs failed both to plead
in avoidance of the WDCA's exclusive remedy provision and to
present evidence establishing a genuine issue of material fact
regarding whether a supervisory or managerial employee actually
knew that an injury was certain to follow from Beede's act of
spilling mercury. Accordingly, defendants are entitled to summary
disposition pursuant to MCR 2.116(C)(4) and (8). In addition,
plaintiffs fail to present evidence that creates a genuine issue
of material fact regarding whether defendants deliberately
exposed plaintiffs to mercury with the intent to injure.
The Court finds it stunning that a maintenance supervisor and a
plant superintendent would be so uninformed about how to handle
the hazardous materials around which they and their employees
work. As was the case with the WWTP's statutory violations
involving asbestos-containing material, authorities rightly cited
and fined East Lansing for not having in place an emergency plan
to handle such spills, not informing employees of the spill, and
not properly cleaning the spill. Nevertheless, no record evidence
indicates, nor did plaintiffs allege in their complaint, that
defendant East Lansing or the individual defendants subjected
plaintiffs to a continuously dangerous operative condition that
they knew would cause injury and from which a factfinder could
infer the intent to injure necessary to establish the intentional
tort exception to the WDCA's exclusive remedy provision.
Based on the foregoing, the Court concludes that plaintiffs did
not establish a genuine issue of material fact regarding
application of the intentional tort exception to the WDCA's
exclusive remedy provision. Therefore, the trial court did not
have subject-matter jurisdiction over plaintiffs' claims.
A copy of the Per Curiam dated June 26, 2018, is available at
https://tinyurl.com/yahjjvvk from Leagle.com.
Neal J. Wilensky , for Troy Williams, Plaintiff-Appellee.
Thomas L. Fleury -- tlf@kellerthoma.com -- for City Of East
Lansing, Defendant-Appellant.
ASBESTOS UPDATE: Summary Judgment Favoring Crosby, et al., OK'd
---------------------------------------------------------------
The Hon. Sherry R. Fallon of the United States District Court for
the District of Delaware recommends granting the motions for
summary judgment of Defendants Crosby Valve LLC, The Fairbanks
Company, BorgWarner Morse Tee LLC, Flowserve U.S. Inc., and
Warren Pumps LLC.
On October 19, 2016, Plaintiffs John A. Pieno, Jr. and his wife
Dione Pieno originally filed this personal injury action against
multiple defendants in the Superior Court of Delaware, asserting
claims arising from Mr. Pieno's alleged harmful exposure to
asbestos.
On December 2, 2016, the case was removed to the District Court
for the District of Delaware by defendant Crane Co. pursuant to
the federal officer removal statute. On March 31, 2017,
Plaintiffs filed an amended complaint.
Plaintiffs allege that Mr. Pieno developed mesothelioma as a
result of exposure to asbestos-containing materials during his
service in the Navy, as well as from his civilian work as a
salesman and mechanic for Western Auto, and personal automotive
and home renovation work. Plaintiffs contend that Mr. Pieno was
injured due to exposure to asbestos-containing products that
Defendants manufactured, sold, distributed, licensed, or
installed. Accordingly, Plaintiffs asserts claims for negligence,
willful and wanton conduct, strict liability, and loss of
consortium.
Mr. Pieno was deposed on January 11 and 12, 2017. Plaintiffs did
not produce any other fact or product identification witnesses
for deposition. From 1954 to 1962, Mr. Pieno was employed as a
salesman and mechanic at Western Auto, in Gretna, Louisiana. From
1962 to 1990, Mr. Pieno served in the United States Navy as an
aircraft pilot. Occasionally, he visited the machinery spaces and
observed others working on pumps and valves, however, he could
not recall a specific manufacturer's product aboard the aircraft,
nor what type of repairs were performed in his presence.
On April 17, 2018, Crosby, Fairbanks, BorgWarner, Flowserve, and
Warren filed the pending motions for summary judgment,
individually. Plaintiffs did not respond to these motions.
The Court recommends granting Defendants' motions for summary
judgment because:
A. Crosby -- there is no genuine issue of material fact in
dispute as to whether Mr. Pieno was exposed to an asbestos-
containing Crosby product. During his deposition, Mr. Pieno did
not identify any Crosby valve aboard any particular ship. Mr.
Pieno did not perform any work on Crosby valves, and Mr. Pieno
could only generally recall the name Crosby as a brand of valve
that may have been serviced by others while he was present;
however, Mr. Pieno could not specifically identify the
manufacturer of any valve that was serviced or replaced when he
was present. Moreover, Crosby introduced evidence, undisputed by
Plaintiffs, that even if Crosby valves were present on the ships
associated with Mr. Pieno's service, such valves were not
designed for use with asbestos materials or insulation.
B. Fairbanks -- there is no genuine issue of material fact
in dispute as to whether Mr. Pieno was exposed to an asbestos-
containing Fairbanks product. During his deposition, Mr. Pieno
did not identify any Fairbanks valve aboard any particular ship,
and did not testify about working with or around Fairbanks
products. Mr. Pieno could only generally recall the name
Fairbanks as a brand of valves after reading his previous
interrogatory responses.
C. BorgWarner -- there is no genuine issue of material fact
in dispute as to whether Mr. Pieno was exposed to an asbestos-
containing BorgWarner product. During his deposition, Mr. Pieno
did not identify any Borg Warner clutches or friction products as
products he may have worked with or near at any time during the
course of his employment.
D. Flowserve -- there is no genuine issue of material fact
in dispute as to whether Mr. Pieno was exposed to an asbestos-
containing Flowserve product. Mr. Pieno served as an aircraft
pilot on naval ships, and did not personally perform maintenance
on equipment on board these naval ships; instead, Mr. Pieno
alleges exposure on board ships in which maintenance was being
performed by others who removed or replaced insulation, gaskets,
and packing on valves. However, Mr. Pieno could not place any
Flowserve (Rockwell, Edwards, or Vogt) valves on any particular
ship. Mr. Pieno could not provide any description of Flowserve
valves, such as their size, type, application, color, model
number, pressure rating, age, or any distinguishing
characteristics of their physical appearance.
E. Warren -- there is no genuine issue of material fact in
dispute as to whether Mr. Pieno was exposed to an asbestos-
containing Warren product. During his deposition, Mr. Pieno only
generally recalled the name Warren as a manufacturer of pumps,
but he could not recall ever being present when packing or a
flange gasket connected to a Warren pump was replaced. Mr. Pieno
did not personally install, remove, or maintain any Warren pumps
connected to a particular ship's piping system. Mr. Pieno could
not testify to the function of any Warren pump, the type of pumps
he encountered, the material flowing through them, the year of
manufacture, or model or serial numbers.
The case is In Re: Asbestos Litigation. John A. Pieno, Jr., and
Dione Pieno, his wife, Plaintiffs, v. Atwood Morrill Co., et al.,
Defendants, Civil Action No. 16-1119-LPS-SRF, (D. Del.).
A copy of the Report and Recommendation dated June 26, 2018, is
available at https://tinyurl.com/yd8f6n3f from Leagle.com.
John A. Pieno, Jr. & Dione Pieno, his wife, Plaintiffs,
represented by Adam Balick -- abalick@balick.com -- Balick &
Balick, LLC, Ipek Kurul Medford -- imedford@bdaltonlaw.com --
Dalton & Associates, P.A., Michael Collins Smith --
msmith@balick.com -- Balick & Balick, LLC, Andrew Caulfield
Dalton -- adalton@bdaltonlaw.com -- Dalton & Associates P.A.,
Bartholomew J. Dalton -- bdalton@bdaltonlaw.com --Dalton &
Associates P.A. & Michael B. Galbraith , Weik, Nitsche,
Dougherty, & Galbraith.
Borgwarner Morse Tec LLC, Defendant, represented by Matthew P.
Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin
& Mellott, LLC.
BW/IP Inc., as successor to Byron Jackson Pumps, Defendant,
represented by Joel M. Doner -- jdoner@eckertseamans.com --
Eckert Seamans Cherin & Mellott, LLC.
Crane Co., Defendant, represented by Allison L. Texter --
atexter@swartzcampbell.com -- Swartz Campbell LLC, Nicholas E.
Skiles -- nskiles@swartzcampbell.com -- Swartz Campbell LLC &
Shawn Edward Martyniak , Medicaid Fraud Control Unit.
Crosby Valve LLC, Defendant, represented by Paul A. Bradley --
PAB@maronmarvel.com -- Maron Marvel Bradley & Anderson LLC &
Donald Robert Kinsley -- DRK@maronmarvel.com -- Maron Marvel
Bradley & Anderson LLC.
Flowserve U.S., Inc., solely as successor to Rockwell
Manufacturing Company, Edward Valve, Inc., Nordstrom Valves Inc.,
Edward Vogt Valve Company, and Vogt Valve Company, Defendant,
represented by Amaryah K. Bocchino -- abocchino@mgmlaw.com --
Manning Gross + Massenburg LLP, Bernadette M. Plaza --
bplaza@goldfeinlaw.com -- Goldfein & Joseph, Jason A. Cincilla --
jcincilla@mgmlaw.com -- Manning Gross + Massenburg LLP, Willard
F. Preston, III -- wpreston@goldfeinlaw.com -- Goldfein & Joseph
& Jessica L. Reno , Manning Gross + Massenburg LLP.
Georgia-Pacific LLC, Defendant, represented by Whitney L. Frame -
- wframe@mgmlaw.com -- Manning Gross + Massenburg LLP & Irina N.
Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross + Massenburg
LLP.
Grinnell LLC & ITT Corporation, Defendants, represented by Kelly
A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis &
Bockius LLP.
IMO Industries Inc., Defendant, represented by Eileen M. Ford --
eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C. & Megan Trocki Mantzavinos -- mmantzavinos@moodklaw.com --
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.
Taco, Inc., Defendant, represented by Matthew P. Donelson --
mdonelson@eckertseamans.com -- Eckert Seamans Cherin & Mellott,
LLC & Peter S. Murphy -- pmurphy@eckertseamans.com -- Eckert
Seamans Cherin & Mellott, LLC.
The Fairbanks Company, Defendant, represented by Timothy A.
Sullivan, III , Wilbraham, Lawler & Buba.
Warren Pumps LLC, Defendant, represented by Jessica Lee Tyler --
JLTyler@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin, Ana Marina McCann -- ammccann@mdwcg.com -- Marshall,
Dennehey, Warner, Coleman & Goggin & Armand J. Della Porta, Jr. -
- ajdellaporta@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin.
Crane Co., Cross Defendant, represented by Nicholas E. Skiles --
nskiles@swartzcampbell.com -- Swartz Campbell LLC, Shawn Edward
Martyniak , Medicaid Fraud Control Unit & Allison L. Texter --
atexter@swartzcampbell.com -- Swartz Campbell LLC.
Georgia-Pacific LLC, Cross Defendant, represented by Whitney L.
Frame -- wframe@mgmlaw.com -- Manning Gross + Massenburg LLP &
Irina N. Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross +
Massenburg LLP.
IMO Industries Inc., Cross Defendant, represented by Eileen M.
Ford -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty &
Kelly, P.C. & Megan Trocki Mantzavinos --
mmantzavinos@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty &
Kelly, P.C.
The Fairbanks Company, Cross Defendant, represented by Timothy A.
Sullivan, III , Wilbraham, Lawler & Buba.
Warren Pumps LLC, Cross Defendant, represented by Jessica Lee
Tyler -- JLTyler@mdwcg.com -- Marshall, Dennehey, Warner, Coleman
& Goggin, Ana Marina McCann -- ammccann@mdwcg.com -- Marshall,
Dennehey, Warner, Coleman & Goggin & Armand J. Della Porta, Jr. -
- ajdellaporta@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin.
IMO Industries Inc., Cross Claimant, represented by Eileen M.
Ford -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty &
Kelly, P.C. & Megan Trocki Mantzavinos --
mmantzavinos@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty &
Kelly, P.C.
Flowserve U.S., Inc., Individually and solely as successor to
Durco Durrion, Anchor Darling, Superior Group, Edward Vogt, Vogt
Valves, Nordstrom Valves, Edward Valve Inc., and Rockwell
Manufacturing Company & Flowserve U.S., Inc., solely as successor
to Rockwell Manufacturing Company, Edward Valve, Inc., Nordstrom
Valves Inc., Edward Vogt Valve Company, and Vogt Valve Company,
Cross Defendants, represented by Amaryah K. Bocchino --
abocchino@mgmlaw.com -- Manning Gross + Massenburg LLP, Jason A.
Cincilla -- jcincilla@mgmlaw.com -- Manning Gross + Massenburg
LLP, Jessica L. Reno , Manning Gross + Massenburg LLP, Willard F.
Preston, III -- wpreston@goldfeinlaw.com -- Goldfein & Joseph &
Bernadette M. Plaza -- bplaza@goldfeinlaw.com -- Goldfein &
Joseph.
Borgwarner Morse Tec LLC & Taco, Inc., Cross Defendants,
represented by Matthew P. Donelson -- mdonelson@eckertseamans.com
-- Eckert Seamans Cherin & Mellott, LLC.
Grinnell LLC & ITT Corporation, Cross Defendants, represented by
Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan
Lewis & Bockius LLP.
Flowserve U.S., Inc., Individually and solely as successor to
Durco Durrion, Anchor Darling, Superior Group, Edward Vogt, Vogt
Valves, Nordstrom Valves, Edward Valve Inc., and Rockwell
Manufacturing Company, Cross Claimant, represented by Amaryah K.
Bocchino -- abocchino@mgmlaw.com -- Manning Gross + Massenburg
LLP, Jason A. Cincilla -- jcincilla@mgmlaw.com -- Manning Gross +
Massenburg LLP, Willard F. Preston, III --
wpreston@goldfeinlaw.com -- Goldfein & Joseph & Jessica L. Reno ,
Manning Gross + Massenburg LLP.
Taco, Inc. & Borgwarner Morse Tec LLC, Cross Claimants,
represented by Matthew P. Donelson -- mdonelson@eckertseamans.com
-- Eckert Seamans Cherin & Mellott, LLC.
Warren Pumps LLC, Cross Claimant, represented by Jessica Lee
Tyler -- JLTyler@mdwcg.com -- Marshall, Dennehey, Warner, Coleman
& Goggin, Ana Marina McCann -- ammccann@mdwcg.com -- Marshall,
Dennehey, Warner, Coleman & Goggin & Armand J. Della Porta, Jr. -
- ajdellaporta@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin.
Flowserve U.S., Inc., solely as successor to Rockwell
Manufacturing Company, Edward Valve, Inc., Nordstrom Valves Inc.,
Edward Vogt Valve Company, and Vogt Valve Company, Cross
Claimant, represented by Amaryah K. Bocchino --
abocchino@mgmlaw.com -- Manning Gross + Massenburg LLP,
Bernadette M. Plaza -- bplaza@goldfeinlaw.com -- Goldfein &
Joseph, Jason A. Cincilla -- jcincilla@mgmlaw.com -- Manning
Gross + Massenburg LLP, Willard F. Preston, III --
wpreston@goldfeinlaw.com -- Goldfein & Joseph & Jessica L. Reno ,
Manning Gross + Massenburg LLP.
Crane Co., Cross Claimant, represented by Nicholas E. Skiles --
nskiles@swartzcampbell.com -- Swartz Campbell LLC & Shawn Edward
Martyniak , Medicaid Fraud Control Unit.
Dione Pieno, his wife & John A. Pieno, Jr., Cross Defendants,
represented by Adam Balick -- abalick@balick.com -- Balick &
Balick, LLC, Ipek Kurul Medford -- imedford@bdaltonlaw.com --
Dalton & Associates, P.A., Michael Collins Smith --
msmith@balick.com -- Balick & Balick, LLC, Andrew Caulfield
Dalton -- adalton@bdaltonlaw.com -- Dalton & Associates P.A.,
Bartholomew J. Dalton , Dalton & Associates P.A. & Michael B.
Galbraith , Weik, Nitsche, Dougherty, & Galbraith.
Crosby Valve LLC, Cross Claimant, represented by Paul A. Bradley
-- PAB@maronmarvel.com -- Maron Marvel Bradley & Anderson LLC &
Donald Robert Kinsley -- DRK@maronmarvel.com -- Maron Marvel
Bradley & Anderson LLC.
Crosby Valve LLC, Cross Defendant, represented by Paul A. Bradley
-- PAB@maronmarvel.com -- Maron Marvel Bradley & Anderson LLC &
Donald Robert Kinsley -- DRK@maronmarvel.com -- Maron Marvel
Bradley & Anderson LLC.
BW/IP Inc., as successor to Byron Jackson Pumps, Cross Defendant,
represented by Joel M. Doner -- jdoner@eckertseamans.com --
Eckert Seamans Cherin & Mellott, LLC.
ASBESTOS UPDATE: Roper Tech, Units Still Defend Suits at Mar.31
-----------------------------------------------------------
----
Roper Technologies, Inc. said in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended March 31, 2018 that the Company and its subsidiaries have
been named defendants along with numerous industrial companies in
asbestos-related litigation claims in certain U.S. states.
The Company states, "No significant resources have been required
by Roper to respond to these cases and Roper believes it has
valid defenses to such claims and, if required, intends to defend
them vigorously. Given the state of these claims, it is not
possible to determine the potential liability, if any."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2K9Dm45
ASBESTOS UPDATE: Minerals Technologies Faces 22 Cases at April 1
-----------------------------------------------------------
-----
Minerals Technologies Inc. has 22 pending asbestos cases,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
April 1, 2018.
The Company states, "Certain of the Company's subsidiaries are
among numerous defendants in a number of cases seeking damages
for exposure to silica or to asbestos containing materials. The
Company currently has three pending silica cases and 22 pending
asbestos cases. To date, 1,493 silica cases and 54 asbestos
cases have been dismissed, not including any lawsuits against
AMCOL or American Colloid Company dismissed prior to our
acquisition of AMCOL. Three new asbestos cases were filed during
the first quarter of 2018, including one new case naming AMCOL as
a defendant. One asbestos case was dismissed during the first
quarter. No silica cases were dismissed during the period. Most
of these claims do not provide adequate information to assess
their merits, the likelihood that the Company will be found
liable, or the magnitude of such liability, if any. Additional
claims of this nature may be made against the Company or its
subsidiaries. At this time management anticipates that the
amount of the Company's liability, if any, and the cost of
defending such claims, will not have a material effect on its
financial position or results of operations.
"The Company has settled only one silica lawsuit, for a nominal
amount, and no asbestos lawsuits to date (not including any that
may have been settled by AMCOL prior to completion of the
acquisition). We are unable to state an amount or range of
amounts claimed in any of the lawsuits because state court
pleading practices do not require identifying the amount of the
claimed damage. The aggregate cost to the Company for the legal
defense of these cases since inception continues to be
insignificant. The majority of the costs of defense for these
cases, excluding cases against AMCOL, are reimbursed by Pfizer
Inc. pursuant to the terms of certain agreements entered into in
connection with the Company's initial public offering in 1992.
The Company is entitled to indemnification, pursuant to
agreement, for sales prior to the initial public offering. Of
the 22 pending asbestos cases, 14 of the non-AMCOL cases are
subject to indemnification, in whole or in part, because the
plaintiffs claim liability based on sales of products that
occurred either entirely before the initial public offering, or
both before and after the initial public offering. In the six
remaining non-AMCOL cases, the plaintiffs have not alleged dates
of exposure. The remaining cases involve AMCOL only, so no
Pfizer indemnity is available. Our experience has been that the
Company is not liable to plaintiffs in any of these lawsuits and
the Company does not expect to pay any settlements or jury
verdicts in these lawsuits."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2lr3tsw
ASBESTOS UPDATE: Standard Motor Had $32.77MM Liability at Mar.3
----------------------------------------------------------------
Standard Motor Products, Inc.'s accrued asbestos liabilities
amounted to US$32,769,000 as of March 31, 2018, according to the
consolidated balance sheets in the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2018.
The Company states, "We are responsible for certain future
liabilities relating to alleged exposure to asbestos-containing
products. In accordance with our accounting policy, our most
recent actuarial study as of August 31, 2017 estimated an
undiscounted liability for settlement payments, excluding legal
costs and any potential recovery from insurance carriers, ranging
from US$35.2 million to US$54 million for the period through
2060. Based on the information contained in the actuarial study
and all other available information considered by us, we have
concluded that no amount within the range of settlement payments
was more likely than any other and, therefore, in assessing our
asbestos liability we compare the low end of the range to our
recorded liability to determine if an adjustment is required.
"Based upon the results of the August 31, 2017 actuarial study,
in September 2017 we increased our asbestos liability to US$35.2
million, the low end of the range, and recorded an incremental
pre-tax provision of US$6 million in loss from discontinued
operations in the accompanying statement of operations. In
addition, according to the updated study, future legal costs,
which are expensed as incurred and reported in loss from
discontinued operations in the accompanying statement of
operations, are estimated to range from US$44.3 million to
US$79.6 million for the period through 2060.
"We will continue to perform an annual actuarial analysis during
the third quarter of each year for the foreseeable future. Based
on this analysis and all other available information, we will
continue to reassess the recorded liability and, if deemed
necessary, record an adjustment to the reserve, which will be
reflected as a loss or gain from discontinued operations."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2IfKjz0
ASBESTOS UPDATE: Standard Motor Had 1,545 Fibro Cases at Mar. 31
----------------------------------------------------------------
Approximately 1,545 cases were outstanding at March 31, 2018, for
which Standard Motor Products, Inc. may be responsible for any
related liabilities in connection to its former brake business,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2018.
The Company states, "In 1986, we acquired a brake business, which
we subsequently sold in March 1998 and which is accounted for as
a discontinued operation. When we originally acquired this brake
business, we assumed future liabilities relating to any alleged
exposure to asbestos-containing products manufactured by the
seller of the acquired brake business. In accordance with the
related purchase agreement, we agreed to assume the liabilities
for all new claims filed on or after September 2001. Our
ultimate exposure will depend upon the number of claims filed
against us on or after September 2001 and the amounts paid for
indemnity and defense thereof. At March 31, 2018, approximately
1,545 cases were outstanding for which we may be responsible for
any related liabilities. Since inception in September 2001
through March 31, 2018, the amounts paid for settled claims are
approximately US$24.4 million.
In evaluating our potential asbestos-related liability, we have
considered various factors including, among other things, an
actuarial study of the asbestos related liabilities performed by
an independent actuarial firm, our settlement amounts and whether
there are any co-defendants, the jurisdiction in which lawsuits
are filed, and the status and results of settlement discussions.
As is our accounting policy, we consider the advice of actuarial
consultants with experience in assessing asbestos-related
liabilities to estimate our potential claim liability. The
methodology used to project asbestos-related liabilities and
costs in our actuarial study considered: (1) historical data
available from publicly available studies; (2) an analysis of our
recent claims history to estimate likely filing rates into the
future; (3) an analysis of our currently pending claims; and (4)
an analysis of our settlements to date in order to develop
average settlement values."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2IfKjz0
ASBESTOS UPDATE: Appeal from $13MM Verdict Pending in "Lopez"
-------------------------------------------------------------
An appeal from a $13 million verdict in an asbestos-related case
against Tyson Foods, Inc.'s subsidiary related to the death of
Mark Lopez remains pending, according to Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
For the quarterly period ended March 31, 2018.
The Company states, "The Hillshire Brands Company was named as a
defendant in an asbestos exposure case filed by Mark Lopez in May
2014 in the Superior Court of Alameda County, California. Mr.
Lopez was diagnosed with mesothelioma in January 2014 and is now
deceased. Mr. Lopez's family members asserted negligence,
premises liability and strict liability claims related to Mr.
Lopez's alleged asbestos exposure from 1954-1986 from the Union
Sugar plant in Betteravia, California. The plant, which was sold
in 1986, was owned by entities that were predecessors-in-interest
to The Hillshire Brands Company. In August 2017, the jury
returned a verdict of approximately US$13 million in favor of the
plaintiffs, and a judgment was entered. We have appealed the
judgment."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2yxks5N
ASBESTOS UPDATE: Sempra Energy Units Still Face Suits at March 31
-----------------------------------------------------------------
Sempra Energy's units continue to defend themselves in asbestos-
related claims and lawsuits, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2018.
On March 9, 2018, Sempra Energy completed the merger of Energy
Future Holdings Corp. (renamed Sempra Texas Holdings Corp.) (EFH)
with an indirect subsidiary of Sempra Energy, with EFH continuing
as the surviving company and as an indirect, wholly owned
subsidiary of Sempra Energy.
The Company states, "Certain EFH subsidiaries that we acquired as
part of the Merger are defendants in approximately 140 personal
injury lawsuits brought in state courts throughout the U.S. These
cases allege illness or death as a result of exposure to asbestos
in power plants designed and/or built by companies whose assets
were purchased by predecessor entities to the EFH subsidiaries,
and generally assert claims for product defects, negligence,
strict liability and wrongful death. They seek compensatory and
punitive damages. Additionally, in connection with the EFH
bankruptcy proceeding, approximately 28,000 proofs of claim were
filed on behalf of persons who allege exposure to asbestos under
similar circumstances and assert the right to file such lawsuits
in the future. We anticipate additional lawsuits will be filed.
None of these claims or lawsuits were discharged in the EFH
bankruptcy proceeding."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tkHqbj
ASBESTOS UPDATE: Regency Centers Has $9.8MM Cleanup Liability
-------------------------------------------------------------
Regency Centers Corporation disclosed in its Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2018, that together with its
Investments in real estate partnerships, it had accrued
liabilities of US$9.8 million for its pro-rata share of
environmental remediation, which includes the existence of
asbestos in older shopping centers.
The Company states, "We are subject to numerous environmental
laws and regulations as they apply to our shopping centers
pertaining primarily to chemicals used by the dry cleaning
industry, the existence of asbestos in older shopping centers,
and underground petroleum storage tanks. We believe that the
tenants who currently operate dry cleaning plants or gas stations
do so in accordance with current laws and regulations.
Generally, we use all legal means to cause tenants to remove dry
cleaning plants from our shopping centers or convert them to more
environmentally friendly systems. Where available, we have
applied and been accepted into state-sponsored environmental
programs. We have a blanket environmental insurance policy for
third-party liabilities and remediation costs on shopping centers
that currently have no known environmental contamination. We
have also placed environmental insurance, where possible, on
specific properties with known contamination, in order to
mitigate our environmental risk. We monitor the shopping centers
containing environmental issues and in certain cases voluntarily
remediate the sites. We also have legal obligations to remediate
certain sites and we are in the process of doing so.
"As of March 31, 2018 we and our Investments in real estate
partnerships had accrued liabilities of US$9.8 million for our
pro-rata share of environmental remediation. We believe that the
ultimate disposition of currently known environmental matters
will not have a material effect on our financial position,
liquidity, or results of operations; however, we can give no
assurance that existing environmental studies on our shopping
centers have revealed all potential environmental liabilities;
that any previous owner, occupant or tenant did not create any
material environmental condition not known to us; that the
current environmental condition of the shopping centers will not
be affected by tenants and occupants, by the condition of nearby
properties, or by unrelated third parties; or that changes in
applicable environmental laws and regulations or their
interpretation will not result in additional environmental
liability to us."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tsuteY
ASBESTOS UPDATE: Kaman Corp. Still Defends Suits at March 30
------------------------------------------------------------
Kaman Corporation said in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 30, 2018, that based on information currently available, it
does not believe that the resolution of any currently pending
asbestos-related matters will have a material adverse effect on
our business, financial condition, results of operations or cash
flows.
The Company states, "Like many other industrial companies, the
Company and/or one of its subsidiaries may be named as a
defendant in lawsuits alleging personal injury as a result of
exposure to asbestos integrated into certain products sold or
distributed by the Company and/or the named subsidiary. A
substantial majority of these asbestos-related claims have been
covered by insurance or other forms of indemnity or have been
dismissed without payment. The rest have been resolved for
amounts that are not material to the Company, either individually
or in the aggregate. Based on information currently available,
we do not believe that the resolution of any currently pending
asbestos-related matters will have a material adverse effect on
our business, financial condition, results of operations or cash
flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2JZk9WQ
ASBESTOS UPDATE: General Cable Had 238 Cases at March 30
--------------------------------------------------------
General Cable Corporation was a defendant in 238 asbestos-related
cases brought in state and federal courts throughout the United
States as of March 30, 2018, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended March 30, 2018.
The Company states, "We have been a defendant in asbestos
litigation for the past 30 years. Our subsidiaries have been
named as defendants in lawsuits alleging exposure to asbestos in
products manufactured by us. As of March 30, 2018, we were a
defendant in approximately 238 cases brought in state and federal
courts throughout the United States. In the three fiscal months
ended March 30, 2018, 16 asbestos cases were brought against us.
In the calendar year 2017, 63 asbestos cases were brought against
us. In the last 30 years, we have had no cases proceed to
verdict. In many of the cases, we were dismissed as a defendant
before trial for lack of product identification. As of March 30,
2018, 51,094 asbestos cases have been dismissed. In the three
fiscal months ended March 30, 2018, 25 asbestos cases were
dismissed. As of December 31, 2017, 51,069 cases were dismissed.
With regards to the approximately 238 remaining pending cases, we
are aggressively defending these cases based upon either lack of
product identification as to whether we manufactured asbestos-
containing product and/or lack of exposure to asbestos dust from
the use of our product.
"As of March 30, 2018, plaintiffs have asserted monetary damages
in 188 cases. In 106 of these cases, plaintiffs allege only
damages in excess of some dollar amount (about US$93 thousand per
plaintiff); in these cases there are no claims for specific
dollar amounts requested as to any defendant. In 82 other cases
pending in state and federal district courts, plaintiffs seek
approximately US$354 million in damages from as many as 50
defendants. In addition, in relation to these 188 cases, there
are claims of US$255 million in punitive damages from all of the
defendants. However, many of the plaintiffs in these cases
allege non-malignant injuries. As of March 30, 2018 and December
31, 2017, we had accrued, on a gross basis, approximately US$1.0
million and US$1.2 million, respectively, and as of March 30,
2018 and December 31, 2017, had recovered approximately US$0.1
million of insurance recoveries for these lawsuits. The net
amount of US$0.9 million and US$1.1 million, as of March 30, 2018
and December 31, 2017, respectively, represents our best estimate
in order to cover resolution of current asbestos-related claims.
"The components of the asbestos litigation reserve are current
and future asbestos-related claims. The significant assumptions
are: (1) the number of cases per state, (2) an estimate of the
judgment per case per state, (3) an estimate of the percentage of
cases per state that would make it to trial and (4) the estimated
total liability percentage, excluding insurance recoveries, per
case judgment. Management's estimates are based on the Company's
historical experience with asbestos related claims. The
Company's current history of asbestos claims does not provide
sufficient and reasonable information to estimate a range of loss
for potential future, unasserted asbestos claims because the
number and the value of the alleged damages of such claims have
not been consistent. As such, the Company does not believe a
reasonably possible range can be estimated with respect to
asbestos claims that may be filed in the future.
"Settlement payments are made, and the asbestos accrual is
relieved, when we receive a fully executed settlement release
from the plaintiff's counsel. As of March 30, 2018 and December
31, 2017, aggregate settlement costs were US$10.6 million and
US$10.5 million, respectively. For the three fiscal months ended
March 30, 2018 and March 31, 2017, settlement costs totaled
US$0.1 million. As of March 30, 2018 and December 31, 2017,
aggregate litigation costs were US$29.5 million and US$29.2
million, respectively. For the three fiscal months ended March
30, 2018 and March 31, 2017, the costs of administering and
litigating asbestos claims totaled US$0.3 million.
"In January 1994, we entered into a settlement agreement with
certain principal primary insurers concerning liability for the
costs of defense, judgments and settlements, if any, in all of
the asbestos litigation. Subject to the terms and conditions of
the settlement agreement, the insurers were responsible for a
substantial portion of the costs and expenses incurred in the
defense or resolution of this litigation. However, one of the
insurers participating in the settlement that was responsible for
a significant portion of the contribution under the settlement
agreement entered into insurance liquidation proceedings and
another became insolvent. As a result, the contribution of the
insurers has been reduced and we have had to bear substantially
most of the costs relating to these lawsuits."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2JWkYj4
ASBESTOS UPDATE: BNSF Still Defends PI Claims at March 31
---------------------------------------------------------
Burlington Northern Santa Fe, LLC ("BNSF") is still a party to a
number of personal injury claims by employees and non-employees
who may have been exposed to asbestos, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended March 31, 2018.
The Company states, "The heaviest exposure for certain BNSF
employees was due to work conducted in and around the use of
steam locomotive engines that were phased out between the years
of 1950 and 1967. However, other types of exposures, including
exposure from locomotive component parts and building materials,
continued after 1967 until they were substantially eliminated at
BNSF by 1985.
"BNSF assesses its unasserted asbestos liability exposure on an
annual basis during the third quarter. BNSF determines its
asbestos liability by estimating its exposed population, the
number of claims likely to be filed, the number of claims that
will likely require payment and the estimated cost per claim.
Estimated filing and dismissal rates and average cost per claim
are determined utilizing recent claim data and trends.
"Throughout the year, BNSF monitors actual experience against the
number of forecasted claims and expected claim payments and will
record adjustments to the Company's estimates as necessary.
"Based on BNSF's estimate of the potentially exposed employees
and related mortality assumptions, it is anticipated that
unasserted asbestos claims will continue to be filed through the
year 2050. The Company recorded an amount for the full estimated
filing period through 2050 because it had a relatively finite
exposed population (former and current employees hired prior to
1985), which it was able to identify and reasonably estimate and
about which it had obtained reliable demographic data (including
age, hire date and occupation) derived from industry or BNSF
specific data that was the basis for the study. BNSF projects
that approximately 65, 80 and 95 percent of the future unasserted
asbestos claims will be filed within the next 10, 15 and 25
years, respectively."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2KdRoSw
ASBESTOS UPDATE: MetLife Unit Had 823 New Claims at March 31
------------------------------------------------------------
MetLife, Inc.'s subsidiary, Metropolitan Life Insurance Company,
received approximately 823 new asbestos-related claims during the
three months ended March 31, 2018, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended March 31, 2018.
The Company states, "MLIC is and has been a defendant in a large
number of asbestos-related suits filed primarily in state courts.
These suits principally allege that the plaintiff or plaintiffs
suffered personal injury resulting from exposure to asbestos and
seek both actual and punitive damages. MLIC has never engaged in
the business of manufacturing, producing, distributing, or
selling asbestos or asbestos-containing products nor has MLIC
issued liability or workers' compensation insurance to companies
in the business of manufacturing, producing, distributing, or
selling asbestos or asbestos-containing products. The lawsuits
principally have focused on allegations with respect to certain
research, publication and other activities of one or more of
MLIC's employees during the period from the 1920's through
approximately the 1950's and allege that MLIC learned or should
have learned of certain health risks posed by asbestos and, among
other things, improperly publicized or failed to disclose those
health risks. MLIC believes that it should not have legal
liability in these cases. The outcome of most asbestos
litigation matters, however, is uncertain and can be impacted by
numerous variables, including differences in legal rulings in
various jurisdictions, the nature of the alleged injury and
factors unrelated to the ultimate legal merit of the claims
asserted against MLIC. MLIC employs a number of resolution
strategies to manage its asbestos loss exposure, including
seeking resolution of pending litigation by judicial rulings and
settling individual or groups of claims or lawsuits under
appropriate circumstances.
"Claims asserted against MLIC have included negligence,
intentional tort and conspiracy concerning the health risks
associated with asbestos. MLIC's defenses (beyond denial of
certain factual allegations) include that: (i) MLIC owed no duty
to the plaintiffs-- it had no special relationship with the
plaintiffs and did not manufacture, produce, distribute, or sell
the asbestos products that allegedly injured plaintiffs; (ii)
plaintiffs did not rely on any actions of MLIC; (iii) MLIC's
conduct was not the cause of the plaintiffs' injuries; (iv)
plaintiffs' exposure occurred after the dangers of asbestos were
known; and (v) the applicable time with respect to filing suit
has expired. During the course of the litigation, certain trial
courts have granted motions dismissing claims against MLIC, while
other trial courts have denied MLIC's motions. There can be no
assurance that MLIC will receive favorable decisions on motions
in the future. While most cases brought to date have settled,
MLIC intends to continue to defend aggressively against claims
based on asbestos exposure, including defending claims at trials.
"As reported in the 2017 Annual Report, MLIC received
approximately 3,514 asbestos-related claims in 2017. During the
three months ended March 31, 2018 and 2017, MLIC received
approximately 823 and 1,104 new asbestos-related claims,
respectively. The number of asbestos cases that may be brought,
the aggregate amount of any liability that MLIC may incur, and
the total amount paid in settlements in any given year are
uncertain and may vary significantly from year to year.
"The ability of MLIC to estimate its ultimate asbestos exposure
is subject to considerable uncertainty, and the conditions
impacting its liability can be dynamic and subject to change.
The availability of reliable data is limited and it is difficult
to predict the numerous variables that can affect liability
estimates, including the number of future claims, the cost to
resolve claims, the disease mix and severity of disease in
pending and future claims, the impact of the number of new claims
filed in a particular jurisdiction and variations in the law in
the jurisdictions in which claims are filed, the possible impact
of tort reform efforts, the willingness of courts to allow
plaintiffs to pursue claims against MLIC when exposure to
asbestos took place after the dangers of asbestos exposure were
well known, and the impact of any possible future adverse
verdicts and their amounts.
"The ability to make estimates regarding ultimate asbestos
exposure declines significantly as the estimates relate to years
further in the future. In the Company's judgment, there is a
future point after which losses cease to be probable and
reasonably estimable. It is reasonably possible that the
Company's total exposure to asbestos claims may be materially
greater than the asbestos liability currently accrued and that
future charges to income may be necessary. While the potential
future charges could be material in the particular quarterly or
annual periods in which they are recorded, based on information
currently known by management, management does not believe any
such charges are likely to have a material effect on the
Company's financial position.
"The Company believes adequate provision has been made in its
consolidated financial statements for all probable and reasonably
estimable losses for asbestos-related claims. MLIC's recorded
asbestos liability is based on its estimation of the following
elements, as informed by the facts presently known to it, its
understanding of current law and its past experiences: (i) the
probable and reasonably estimable liability for asbestos claims
already asserted against MLIC, including claims settled but not
yet paid; (ii) the probable and reasonably estimable liability
for asbestos claims not yet asserted against MLIC, but which MLIC
believes are reasonably probable of assertion; and (iii) the
legal defense costs associated with the foregoing claims.
Significant assumptions underlying MLIC's analysis of the
adequacy of its recorded liability with respect to asbestos
litigation include: (i) the number of future claims; (ii) the
cost to resolve claims; and (iii) the cost to defend claims.
"MLIC reevaluates on a quarterly and annual basis its exposure
from asbestos litigation, including studying its claims
experience, reviewing external literature regarding asbestos
claims experience in the United States, assessing relevant trends
impacting asbestos liability and considering numerous variables
that can affect its asbestos liability exposure on an overall or
per claim basis. These variables include bankruptcies of other
companies involved in asbestos litigation, legislative and
judicial developments, the number of pending claims involving
serious disease, the number of new claims filed against it and
other defendants and the jurisdictions in which claims are
pending. Based upon its regular reevaluation of its exposure
from asbestos litigation, MLIC has updated its liability analysis
for asbestos-related claims through March 31, 2018."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tjD3xp
ASBESTOS UPDATE: Enstar Had US$201.4MM Liability at March 31
------------------------------------------------------------
Enstar Group Limited recorded US$201.4 million for indemnity and
defense costs for pending and future claims at March 31, 2018,
determined using standard actuarial techniques for asbestos-
related exposures, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2018.
The Company states, "We acquired Dana Companies, LLC ("Dana") on
December 30, 2016. Dana continues to process asbestos personal
injury claims in the normal course of business and is separately
managed.
"Other liabilities included US$201.4 million and US$205.7 million
for indemnity and defense costs for pending and future claims at
March 31, 2018 and December 31, 2017, respectively, determined
using standard actuarial techniques for asbestos-related
exposures. Other liabilities also included US$2.2 million and
US$2.2 million for environmental liabilities associated with Dana
properties at March 31, 2018 and December 31, 2017, respectively.
"Other assets included US$119.6 million and US$122.3 million at
March 31, 2018 and December 31, 2017, respectively, for estimated
insurance recoveries relating to these liabilities. The recorded
asset represents our assessment of the capacity of the insurance
agreements to provide for the payment of anticipated defense and
indemnity costs for pending claims and projected future demands.
The recognition of these recoveries is based on an assessment of
the right to recover under the respective contracts and on the
financial strength of the insurers. The recorded asset does not
represent the limits of our insurance coverage, but rather the
amount we would expect to recover if the accrued indemnity and
defense costs were paid in full."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2MfDY90
ASBESTOS UPDATE: Mallinckrodt Had 11,600 PI Cases at March 30
-------------------------------------------------------------
Mallinckrodt public limited company is defending approximately
11,600 asbestos-related cases as of March 30, 2018, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 30,
2018.
The Company states, "Beginning with lawsuits brought in July
1976, the Company is named as a defendant in personal injury
lawsuits based on alleged exposure to asbestos-containing
materials. A majority of the cases involve product liability
claims based principally on allegations of past distribution of
products containing asbestos. A limited number of the cases
allege premises liability based on claims that individuals were
exposed to asbestos while on the Company's property. Each case
typically names dozens of corporate defendants in addition to the
Company. The complaints generally seek monetary damages for
personal injury or bodily injury resulting from alleged exposure
to products containing asbestos. The Company's involvement in
asbestos cases has been limited because it did not mine or
produce asbestos. Furthermore, in the Company's experience, a
large percentage of these claims have never been substantiated
and have been dismissed by the courts. The Company has not
suffered an adverse verdict in a trial court proceeding related
to asbestos claims and intends to continue to vigorously defend
itself in these matters. When appropriate, the Company settles
claims; however, amounts paid to settle and defend all asbestos
claims have been immaterial. As of March 30, 2018, there were
approximately 11,600 asbestos-related cases pending against the
Company.
"The Company estimates pending asbestos claims and claims that
were incurred but not reported and related insurance recoveries,
which are recorded on a gross basis in the unaudited condensed
consolidated balance sheets. The Company's estimate of its
liability for pending and future claims is based on claims
experience over the past five years and covers claims either
currently filed or expected to be filed over the next seven
years. The Company believes that it has adequate amounts
recorded related to these matters. While it is not possible at
this time to determine with certainty the ultimate outcome of
these asbestos-related proceedings, the Company believes, given
the information currently available, that the ultimate
resolutions of all known and anticipated future claims, after
taking into account amounts already accrued, along with
recoveries from insurance, will not have a material adverse
effect on its financial condition, results of operations and cash
flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2MNegtu
ASBESTOS UPDATE: 3M Co. Still Faces 2,250 Claimants at March 31
---------------------------------------------------------------
3M Company continues to defend itself in numerous lawsuits in
various courts that purport to represent approximately 2,250
individual claimants as of March 31, 2018, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2018.
The Company states, "The vast majority of the lawsuits and claims
resolved by and currently pending against the Company allege use
of some of the Company's mask and respirator products and seek
damages from the Company and other defendants for alleged
personal injury from workplace exposures to asbestos, silica,
coal mine dust or other occupational dusts found in products
manufactured by other defendants or generally in the workplace.
A minority of the lawsuits and claims resolved by and currently
pending against the Company generally allege personal injury from
occupational exposure to asbestos from products previously
manufactured by the Company, which are often unspecified, as well
as products manufactured by other defendants, or occasionally at
Company premises.
"The Company's current volume of new and pending matters is
substantially lower than it experienced at the peak of filings in
2003. The Company expects that filing of claims by unimpaired
claimants in the future will continue to be at much lower levels
than in the past. Accordingly, the number of claims alleging
more serious injuries, including mesothelioma and other
malignancies, will represent a greater percentage of total claims
than in the past. The Company has prevailed in thirteen of the
fourteen cases taken to trial, including eleven of the twelve
cases tried to verdict (such trials occurred in 1999, 2000, 2001,
2003, 2004, 2007, 2015, and the cases tried in 2016, 2017, and
2018), and an appellate reversal in 2005 of the 2001 jury verdict
adverse to the Company. The remaining case, tried in 2009, was
dismissed by the court at the close of plaintiff's evidence,
based on the court's legal finding that the plaintiff had not
presented sufficient evidence to support a jury verdict. In
August 2016, 3M received a unanimous verdict in its favor from a
jury in state court in Kentucky, in 3M's first respirator trial
involving coal mine dust. The estate of the plaintiff alleged
that the 3M 8710 respirator is defective and caused his death
because it did not protect him from harmful coal mine dust. The
jury rejected plaintiff's claim and returned a verdict finding no
liability against 3M. The verdict is final as the plaintiff did
not file an appeal. In September 2017, 3M received a unanimous
verdict in its favor from a jury in state court in Kentucky in
3M's second respirator trial involving coal mine dust. The jury
ultimately determined that the plaintiff's claims were barred by
the statute of limitations. In November 2017, the court denied
the plaintiff's motion for a new trial. The plaintiff did not
file an appeal, thereby ending the litigation. In February 2018,
3M received a verdict in its favor from a jury in state court in
California. The plaintiff alleged that the 3M 8710 respirator
was defective and caused his mesothelioma because it did not
protect him from asbestos fibers. The jury rejected plaintiff's
claim and returned a verdict finding no liability against 3M. In
April 2018, a jury in state court in Kentucky found 3M's 8710
respirators failed to protect two coal miners from coal mine dust
and awarded aggregate compensatory damages of approximately US$2
million and punitive damages totaling US$63 million. Once a
judgment has been entered by the trial court, the Company plans
to appeal the judgment. The Company believes liability in this
case is not probable and estimable.
"The Company has demonstrated in these past trial proceedings
that its respiratory protection products are effective as claimed
when used in the intended manner and in the intended
circumstances. Consequently the Company believes that claimants
are unable to establish that their medical conditions, even if
significant, are attributable to the Company's respiratory
protection products. Nonetheless the Company's litigation
experience indicates that claims of persons with malignant
conditions are costlier to resolve than the claims of unimpaired
persons, and it therefore believes the average cost of resolving
pending and future claims on a per-claim basis will continue to
be higher than it experienced in prior periods when the vast
majority of claims were asserted by medically unimpaired
claimants."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tqLy93
ASBESTOS UPDATE: 3M Co. Accrues US$598MM for Respirator Lawsuits
----------------------------------------------------------------
3M Company had an accrual of US$598 million as of March 31, 2018,
for liabilities associated with respirator mask and asbestos
cases (excluding those related to Aearo Technologies), according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31,
2018.
3M Company states, "The Company regularly conducts a
comprehensive legal review of its respirator mask/asbestos
liabilities. The Company reviews recent and historical claims
data, including without limitation, (i) the number of pending
claims filed against the Company, (ii) the nature and mix of
those claims (i.e., the proportion of claims asserting usage of
the Company's mask or respirator products and alleging exposure
to each of asbestos, silica, coal or other occupational dusts,
and claims pleading use of asbestos-containing products allegedly
manufactured by the Company), (iii) the costs to defend and
resolve pending claims, and (iv) trends in filing rates and in
costs to defend and resolve claims, (collectively, the "Claims
Data"). As part of its comprehensive legal review, the Company
regularly provides the Claims Data to a third party with
expertise in determining the impact of Claims Data on future
filing trends and costs. The third party assists the Company in
estimating the costs to defend and resolve pending and future
claims. The Company uses these estimates to develop its best
estimate of probable liability.
"Developments may occur that could affect the Company's estimate
of its liabilities. These developments include, but are not
limited to, significant changes in (i) the key assumptions
underlying the Company's accrual, including, the number of future
claims, the nature and mix of those claims, the average cost of
defending and resolving claims, and in maintaining trial
readiness (ii) trial and appellate outcomes, (iii) the law and
procedure applicable to these claims, and (iv) the financial
viability of other co-defendants and insurers.
"In the first quarter of 2018, the Company made payments for
legal fees and settlements of US$12 million related to the
respirator mask/asbestos litigation. As of March 31, 2018, the
Company had an accrual for respirator mask/asbestos liabilities
(excluding Aearo accruals) of US$598 million. This accrual
represents the Company's best estimate of probable loss and
reflects an estimation period for future claims that may be filed
against the Company approaching the year 2050.
"The Company cannot estimate the amount or upper end of the range
of amounts by which the liability may exceed the accrual the
Company has established because of the (i) inherent difficulty in
projecting the number of claims that have not yet been asserted
or the time period in which future claims may be asserted, (ii)
the complaints nearly always assert claims against multiple
defendants where the damages alleged are typically not attributed
to individual defendants so that a defendant's share of liability
may turn on the law of joint and several liability, which can
vary by state, (iii) the multiple factors that the Company
considers in estimating its liabilities, and (iv) the several
possible developments that may occur that could affect the
Company's estimate of liabilities.
"As of March 31, 2018, the Company's receivable for insurance
recoveries related to the respirator mask/asbestos litigation was
US$4 million. The Company is seeking coverage under the policies
of certain insolvent and other insurers. Once those claims for
coverage are resolved, the Company will have collected
substantially all of its remaining insurance coverage for
respirator mask/asbestos claims."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tqLy93
ASBESTOS UPDATE: 3M Accrues $29MM for Aearo-Related Liabilities
---------------------------------------------------------------
3M Company, through its Aearo Technologies subsidiary, had
accruals of US$29 million for product liabilities and defense
costs related to current and future Aearo-related asbestos and
silica-related claims, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2018.
The Company states, "On April 1, 2008, a subsidiary of the
Company purchased the stock of Aearo Holding Corp., the parent of
Aearo Technologies ("Aearo"). Aearo manufactured and sold
various products, including personal protection equipment, such
as eye, ear, head, face, fall and certain respiratory protection
products.
"As of March 31, 2018, Aearo and/or other companies that
previously owned and operated Aearo's respirator business
(American Optical Corporation, Warner-Lambert LLC, AO Corp. and
Cabot Corporation ("Cabot")) are named defendants, with multiple
co-defendants, including the Company, in numerous lawsuits in
various courts in which plaintiffs allege use of mask and
respirator products and seek damages from Aearo and other
defendants for alleged personal injury from workplace exposures
to asbestos, silica-related, or other occupational dusts found in
products manufactured by other defendants or generally in the
workplace.
"As of March 31, 2018, the Company, through its Aearo subsidiary,
had accruals of US$29 million for product liabilities and defense
costs related to current and future Aearo-related asbestos and
silica-related claims. This accrual represents the Company's
best estimate of Aearo's probable loss and reflects an estimation
period for future claims that may be filed against the Aearo
approaching the year 2050. Responsibility for legal costs, as
well as for settlements and judgments, is currently shared in an
informal arrangement among Aearo, Cabot, American Optical
Corporation and a subsidiary of Warner Lambert and their
respective insurers (the "Payor Group"). Liability is allocated
among the parties based on the number of years each company sold
respiratory products under the "AO Safety" brand and/or owned the
AO Safety Division of American Optical Corporation and the
alleged years of exposure of the individual plaintiff. Aearo's
share of the contingent liability is further limited by an
agreement entered into between Aearo and Cabot on July 11, 1995.
This agreement provides that, so long as Aearo pays to Cabot a
quarterly fee of US$100,000, Cabot will retain responsibility and
liability for, and indemnify Aearo against, any product liability
claims involving exposure to asbestos, silica, or silica products
for respirators sold prior to July 11, 1995. Because of the
difficulty in determining how long a particular respirator
remains in the stream of commerce after being sold, Aearo and
Cabot have applied the agreement to claims arising out of the
alleged use of respirators involving exposure to asbestos, silica
or silica products prior to January 1, 1997. With these
arrangements in place, Aearo's potential liability is limited to
exposures alleged to have arisen from the use of respirators
involving exposure to asbestos, silica, or silica products on or
after January 1, 1997. To date, Aearo has elected to pay the
quarterly fee. Aearo could potentially be exposed to additional
claims for some part of the pre-July 11, 1995 period covered by
its agreement with Cabot if Aearo elects to discontinue its
participation in this arrangement, or if Cabot is no longer able
to meet its obligations in these matters."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tqLy93
ASBESTOS UPDATE: Valhi Unit Has 106 Cases Pending at March 31
-------------------------------------------------------------
NL Industries, Inc., a subsidiary of Valhi, Inc., has 106 cases
arising from asbestos exposure, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2018.
The Company states, "We have been named as a defendant in various
lawsuits in several jurisdictions, alleging personal injuries as
a result of occupational exposure primarily to products
manufactured by our former operations containing asbestos, silica
and/or mixed dust. In addition, some plaintiffs allege exposure
to asbestos from working in various facilities previously owned
and/or operated by us. There are 106 of these types of cases
pending, involving a total of approximately 579 plaintiffs. In
addition, the claims of approximately 8,676 plaintiffs have been
administratively dismissed or placed on the inactive docket in
Ohio state court. We do not expect these claims will be re-
opened unless the plaintiffs meet the courts' medical criteria
for asbestos-related claims. We have not accrued any amounts for
this litigation because of the uncertainty of liability and
inability to reasonably estimate the liability, if any. To date,
we have not been adjudicated liable in any of these matters.
"Based on information available to us, including facts concerning
historical operations, the rate of new claims, the number of
claims from which we have been dismissed, and our prior
experience in the defense of these matters, we believe that the
range of reasonably possible outcomes of these matters will be
consistent with our historical costs (which are not material).
Furthermore, we do not expect any reasonably possible outcome
would involve amounts material to our consolidated financial
position, results of operations or liquidity. We have sought and
will continue to vigorously seek, dismissal and/or a finding of
no liability from each claim. In addition, from time to time, we
have received notices regarding asbestos or silica claims
purporting to be brought against former subsidiaries, including
notices provided to insurers with which we have entered into
settlements extinguishing certain insurance policies. These
insurers may seek indemnification from us."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2MeXx19
ASBESTOS UPDATE: Albany Int'l Defending 3,662 Claims at March 31
----------------------------------------------------------------
Albany International Corp. is defending 3,662 claims as of March
31, 2018, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended: March 31, 2018.
The Company states, "Albany International Corp. is a defendant in
suits brought in various courts in the United States by
plaintiffs who allege that they have suffered personal injury as
a result of exposure to asbestos-containing paper machine
clothing synthetic dryer fabrics marketed during the period from
1967 to 1976 and used in certain paper mills.
"We anticipate that additional claims will be filed against the
Company and related companies in the future, but are unable to
predict the number and timing of such future claims. Due to the
fact that information sufficient to meaningfully estimate a range
of possible loss of a particular claim is typically not available
until late in the discovery process, we do not believe a
meaningful estimate can be made regarding the range of possible
loss with respect to pending or future claims and therefore are
unable to estimate a range of reasonably possible loss in excess
of amounts already accrued for pending or future claims.
"While we believe we have meritorious defenses to these claims,
we have settled certain claims for amounts we consider reasonable
given the facts and circumstances of each case. Our insurance
carrier has defended each case and funded settlements under a
standard reservation of rights. As of March 31, 2018 we had
resolved, by means of settlement or dismissal, 37,690 claims.
The total cost of resolving all claims was US$10.3 million. Of
this amount, almost 100% was paid by our insurance carrier, who
has confirmed that we have approximately US$140 million of
remaining coverage under primary and excess policies that should
be available with respect to current and future asbestos claims."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tkoHwN
ASBESTOS UPDATE: Brandon Drying Defends 7,707 Claims at March 31
----------------------------------------------------------------
Albany International Corp.'s subsidiary, Brandon Drying Fabrics,
Inc., had 7,707 asbestos-related claims as of March 31, 2018,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2018.
Albany International states, "The Company's subsidiary, Brandon
Drying Fabrics, Inc. ("Brandon"), is also a separate defendant in
many of the asbestos cases in which Albany is named as a
defendant, despite never having manufactured any fabrics
containing asbestos. While Brandon was defending against 7,707
claims as of March 31, 2018, only nine claims have been filed
against Brandon since January 1, 2012, and no settlement costs
have been incurred since 2001.
"Brandon was acquired by the Company in 1999, and has its own
insurance policies covering periods prior to 1999. Since 2004,
Brandon's insurance carriers have covered 100% of indemnification
and defense costs, subject to policy limits and a standard
reservation of rights."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tkoHwN
ASBESTOS UPDATE: Albany Int'l. Still Faces Mount Vernon Lawsuits
----------------------------------------------------------------
Albany International Corp. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2018, that it is named both as a direct
defendant and as the "successor in interest" to Mount Vernon
Mills in some asbestos cases.
The Company states, "We acquired certain assets from Mount Vernon
in 1993. Certain plaintiffs allege injury caused by asbestos-
containing products alleged to have been sold by Mount Vernon
many years prior to this acquisition. Mount Vernon is
contractually obligated to indemnify the Company against any
liability arising out of such products. We deny any liability
for products sold by Mount Vernon prior to the acquisition of the
Mount Vernon assets. Pursuant to its contractual indemnification
obligations, Mount Vernon has assumed the defense of these
claims. On this basis, we have successfully moved for dismissal
in a number of actions."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2tkoHwN
ASBESTOS UPDATE: Belac Bid for Voluntary Dismissal Granted
----------------------------------------------------------
In the case styled Loretta Belac, Plaintiff v. 3M Company et al.,
Defendants, C.A. No. PC-2016-0544, (R.I. Super.), the Superior
Court of Rhode Island, the Court denies Evenheat Kiln, Inc.'s
motion for leave to renew its motion for summary judgment and
grants the Plaintiff Loretta Belac's motion for voluntary
dismissal without prejudice.
The Plaintiff Loretta Belac originally filed this asbestos
liability action on February 9, 2016 and alleges that she was
exposed to asbestos-containing products over the course of her
career crafting ceramics from her home business, which caused her
to develop mesothelioma. Numerous Defendants are named in the
action, including Evenheat.
Evenheat filed its Answer on March 11, 2016. The Plaintiff later
amended the Complaint twice, on July 28, 2016 and September 8,
2016. Evenheat filed Answers to these Amended Complaints on
August 16, 2016 and September 13, 2016.
Beginning shortly after the initial Complaint was filed, between
March and September of 2016, various Defendants contested
personal jurisdiction in Rhode Island and filed motions for lack
of personal jurisdiction and for protective orders to stay or
limit discovery.
Evenheat, however, did not contest Rhode Island jurisdiction. The
Plaintiff was deposed over the course of six days from June to
September of 2016, and Evenheat was present during that
deposition. Evenheat also participated in trial testimony
preservation via telephone conference on September 2, 2016. The
Plaintiff died shortly thereafter due to complications from her
illness.
Evenheat filed a motion for summary judgment on December 22, 2016
and argued that the Plaintiff failed to adequately demonstrate
product identification and a causal connection. The motion
argument was set for hearing on January 4, 2017 and then
rescheduled for March 29, 2017. Oral arguments on the motion were
not heard on either of those dates, however. Instead, the
Administratrix of the Plaintiff's Estate refiled this action in
Pennsylvania on March 22, 2017 and then brought a voluntary
motion to dismiss the charges against all of the Defendants
without prejudice on April 12, 2017.
Evenheat filed an objection to Plaintiff's motion to dismiss. On
April 20, 2017, the Court found that a dismissal at that time
would cause prejudice to Evenheat because it had actively
participated in litigation and had a pending summary judgment
motion. The Court allowed the Plaintiff one month to respond to
Evenheat's motion for summary judgment and noted that oral
arguments on the motion would be scheduled thereafter. The Court
then granted Plaintiff's motion for voluntary dismissal without
prejudice with respect to the Defendants except Evenheat and
another Defendant, Sargent Art, Inc.
Following this order, the Plaintiff responded to Evenheat's
summary judgment motion on May 22, 2017. In support of her
objection, the Plaintiff proffered an affidavit from her
daughter, Faith Belac Cope (Ms. Belac Cope). Evenheat filed a
motion to strike the affidavit on August 31, 2017. Oral arguments
on Evenheat's motion for summary judgment and motion to strike
were heard on September 6, 2017. In a written decision, the Court
denied Evenheat's motion for summary judgment and motion to
strike on October 19, 2017.
Thereafter, Evenheat filed a motion for relief on December 1,
2017 and argued that the Court should have stricken the affidavit
from Ms. Belac Cope and that the Plaintiff did not provide
sufficient exposure evidence. In a bench decision, the Court
denied Evenheat's motion for relief.
Evenheat noticed a deposition of Ms. Belac Cope for March 2018
and filed the instant motion for leave to renew its motion for
summary judgment on March 19, 2018. The same day, Plaintiff also
filed the instant motion to dismiss all claims against Evenheat
without prejudice. Evenheat remains the only Defendant in the
Rhode Island case.
When the Court denied the Plaintiff's first motion for voluntary
dismissal as to Evenheat, the Court noted that a dismissal would
prejudice Evenheat because it had a pending motion for summary
judgment. Accordingly, the Court first addresses Evenheat's
motion for leave to renew its motion for summary judgment. In its
motion, Evenheat argues that it should be permitted to depose Ms.
Belac Cope in order to obtain an expanded record upon which to
base a subsequent motion for summary judgment.
Through the current motion, Evenheat seeks to argue issues that
the Court already has addressed twice: whether the Plaintiff has
provided sufficient evidence of product identification and causal
connection.
Evenheat first advanced its argument that the Plaintiff failed to
provide adequate evidence of product identification and causation
and that the affidavit attesting to such evidence should be
stricken in its motion for summary judgment. The Court rejected
this argument and denied Evenheat's motion for summary judgment
and to strike the affidavit, finding that the product
identification and causation evidence was sufficient.
Evenheat then sought relief from that judgment because the Court
"did not substantively" address the issues, and again advanced
the exact same arguments that the affidavit should be stricken
and the Plaintiff did not show product identification and
causation evidence. The Court denied Evenheat's arguments a
second time.
Now, through the instant motion, Evenheat again seeks to attack
the sufficiency of the Plaintiff's product identification and
causal connection evidence and the validity of Ms. Belac Cope's
affidavit, without providing any additional evidence in support
thereof. Evenheat does not provide an expanded record to support
this motion. Rather, the motion is premised on Evenheat's
conjecture that deposing Ms. Belac Cope would produce enough
favorable evidence to warrant a renewed motion for summary
judgment on the same bases that the Court already addressed
twice. The Court maintains that it cannot permit a third bite of
the proverbial apple. Evenheat's motion for leave to renew its
motion for summary judgment is denied.
The Court notes that Evenheat has actively participated in this
litigation and expended expenses and effort in their trial
preparation and discovery. Since the case was filed in February
of 2016, Evenheat has answered three Complaints, participated in
master discovery and one day of trial testimony preservation over
the phone, and attended the Plaintiff's deposition. Evenheat also
filed a motion for summary judgment and prepared for oral
arguments on that motion. Subsequent to the Plaintiff's first
motion to voluntarily dismiss the case against Evenheat in this
jurisdiction, Evenheat filed a motion for relief and the instant
motion, and prepared for oral arguments.
Similarly, the Plaintiff actively pursued this action. The
Plaintiff participated in discovery and responded to various
motions. Importantly, the Plaintiff only moved to voluntarily
dismiss the case after a significant number of Defendants,
including the so-called "Primary Defendants," contested personal
jurisdiction in Rhode Island. Following these Defendants'
motions, the Plaintiff acted diligently in refiling the action in
another jurisdiction.
The Court finds that there was no delay in the Plaintiff's
pursuit of this action and that the Plaintiff has a sufficient
explanation for seeking a voluntary dismissal. Finally, with the
Court's denial of Evenheat's motions for summary judgment, for
relief, and for leave to renew its motion for summary judgment,
Evenheat no longer has any pending motions in front of the Court.
Considering the aforementioned factors and the circumstances of
this case, the Court finds that a voluntary dismissal without
prejudice is proper.
A copy of the Decision dated June 26, 2018, is available at June
26, 2018 from https://tinyurl.com/ya8wb64c Leagle.com.
John E. Deaton, Esq., for Plaintiff.
Andrew R. McConville, Esq., Marc E. Finkel, Esq., for Defendant.
ASBESTOS UPDATE: NJ Law Application on Allocation Clash Affirmed
----------------------------------------------------------------
The Supreme Court of New Jersey delivered an Opinion affirming
the judgment of the Appellate Division which agreed with the
trial court and concluded that the choice-of-law analysis
supported the application of New Jersey law to Travelers Casualty
& Surety Company's eight excess policies, which were in effect
between February 1, 1977 and October 1, 1983
This appeal involves questions about the insurance coverage
available to defendant Honeywell International, Inc., a New
Jersey based corporation, for thousands of bodily-injury claims
premised on exposure to brake and clutch pads (friction products)
containing asbestos.
The Bendix Corporation (Bendix) -- a corporate predecessor to
defendant Honeywell -- for many years manufactured and sold
friction products that contained asbestos. Bendix stopped using
asbestos in its friction products in 2001, having continued to
manufacture the items even after 1987 when insurance for
asbestos-related claims for such products ceased to be available
in the marketplace.
In 2000, Continental Insurance Company (which wrote many primary
insurance policies for Bendix during the relevant years), and
related companies, commenced this action seeking declaratory
relief concerning the rights and obligations associated with
insurance coverage for the asbestos-related bodily injury claims
filed against Honeywell as a corporate successor to Bendix.
Bendix advanced cross-claims and third-party claims against
various insurers, including Travelers Casualty & Surety Company
and St. Paul Fire and Marine Insurance Company.
Beginning around 1975, Bendix began to receive liability claims
asserting that asbestos in its friction products caused bodily
injury to users. In the years leading up to the summary judgment
proceedings in this matter, Bendix and its successors received
approximately 147,000 claims, of which about 71,000 have been
resolved. Claimants sued Bendix in almost all fifty states, and
its insurers have spent more than $1 billion on indemnity
payments.
Certain matters are undisputed. The friction products contained
asbestos. Honeywell is responsible for asbestos liabilities
attributed to Bendix, although it disputes the dangerousness of
its friction products. And, excess insurance coverage for
asbestos-related personal injury claims became unavailable for
purchase after April 1, 1987.
It appears not to be disputed that the excess insurance policies,
which were not subject to settlement before the trial court, were
all brokered, issued, and delivered to Bendix in Michigan.
Travelers's predecessor, Aetna, issued its disputed policies to
Bendix between 1977 and 1983; St. Paul issued its disputed
policies between 1968 and 1970. None of the policies contain a
choice-of-law provision governing the allocation issue before the
Court.
Honeywell settled with Continental and most other insurers. The
ten insurance policies that remain at issue involve excess
insurance issued to Bendix by Travelers and St. Paul. Eight of
the policies were issued to Bendix by Travelers's predecessor,
Aetna Casualty & Surety Company. Two of the policies were issued
by St. Paul. St. Paul was since acquired by Travelers but is
separately identified for purposes of this appeal.
The choice-of-law issue in this matter arose from the following
procedural actions. Honeywell filed a motion for partial summary
judgment in 2006, asking the court to apply New Jersey insurance
allocation law while opposing the application of Michigan law.
Travelers opposed Honeywell's motion and filed a cross-motion,
seeking the application of Michigan law to its policies. St. Paul
did not oppose Honeywell's motion or make a separate motion. The
motion judge granted Honeywell's motion, denied Travelers's
cross-motion, and held that the laws of New Jersey would apply to
the insurance allocation questions. The court memorialized its
order on November 9, 2006.
The Supreme Court of New Jersey granted certification to address
two issues. First, the Court considers whether the law of New
Jersey or Michigan (the headquarters location of Honeywell's
predecessor when the disputed excess insurance policies were
issued) should control in the allocation of insurance liability
among insurers for nationwide products-liability claims. Second,
the Court addresses whether it was error not to require the
policyholder, Honeywell, to contribute in the allocation of
insurance liability based on the time after which the relevant
coverage became unavailable in the marketplace (that is, since
1987).
The Court notes that Honeywell does not seek coverage in this
dispute for claims that involve initial product exposure
occurring after insurance was not available and while the
policyholder continued to manufacture the product. Although some
of the claims presented involve injury that manifested after the
date of excess-insurance unavailability, the class of claims to
be addressed by the coverage block of insurance all presume that
product exposure predated the insurance unavailability. Thus,
consistent with New Jersey's continuous-trigger doctrine,
Honeywell is seeking coverage under excess insurance policies for
claims only from exposure occurrences during the period of policy
coverage.
The Court explains that under the current law on allocation of
liability among insurers, an insured is not forced to assume
responsibility in that allocation during the insurance coverage
block of policies for years in which insurance is not reasonably
available for purchase.
The trial court and the Appellate Division both concluded that
New Jersey law applied, although for different reasons. Both
courts further determined that, under the circumstances, the
second question must be answered in the negative. The Court also
holds that New Jersey law on the allocation of liability among
insurers applies in this matter, and sets forth the pertinent
choice-of-law principles to resolve this dispute over insurance
coverage for numerous products-liability claims.
Concerning the second question, on these facts, the Court also
affirms the determination to follow the unavailability exception
to the continuous-trigger method of allocation.
Bendix was incorporated in 1929 under the laws of the State of
Delaware. Aspects of its business took place in different states.
During the course of its corporate existence, Bendix had
manufacturing operations in all fifty states and twenty-two
foreign countries, and sold its products throughout the United
States. Administratively though, from about 1940 to 1969, Bendix
maintained its headquarters in South Bend, Indiana, while also
having central offices in Detroit and New York. Its insurance
office was in South Bend. Between 1969 and 1983, Bendix situated
its executive headquarters, including its insurance office, in
Michigan; another central office was in New York. Bendix also had
significant contacts with New Jersey. Until 1973, Bendix's
largest center of operations and payroll was in New Jersey.
Honeywell is the corporate successor to Bendix as a result of the
following corporate changes. The Allied Corporation (Allied)
acquired Bendix in 1983 and operated it as a wholly owned
subsidiary, assuming Bendix's obligations and liabilities. Allied
was incorporated under the laws of the State of New York and had
its principal place of business in New Jersey. In 1985, Allied
and Signal Companies merged, becoming wholly-owned subsidiaries
of The Allied-Signal Inc., a new Delaware corporation that also
has been headquartered in New Jersey since the merger. The
Allied-Signal Inc. changed its name to AlliedSignal Inc. in 1993;
AlliedSignal Inc. merged with Honeywell, Inc., in December of
1999 and changed its name to Honeywell. Honeywell was
incorporated under the laws of the State of Delaware, but its
headquarters and principal place of business have always been
located in Morristown, New Jersey.
Since 1983, all insurance operations for Bendix and its
successors have been located in New Jersey. In total, Honeywell
has purchased more than $3.5 billion in umbrella and excess
insurance for Bendix's and its successors' liabilities from
insurers whose principal places of business were located in over
fourteen states and countries, including New Jersey.
As noted, the trial court granted Honeywell's motion for partial
summary judgment in 2006, holding that New Jersey insurance-
allocation law would apply in this matter. When, in 2011, the
motion court addressed motions for partial summary judgment that
involved the dispute over the duration of the coverage block of
insurance, the parties were eleven years into the case.
The duration of the coverage block teed up the issue of the
unavailability rule's application in this matter. All parties
agreed that the beginning point would be 1940. Continental, the
primary insurer for many years, started paying out claims in the
1980s. It had some years in which its policy had no upper limit.
Consistent with promoting the interests of its insured, it began
paying claims for claimants and to assist Bendix and its
successors in the resolution of claims, leaving coverage disputes
to be resolved independently.
Eventually, Continental assigned to Honeywell its rights with
respect to the primary's responsibilities under allocation. That
assignment included the considerable complication that its
records made it difficult to determine how Continental had been
variously assigning costs (i.e., defense costs or liability costs
and to which matter), which affected the order of exhaustion of
policies among insurers. As the record highlights, between 1980
and 1994, Continental's assignment of past defense costs was
unclear and, once those costs could be identified, required
assessment in respect of the allocation theory to be applied to
this matter. That and other issues were implicated in this
complicated matter of insurance liability allocation that was the
essence of the complaint in this matter.
The trial court determined that one law on allocation should
apply and that should be New Jersey law. That approach allowed
the court to use one set of rules to sensibly and coherently
allocate responsibility among insurers, over decades of actions,
and the many payments already made by insurers, as well as the
insured, depending on the policy-imposed obligations and coverage
limitations held to apply.
Travelers and St. Paul, both excess insurers, argued that the
coverage block should run until the year in which Honeywell, as
the successor to Bendix, ceased manufacturing the friction
products -- 2001. Honeywell maintained that the coverage block
should end in the 1986-87 period when first primary (1986) and
then excess (April 1, 1987) insurance ceased to be available. To
the excess insurers, Honeywell was arguing for truncating the
insurance coverage block. To Honeywell, Travelers was arguing for
extenuation of the insurance coverage block.
The unavailability rule's application in this case became a point
of debate. Travelers asserted earlier in this matter that a fact
question existed about whether insurance was available in the
marketplace. In 2007, another motion judge ordered discovery and
a hearing on that question. When the presently discussed motion
for partial summary judgment came before the deciding motion
judge, the court concluded that there was no genuine issue of
fact concerning the question. The court held that commercial
policies were not available to Honeywell beginning with the
1986/87 period as it had maintained, and we note that fact
determination is not challenged in this appeal.
As a result of the discovery that had taken place though,
Travelers also argued, in connection with the partial summary
judgment motion, that Honeywell was self-insured. In advancing
that argument, it pointed to the company's maintenance of
corporate reserves. Travelers further argued that Honeywell had
assumed the risk and should be treated as responsible for the
years that it continued to manufacture friction products after
1987 until 2001 -- another fifteen years, which would reduce the
exposure of the excess carriers in the allocation methodology
form that which would occur under a coverage block that ended in
1987.
With respect to the reserves, the trial court dismissed the
argument that maintenance of reserves is the equivalent of self-
insurance. The court also rejected the argument that somehow that
business practice of maintaining reserves represented an
assumption of insurance risk relevant to resolution of the
coverage block dispute.
On that point, the court heard from Travelers the arguments that
continued manufacturing by Honeywell from 1987 to 2001 increased
the number of pre-1987 exposure claims, increased the potential
value of pre-1987 claims by alleged enhanced injury from
continued exposure, and resulted in encouraging more people to
file claims based on pre-1987 exposure.
Honeywell argued that the record lacked factual or expert
evidence to support those assertions of inference. Moreover,
Honeywell emphasized that in the case of Owens-Illinois, Inc. v.
United Ins. Co., 138 N.J. 437, 454 (1994), allocation theory
addressed assumption of insurance risk not assumption of tort
risk.
Ultimately, the trial court agreed with Honeywell that the
insurance coverage period should not be extended, as Travelers
requested, to include years from 1987 to 2001. Applying Owens-
Illinois's approach to allocation of insurance risk to claims
arising exclusively from pre-1987 initial exposure, the court
determined that the unavailability of commercial insurance should
end the coverage block of insurance. Hence, the decision fixed
with certainty the policies, with their specific terms and
amounts, which were available for the special master to consider
when allocating among insurers and Honeywell for that period of
time alone. That July 22, 2011 decision had the result of not
requiring the court, or anyone else, to attempt to determine how
policy amounts or limits or related insurance concerns for post-
1987 years would be overlaid on Honeywell during the 1987-2001
period when manufacturing continued or how such corporate
finances would be sorted out between post- and pre-1987 claims.
After the parties consented to the appointment of a special
allocation master (SAM), this matter proceeded before the SAM
with policy years, policies, and amounts certain for the period
of 1940-1987 as he addressed the already complicated issues
before him. After holding hearings and hearing argument, the SAM
issued a report and supplemental report containing
recommendations on allocation. The trial court adopted the SAM's
recommendations and entered a final judgment on September 16,
2013. By the time this matter reached appellate processes, almost
all claims had settled.
Travelers and St. Paul jointly appealed the trial court's two
orders to the Appellate Division. They appealed the November 9,
2006 order, which granted Honeywell's partial summary judgment
motion and applied New Jersey allocation law, and the July 22,
2011 order, which granted Honeywell's partial summary judgment
motion and held that Honeywell had no allocation responsibility
because after 1987 it was not able to obtain insurance coverage
for asbestos claims. The Appellate Division affirmed the trial
court but required a limited remand not pertinent to this appeal.
The appellate panel considered the trial court's choice-of-
allocation-law ruling only as applied to Travelers' eight excess
policies. In its substantive review of that question, the panel
determined that there was a conflict between the insurance-
allocation methodologies of New Jersey, as determined by Owens-
Illinois, and the Michigan time-on-the-risk methodology, espoused
by the Michigan Court of Appeals in Arco Industries Corp. v.
American Motorists Insurance Co., 594 N.W.2d 61 (Mich. Ct. App.
1998) (Arco), aff'd by an equally divided court, 617 N.W.2d 330
(Mich. 2000).
The appellate panel found inapplicable the Restatement (Second)
of Conflict of Laws (Am. Law Inst. 1971) (Restatement) Section
193, entitled "Contracts of Fire, Surety or Casualty Insurance,"
because its site-specific approach was inconsistent with
Travelers's nationwide insurance policies and Bendix's selling of
the friction products throughout the United States. The appellate
panel instead analyzed the issue through Restatement Sections 188
and 6. The panel particularly relied on the Section 6 factors, as
distilled by the Court in Pfizer, Inc. v. Employers Insurance,
154 N.J. 187, 198-99 (1998). The appellate panel considered the
public policy interests of both states; the interests of commerce
among the states; the interests of the parties, including an
evaluation of where the insurance policies were brokered,
negotiated, underwritten, and issued; and the interest of
judicial administration.
The appellate panel further agreed with the trial court that,
under Owens-Illinois, Honeywell was not required to contribute to
allocation for pre-1987 initial exposure claims even if the
claimant did not manifest injury until after 1987, given that
excess insurance for asbestos-related claims was not reasonably
available for purchase after 1987.
St. Paul and Travelers petitioned the Court for certification,
raising both the choice-of-law and allocation issues. Travelers
contends there is a difference in the methodologies of the two
states. Honeywell, on the other hand, maintains that Michigan has
not clearly adopted a set methodology and, so, it has no policy
with which New Jersey's methodology can be said to conflict.
Travelers asks the Court to resolve and clarify the relationship
between Restatement Sections 193 and 188 and the Court's prior
decisions and focuses in particular on State Farm Mutual
Automobile Insurance Co. v. Estate of Simmons, 84 N.J. 28 (1980).
Travelers acknowledges that the law has moved from a lex-loci-
contractus approach toward a most-significant-relationship
approach in contract disputes. However, Travelers emphasizes that
the law of the place of the contract ordinarily governs the
choice of law because [that] rule will generally comport with the
reasonable expectations of the parties concerning the principal
situs of the insured risk during the term of the policy and will
furnish needed certainty and consistency in the selection of the
applicable law.
Travelers maintains that, because the insurance contracts at
issue were brokered, negotiated, underwritten, issued, and
delivered to Bendix in Michigan, the presumption under Simmons
and Restatement Section 193 in favor of application of the law of
the place of contract should result in a presumptive application
of Michigan law in this matter. Travelers asserts that no state
has an interest that overcomes, in this instance, the presumption
that a court should apply the laws of the site of contracting.
Honeywell disagrees that Simmons's purported presumption -- that
the site of the place of contract is of paramount importance --
is applicable in these circumstances. It argues that the Court
have rejected adopting the law of the site of the contract as the
presumptive law and urges consideration of the comparative
interests of the respective states. Honeywell urges application
of the Restatement Section 6 factors. Applying those factors,
Honeywell argues that the relative interests of Michigan are
minimal compared to the interests of New Jersey.
Section 188 of the Restatement generally addresses conflicts-of-
law determinations in contract settings where the parties have
not made an effective choice of law. The Court no longer follow
the former choice-of-law rules of lex loci contractus (for
insurance contracts), and lex loci delicti (for torts), in favor
of using a more flexible "governmental interest" standard that
comes from the Restatement.
Simmons began with a presumption in favor of the law of the
contracting state in an automobile-insurance-liability dispute,
which was sensible in light of that state's relationship with the
"principal situs of the insured risk." 84 N.J. at 37; see also
Restatement Sec 193. Neither Simmons nor ? 193 persuasively
pertain in circumstances such as we have here: nationwide
products-liability claims spanning many years of product exposure
rather than a single occurrence event.
In a contract dispute over insurance allocation for nationwide
products liability claims asserting bodily injury due to asbestos
exposure, the conflicts analysis should center on Restatement
Sections 188 and 6. Section 188 sets forth the contacts to be
taken into account in applying the principles of Section 6. There
are two stronger considerations under Section 188, applied to
this matter, combine to point toward New Jersey. Here, the place
of performance, Section 188(c), and the domicile, residence, and
places of incorporation and of business of the parties, Section
188(e), all point to New Jersey.
Further, heavy weight must be given to the nature of the insured
risk and its site, or to an otherwise performance-related
location consideration. New Jersey is the longstanding domicile
of the insured in this litigation (since 1983). Honeywell is the
successor to the rights of Bendix under the insurance contract.
As such, Honeywell's place of domicile and business (New Jersey)
is easily determined at the time coverage is invoked due to
litigation, triggering the terms of the insurance contract for
these products liability claims. Relatedly, New Jersey is also
the place of performance for the contractual defense and
indemnification of Honeywell in this litigation involving long-
tail claims on an occurrence policy for a predecessor's products
cast into the national marketplace. Even before the New Jersey-
based Honeywell became the successor to Bendix, New Jersey was
integrally involved in Bendix's business operations. It is no
stranger to the dispute.
The Court does not see a strong Michigan interest in its
allocation law being applied to this coverage dispute. This
matter involves nationwide products-liability claims relating to
items manufactured in virtually all fifty states and
internationally, sold in the national marketplace, and that now
are the liability of a successor, New Jersey-based corporation.
The Court also acknowledges that, at the time of contracting, the
parties could not have expected New Jersey law to control either.
However, Section 188 directs courts to consider, among other
factors, the place of performance, Restatement Section 188(c),
and the place of business of the parties. The Court gives great
weight in this analysis to Honeywell's status as a New Jersey
corporation responsible for liability for asbestos-related claims
based on pre-1987 exposure to its friction products.
The Court concludes, in this contract setting where no provision
of the contract or of state law compels application of a specific
state's law, that conflicts-of-law principles favor application
of New Jersey allocation law in the present dispute over
liability among insurers. Accordingly, the Court affirms the
Appellate Division on the first issue and turn to the second,
questioning the use of our unavailability exception in that
allocation methodology.
In this appeal, St. Paul and Travelers also ask the Court to
create an equitable exception to the unavailability rule, whereby
corporations that continue to manufacture products after
insurance becomes unavailable for those products would be
deprived of the insurance coverage they purchased prior to that
unavailability. The insurers contend that the Appellate Division
misapplied this Court's precedent when it held Honeywell was
entitled to coverage, asserting that the panel's application of
Owens-Illinois conflicts with the public policy objectives
underpinning that decision. They urge the Court to conclude that
Honeywell's decision to continue to manufacture and sell products
containing asbestos, after insurance was no longer available,
should result in requiring Honeywell to contribute to the losses
from its past and future sale of those products.
St. Paul and Travelers further urge the Court to find an
"exceptional circumstance" warranting departure from Owens-
Illinois in this case. Thus, they claim that, for purposes of
performing the allocation of risk, the coverage block of
insurance should have been extended to include all years that
Honeywell continued to manufacture the friction products. They
assert that, otherwise, application of the unavailability rule
will encourage manufacturers to behave irresponsibly.
Manufacturers, they argue, will be allowed to transfer the risk
of that subsequent (post-insurance unavailability) conduct to
their prior insurers.
Joining with the insurers, as amicus curiae, is the Complex
Insurance Claims Litigation Association (CICLA). CICLA's main
argument is that this Court should abandon the unavailability
doctrine altogether, an argument not raised by the insurers
themselves. CICLA claims a trend in the law of other
jurisdictions away from recognition of an unavailability
exception. CICLA contends that the exception undermines the
public policy objectives that support the allocation methodology
of Owens-Illinois and encourages manufacturers to forego
insurance while continuing to produce and sell potentially
dangerous products. CICLA adds that the unavailability exception
complicates insurance coverage litigation by creating additional
issues requiring expanded discovery.
In contrast, Honeywell primarily points to the record that
establishes that excess insurance was no longer available after
April 1987. Honeywell emphasizes that it is seeking coverage only
for claims alleging first exposure to a Bendix product before
1987 -- while Bendix and its successors had active occurrence-
policy coverage for asbestos-based risks -- even if manifestation
occurred after that point in time. Honeywell stresses that, under
existing law, their conduct after 1987 is not relevant because it
does not affect the prior exposure for which they had purchased
insurance. Thus, Honeywell contends, the Owens-Illinois
unavailability rule was applied correctly and consistently with
the policy objectives expressed in that opinion. Honeywell
underscores that it is inaccurate for the insurers to contend
that it is seeking to foist post-1987 conduct onto insurers. In
the alternative, Honeywell contends that its adversaries misread
Owens-Illinois to allow for liability allocation to an insured
for a time when insurance was unavailable.
United Policyholders (UP), appearing as amicus curiae in support
of Honeywell, argues that the trial court and Appellate Division
appropriately applied the Owens-Illinois unavailability
exception. UP notes that, in Owens-Illinois, the Court focused on
the policyholder's conscious decision to forego the purchase of
available insurance rather than the policyholder's decision to
engage in a particular kind of business activity. In fact, UP
contends, in Owens-Illinois the Court expressly contrasted a
specific decision by an actor to assume or retain a risk during a
period of no insurance with those periods when insurance coverage
is not available. It too emphasizes that the record clearly
establishes that excess-insurance coverage for asbestos risk was
not available after 1987. UP further urges that we not abandon
precedent because Owens-Illinois has offered certainty in its
formula and has encouraged settlement of complex coverage
disputes.
The Court finds the record in this appeal, carefully addressed by
the trial court, indisputably demonstrates when insurance became
unavailable in the marketplace. Importantly, none of the initial
asbestos exposures, on which claims Honeywell is seeking
insurance coverage, occurred after insurance became unavailable.
The claimants initially were exposed to asbestos at times when
the manufacturer was covered by the excess insurance policies at
issue. Although the disputed policies involved in this appeal
concern excess insurance, the Court is dealing with occurrence
policies. Further, the Court is addressing claims pertaining to
exposure to asbestos during the policy periods claimed to have
caused progressive asbestos-related disease.
The Court explains that this case simply does not present facts
on which to consider abandoning the unavailability exception, let
alone whether to create a novel equitable exception to that
exception that would retroactively deprive parties of paid-for
insurance coverage due to their post-coverage-period conduct.
Sufficient justification for even contemplating taking steps to
alter our allocation methodology, with its unavailability rule,
is absent here. The continued application of the unavailability
rule supports the public policy objectives originally intended by
our prorated allocation methodology.
The Court agrees with the Appellate Division that the trial court
correctly kept its focus on whether Honeywell could reasonably
have purchased insurance for asbestos-related claims. The
assumption-of-risk language in Owens-Illinois, in context,
addressed only assumption of an insurance risk for the existing
claim periods when insurance was reasonably available but the
insured elected not to purchase it. That is not what has happened
here. Moreover, the Court declines to upend this long-litigated
dispute to recognize here an equitable exception to the
unavailability rule.
In light of the extended litigation and the fact that the
manufacturer ceased producing these friction products seventeen
years ago, the Court declines to disrupt the coverage block of
insurance fixed by the trial court, which resulted in maximizing
the insurance resources available for claimants. Indeed, the
basic policy objectives of Owens-Illinois -- of maximizing
insurance resources, encouraging the spreading of risk throughout
the insurance industry, promoting the purchase of insurance when
available, and of simple justice -- are all served by affirming
the judgment and moving to closure this mammoth allocation
dispute, going back to 1940 through to the ending of insurance
availability in 1987.
The appealed case is CONTINENTAL INSURANCE COMPANY, FIDELITY &
CASUALTY COMPANY OF NEW YORK, COMMERCIAL INSURANCE COMPANY OF
NEWARK, N.J., and COLUMBIA CASUALTY COMPANY, Plaintiffs, v.
HONEYWELL INTERNATIONAL, INC. (f/k/a ALLIEDSIGNAL, INC.,
successor to BENDIX AVIATION CORPORATION and BENDIX CORPORATION),
Defendant-Respondent, and ST. PAUL FIRE AND MARINE INSURANCE
COMPANY, Defendant-Appellant, and AFFILIATED FM INSURANCE
COMPANY, ALLSTATE INSURANCE COMPANY, AMERICAN HOME ASSURANCE
COMPANY, AMERICAN INSURANCE COMPANY, CALIFORNIA UNION INSURANCE
COMPANY, CENTURY INDEMNITY COMPANY, COMMERCIAL UNION INSURANCE
COMPANY as successor to EMPLOYERS LIABILITY ASSURANCE
CORPORATION, LTD., EMPLOYERS INSURANCE OF WAUSAU, FIREMAN'S FUND
INSURANCE COMPANY, GRANITE STATE INSURANCE COMPANY, GREAT
AMERICAN INSURANCE COMPANY, HOME INSURANCE COMPANY, INSURANCE
COMPANY OF NORTH AMERICA, NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA, NORTH RIVER INSURANCE COMPANY, TRAVELERS
INDEMNITY COMPANY, UNDERWRITERS AT LLOYDS LONDON and CERTAIN
LONDON MARKET COMPANIES, including ANGLO SAXON INSURANCE ASSOC.
LTD., DOMINION INSURANCE COMPANY, DRAKE INSURANCE COMPANY, EAGLE
STAR INSURANCE COMPANY, INSTITUTE OF LONDON UNDERWRITERS, LONDON
& EDINBURGH INSURANCE COMPANY LTD., PRUDENTIAL ASSURANCE COMPANY
LTD., SOUTHERN INSURANCE COMPANY, and WORLD AUXILIARY INSURANCE
CORP., LTD., Defendants, and HONEYWELL INTERNATIONAL, INC. (f/k/a
ALLIEDSIGNAL, INC., successor to BENDIX AVIATION CORPORATION and
BENDIX CORPORATION), Defendant/Third-Party Plaintiff-Respondent,
v. TRAVELERS CASUALTY & SURETY COMPANY (f/k/a AETNA CASUALTY &
SURETY COMPANY), Third-Party Defendant-Appellant, and AIU
INSURANCE COMPANY, AMERICAN CENTENNIAL INSURANCE COMPANY,
ASSOCIATED INTERNATIONAL INSURANCE COMPANY, CENTRE INSURANCE
COMPANY (f/k/a LONDON GUARANTEE AND ACCIDENT COMPANY OF NEW
YORK), CONTINENTAL CASUALTY COMPANY, THE CONTINENTAL INSURANCE
COMPANY as successor in interest to HARBOR INSURANCE COMPANY
(f/k/a HARBOR INSURANCE COMPANY), EVEREST REINSURANCE COMPANY
(f/k/a PRUDENTIAL REINSURANCE COMPANY), EXECUTIVE RISK INDEMNITY
INC. (f/k/a AMERICAN EXCESS INSURANCE COMPANY), FEDERAL INSURANCE
COMPANY, FIRST STATE INSURANCE COMPANY, FREMONT INDEMNITY COMPANY
(f/k/a INDUSTRIAL INDEMNITY COMPANY), GENERAL REINSURANCE
CORPORATION, HARTFORD ACCIDENT & INDEMNITY COMPANY, INTERNATIONAL
INSURANCE COMPANY (f/k/a INTERNATIONAL SURPLUS LINES INSURANCE
COMPANY), LEXINGTON INSURANCE COMPANY, MT. MCKINLEY INSURANCE
COMPANY (f/k/a GIBRALTAR CASUALTY COMPANY), MUTUAL FIRE, MAINE &
INLAND INSURANCE COMPANY, ROYAL INDEMNITY COMPANY, THE TOKIO
MARINE & FIRE INSURANCE COMPANY, LTD., TWIN CITY FIRE INSURANCE
COMPANY, UTICA MUTUAL INSURANCE COMPANY, WESTPORT INSURANCE
COMPANY (f/k/a PURITAN INSURANCE COMPANY), and CERTAIN LONDON
MARKET COMPANIES, including ACCIDENT & CASUALTY INSURANCE
COMPANY, ALBA GENERAL INSURANCE COMPANY (f/k/a ALBA GENERAL
INSURANCE COMPANY LIMITED), AVIATION & GENERAL INSURANCE COMPANY
LIMITED, AXA INSURANCE PLC (f/k/a PROVINCIAL INSURANCE PUBLIC
LIMITED COMPANY), THE BRITISH AVIATION INSURANCE COMPANY LIMITED,
BRITISH LAW INSURANCE COMPANY LIMITED, BRITISH RESERVE INSURANCE
COMPANY LIMITED, BRITISH TRADERS INSURANCE COMPANY LTD.,
C.A.M.A.T. INSURANCE COMPANY LIMITED, C.F.A.U., CONTINENTAL
ASSURANCE COMPANY OF LONDON, LTD., CORNHILL INSURANCE PUBLIC
LIMITED COMPANY (f/k/a CORNHILL INSURANCE COMPANY LIMITED),
EDINBURGH ASSURANCE COMPANY LTD., EDINBURGH INSURANCE COMPANY
LIMITED, EDINBURGH NO. 2 GROUP, ELVIA SWISS INSURANCE COMPANY
(f/k/a HELVETIA ACCIDENT INSURANCE COMPANY LIMITED), EXCESS
INSURANCE COMPANY LIMITED, FIDELIDADE INSURANCE COMPANY OF
LISBON, GE SPECIALTY INSURANCE (UK) LIMITED (f/k/a THREADNEEDLE
INSURANCE COMPANY LIMITED), GENERAL INSURANCE COMPANY HELVETIA
LIMITED, GROUPAMA INSURANCE COMPANY LIMITED (f/k/a MINISTER
INSURANCE COMPANY LIMITED), HELVETIA INSURANCE COMPANY LTD.,
HELVETIA SWISS INSURANCE COMPANY LIMITED (f/k/a HELVETIA ACCIDENT
SWISS INSURANCE COMPANY), IRON TRADES INSURANCE COMPANY LIMITED
(f/k/a IRON TRADES MUTUAL INSURANCE COMPANY LIMITED), LA MINERVE
INSURANCE COMPANY LIMITED, LOMBARD MARINE & GENERAL INSURANCE
COMPANY LTD., LONDON & EDINBURGH GENERAL INSURANCE COMPANY,
LONDON & OVERSEAS AVIATION A.C., MOTOR UNION INSURANCE COMPANY
LIMITED, NATIONAL CASUALTY COMPANY, NATIONAL CASUALTY COMPANY OF
AMERICA, THE NEW INDIA ASSURANCE COMPANY LIMITED, PHOENIX
ASSURANCE PUBLIC LIMITED COMPANY, PHOENIX AVIATION INSURANCE
COMPANY LIMITED, PHOENIX INSURANCE COMPANY LTD., RIVER THAMES
INSURANCE COMPANY LIMITED, ROAD TRANSPORT & GENERAL INSURANCE CO.
LTD., ROYAL SCOTTISH ASSURANCE PLC (f/k/a THE ROYAL SCOTTISH
INSURANCE COMPANY LIMITED), SCOTTISH LION INSURANCE COMPANY LTD.,
STRONGHOLD INSURANCE COMPANY LIMITED, SWISS NATIONAL INSURANCE
COMPANY LIMITED, SWISS UNION GENERAL INSURANCE COMPANY LIMITED,
SWITZERLAND GENERAL INSURANCE COMPANY LIMITED, TRENT INSURANCE
COMPANY LIMITED, TUREGUM INSURANCE COMPANY LIMITED, ULSTER
INSURANCE COMPANY LIMITED, UMA, UNITED SCOTTISH INSURANCE COMPANY
AVIATION LTD., UNITED SCOTTISH INSURANCE COMPANY LIMITED,
VANGUARD INSURANCE COMPANY LIMITED, VICTORIA AVIATION, VICTORIA
INSURANCE COMPANY, LTD., and THE WORLD MARINE & GENERAL INSURANCE
PLC (f/k/a THE WORLD MARINE & GENERAL INSURANCE COMPANY LIMITED),
Third-Party Defendants. CONTINENTAL INSURANCE COMPANY, FIDELITY &
CASUALTY COMPANY OF NEW YORK, COMMERCIAL INSURANCE COMPANY OF
NEWARK, N.J., and COLUMBIA CASUALTY COMPANY, Plaintiffs, v.
HONEYWELL INTERNATIONAL, INC. (f/k/a ALLIEDSIGNAL, INC.,
successor to BENDIX AVIATION CORPORATION and BENDIX CORPORATION),
Defendant-Respondent, and ST. PAUL FIRE AND MARINE INSURANCE
COMPANY, Defendant-Appellant, and AFFILIATED FM INSURANCE
COMPANY, ALLSTATE INSURANCE COMPANY, AMERICAN HOME ASSURANCE
COMPANY, AMERICAN INSURANCE COMPANY, CALIFORNIA UNION INSURANCE
COMPANY, CENTURY INDEMNITY COMPANY, COMMERCIAL UNION INSURANCE
COMPANY as successor to EMPLOYERS LIABILITY ASSURANCE
CORPORATION, LTD., EMPLOYERS INSURANCE OF WAUSAU, FIREMAN'S FUND
INSURANCE COMPANY, GRANITE STATE INSURANCE COMPANY, GREAT
AMERICAN INSURANCE COMPANY, HOME INSURANCE COMPANY, INSURANCE
COMPANY OF NORTH AMERICA, NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA, NORTH RIVER INSURANCE COMPANY, TRAVELERS
INDEMNITY COMPANY, UNDERWRITERS AT LLOYDS LONDON and CERTAIN
LONDON MARKET COMPANIES, including ANGLO SAXON INSURANCE ASSOC.
LTD., DOMINION INSURANCE COMPANY, DRAKE INSURANCE COMPANY, EAGLE
STAR INSURANCE COMPANY, INSTITUTE OF LONDON UNDERWRITERS, LONDON
& EDINBURGH INSURANCE COMPANY LTD., PRUDENTIAL ASSURANCE COMPANY
LTD., SOUTHERN INSURANCE COMPANY, and WORLD AUXILIARY INSURANCE
CORP., LTD., Defendants, and HONEYWELL INTERNATIONAL, INC. (f/k/a
ALLIEDSIGNAL, INC., successor to BENDIX AVIATION CORPORATION and
BENDIX CORPORATION), Defendant/Third-Party Plaintiff-Respondent,
v. TRAVELERS CASUALTY & SURETY COMPANY (f/k/a AETNA CASUALTY &
SURETY COMPANY), Third-Party Defendant-Appellant, and AIU
INSURANCE COMPANY, AMERICAN CENTENNIAL INSURANCE COMPANY,
ASSOCIATED INTERNATIONAL INSURANCE COMPANY, CENTRE INSURANCE
COMPANY (f/k/a LONDON GUARANTEE AND ACCIDENT COMPANY OF NEW
YORK), CONTINENTAL CASUALTY COMPANY, THE CONTINENTAL INSURANCE
COMPANY as successor in interest to HARBOR INSURANCE COMPANY
(f/k/a HARBOR INSURANCE COMPANY), EVEREST REINSURANCE COMPANY
(f/k/a PRUDENTIAL REINSURANCE COMPANY), EXECUTIVE RISK INDEMNITY
INC. (f/k/a AMERICAN EXCESS INSURANCE COMPANY), FEDERAL INSURANCE
COMPANY, FIRST STATE INSURANCE COMPANY, FREMONT INDEMNITY COMPANY
(f/k/a INDUSTRIAL INDEMNITY COMPANY), GENERAL REINSURANCE
CORPORATION, HARTFORD ACCIDENT & INDEMNITY COMPANY, INTERNATIONAL
INSURANCE COMPANY (f/k/a INTERNATIONAL SURPLUS LINES INSURANCE
COMPANY), LEXINGTON INSURANCE COMPANY, MT. MCKINLEY INSURANCE
COMPANY (f/k/a GIBRALTAR CASUALTY COMPANY), MUTUAL FIRE, MAINE &
INLAND INSURANCE COMPANY, ROYAL INDEMNITY COMPANY, THE TOKIO
MARINE & FIRE INSURANCE COMPANY, LTD., TWIN CITY FIRE INSURANCE
COMPANY, UTICA MUTUAL INSURANCE COMPANY, WESTPORT INSURANCE
COMPANY (f/k/a PURITAN INSURANCE COMPANY), and CERTAIN LONDON
MARKET COMPANIES, including ACCIDENT & CASUALTY INSURANCE
COMPANY, ALBA GENERAL INSURANCE COMPANY (f/k/a ALBA GENERAL
INSURANCE COMPANY LIMITED), AVIATION & GENERAL INSURANCE COMPANY
LIMITED, AXA INSURANCE PLC (f/k/a PROVINCIAL INSURANCE PUBLIC
LIMITED COMPANY), THE BRITISH AVIATION INSURANCE COMPANY LIMITED,
BRITISH LAW INSURANCE COMPANY LIMITED, BRITISH RESERVE INSURANCE
COMPANY LIMITED, BRITISH TRADERS INSURANCE COMPANY LTD.,
C.A.M.A.T. INSURANCE COMPANY LIMITED, C.F.A.U., CONTINENTAL
ASSURANCE COMPANY OF LONDON, LTD., CORNHILL INSURANCE PUBLIC
LIMITED COMPANY (f/k/a CORNHILL INSURANCE COMPANY LIMITED),
EDINBURGH ASSURANCE COMPANY LTD., EDINBURGH INSURANCE COMPANY
LIMITED, EDINBURGH NO. 2 GROUP, ELVIA SWISS INSURANCE COMPANY
(f/k/a HELVETIA ACCIDENT INSURANCE COMPANY LIMITED), EXCESS
INSURANCE COMPANY LIMITED, FIDELIDADE INSURANCE COMPANY OF
LISBON, GE SPECIALITY INSURANCE (UK) LIMITED (f/k/a THREADNEEDLE
INSURANCE COMPANY LIMITED), GENERAL INSURANCE COMPANY HELVETIA
LIMITED, GROUPAMA INSURANCE COMPANY LIMITED (f/k/a MINISTER
INSURANCE COMPANY LIMITED), HELVETIA INSURANCE COMPANY LTD.,
HELVETIA SWISS INSURANCE COMPANY LIMITED (f/k/a HELVETIA ACCIDENT
SWISS INSURANCE COMPANY), IRON TRADES INSURANCE COMPANY LIMITED
(f/k/a IRON TRADES MUTUAL INSURANCE COMPANY LIMITED), LA MINERVE
INSURANCE COMPANY LIMITED, LOMBARD MARINE & GENERAL INSURANCE
COMPANY LTD., LONDON & EDINBURGH GENERAL INSURANCE COMPANY,
LONDON & OVERSEAS AVIATION A.C., MOTOR UNION INSURANCE COMPANY
LIMITED, NATIONAL CASUALTY COMPANY, NATIONAL CASUALTY COMPANY OF
AMERICA, THE NEW INDIA ASSURANCE COMPANY LIMITED, PHOENIX
ASSURANCE PUBLIC LIMITED COMPANY, PHOENIX AVIATION INSURANCE
COMPANY LIMITED, PHOENIX INSURANCE COMPANY LTD., RIVER THAMES
INSURANCE COMPANY LIMITED, ROAD TRANSPORT & GENERAL INSURANCE CO.
LTD., ROYAL SCOTTISH ASSURANCE PLC (f/k/a THE ROYAL SCOTTISH
INSURANCE COMPANY LIMITED), SCOTTISH LION INSURANCE COMPANY LTD.,
STRONGHOLD INSURANCE COMPANY LIMITED, SWISS NATIONAL INSURANCE
COMPANY LIMITED, SWISS UNION GENERAL INSURANCE COMPANY LIMITED,
SWITZERLAND GENERAL INSURANCE COMPANY LIMITED, TRENT INSURANCE
COMPANY LIMITED, TUREGUM INSURANCE COMPANY LIMITED, ULSTER
INSURANCE COMPANY LIMITED, UMA, UNITED SCOTTISH INSURANCE COMPANY
AVIATION LTD., UNITED SCOTTISH INSURANCE COMPANY LIMITED,
VANGUARD INSURANCE COMPANY LIMITED, VICTORIA AVIATION, VICTORIA
INSURANCE COMPANY, LTD., and THE WORLD MARINE & GENERAL INSURANCE
PLC (f/k/a THE WORLD MARINE & GENERAL INSURANCE COMPANY LIMITED),
Third-party Defendants. Nos. A-21-16, 078152. (N.J.)
A copy of the Opinion dated June 27, 2018, is available at
https://tinyurl.com/ycwlpbmo from Leagle.com.
Andrew T. Frankel argued the cause for appellants St. Paul Fire
and Marine Insurance Company and Travelers Casualty and Surety
Company (Windels Marx Lane & Mittendorf, and Simpson Thacher &
Bartlett, attorneys; Stefano V. Calogero --
scalogero@windelsmarx.com -- of counsel; Stefano V. Calogero --
scalogero@windelsmarx.com -- Andrew T. Frankel --
afrankel@stblaw.com -- Tanya M. Mascarich --
tmascarich@windelsmarx.com -- on the briefs).
Michael J. Lynch -- jim.lynch@klgates.com -- (K&L Gates) of the
Pennsylvania bar, admitted pro hac vice, argued the cause for
respondent Honeywell International, Inc. (K&L Gates, attorneys;
Michael J. Lynch -- jim.lynch@klgates.com -- Donald E. Seymour --
donald.seymour@klgates.com -- John T. Waldron --
john.waldron@klgates.com -- and Donald W. Kiel --
donald.kiel@klgates.com -- on the briefs).
Carl A. Salisbury and Paul E. Breene -- pbreene@reedsmith.com --
submitted a brief on behalf of amicus curiae United Policyholders
(Bramnick, Rodriguez, Grabas, Arnold & Mangan, and Reed Smith,
attorneys).
Brian R. Ade submitted a brief on behalf of amicus curiae Complex
Insurance Claims Litigation Association (Rivkin Radler,
attorneys).
ASBESTOS UPDATE: Retired Engineer Dies of Asbestos Exposure
-----------------------------------------------------------
Gareth Newnham of Daily Echo reported that a retired engineer
died as a result of exposure to asbestos.
John Simpson, of Hill Lane, Southampton died of cancer caused by
exposure to the substance in March.
An inquest heard how the 78-year-old had been exposed to the
asbestos several times while working at the Billingham plant of
Imperial Chemical Industries from 1958-1966.
In a statement taken before his death, Mr Simpson said he had
first been exposed to asbestos while servicing boilers in the
plant which were lagged with the substance.
"I had to remove the asbestos with hammers or my hands.
"It was a dusty, dirty environment," he said
Senior Coroner Grahame Short concluded that Mr Simpson's death
was the result of Industrial disease.
In a statement his widow, Charlotte Scott Beveridge thanked the
staff at Southampton General and the Royal Marsden Hospital where
Mr Simpson received treatment during his illness.
She also paid tribute to her husband: "John displayed a
determination to live, supported by his friends and family.
"He never gave up."
ASBESTOS UPDATE: Woman Dies of Exposure from Husband's Overalls
---------------------------------------------------------------
Ben Abbit of Manchester Evening News reported that when Vivienne
Swain dusted off, washed and pressed her husband's overalls she
never could have imagined the fatal consequences.
The mum-of-two thought nothing of it when her husband came home
from his job as a joiner in Rochdale covered in dust. She simply
put his clothes in a pile of washing with everything else. But
that simple household chore would eventually lead to her death.
Vivienne was the victim of asbestos, the silent killer that has
claimed the lives of thousands of working class people who came
into contact with.
Many of the men and women affected by asbestos-related diseases
spent decades grafting in tough industrial jobs -- only to die
just months after retiring.
And because asbestos can remain latent in the lungs for decades,
most people only develop the related diseases years after
breathing in the deadly substance. A cruel twist of fate which
meant simply going to work, or washing your husband's overalls
could lead you to an early grave.
Years after her husband's days as a joiner, when Vivienne was
widowed, she developed a chest infection which she couldn't
shift. The grandmother-of-six, then 59, was told she may have
developed asthma and prescribed an inhaler. While on holiday in
Rhodes she noticed herself getting breathless.
A chest x-ray revealed that a third of her lung had collapsed and
she was immediately admitted to hospital- sparking memories of
her late husband's cancer battle.
Initial tests for cancer were negative but, in August 2015,
Vivienne was diagnosed with mesothelioma, an asbestos-related
cancer.
The UK has the worst incidence of mesothelioma deaths in the
world -- a legacy of our heavy use of the tough, fire-proof,
'magic mineral' during construction and industry after the war.
And, despite the dangers being known much earlier, asbestos was
only banned in 1985 and can still be found in some old buildings
today.
When materials containing asbestos are disturbed, fibres can be
inhaled and can lead to a range of diseases including asbestosis,
mesothelioma and pleural thickening. It can take up to 50 years
for the diseases to manifest themselves and when they do it is
often too late.
Describing the moment she was diagnosed with mesothelioma,
Vivienne said: "She said those immortal words 'incurable' and I
remember a sense of cold going right through my body.
"I didn't cry and was in a way relieved that I now knew what was
wrong with me.
"I knew I had terminal cancer and wanted to know 'how long I
had', she said. "It was a pleasant surprise to be told 'best of
three years'. I told them I would still be here in five years and
had too much living to do and grandchildren to see."
Vivienne, who was treated at Wythenshawe Hospital and underwent
two cancer trials, refused to be cowed by her illness.
She went on holidays and even visited Cape Town for three months
with her partner Ian Johnstone.
"I count myself lucky that I'm able to be have this wonderful
time with Ian and my sons, lucky that I have Ian and his
unwavering love and support, grateful to my sons of for being
there for me and making life normal," she said.
Vivienne died in May -- just two years and 10 months after her
diagnosis.
Her funeral coincided with Action Mesothelioma Day -- an event
she spoke at several times.
Ian says Vivienne would have been happy that her story was still
raising awareness of mesothelioma.
"It's opened my eyes -- I didn't known what mesothelioma was
before," he says.
"When you used to look at the statistics it was always an old
man's disease -- something that affected joiners, carpenters and
railway workers. Now I notice a lot more younger people. When
Vivienne was diagnosed she was the youngest in her support group.
"It's a cruel illness the way it develops. She deteriorated very
quickly in the end.
"She was selfless all the way through it," says Ian. "She did
talks and even went to the Royal Courts of Justice to speak about
mesothelioma.
"She was full of life and always had a smile on her face and
looked to help people.
"When she was diagnosed she stood up and said 'I will not be
defined by this, I will carry on with my life'. And she did."
"In my opinion the mesothelioma epidemic is possibly the greatest
public health scandal this country has seen for generations",
Steve Dickens, a lawyer who has spent years working for victims
of asbestos-related illnesses, says.
His views are echoed by Graham Dring, of the Greater Manchester
Asbestos Victims' Support Group, who compares the phenomena to
the thalidomide scandal of the 1960s.
"This is the biggest industrial catastrophe that has ever
happened to this country," he insists.
In Greater Manchester several local factors fuelled the rising
epidemic even further.
Turner & Newall, at one time one of the biggest asbestos
companies in the world, had factories in Rochdale, Trafford Park
and Hindley Green.
More raw asbestos was unloaded at Salford Docks than any other
port in the country, and the widespread use of asbestos to
insulate steam engines and railway carriages saw many workers at
Horwich locomotive works heavily exposed to asbestos dust.
Even the IRA bombing, which devastated Manchester city centre
back in 1996, is thought to have caused at least one asbestos-
related death, after security guard Stuart Packard, 40, died from
mesothelioma.
That incurable cancer killed 2,595 in Britain in 2016, according
to the Health and Safety Executive. That's a rise on the previous
year's figures.
Current figures are largely a consequence of exposure to asbestos
among tradespeople before 1980.
But experts say a similar number of non-mesothelioma lung cancer
deaths are thought to be linked to asbestos exposure. And annual
deaths are expected to remain around current levels for the rest
of the decade before beginning to decline.
The HSE estimates that 90,000 people will have died from
mesothelioma in the UK by 2050 unless a cure is found.
And though blue-collar workers have been disproportionately
affected, they're not the only ones who have died because of
asbestos exposure.
Film star Steve McQueen is believed to have breathed in asbestos
fibres while working in the U.S. Marines Corps and while wearing
flame retardant suits, driving motor cars and bikes. He died of
malignant mesothelioma the cancer in 1980. While musician Joe
Sample, who founded soul band The Crusaders, also died of the
disease. Asbestos was even used as fake snow during the 1950s,
sold to families in shops across America and the UK.
Hollywood filmmakers hailed the non-flammable material a godsend
when they discovered it was visible on celluloid. It's even
rumoured that handfuls of asbestos were scattered over Judy
Garland in 'The Wizard of Oz' and were on standby to be used as
fake snow during the filming of the classic Christmas movie 'It's
A Wonderful Life'.
Perhaps more shocking are the cases of people who died from
asbestos exposure without ever working with the substance.
For decades asbestos was widely used in the building and
manufacturing industries in products such as cement, plaster,
asbestos board and the lagging used to line pipes and boilers.
Teachers, nurses and other workers have all died because of
exposure at old school, hospital and swimming bath buildings.
Salford mum Penny Garner believed she breathed in asbestos as a
child while playing at Seedley Primary School as the neighbouring
swimming baths were being demolished.
She took her case to the High Court, but judges ruled that
neither Ardwick-based building firm P McGuinness and Co or
Salford council was responsible.
An inquest into her death concluded that she died as a result of
industrial disease after being exposed to asbestos while working
at a textiles factory in her late teens.
But one doctor said it was 'the lightest dusting of exposure' he
had ever seen.
Of course not everyone who has been exposed to asbestos will
develop these illnesses.
Doctors don't know why some do and others don't -- a simple case
of bad luck perhaps. But one thing is certain -- nobody would
develop these deadly diseases if they hadn't been exposed in the
first place.
"This epidemic was man-made and avoidable," says Graham Dring.
"The profits of the asbestos industry were considered more
important than the lives of workers by the industry and
successive governments.
"Asbestos was not banned in this country until nearly 40 years
after it was shown that it caused mesothelioma and, shamefully,
it is still exported to, and used in, the developing world,
despite what we know about the dangers from our own experience in
the UK."
Graham's Greater Manchester Asbestos Victims' Support Group sees
hundreds of new referrals each year. In 2016 there were 350 and
just under half of those were affected by mesothelioma.
Most are construction workers, joiners and carpenters. However,
Graham says he is seeing even more office workers, school workers
and women who were exposed because asbestos was in the fabric of
the building where they worked.
He is currently fighting to preserve court documents, which could
help mesothelioma victims who are pursuing compensation claims.
The important High Court battle could reveal how much was known
about the dangers of exposure to asbestos.
Amidst this complicated and long-running battle will be a day for
reflection. On Friday, to mark Action Mesothelioma Day, GMAVSG
members released doves in Albert Square to pay tribute to those
who died from the disease.
"At least 90,000 people will die of mesothelioma in the UK before
this epidemic ends," says Graham. "We desperately need more money
for mesothelioma research and a total ban on the continuing trade
in asbestos."
The specialist lawyer helping families
Over the decades hundreds of families have claimed compensation
after losing loved ones because they were exposed to asbestos.
Turner and Newall, for example, has a trust set up specifically
to compensate former employees of its group of companies.
But properly compensating people is harder that you might think.
Steve Dickens is an asbestos and mesothelioma claims lawyer at
Leigh Day. He has been working for victims of asbestos exposure
for more than a decade.
The detective work Steve has to carry out to help these families
can be slow and difficult. He is often required to go into
forensic detail and work with an insurance archaeologist to make
sure a case stands up to scrutiny.
Factory workers, electricians, plumbers and dockers have all
passed through his case files. But he has also worked to help
publicans, shop workers and teachers -- both their bereaved
families and those in the throes of mesothelioma. This, he says,
can be the hardest part of his job.
"The most shocking cases are the cases of young people," he says.
"We have cases of people with young children. You're not just
looking at the impact on a young widow but it's the impact on
those children too."
Steve has taken cases to the High Court and worked for years to
help individuals.
In one seminal case he acted for a woman in her claim against the
Turner & Newall Asbestos Trust following her development of
mesothelioma. It was proved that the mesothelioma had been caused
as a result of exposure to asbestos whilst she was playing as a
child in the fields surrounding the Turner & Newall works at
Hindley Green.
He also acted for a pleural thickening sufferer who had been
exposed to asbestos at the Shell petrochemicals site at
Carrington. The claim was opposed by Shell meaning Steve had to
obtain statements from many other colleagues who had also been
exposed to asbestos beyond 1973 -- when Shell claimed asbestos
was no longer being disturbed on site.
The claim was successfully settled and compensation was
recovered.
More than 43,000 people have died from mesothelioma in Great
Britain in the period between 1996 and 2016 alone.
"The figures suggest no plateau has been reached and in my view
we will continue to see an increase in numbers," Steve says.
"There has long been an expectation we would reach the 'top of
the curve'. The curve has been moved year on year. However, it is
important to stress that even when the top of the curve is
reached we will still be witnessing significant numbers of
mesothelioma deaths every year in this country for decades to
come."
ASBESTOS UPDATE: Asbestos Found in Bermuda Police Building
----------------------------------------------------------
Paul Johnson of Royal Gazette reported that The Bermuda Police
Association is "very concerned" over the discovery of asbestos in
a police building, the head of the organisation said yesterday.
Police announced the Criminal Records Office was temporarily
closed after material containing asbestos was found in files in a
cabinet.
It forced the immediate halt to vetting requests in areas
including employment and immigration.
Andrew Harewood, chairman of the BPA, said: "Obviously our main
concern is that of the health of our members."
The building is located at police headquarters in Prospect,
Devonshire.
A police spokesman said that the move was made "out of an
abundance of caution" after tests showed asbestos was present.
The spokesman added: "The safety, health and wellbeing of our
staff, and that of the public, remains a main priority for the
BPS."
Mr Harewood said that the BPA was notified of the find by senior
management earlier this week.
He added: "To my knowledge, it was acted on immediately."
Mr Harewood said he could not provide information on the number
of organisation members that worked in the office.
He added that a statement had not been issued to members by the
BPA about the discovery.
Mr Harewood said: "We were informed that the issue is being dealt
with by senior management."
He said the BPA would work along with management to make sure the
necessary protocols were followed.
Mr Harewood added: "The results will determine what we do from
there."
The police spokesman said that the closure would last until
additional testing and assessments can be conducted.
He said: "The BPS recognises the important role that vetting
plays in employment, immigration and other related areas, and
sincerely regrets this necessary suspension of services at the
Criminal Records Office.
"The public is being assured that everything is being done to
restore services in a safe and healthy environment for our staff
and the public in the shortest possible time."
ASBESTOS UPDATE: Woman Says Asbestos at Work Caused Lung Cancer
---------------------------------------------------------------
Madison County Record reported that a former construction worker
alleges that exposure to asbestos during her career caused her to
develop cancer.
Dorlla Wiltsie filed a complaint on June 20 in the St. Clair
County Circuit Court against CBS Corp., General Electric Corp.,
Union Carbide Corp., et al. alleging negligence and other counts.
According to the complaint, the plaintiff alleges that at various
times during her employment from 1954 to 2000, she was exposed to
and inhaled or ingested asbestos fibers emanating from certain
products manufactured, sold, distributed or installed by
defendants. She alleges that on or about May 10, 2017, she first
became aware that she developed lung cancer, an asbestos-induced
disease, and that the disease was wrongfully caused.
The plaintiff holds CBS Corp., General Electric Corp., Union
Carbide Corp., et al. responsible because the defendants
allegedly intentionally included asbestos fibers in their
products when they knew that it had toxic, poisonous and highly
deleterious effect to human health and failed to provide adequate
warnings and instructions concerning the dangers of working with
or around products containing asbestos fibers.
The plaintiff seeks compensatory damages of more than $50,000,
plus punitive damages and any further relief as the court deems
appropriate. She is represented by Ethan A. Flint and Laci M.
Whitley of Flint Law Firm in Edwardsville.
St. Clair County Circuit Court case number 18-L-438
ASBESTOS UPDATE: Patient Disclosure Sparks Exchange in Talc Trial
-----------------------------------------------------------------
John Sammon of St. Louis Record reported that a gynecological
oncologist called by Johnson & Johnson disputed an allegation he
was engaging in a conflict of interest in withholding information
from some of the 22 women suing the company over its baby powder
they claimed gave them ovarian cancer -- by not telling them he
was testifying against them in court.
"Do you understand that people have a right to justice?"
plaintiffs' attorney Mark Lanier asked.
"Yes," responded Dr. Warner Huh, an obstetrician-gynecologist
with the University of Alabama at Birmingham (UAB) lab.
"Whether their cancer is caused by a defective product?" Lanier
asked.
"Okay, yes!" Huh answered.
"Some of your patients have enlisted the court to do just that
very thing," Lanier said. "So they and their families can get
resolution, and financial compensation, you know how important
that is, right?"
"I understand," Huh said.
"It would be important for someone to find out if someone was
responsible for that (cancer), right?" Lanier pressed.
"Okay!" Huh said.
"Yet you don't think it would hinder your relationship with these
patients, if they found out that their lawsuit you were
testifying is invalid?" Lanier asked.
"I don't see how that affects my relationship," Huh said.
"Wow!" Lanier responded in disbelief.
The July 5 session again saw the defense continue to portray the
plaintiffs' ovarian cancer not a result of the alleged asbestos
the talc they used contained, but a trait inherited from family
histories of cancer.
Lisa Simpson, an attorney for the defense, had Huh give his
medical observations of some of the plaintiffs. Six of the women
have died from ovarian cancer since before the trial began four
weeks ago.
"I tell patients I do not think there is a relationship between
cancer and talc," Huh said.
Three of the plaintiffs Krystal Kim, Marcia Hillman and Annette
Koman had cancer backgrounds in their families, Huh noted.
"Kim was 49 when she was diagnosed and that shows a (cancer)
predisposition," he explained. "The main thing is her young age,
most are around age 63."
Kim had a father with stomach cancer, a mother with colon cancer
and an aunt and a cousin each with breast cancer.
Huh told the jury one test that had found asbestos fibers in
Kim's tissues was not proof of talc as a culprit in causing
cancer.
"Just because of the presence of talc or asbestos does not mean
that's what caused her (Kim's) cancer," he said. "She had tissue
removed that had cancer, but no asbestos was seen. There are
tumors that have no asbestos. It's inconsistent what was found."
Lanier customarily draws a road map projected on a wall for the
jury to see representing his questions and his reaction to the
answers from each witness.
He accused Huh of donning blinders so he wouldn't see the truth,
and of being unqualified to make judgments about asbestos
exposure.
"You never used the word asbestos in the first 35 minutes of your
testimony, did you know that?" Lanier asked.
"No, I did not know that," Huh said.
"Your asbestos qualifications are zero," Lanier said.
"I don't agree," Huh said.
"Six weeks ago before your deposition after you were retained as
a (defense) expert, you did not even know that asbestos causes
mesothelioma," Lanier said.
Huh disagreed.
"Have you specialty training in asbestos?" Lanier asked.
"No," Huh replied.
"Have you taught on it?" Lanier asked.
"No," Huh answered.
"Have you researched on it?" Lanier continued.
"No," Huh said.
"You really learned about asbestos since you gave your deposition
six weeks ago," Lanier said.
"That I disagree with," Huh answered.
"Are there any other asbestos qualifications before you formed
your opinions in this case?" Lanier asked.
"No," Huh said.
"Some of the women I represent, that you have as a patient,"
Lanier said. "You never explained to them that you are testifying
under oath, that their position in this case against this company
(Johnson & Johnson) is hooey?"
Lanier asked Huh if he didn't see it as a potential conflict of
interest not advising his patients he was testifying in the case.
"As it relates specifically to patient care no," Huh said. "If
asked I tell them. I don't see it as a potential conflict of
interest."
When Lanier made an analogy that asbestos exposure and the
relationship between talc and ovarian cancer was like pouring
gasoline on a flame, Huh said he strongly disagreed.
"A relationship between talc and ovarian cancer doesn't exist
that's why I don't have an analogy," he said.
Under cross examination Simpson asked Huh if it would be
impossible to know if one of his patients was filing a lawsuit
unless they told him?
"Right," Huh said. "The only way for me to know if the patient
filed a lawsuit is if they came to the office and notified me
verbally or in writing."
Later in the day, Dr. John Hopkins, a former Johnson & Johnson
employee who worked for the company from 1976 to 2000 and who now
runs a toxicology consulting firm, appeared as a defense witness.
He was asked if J&J's testing method of talc had been thorough?
"Yes," he said. "No one could be any more thorough. There was a
culture in the company to do the best you can."
*********
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