/raid1/www/Hosts/bankrupt/CAR_Public/181019.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 19, 2018, Vol. 20, No. 210
Headlines
ABERCROMBIE & FITCH: Class Suits Granted Preliminary Approval
AEG: Ozzy Osbourne Dismisses Block-Booking Policy Class Action
AFFY TAPPLE: Faces Class Suit in NY Under ADA
ALTABA: To Incur $47MM to Settle Yahoo Data Breach Litigation
AMAN RESORTS: Gonzales Files Civil Rights Class Suit in California
AMERICAN AIRLINES: Settles Baggage Fee Class Action
AMERICAN DENTAL: Diaz Suit Alleges ADA Violation
AMERICAN EAGLE: Bowes et al. Suit Moved to S.D. New York
ANGELS CARE: Marks Labor Suit to Recover Unpaid Overtime
ATHENA CAPITAL: Garcia Suit in Georgia Asserts FLSA Breach
AUTODESK INC: Sullivan Suit Asserts ADA Violation
AVVO INC: Mitchell Files Suit for Invasion of Privacy
BIG CITY: State Supreme Court Tosses Rent Class Action
BIG THINK: Faces Sullivan ADA Suit in S.D. New York
BITCONNECT INTERNATIONAL: Mengesha Suit Moved to S.D. Florida
BO-MELL ENTERPRISES: Torres et al. Seek Overtime Pay under FLSA
CAMELBAK: Mosqueda-Zavala Files Labor Class Action in Calif.
CARDINAL INNOVATIONS: Settles Federal Wage Class Action
CBS CORPORATION: Lantz Sues Over False, Misleading Co. Reports
CEDAR FINANCIAL: Speight Files FDCPA Suit in Calif. Ct.
CIRCLE LINE: Faces Suit in N.Y. Alleging ADA Violation
CLOROX COMPANY: Marett Files ADA Suit in S.D. New York
COLT OILFIELD: Fails to Pay OT to Oilfield Workers, Pearson Says
CYTOSPORT INC: Court Certifies Classes in Clay MWWA Suit
DENTAL 365: Violates ADA, Diaz Suit Alleges
DIAL 7: Violates Disabilities Act, Fischler Suit Says
DIAZ & ASSOCIATES: Faces Heath FDCPA Suit in Virginia
DRYBAR HOLDINGS: Noohi Sues Over Unfair Business Practices
EATON CORPORATION: Violates ADA, Sullivan Suit Says
ESUB INC: Sullivan Files ADA Suit in S.D. New York
FCA US: Files Petition for Writ of Certiorari
FEDEX SUPPLY: Martel Seeks Unpaid Wages under Labor Code
FIDELITY NATIONAL: Costs Award Ruling in Villanueva Suit Reversed
FIRST FEDERAL: Accused by Racette Class Suit of Violating FDCPA
FLORIDA: Faces Civil Rights Class Action
GC SERVICES: Jackson Files FDCPA Suit in New York
GEORGIA: Dingler Files Appeal in Supreme Court
GOLDEN STATE OVERNIGHT: Birdlong Seeks Unpaid Wages
H&M HENNES: Fischler Files Class Suit Under ADA
HAIR CLUB: Rincon Suit Alleges Labor Code Violation
IMAGE STREAM: White Seeks Unpaid Overtime under FLSA
INNOVATIVE LANGUAGE: Sullivan Files ADA Suit in New York
INTELLICHECK INC: Attorney Yeremian Replaces Cunha Class Counsel
KAISER FOUNDATION: Gretler Files Labor Suit in Calif. Ct.
KNIGHTS OF COLUMBUS: Duran Seeks Damages, Reimbursements
LACROIX SPARKLING: Rice Sues over "100% Natural" Claim
LEXINGTON NATIONAL: Petition for Writ of Certiorari Filed
LLR INC: Lauren Porsch Files Class Action
LOEWS COH: Duron Sues Over Illegal Retention of Biometrics Data
LOOMIS ARMORED: Sued by Myers for Not Paying Overtime Under FLSA
MACROPOINT LLC: William Bland Sues over Unpaid Commissions
MARINOSCI LAW: Faces Sullivan FDCPA Class Suit in Florida
MAZ PARTNERS: Shear Files Appeal to U.S. Supreme Court
MCDONALD'S CORP: Workers to Protest Over Sexual Harassment
MDL 2641: Court Remands 10 Mature Cases in Bard IVC Filters Suit
MDL 2672: Court Denies Bid to Dismiss Clean Diesel Suit
MDL 2741: Hightower Suit over Monsanto's Roundup Consolidated
MDL 2741: Johnson Suit vs Monsanto over Roundup Consolidated
MDL 2741: Smith Suit vs Monsanto over Roundup Consolidated
MDL 2741: Thompson Suit vs Monsanto over Roundup Consolidated
MEDLINE INDUSTRIES: Marshall Sues over Use of Biometric Info
MERCK & CO: Ingoglia Sues over Inoculation of Zostavax Vaccine
MERCK & CO: Piwnickis Sue over Inoculation of Zostavax Vaccine
MIDLAND CREDIT: Seventh Cir. Appeal Filed in Preston FDCPA Suit
NAGLE & ZALLER: Jones Sues Over Illegal Debt Collection
NATIONAL PUBLIC: Faces ADA Class Action in S.D. New York
NAVISTAR INTERNATIONAL: MaxxForce Engine Suits in Canada Underway
NAVISTAR INTERNATIONAL: U.S. EGR Warranty-Related Suits Ongoing
NEW PENN FINANCIAL: Not a Licensed Debt Collector, Carson Says
OCEAN SPRAY: Frojo Hits Product Mislabeling
OPKO HEALTH: Kaplan Fox Files Securities Class Action in New York
PHD FITNESS: Deceptive Labeling Class Action Settled
PRADA USA: Violates Disabilities Act, Fischler Suit Says
PROGRESSIVE CORP: Fails to Repay Medicare Payments, MSP Suit Says
PURDUE PHARMA: Green-Kuchta Files RICO Class Suit in South Dakota
REGAL BELOIT: Hoffman Alleges Time-shaving on Wages
REMEDIAL TRANSPORTATION: Felix Files Suit in Cal. Super. Ct.
RETREAT CAPITAL: Misclassified Centeno as Independent Contractor
ROBERTA ROLLER: Faces ADA Suit in S.D. New York
ROZLIN FINANCIAL: Faces FDCPA Class Action in South Carolina
S&A UNIFIED: Dikhanova Files FLSA Suit in New York
SMITH-PALLUCK: Kibbee Sues Over Auto-dialed Collection Calls
SOUTHWEST AIRLINES: Pilots to Get $19MM Benefits Under Settlement
SUBARU OF AMERICA: To Extend Warranties Under Settlement
TALON INT'L: Ontario Court Certifies Unit Owners' Class Action
TAMPA BAY: Faces Another TCPA Class Action Over Text Campaign
TEVA PHARMACEUTICAL: Seeks Dismissal of Price-Hike Class Action
TRADER JOE'S: Settles Tuna Can Underfilling Class Action
ULTA BEAUTY: Customers Challenge Class Action Dismissal Bid
UNION ALARMTRONIC: Brown Labor Suit Seeks Unpaid Overtime Wages
UNIVERSITY OF MARYLAND: Rape Cover-Up Suit Seeks $19MM in Damages
VALEANT PHARMA: Judge Refuses to Toss Deceptive Pricing Claims
WANDERING MINSTREL: Faces Suit in New York for ADA Breach
WASHINGTON REGIONAL: Randolph Challenges Billing Practices
YP HOLDINGS: Lopez Files Fraud Class Suit in Calif. Ct.
[*] Alien Tort Cases Will Survive Supreme Court Trim
[*] Big Coal Industry Braces for Class Actions Over Casual Pay
[*] ClassActionLawsuit.com Launched to Publicize Settlements
Asbestos Litigation
ASBESTOS UPDATE: 5 Indicted in Asbestos False Permit Scheme
ASBESTOS UPDATE: American Optical Had 56,760 Claims at July 1
ASBESTOS UPDATE: Asbestos Disease Attributed to Charity Work
ASBESTOS UPDATE: Asbestos Found at San Onofre Nuclear Plant
ASBESTOS UPDATE: Asbestos Lawyers Push $50MM in NY Case
ASBESTOS UPDATE: Asbestos Summary Judgment Partially Vacated
ASBESTOS UPDATE: Asbestos Warning for Older Pools and Spas
ASBESTOS UPDATE: Borg-Warner Remains Entitled to Summary Judgment
ASBESTOS UPDATE: Breen's Exhibits Allowed in Spouses Jack's List
ASBESTOS UPDATE: D/C Distribution Still Defends A&F Suit at June 30
ASBESTOS UPDATE: D/C Lift Stay Issue Remains Pending at June 30
ASBESTOS UPDATE: Eden Residents Wait on $850K Asbestos Settlements
ASBESTOS UPDATE: Ford Parts Substantial Cause of DeCastro's Injury
ASBESTOS UPDATE: Forestry Expert Accused of Asbestos Dumping
ASBESTOS UPDATE: GBP50MM Screening Program for Grenfell Residents
ASBESTOS UPDATE: Honeywell's Summary Judgment in Leech Granted
ASBESTOS UPDATE: In Settlement Talks in Suit v. E-Source Holdings
ASBESTOS UPDATE: IntriCon Corp. Still Faces Lawsuits at June 30
ASBESTOS UPDATE: Jack's Claim vs. Viad Dismissed Without Prejudice
ASBESTOS UPDATE: JP Bushnell Sued for Failure to Warn
ASBESTOS UPDATE: Kaanapali Insurance Discussions Ongoing at June 30
ASBESTOS UPDATE: Kaanapali Land Still Faces Lawsuits at June 30
ASBESTOS UPDATE: Major Asbestos Dumper Fined
ASBESTOS UPDATE: Metropolitan Life Had 1,754 New Claims in 1H 2018
ASBESTOS UPDATE: Mikelsen Claims vs. Air & Liquid Systems Dismissed
ASBESTOS UPDATE: Mikelsen Claims vs. Asbestos Corporation Dismissed
ASBESTOS UPDATE: Mikelsen PI Claims vs. Ingersoll-Rand Dismissed
ASBESTOS UPDATE: Park Ridge Library to Close for Asbestos Abatement
ASBESTOS UPDATE: Park-Ohio Holdings Faces 92 Cases at June 30
ASBESTOS UPDATE: Pfizer Still Faces Various Lawsuits at July 1
ASBESTOS UPDATE: Plumbing Co. Sues Over Asbestos Coverage
ASBESTOS UPDATE: Summary Judgment Favoring Abex Reversed on Appeal
ASBESTOS UPDATE: Tadley Man Dies of Mesothelioma
ASBESTOS UPDATE: Tornado May Have Kicked Up Asbestos Risks
ASBESTOS UPDATE: Weirick Talc Case Unable to Reach Verdict
ASBESTOS UPDATE: Woman Dies of Asbestos Cancer After 50 Years
*********
ABERCROMBIE & FITCH: Class Suits Granted Preliminary Approval
-------------------------------------------------------------
Abercrombie & Fitch Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on September 10, 2018, for the
quarterly period ended August 4, 2018, that a federal district
court in Ohio has granted preliminary approval of the proposed
settlement of a class action lawsuit.
The Company is a defendant in two separate class action lawsuits
filed by former associates of the Company who are represented by
the same counsel.
The first lawsuit, filed in 2013, alleges failure to indemnify
business expenses and a series of derivative claims for compelled
patronization, inaccurate wage statements, waiting time penalties,
minimum wage violations and unfair competition under California
state law on behalf of all non-exempt hourly associates at
Abercrombie & Fitch, abercrombie kids, Hollister and Gilly Hicks
stores in California. Four subclasses of associates were certified,
and the matter was before a federal district court in California.
The second lawsuit, filed in 2015, alleges that associates were
required to purchase uniforms without reimbursement in violation of
federal law, and laws of the states of New York, Florida and
Massachusetts, as well as derivative putative state law claims and
seeks to pursue such claims on a class and collective basis.
On December 12, 2017, the California district court granted the
parties' stipulation to transfer the first lawsuit pending and
combine it with the second lawsuit then pending before the Ohio
district court.
Both matters were mediated and the parties signed a $25.0 million
claims-made settlement agreement which, subject to final approval
by the Ohio District Court, is intended to result in a full and
final settlement of all claims in both lawsuits on a class-wide
basis.
On February 16, 2018, the Ohio District Court granted preliminary
approval of the proposed settlement and ordered that notice of the
proposed settlement be given to the absent members of the
settlement class.
Abercrombie & Fitch said, "The ultimate settlement amount is
dependent upon the actual claims made by members of the class and
is also subject to final approval by the U.S. District Court of
Ohio and could be subject to appeal by class members. A final
approval hearing is set to occur in the third quarter of Fiscal
2018."
No further updates were provided in the Company's SEC report.
Abercrombie & Fitch Co., through its subsidiaries, operates as a
specialty retailer. The Company operates in two segments, Hollister
and Abercrombie. It offers apparel, intimates, personal care
products, and accessories for men, women, and kids under the
Hollister, Abercrombie & Fitch, abercrombie kids, and Gilly Hicks
brand names. Abercrombie & Fitch Co. was founded in 1892 and is
headquartered in New Albany, Ohio.
AEG: Ozzy Osbourne Dismisses Block-Booking Policy Class Action
--------------------------------------------------------------
Dave Brooks, writing for Amplify, reports that on Sept. 21,
attorneys for Ozzy Osbourne filed paperwork to end the Black
Sabbath frontman's lawsuit with AEG over the company's
block-booking policy, a settlement that came after AEG agreed to
end the policy.
We already shared our scorecard on who we thought won this chapter
of the venue wars -- in quick summary, we wrote that after a judge
issued a four-page ruling denying AEG's motion to dismiss Ozzy's
lawsuit, AEG backed off the block-booking policy and stopped
requiring artists that want to play the O2 in London to also play
Staples Center in LA.
AEG turned the concession into a victory, saying they were
abandoning the policy because Madison Square Garden had allegedly
ended a block-booking policy with the Forum in Los Angeles. MSG
Azoff Entertainment chairman Irving Azoff said the victory really
belonged to Ozzy and Sharon Osbourne, congratulating them on
standing up for artists rights and winning a key victory in their
anti-trust lawsuit that sought injunctive relief to stop AEG from
asking promoters to sign the Staples Center Commitment Letter.
The end, right? Not exactly -- on Sept. 21, Ozzy's attorney filed
the paperwork necessary to dismiss the lawsuit and less than a day
later, AEG released a statement partially authored by company owner
Phil Anschutz declaring victory. While the statement was
impassioned and spirited, there were a few claims made by Anschutz
and AEG that seemed slightly detached from what actually had
happened. Let's go through the statement now, paragraph by
paragraph:
Statement from AEG regarding dismissal of the class action lawsuit
filed against AEG:
"On Sept. 21, Ozzy Osbourne dismissed the class action lawsuit he
filed against AEG. This dismissal with prejudice is a victory for
AEG. We were fully prepared to see the case through to vindicate
our policy, but now that Osbourne has decided to dismiss with
prejudice, the case is over."
It's interesting to see Mr. Anschutz declaring victory since
Osbourne only agreed to drop the lawsuit because AEG was ending the
block-booking policy. Osbourne wasn't seeking compensation or
damages -- he was suing for injunctive relief, meaning all Ozzy
wanted was for AEG to drop the policy, which they did. The fact
that it was dismissed with prejudice means that Osbourne can't
refile the suit -- something AEG's attorneys pushed for -- but it
doesn't mean other artists can't make similar claims.
"Our policy was an appropriate, lawful and effective competitive
response to Irving Azoff's pressure tactics seeking to force
artists into the Forum. If those tactics resurface, we will
redeploy our policy as needed. The Osbourne suit was instigated by
Azoff and paid for by MSG and Live Nation. It was hatched on the
back of an artist who we believe had no idea what he was biting
off. The suit was a transparent public relations ploy that failed
to pressure AEG into backing down from a booking policy that was an
effective competitive response to the MSG-Forum tie."
The second part, that the Osbourne lawsuit was a failed PR ploy to
unsuccessfully get AEG to back off block-booking, rings hollow
since AEG did in fact drop its policy. The part about the AEG
policy being effective, however, does have some truth.
Block-booking did drive more concerts to Staples Center --
according to Billboard Boxscore, grosses at the LA arena are up 75%
over 2017, jumping from $24 million to $42 million.
"It is no surprise that once AEG refused to back down, Azoff, MSG
and Live Nation became eager to drop the case as soon as possible.
They dismissed the case with prejudice after realizing AEG would
aggressively defend it, costing them tens of millions of dollars
and posing a source of embarrassment once their questionable
tactics were exposed in the course of discovery and trial."
The first sentence makes no sense -- Azoff, MSG and Live Nation
were not party to the lawsuit and had no bearing on the legal
outcome. AEG wants to tie the case to these three, arguing that
Osbourne's attorney Dan Wall with Latham & Watkins is doing Live
Nation's bidding since he has represented Live Nation in the past,
but Live Nation CEO Michael Rapino told Amplify his company was not
paying the bills for this legal case.
Mr. Anschutz is not a guy who likes to lose and he seems eager to
take the victory away from the Osbournes and argue that he
prevailed, but the truth is fairly clear: AEG was sued over its
block-booking policy, and lost an early motion to dismiss the case.
After meeting with his lawyers, Anschutz agreed to drop the
block-booking policy and avoid a lengthy court battle with Ozzy and
Sharon. The Osbournes secured the outcome they sought when they
filed their lawsuit, and AEG was eventually forced to capitulate.
"The tone of Anschutz's letter fells indignant and plays fast and
loose with the truth. As someone who has watched each development
in the case, I'd say that Anschutz's statement doesn't evenly align
with reality. We know what happened, because we were there every
step of the way. It's fine to have your own opinion of what
transpired, but the facts of the case should not be up for the
dispute. Unfortunately, Anschutz's letter does not do an adequate
job distinguishing between fact and opinion." [GN]
AFFY TAPPLE: Faces Class Suit in NY Under ADA
---------------------------------------------
Affy Tapple, L.L.C. is facing a a class action lawsuit in New York.
The case is styled as Rasheta Bunting individually and as the
representative of a class of similarly situated persons, Plaintiff
v. Affy Tapple, L.L.C. doing business as: Mrs Prindables,
Defendant, Case No. 1:18-cv-05711 (E.D. N.Y., Oct. 12, 2018).
The case was filed under the Americans with Disabilities Act.
Affy Tapple, LLC produces caramelized apples. It provides caramel
corns, chocolate nut clusters, and chocolate covered pretzels. The
company sells its products directly to fundraising events, such as
sporting events, school assemblies, and other high attendance
events. It also sells its products through its factory store in
Niles. Affy Tapple, LLC was founded in 1948 and is based in Niles,
Illinois.[BN]
The Plaintiff appears pro se.
ALTABA: To Incur $47MM to Settle Yahoo Data Breach Litigation
-------------------------------------------------------------
Dark Reading reports that Altaba tells SEC it will incur $47
million to settle consumer litigation for massive Yahoo data
breaches.
The consumer class-action litigation cases against Yahoo in the
wake of its epic data breaches are expected to be settled for $47
million.
Altaba, the holding company that retains what's left of the company
in the wake of Verizon's purchase of Yahoo, said in a filing with
the US Securities Exchange Commission that it has reached an
agreement in principle to settle the lawsuits.
"We have also received final court approval of the securities class
action settlement, and we have negotiated an agreement to settle
the shareholder derivative litigation (subject to court approval).
We estimate that the Company will incur an incremental net $47
million in litigation settlement expenses to resolve all three
cases," Altaba said in its filing. "Together, these developments
mark a significant milestone in cleaning up our contingent
liabilities related to the Yahoo data breach." [GN]
AMAN RESORTS: Gonzales Files Civil Rights Class Suit in California
------------------------------------------------------------------
Aman Resorts Group Limited is facing a class action in California.
The case is styled as Kimberly Gonzales individually, and on behalf
of all others similarly situated, Plaintiff v. Aman Resorts Group
Limited a British Virgin Islands corporation, DOES 1-10 Inclusive,
Defendants, Case No. 2:18-cv-08757 (C.D. Cal., Oct. 11, 2018).
The nature of suit is stated as Other Civil Rights.
Aman Resorts Group Limited owns and operates resorts. The company
is based in New York, New York. It is located at 423 West Street,
New York, NY 10014.[BN]
The Plaintiff appears pro se.
AMERICAN AIRLINES: Settles Baggage Fee Class Action
---------------------------------------------------
Jenese Harris, writing for News4JAX, reports that according to
Topclassaction.com, American Airlines and a Harvard professor
preliminarily settled a baggage fee class action lawsuit, Class
Members are now eligible to submit claims for a potential refund of
wrongfully charged baggage fees.
If you traveled on American Airlines between July 13, 2013 and June
7, 2018 and were charged checked baggage fees that were
inconsistent with the company's baggage fee policy, you could get
money from the class action settlement.
Each Class Member will be eligible to claim between $18.75 and $200
plus interest for each checked bag they wrongfully paid for.
A 100% refund is available for checked baggage fees inconsistent
with American Airline policies and a 75% refund is available for
checked baggage fees inconsistent with confirmation emails.
Class action members have until Oct. 19, 2018, to file a claim
form. Those class action members who want to object or opt out of
the settlement terms must do so by Dec. 3, 2018.
Eligible class members can fill out a Claim online to participate
in the settlement.
They can print out the form and mail it to the Settlement
Administrator.
The form is available at:
http://www.aabaggagefeesettlement.com/pdf/Claim_Form.pdf[GN]
AMERICAN DENTAL: Diaz Suit Alleges ADA Violation
------------------------------------------------
Edwin Diaz, on behalf of himself and all others similarly situated
v. American Dental Offices, PLLC, Case No. 1:18-cv-07667 (S.D.
N.Y., August 22, 2018), is brought against the Defendant for
violation of the Americans with Disabilities Act.
The Plaintiff brings this civil rights action against the Defendant
for its failure to design, construct, maintain, and operate its
website to be fully accessible to and independently usable by
Plaintiff and other blind or visually impaired people.
The Plaintiff is a resident of Bronx, New York. The Plaintiff is a
blind, visually-impaired handicapped person.
The Defendant is a dental work provider that offers the commercial
website, www.americandental.com, to the public. The website offers
features which should allow all consumers to access the facilities
and services which the Defendant offers in connection with their
physical locations. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (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, NY 10003-2461
Tel: (212) 228-9795
E-mail: nyjg@aol.com
danalgottlieb@aol.com
AMERICAN EAGLE: Bowes et al. Suit Moved to S.D. New York
--------------------------------------------------------
Brooke Bowes, individually and on behalf of all others similarly
situated, the Plaintiff, vs. American Eagle Outfitters, Inc., a
Delaware corporation and AEO Management Co., a Delaware
corporation, Case No. 5:17-cv-01166, was transferred from the U.S.
District Court for the Western District of the Oklahoma, to the
Southern District of New York (Foley Square) on Oct. 2, 2018. The
Southern District of New York Court Clerk assigned Case No.
1:18-cv-09004-UA to the proceeding [BN].
Attorneys for Plaintiff:
Daniel V. Carsey, Esq.
CONNER & WINTERS-OKC
211 N Robinson Ave., Suite 1700
Oklahoma City, OK 73102
Telephone: (405) 272-5711
Facsimile: (405) 232-2695
E-mail: dcarsey@rischardlaw.com
- and -
Eric Alan Isaacson, Esq.
LAW OFFICE OF ERIC ALAN ISSACSON
6580 Avenida Mirola
La Jolla, CA 92037
Telephone: (858) 263-9581
E-mail: ericalanisaacson@icloud.com
- and -
John W. Davis, Esq.
LAW OFFICE OF JOHN W DAVIS
3030 N Rocky Point Dr W, Suite 150
Tampa, FL 33607
Telephone: (813) 533 1972
E-mail: john@johnwdavis.com
Attorneys for Defendants:
Craig Mariam, Esq.
Robert A Bragalone, Esq.
Richard T. Victoria, Esq.
Stephanie L Cobau, Esq.
GORDON AND REES LLP
633 West Fifth Street 52nd Floor
Los Angeles, CA 90071
Telephone: (213) 576-5000
Facsimile: (877) 306-0043
E-mail: cmariam@gordonrees.com
rvictoria@grsm.com
bbragalone@grsm.com
scobau@grsm.com
ANGELS CARE: Marks Labor Suit to Recover Unpaid Overtime
--------------------------------------------------------
Courtney Marks, individually, and on behalf of others similarly
situated, Plaintiff, v. Angels Care, LLC and Donise Rogers,
Defendant, Case No. 18-cv-08863, (E.D. La., September 24, 2018)
seeks to recover unpaid overtime wages, liquidated damages and
reasonable attorneys' fees and costs under the Fair Labor Standards
Act.
Angels Care operates a home care agency in Jefferson Parish,
Louisiana. They send workers travel to the homes of elderly and
disabled individuals and assist these individuals in caring for
themselves. Marks worked for Angels Care from February 2013 until
March 2018. She claims to have worked 60-70 hours in a single
workweek without overtime premiums. [BN]
Plaintiff is represented by:
Charles J. Stiegler, Esq.
STIEGLER LAW FIRM, LLC
318 Harrison Ave., Suite 104
New Orleans, LA 70124
Tel: (504) 267-0777
Fax: (504) 513-3084
Email: charles@stieglerlawfirm.com
ATHENA CAPITAL: Garcia Suit in Georgia Asserts FLSA Breach
----------------------------------------------------------
Athena Capital LLC is facing a class action lawsuit asserting
violation of the Fair Labor Standards Act. The case is styled as
James Garcia on behalf of himself and all others similarly
situated, Plaintiff v. Athena Capital LLC doing business as:
Johnny's Pizza, Defendant, Case No. 3:18-cv-00136-CDL (M.D. Ga.,
Oct. 11, 2018).
Athena Capital Advisors LLC is a privately owned investment
manager. It provides its services to individuals, family offices,
trusts, estates, charitable organizations, corporations and other
business entities as well as institutional clients such as
endowments, partnerships and limited liability companies. The firm
manages separate client-focused portfolios.[BN]
The Plaintiff is represented by:
Aimee J. Hall, Esq.
Pope McGlamry
3391 Peachtree Road, NE, Suite 300
Atlanta, GA 30326
Phone: (478) 216-5603
Email: aimeehall@pmkm.com
- and -
David W. Garrison, Esq.
BARRETT JOHNSTON MARTIN & GARRISON LLC
414 UNION ST, SUTE 900
NASHVILLE, TN 37219
Phone: (615) 244-2202
Fax: (615) 252-3798
Email: dgarrison@barrettjohnston.com
- and -
Joshua A. Frank, Esq.
414 UNION ST, STE 900
NASHVILLE, TN 37219
Phone: (615) 244-2202
Fax: (615) 252-3798
Email: jfrank@barrettjohnston.com
- and -
Michael J. Moore, Esq.
3391 PEACHTREE RD NE STE 300
ATLANTA, GA 30326
Phone: (404) 523-7706
Email: efile@pmkm.com
AUTODESK INC: Sullivan Suit Asserts ADA Violation
-------------------------------------------------
Phillip Sullivan, Jr. filed a class action lawsuit against
Autodesk, Inc., in New York.
The case is styled as Phillip Sullivan, Jr. on behalf of himself
and all others similarly situated, Plaintiff v. Autodesk, Inc.,
Defendant, Case No. 1:18-cv-09317 (S.D. N.Y., Oct. 11, 2018).
The Plaintiff filed the case under the American with Disabilities
Act.
Autodesk, Inc. is an American multinational software corporation
that makes software for the architecture, engineering,
construction, manufacturing, media, and entertainment industries.
Autodesk is headquartered in San Rafael, California, and features a
gallery of its customers' work in its San Francisco building.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Phone: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
AVVO INC: Mitchell Files Suit for Invasion of Privacy
-----------------------------------------------------
Stephen Mitchell, on behalf of themselves and all others similarly
situated, Plaintiffs, v. AVVO Inc., Defendant, Case No. 18-cv-
02835, (S.D. Cal., September 24, 2018), seeks damages and
injunctive relief for recovery of economic injury pursuant to the
California Invasion of Privacy Act.
Avvo operates a website that provide an internet-based for-profit
attorney marketing services. Defendant intentionally audio recorded
a communication transmitted between Mitchell's cellular telephone
and one of their agents without his consent, says the complaint.
[BN]
Plaintiff is represented by:
Abbas Kazerounian, Esq.
Jason A. Ibey, Esq.
Nicholas Barthel, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
Email: ak@kazlg.com
jason@kazlg.com
nicholas@kazlg.com
BIG CITY: State Supreme Court Tosses Rent Class Action
------------------------------------------------------
Charles V. Bagli, writing for The New York Times, reports that in
New York City, landlords looking to renovate are supposed to tell
the Buildings Department whether their tenants are protected by
rent regulations. The idea is to prevent harassment by owners
seeking to force renters out in order to charge more. But the
Buildings Department does not always check to see if the landlords
are telling the truth.
Aaron Carr, however, does.
Mr. Carr, 30, is the founder of a start-up tenant watchdog agency,
the Housing Rights Initiative, and his specialty is searching
public records at state and city agencies to expose what he says is
a broken system of tenant protections.
On Sept. 17, Mr. Carr's latest report is scheduled to be released
at a news conference on the steps of City Hall with City Councilman
Ritchie Torres of the Bronx. According to H.R.I.'s research, on
more than 10,000 building permits filed with the city over the past
two years, landlords lied about whether there were rent-regulated
tenants in their buildings -- and got away with it.
Mr. Torres said that the city, which has made affordable housing a
priority, should shoulder an equal amount of the blame. "Just as
scandalous as the number of falsified permits is the failure of
enforcement by the Department of Buildings," he said.
City officials said that H.R.I.'s claims are overblown. The
Buildings Department has not seen the latest report, but a
spokesman, Joseph Soldevere, said that 10,000 permits represent
only 3 percent of all the permits issued by the department over the
two years in question.
And while the buildings department is hiring 70 new inspectors, he
said that a landlord who mistakenly checks the wrong box on a
permit application is not necessarily breaking the law.
"Every day, the Buildings Department holds landlords accountable
for their obligation to provide safe buildings for tenants, both on
our own and through our work on the city-state Tenant Harassment
Prevention Task Force," Mr. Soldevere said.
[Affordable housing in New York is vanishing, despite strong tenant
protection laws. How can that happen?]
In its scant two-year existence, H.R.I. has had an oversized impact
on landlord-tenant relations: Mr. Carr's group has issued a series
of scathing reports on bad behavior by landlords, enabled by what
it says is the failure of state and city government to hold them
accountable.
H.R.I. does not stop at issuing reports. It puts together tenants
with lawyers willing to work for free or on contingency, and has
helped initiate 49 lawsuits, against state and city officials and
some of the city's biggest landlords: A&E Real Estate Holdings,
Stellar Management, Bronstein Properties, and, especially, Charles
Kushner of Kushner Companies, whose son Jared is a son-in-law and
senior adviser to President Trump.
In March, Mr. Carr issued a report claiming that Kushner Companies
had falsified more than 80 work permit applications for 34
buildings. In July, 20 current and former tenants working with
H.R.I. filed a lawsuit against the Kushners saying that they were
forced out of their apartments at 184 Kent Avenue in Brooklyn by
construction work that filled the building with "loud and obnoxious
drilling" and a "constant cloud of toxic smoke and dust."
"This is the beauty of our model, which is low cost, high impact,"
Mr. Carr said as he fiddled with his ubiquitous laptop. "It's all
about publicly available data and connecting tenants to
no-out-of-pocket legal support."
Lucas A. Ferrara of Newman Ferrara, the law firm representing the
tenants in the Kushner suit said, "Aaron has probably done more for
rent-regulated tenants in New York City over the past three years
than the city and state agencies have done in the last 20 years."
But Adam Leitman Bailey, a lawyer representing or advising
landlords in a number of the lawsuits, has a different perspective.
"Aaron Carr is a very dangerous young man with his tongue," he
said. "I've never seen someone, aside from Donald Trump, who can
manipulate the press as well as he does. At the same time, he is
hurting and damaging the reputations of many innocent and reputable
landlords."
Mr. Bailey, who is well known for vigorously defending his clients
in both the courts and the media, contends that many of the
H.R.I.-inspired lawsuits are "frivolous."
The State Supreme Court tossed out on technical grounds an
H.R.I.-born class-action lawsuit against a company called Big City
Properties claiming that the Harlem landlord had violated rent
regulations at 11 buildings and inflated rents by overstating the
cost of apartment improvements.
But the state's Appellate Division recently reinstated many of the
claims against Big City. Worried that the decision would make it
easier for tenants to sue landlords, the industry's powerful
lobbyist, the Rent Stabilization Association, has asked permission
to join a possible appeal by Big City to the state's highest
court.
Mr. Carr, who grew up on Long Island and lives on the Upper West
Side, did not start out as a tenant activist. He graduated from the
University of Connecticut with a degree in psychology.
In 2014, he ran Michael Blake's successful campaign for an Assembly
seat in the South Bronx and subsequently became Mr. Blake's chief
of staff. In that role, Mr. Carr said he would repeatedly call city
and state agencies on behalf of tenants tangling with landlords,
pleading for inspectors to visit their buildings.
"It was like waiting for Superman," Mr. Carr said, "but Superman
never came."
Mr. Carr formed H.R.I. in 2016 with "a couple thousand dollars" of
his own money, and has relied on a "bottom-up enforcement approach"
of scrutinizing records at the city's Finance and Building
departments and the state's Division of Housing and Community
Renewal, which oversees the city's one million rent-regulated
apartments.
Today, H.R.I. has two full-time and one part-time employees,
including Mr. Carr, and a budget of $225,000, much of which comes
from individual donations and the Robin Hood Foundation, a charity
dedicated to fighting poverty.
Robin Hood's board includes Jeff T. Blau, chief executive of
Related Companies, one of the city's biggest developers; and Paul
Tudor Jones II, a hedge fund manager.
The bulk of the lawsuits filed have been related to violations of
the city's J-51 housing program, which grants tax breaks to
landlords of rental apartments who invest in new roofs, boilers and
elevators. Building owners are prohibited from deregulating
apartments as long as they receive the tax benefits.
In one H.R.I.-initiated lawsuit, against Argo Real Estate, a
building owner and property manager, lawyers contend that Argo
improperly deregulated 369 rent-regulated apartments at nine
buildings in Queens, while getting more than $1 million in tax
breaks.
A lawyer for Argo, which has not responded to the complaint,
declined to comment. One of the lawyers who brought the suit,
Shaina Weissman, said that the two sides have been in settlement
discussions, but that little progress had been made.
Mr. Carr and H.R.I. have not left the state, which oversees
rent-regulated housing, off the hook.
In May, Mr. Carr sued the state for refusing to release the names
of "cheating landlords" who have been caught defrauding the J-51
program in audits that Gov. Andrew M. Cuomo's administration began
in 2016. The suit sought to compel the Division of Housing and
Community Renewal to release the names.
Mr. Carr complained that legislators do not have the will to
enforce the laws already on the books, because a steady flow of
political contributions at a state level come from the real estate
industry.
"New York State's broken campaign finance laws have turned housing
enforcement into a real estate protection system," he said.
H.R.I. also says city agencies have failed to aggressively go after
unscrupulous landlords. In September, Mr. Carr released a report
saying that the city has failed to collect $1.5 billion in fines
from landlords for violations ranging from "loose rubbish" to
failure to notify authorities of asbestos, including more than
$350,000 it said was owed by the Kushner Companies.
Aziza Taylor, a spokeswoman for the city's Department of Finance,
said that H.R.I. has "surfaced a legitimate issue regarding the
difficulty in collecting" fines from landlords. Officials
acknowledge that there often are disconnects in the system designed
to protect tenants, with city and state agencies using different
data systems, and poor communication between the city agencies that
issue violations and the Finance Department, which is supposed to
collect the fines.
A building's owner is often a limited liability company and a
landlord may hold numerous buildings, each in a separate L.L.C.;
the finance department often does not know the name of the company
or individual behind them.
Ms. Taylor said the agency is proud of the work it has done in
recent years to get landlords to pay their fines.
According to the Finance Department, the Kushners owe $197,000 in
unpaid fines, but have paid $108,000 in penalties issued for the
past eight years.
But that figure does not include $210,000 in fines assessed by the
Buildings Department in August. The city's action came after the
March H.R.I. report saying that the company had filed dozens of
construction permits falsely claiming that no rent-stabilized
tenants lived in 34 of its buildings.
The Kushners, who have described many of the building violations
Mr. Carr has unearthed as "paperwork errors," or problems created
by tenants themselves, declined to comment.
Mr. Carr said he is not obsessed with the Kushners, but they are a
convenient foil to get media attention for government's lax
enforcement of laws protecting tenants.
"Sometimes a sleepy government needs a very big wake-up call," he
added. "It is notable that while our state and city government have
been out 'resisting' the White House, it has allowed landlords like
Kushner to invade its own house. Our existence is a window into a
broken enforcement system and a broken democratic system." [GN]
BIG THINK: Faces Sullivan ADA Suit in S.D. New York
---------------------------------------------------
The Big Think Inc. is facing a class action lawsuit under the
Americans with Disabilities Act.
The case is styled as Phillip Sullivan, Jr. on behalf of himself
and all others similarly situated, Plaintiff v. The Big Think Inc.,
Defendant, Case No. 1:18-cv-09308 (S.D. N.Y., Oct. 11, 2018).
The Big Think, Inc. operates an online knowledge forum. Its Website
offers users with news stories, tweets, wikis, and status updates
to connect the dots or illuminate the patterns linking them
together.[BN]
The Plaintiff appears pro se.
BITCONNECT INTERNATIONAL: Mengesha Suit Moved to S.D. Florida
-------------------------------------------------------------
Patricia Mengesha and BitConnect Investor Group, on behalf of
itself and all others situated, the Plaintiffs, vs. Bitconnect
International PLC; Bitconnect LTD; and Bitconnect Trading LTD, the
Defendants, Case No. 0:18-cv-00279, was transferred from the U.S.
District Court for the District of Minnesota, to the U.S. District
Court for the Southern District of Florida (West Palm Beach) on
Oct. 1, 2018. The Southern District of Florida Court Clerk assigned
Case No. 9:18-cv-81329-RLR to the proceeding. The case is assigned
to the Hon. Judge Robin L. Rosenberg.[BN]
BO-MELL ENTERPRISES: Torres et al. Seek Overtime Pay under FLSA
---------------------------------------------------------------
ANGEL TORRES and MANUEL TAVAREZ, on behalf of themselves,
individually, and on behalf of all others similarly-situated, the
Plaintiffs, vs BO-MELL ENTERPRISES, INC., and QUALITY AUTO BODY &
PAINTING CENTER, INC., and RICHARD CISTERNAS, individually, the
Defendants, Case No. 1:18-cv-08997 (S.D.N.Y., Oct. 1, 2018),
alleges that the Defendants violated the Plaintiffs' rights
guaranteed to them by (i) the overtime provisions of the Fair Labor
Standards Act, (ii) the overtime provisions of the New York Labor
Law, and (iii) NYLL's requirement that employers furnish employees
with wage statements containing specific categories of accurate
information on each payday.
According to the complaint, the Defendants together run a collision
and autobody repair shop located at 1941 Jerome Avenue, Bronx, New
York 10453. Ms. Torres worked for the Defendants at the Body Shop
from February 2008 until October 20, 2017 as a body man, while Mr.
Tavarez has worked for the Defendants at the Body Shop from 2000 to
the present as a painter.
The Defendants are and have been aware of the requirements to pay
Plaintiffs and FLSA Plaintiffs at an amount equal to the rate of
one and one-half times their respective regular rates of pay for
all hours worked each workweek above forty, yet Defendants
purposefully and willfully chose and choose not to do so. Thus, all
FLSA Plaintiffs are victims to Defendants' pervasive practice of
willfully refusing to pay their employees overtime compensation for
all hours worked per workweek above 40, the lawsuit says.[BN]
Attorneys for Plaintiffs:
Caitlin Duffy, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
1010 Northern Boulevard, Suite 328
Great Neck, NY 11021
Telephone: (516) 248 5550
Facsimile: (516) 248 6027
CAMELBAK: Mosqueda-Zavala Files Labor Class Action in Calif.
------------------------------------------------------------
Alicia Mosqueda-Zavala has brought a labor class action lawsuit
against Camelbak Products, LLC.
The case is styled as Alicia Mosqueda-Zavala individually, and on
behalf of all others similarly situated, Plaintiff v. Camelbak
Products, LLC a Delaware corporation, Vista Outdoor, Inc. a
Delaware corporation, Defendants, Case No. 2:18-cv-08816 (C.D.
Cal., Oct. 12, 2018).
CamelBak Products, LLC manufactures and sells hydration products
and solutions. Its products include hydration packs for bike,
outdoor, run, winter, mountain bike, downhill, commuter,
downhill/freeride, hike/alpine, ski/board, stand up paddle, and
multi-sport applications; and every day, sport/bike, filtering,
purification, insulated, stainless steel, and glass water bottles,
as well as pitchers and travel mugs.
Vista Outdoor Inc. designs, manufactures, and markets consumer
products for outdoor sports and recreation markets in the United
States and internationally. The company operates through Outdoor
Products and Shooting Sports segments.[BN]
The Plaintiff appears pro se.
CARDINAL INNOVATIONS: Settles Federal Wage Class Action
-------------------------------------------------------
Richard Craver, writing for Winston-Salem Journal, reports that
Cardinal Innovations has agreed to pay $748,527 in gross settlement
fees to resolve a federal class-action lawsuit involving claims of
violation of federal wage standards affecting about 100 employees.
The settlement notice was filed on Sept. 20 in U.S. District Court
for the Middle District of North Carolina.
The lawsuit by primary plaintiff Molly Kirkpatrick of York, S.C.,
and seven others was filed in August 2016. She is employed by
Cardinal as an intellectual/development disability (I/DD) care
coordinator.
Ms. Kirkpatrick claims that Cardinal, under the management of
now-fired chief executive Richard Topping Jr. and oversight of a
since-disbanded board of directors, violated the federal Fair Labor
Standards Act by not providing overtime pay for work outside 40
hours a week "that takes them outside the learned-professional
exemption."
The act establishes minimum-wage, overtime-pay, record-keeping and
child-labor standards affecting full- and part-time workers in the
private sector and in federal, state and local governments.
About one-third of the settlement, or $250,000, will go to attorney
fees.
Ms. Kirkpatrick will receive a $10,000 service payment for her role
in litigating the case. The remaining fund amount will be divided
among the participating employees based on their average weekly
salary and number of work weeks during the affected time period.
Cardinal continues to deny the plaintiff's allegations, according
to the settlement.
"We believe that our payroll practices are both legal and fair, and
under the settlement we will continue to classify care coordinators
as exempt employees," Cardinal said in a statement released on
Sept. 21.
"The decision to settle was reached after weighing the prolonged
legal cost and further investment of our professionals' time with
the need to focus our attention on serving those who depend on
us."
The parties completed mediation Aug. 3 and reached a settlement
"that provides a framework for the resolution of this class
action."
Cardinal produced salary and work week information as part of the
mediation process that helped determine the settlement fund
amount.
Cardinal is the largest of the state's seven behavioral-health
managed-care organizations, with more than 875,000 enrollees.
It covers 20 counties, including Alamance, Davidson, Davie,
Forsyth, Rockingham and Stokes in the Triad, in overseeing
providers of mental-health, developmental-disability and
substance-abuse services.
Cardinal handles more than $675 million in annual federal and state
Medicaid money.
Claims
Ms. Kirkpatrick claimed that she and more than 100 other potential
plaintiffs' employment status have been misclassified by Cardinal.
Ms. Kirkpatrick estimated that on a near-weekly basis, she worked
between 41 to 66½ hours without receiving overtime pay. She said
she was paid instead a straight 40-hour weekly salary. She is
pursuing compensation to cover the missing overtime pay.
U.S. District Judge Thomas Schroeder has approved making any
Cardinal I/DD care counselor from the past four years eligible to
be included in the lawsuit.
Cardinal's official comment under previous management and board
oversight has been to deny the allegations and oppose the lawsuit.
Cardinal said in August that I/DD care coordinators are "an
integral part of Cardinal Innovations' community-based approach to
care," the managed-care organization said. "We value their skill,
experience and qualifications, and compensate them accordingly."
State health Secretary Dr. Mandy Cohen formally removed Topping
from the company Nov. 27 as part of the state's takeover of
Cardinal. Cohen also disbanded the Cardinal board at that time.
The new board named Trey Sutten as Cardinal's chief executive in
January.
The new board sued Topping on March 26 as part of an attempt to
recover about $3.8 million in severance pay from four former
Cardinal officials. Cardinal reimbursed the state the $3.8 million
from the organization's administrative funds.
In May, Topping filed a countersuit to thwart the attempt at
recovering $1.68 million he received in his severance package.
In June, Topping sued a former federal prosecutor for libel and
slander for his role in investigating Topping's management
actions.
Cardinal spokeswoman Ashley Conger said on Sept. 21 there has been
no update in the legal actions. [GN]
CBS CORPORATION: Lantz Sues Over False, Misleading Co. Reports
--------------------------------------------------------------
JOHN LANTZ, Individually and on Behalf of All Others Similarly
Situated v. CBS CORPORATION, LESLIE MOONVES, JOSEPH R. IANNIELLO,
LAWRENCE LIDING, DAVID RHODES, DAVID R. ANDELMAN, JOSEPH A.
CALIFANO, JR., WILLIAM S. COHEN, GARY L. COUNTRYMAN, CHARLES K.
GIFFORD, LEONARD GOLDBERG, BRUCE S. GORDON, LINDA M. GRIEGO, ROBERT
N. KLIEGER, ARNOLD KOPELSON, MARTHA L. MINOW, DOUG MORRIS and SHARI
REDSTONE, Case No. 1:18-cv-08978 (S.D.N.Y., October 1, 2018),
alleges violations of the Securities Exchange Act of 1934.
Mr. Lantz contends that the Defendants made materially false and
misleading statements and/or failed to disclose material
information during the proposed class period, including the fact
that CBS executives, including CBS's Chief Executive Officer Leslie
Moonves, had engaged in widespread workplace sexual harassment at
CBS.
CBS Corporation is a mass media company with operations in
entertainment, cable networks, publishing, and local media. The
Company operates businesses that span the media and entertainment
industries, including the CBS Television Network, cable networks,
content production and distribution, television stations,
internet-based businesses, and consumer publishing. The Individual
Defendants are directors and officers of the Company.[BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
Mary K. Blasy, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: srudman@rgrdlaw.com
mblasy@rgrdlaw.com
- and -
Michael I. Fistel, Jr., Esq.
JOHNSON FISTEL, LLP
40 Powder Springs Street
Marietta, GA 30064
Telephone: (770) 200-3104
Facsimile: (770) 200-3101
E-mail: michaelf@johnsonfistel.com
CEDAR FINANCIAL: Speight Files FDCPA Suit in Calif. Ct.
-------------------------------------------------------
A Fair Debt Collection Practices Act class action lawsuit has been
filed against Cedar Financial. The case is styled as Starfela
Speight individually and on behalf of all others similarly
situated, Plaintiff v. Cedar Financial and John Does 1-25,
Defendants, Case No. 2:18-cv-08837 (C.D. Cal., Oct. 12, 2018).
Cedar Financial offers world class debt collections services. It is
an international debt collection agency that offers services in
more than 40 countries.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
Law Offices of Jonathan A Stieglitz
11845 West Olympic Boulevard Suite 800
Los Angeles, CA 90064
Phone: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
CIRCLE LINE: Faces Suit in N.Y. Alleging ADA Violation
-------------------------------------------------------
Edwin Diaz, on behalf of himself and all others similarly situated
v. Circle Line - Sightseeing Yachts, Inc., Case No. 1:18-cv-07670
(S.D. N.Y., August 22, 2018), is brought against the Defendant for
violation of the Americans with Disabilities Act.
The Plaintiff brings this civil rights action against the Defendant
for its failure to design, construct, maintain, and operate its
website to be fully accessible to and independently usable by
Plaintiff and other blind or visually impaired people.
The Plaintiff is a resident of Bronx, New York. The Plaintiff is a
blind, visually-impaired handicapped person.
The Defendant is an entertainment cruise liner that offers the
commercial website, www.circleline.com, to the public. The website
offers features which should allow all consumers to access the
facilities and services which Defendant offers in connection with
their physical locations. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (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, NY 10003-2461
Tel: (212) 228-9795
E-mail: nyjg@aol.com
danalgottlieb@aol.com
CLOROX COMPANY: Marett Files ADA Suit in S.D. New York
------------------------------------------------------
The Clorox Company and The Burt's Bees Products Company are facing
a class action lawsuit in New York. The case is styled as Lucia
Marett individually and as the representative of a class of
similarly situated persons, Plaintiff v. The Clorox Company, The
Burt's Bees Products Company, Defendants, Case No. 1:18-cv-09333
(S.D. N.Y., Oct. 12, 2018).
The case was filed under the Americans with Disabilities Act.
The Clorox Company, based in Oakland, California, is an American
worldwide manufacturer and marketer of consumer and professional
products with approximately 8,100 employees worldwide as of June
30, 2017.
Burt's Bees, Inc. manufactures skin care and personal care
products. It offers lip color and care products, such as lip
crayons, lip glosses, lip shimmers, lip shine products, tinted lip
balms, conditioning lip balms, and lip treatment products; facial
cleansers, facial exfoliants and toners, facial moisturizers,
facial treatment products, facial towelettes, eye creams, and men's
face creams; and washes and soaps, body moisturizers, bath oils,
and bath crystals, as well as hand, foot, and sun care
products.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11201
Phone: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
COLT OILFIELD: Fails to Pay OT to Oilfield Workers, Pearson Says
----------------------------------------------------------------
DOUGLAS PEARSON, individually and on behalf of all others similarly
situated v. COLT OILFIELD SERVICES, LLC, TOTAL TANK, and ROY E.
(EDDIE) AGUILAR, Case No. 5:18-cv-01029 (W.D. Tex., October 1,
2018), alleges that the Defendants violated the Fair Labor
Standards Act by paying Oilfield Workers pursuant to a policy that
misclassified them as exempt from overtime; paid them on a salary
plus bonus basis; and failed to pay them overtime despite regularly
working over 40 hours per workweek.
Colt Oilfield Services, LLC, is a Texas limited liability company
with its principal place of business located in San Antonio, Texas.
Total Tank Systems, LLC, is a Texas Limited Liability Company with
its principal place of business located in San Antonio. Roy
Aguilar is the Chief Executive Officer, owner and managing member
of Colt and the owner and managing member of Total Tank.
The Defendants provide oilfield services and products to their
oilfield drilling and production customers at well sites in Texas
and other oil-producing regions in the United States.[BN]
The Plaintiff is represented by:
Jack Siegel, Esq.
SIEGEL LAW GROUP PLLC
10440 N. Central Expy., Suite 1040
Dallas, TX 75231
Telephone: (214) 706-0834
Facsimile: (469) 339-0204
E-mail: jack@siegellawgroup.biz
CYTOSPORT INC: Court Certifies Classes in Clay MWWA Suit
--------------------------------------------------------
In the case, CHAYLA CLAY et al., Plaintiffs, v. CYTOSPORT, INC.,
Defendant, Case No: 3:15-cv-00165-L-AGS (S.D. Cal.), Judge M. James
Lorenz of the U.S. District Court for the Southern District of
California granted in part (i) the Plaintiffs' motion for class
certification, and (ii) the Defendant's motion to exclude Dr.
Elizabeth Howlett's testimony for purposes of class certification
only.
The Plaintiffs are consumers who purchased the Defendant's protein
shake and/or protein powder products. They allege that (1) the
Nutrition Facts panel and packaging of some of the Defendant's
ready-to-drink protein shake products overstated the amount of
protein content; (2) the Ingredients section on the labels of their
Muscle Milk protein powder products included amino acid
L-glutamine, L-glutamine was also listed as an ingredient of the
"Precision Protein Blend" elsewhere on the labels, and an
L-glutamine molecule was shown on a chart of the amino acid profile
for some of the products, implying that L-glutamine was included in
its unbonded form, when none was included; and (3) prominently
displaying on its Muscle Milk protein powder packaging that the
product was "lean" or contained a special blend of "Lean Lipids,"
when the products contained oils and were no leaner than other
protein powders on the market which were not marketed as "lean."
The Plaintiffs contend that the Defendant's product labeling is
false and misleading in violation of California, Florida and
Michigan state consumer protection laws. After the Defendant's
summary judgment motion was granted in part, the following claims
remain: violation of California False Advertising Law ("FAL");
violation of California Consumer Legal Remedies Act ("CLRA");
violation of California Unfair Competition Law ("UCL"); violation
of Florida Deceptive and Unfair Trade Practices Act ("FDUTPA");
violation of Michigan Consumer Protection Act ("MCPA"); and breach
of express warranty under California Uniform Commercial Code -
Sales, Cal. Com. Code Section 2313. They seek, among other
remedies, injunctive relief and restitution.
The Plaintiffs move for class action certification under Federal
Rule of Civil Procedure 23(b)(3). They seek to certify two
nationwide classes, one for the purchasers of the Defendant's
liquid shakes, and the other for protein powder purchasers defined
as follows:
i. All persons in the United States who, within four years of
the filing of the Complaint, purchased the Defendant's Cytosport
Whey Isolate Protein Drink; Monster Milk: Protein Power Shake;
Genuine Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro
Series 40: Mega Protein Shake.
ii. All persons in the United States who, within four years of
the filing of the Complaint, purchased the Defendant's Muscle Milk:
Lean Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein
Powder; Muscle Milk Naturals: Nature's Ultimate Lean Muscle
Protein; Muscle Milk Gainer; and High Protein Gainer Powder Drink
Mix; Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder (14
oz. to 10 lbs. products); and the size Monster Milk: Lean Muscle
Protein Supplement.
The Plaintiffs request that the nationwide classes be certified for
UCL and FAL violations. They also move for certification of
subclasses for California, Florida and Michigan residents under
each state's consumer protection statutes, as well as the
Magnuson-Moss Warranty Act ("MMWA"). Like the nationwide classes,
there are two subclasses for each state, one for the liquid shake
purchasers and the other for protein powder purchasers. The
respective lists of relevant products are the same as for the
nationwide classes.
As part of opposition to the Plaintiffs' motion, the Defendant
filed a motion to exclude the testimony of the Plaintiffs' expert
Dr. Howlett.
Judge Lorenz granted in part and denied in part the Plaintiffs'
motion for class certification. He certified the following
classes:
(a) A nationwide class comprising of all persons in the United
States who, within four years of the filing of the action,
purchased the Defendant's Cytosport Whey Isolate Protein Drink;
Monster Milk: Protein Power Shake; Genuine Muscle Milk: Protein
Nutrition Shake; and Muscle Milk Pro Series 40: Mega Protein Shake.
The class is certified for purposes of prosecuting violations of
UCL and FAL, to the extent the claims are based on the protein
content statements on product labels.
(b) A nationwide class comprising of all persons in the United
States who, within four years of the filing of the action,
purchased the Defendant's Muscle Milk: Lean Muscle Protein Powder;
Muscle Milk Light: Lean Muscle Protein Powder; Muscle Milk
Naturals: Nature's Ultimate Lean Muscle Protein; Muscle Milk
Gainer; High Protein Gainer Powder Drink Mix; Muscle Milk Pro
Series 50: Lean Muscle Mega Protein Powder (14 oz. to 10 lbs.
products); and Monster Milk: Lean Muscle Protein Supplement (2.06
and 4.13 lbs. products). The class is certified for purposes of
prosecuting violations of UCL and FAL, to the extent the claims are
based on the "lean" statements on product labels.
(c) All persons residing in California who, within four years
of the filing of th action, purchased the Defendant's Cytosport
Whey Isolate Protein Drink; Monster Milk: Protein Power Shake;
Genuine Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro
Series 40: Mega Protein Shake. The class is certified for purposes
of prosecuting violations of UCL, FAL and CLRA, to the extent the
claims are based on the protein content statements on product
labels.
(d) All persons residing in California who, within four years
of the filing of the action, purchased the Defendant's Muscle Milk:
Lean Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein
Powder; Muscle Milk Naturals: Nature's Ultimate Lean Muscle
Protein; Muscle Milk Gainer; High Protein Gainer Powder Drink Mix;
Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder (14 oz.
to 10 lbs. products); and Monster Milk: Lean Muscle Protein
Supplement (2.06 and 4.13 lbs. products). The class is certified
for purposes of prosecuting violations of UCL, and FAL, to the
extent the claims are based on the "lean" statements on product
labels.
(e) All persons residing in Florida who, within four years of
the filing of the action, purchased the Defendant's Cytosport Whey
Isolate Protein Drink; Monster Milk: Protein Power Shake; Genuine
Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro Series
40: Mega Protein Shake. The class is certified for purposes of
prosecuting violations of the FDUTPA, to the extent the claim is
based on the protein content statements on product labels.
(f) All persons residing in Florida who, within four years of
the filing of this action, purchased the Defendant's Muscle Milk:
Lean Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein
Powder; Muscle Milk Naturals: Nature's Ultimate Lean Muscle
Protein; Muscle Milk Gainer; High Protein Gainer Powder Drink Mix;
Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder (14 oz.
to 10 lbs. products); Monster Milk: and Lean Muscle Protein
Supplement (2.06 and 4.13 lbs. products). The class is certified
for purposes of prosecuting violations of the FDUTPA, to the extent
the claim is based on "lean" statements on product labels.
(g) All persons residing in Michigan who, within six years of
the filing of this action, purchased the Defendant's Cytosport Whey
Isolate Protein Drink; Monster Milk: Protein Power Shake; Genuine
Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro Series
40: Mega Protein Shake. The class is certified for purposes of
prosecuting violations of the MCPA, to the extent the claim is
based on protein content statements on product labels.
The Judge appointed Plaintiffs Chayla Clay, Chris Roman, Erica
Ehrlichman, and Logan Reichert as the class representatives for the
nationwide classes. In addition, he appointed Plaintiffs Chayla
Clay and Chris Roman as the class representatives for the
California classes, Plaintiff Logan Reichert as the class
representative for the Florida classes, and Plaintiff Erica
Ehrlichman for the Michigan class. He also appointed Attorneys
Jeffrey R. Krinsk, Trenton Kashima, Nick Suciu III, Jason J.
Thompson, and Amy L. Marino as the class counsel under Rule 23(g).
No later than Sept.14, 2018, the parties will jointly propose a
class notice in compliance with Federal Rule of Civil Procedure
23(c)(2)(B).
The Judge granted in part and denied in part the Defendant's
Daubert motion. It is granted with respect to the opinion of
Elizabeth Howlett, Ph.D. that the statements on protein powder
labels regarding L-glutamine were material. The opinion is
excluded for purposes of the Order only. He denied the Defendant's
motion in all other respects.
A full-text copy of the Court's Sept. 7, 2018 Order is available at
https://is.gd/HHY7Qk from Leagle.com.
Chayla Clay, individually and on behalf of all others similarly
situated, Plaintiff, represented by Amy L. Marino --
amarino@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice,
Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz
PC, pro hac vice, Nick Suciu, III, Barbat Mansour & Suciu PLLC, pro
hac vice, Trenton R. Kashima -- trk@classactionlaw.com --
Finkelstein & Krinsk, LLP & Jeffrey R. Krinsk --
jrk@classactionlaw.com -- Finkelstein and Krinsk.
Erica Ehrlichman, individually and on behalf of all others
similarly situated & Logan Reichert, individually and on behalf of
all others similarly situated, Plaintiffs, represented by Amy L.
Marino, Marino Law, PLLC, pro hac vice, Jason J. Thompson, Sommers
Schwartz PC, pro hac vice, Trenton R. Kashima, Finkelstein &
Krinsk, LLP & Jeffrey R. Krinsk, Finkelstein and Krinsk.
Chris Roman, Intervenor Plaintiff, represented by Jason J.
Thompson, Sommers Schwartz PC, pro hac vice & Trenton R. Kashima,
Finkelstein & Krinsk, LLP.
Cytosport, Inc., a California Corporation, Defendant, represented
by Aaron D. Van Oort -- aaron.vanoort@faegrebd.com -- Faegre Baker
Daniels LLP, pro hac vice, Christine R.M. Kain --
christine.kain@faegrebd.com -- Faegre & Benson LLP, pro hac vice,
David P. Burke -- dburke@neildymott.com -- Neil Dymott Frank McFall
& Trexler, Sarah Lynn Brew -- sarah.brew@faegrebd.com -- Faegre
Baker Daniels LLP, pro hac vice, Tyler A. Young --
tyler.young@faegrebd.com -- Faegre Baker Daniels LLP, pro hac vice
& Matthew I. Kaplan -- matthew.kaplan@tuckerellis.com -- Tucker
Ellis & West LLP.
DENTAL 365: Violates ADA, Diaz Suit Alleges
--------------------------------------------
Edwin Diaz, on behalf of himself and all others similarly situated
v. Dental 365 Holdco, LLC, Case No. 1:18-cv-07668 (S.D. N.Y.,
August 22, 2018), is brought against the Defendant for violation of
the Americans with Disabilities Act.
The Plaintiff brings this civil rights action against the Defendant
for its failure to design, construct, maintain, and operate its
website to be fully accessible to and independently usable by
Plaintiff and other blind or visually impaired people.
The Plaintiff is a resident of Bronx, New York. The Plaintiff is a
blind, visually-impaired handicapped person.
The Defendant is a dental work provider that offers the commercial
website, www.godental365.com, to the public. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (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, NY 10003-2461
Tel: (212) 228-9795
E-mail: nyjg@aol.com
danalgottlieb@aol.com
DIAL 7: Violates Disabilities Act, Fischler Suit Says
-----------------------------------------------------
A class action lawsuit has been filed against Dial 7 Car &
Limousine Service Inc. under the Americans with Disabilities Act.
The case is styled as Brian Fischler individually and on behalf of
all other persons similarly situated, Plaintiff v. Dial 7 Car &
Limousine Service Inc., Defendant, Case No. 1:18-cv-05713 (E.D.
N.Y., Oct. 12, 2018).
Dial 7 is a NYC car service that offers advanced technology and one
of the largest fleets in the car service industry.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
DIAZ & ASSOCIATES: Faces Heath FDCPA Suit in Virginia
-----------------------------------------------------
A class action lawsuit has been filed against Diaz & Associates,
Inc. The case is styled as Marsha Heath, Robert Kemery, Sean
Lawrence, Scott Rogers on behalf of themselves and all similarly
situated individuals, Plaintiff v. Diaz & Associates, Inc.
Defendant, Case No. 3:18-cv-00704-JAG (E.D. Va., Oct. 12, 2018).
The Plaintiff filed the case under Fair Debt Collection Practices
Act.
Diaz & Associates Inc. is a communication systems consulting firm.
It is located at 3S710 River Road, Warrenville, IL 60555, United
States.[BN]
The Plaintiffs are represented by:
Kristi Cahoon Kelly, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Phone: (703) 424-7570
Fax: (703) 591-9285
Email: kkelly@kellyandcrandall.com
- and -
Andrew Joseph Guzzo, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Phone: (703) 424-7576
Fax: (703) 591-0167
Email: aguzzo@kellyandcrandall.com
- and -
Casey Shannon Nash, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Phone: (703) 640-3334
Fax: (703) 591-9285
Email: casey@kellyandcrandall.com
DRYBAR HOLDINGS: Noohi Sues Over Unfair Business Practices
----------------------------------------------------------
NARGUESS NOOHI, individually and on behalf of all others similarly
situated v. DRYBAR HOLDINGS LLC, AND DOES 1-20 INCLUSIVE, Case No.
2:18-cv-08456 (C.D. Cal., October 1, 2018), alleges violations of
the Unfair Competition Law and the Electronic Funds Transfer Act.
Drybar offers its customers the option of becoming a "member,"
known as a "Barfly Membership." These memberships are $80/month,
and include two monthly blowouts, as well as various discounts on
services beyond the two blowouts the customer receives. These
blowouts each month, if unused, do not expire during the life of
the membership.
Drybar's terms and conditions, however, contain an unlawful
forfeiture language upon a member's cancellation of their Barfly
membership, the Plaintiff alleges. When a member cancels their
membership, the unused and previously accrued blowouts must be used
within 90 days, or are forfeited, despite the fact that those
blowouts have already been paid for by the customer. The Plaintiff
submits that this requirement of forfeiture of paid blowouts that
have been already paid for is an unfair business practice, and is
being levied as an unfair liquidated damage to a consumer, who
cancels or breaches the contract under California Civil Code.
Drybar Holdings, LLC, is a California limited liability company.
The true names and capacities of the Doe Defendants are currently
unknown to the Plaintiff.
Drybar is a national chain of blow dry "bars", which offer a
variety of hair styling services to customers. Drybar refers to
itself as "The nation's premiere blow dry bar," and has locations
in 20 states throughout the contingent United States, and
Hawaii.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@attorneysforconsumers.com
mgeorge@toddflaw.com
abacon@attorneysforconsumers.com
EATON CORPORATION: Violates ADA, Sullivan Suit Says
----------------------------------------------------
A class action lawsuit has been filed against Eaton Corporation
under the Americans with Disabilities Act. The case is styled as
Phillip Sullivan, Jr. on behalf of himself and all others similarly
situated, Plaintiff v. Eaton Corporation, Defendant, Case No.
1:18-cv-09315 (S.D. N.Y., Oct. 11, 2018).
Eaton Corporation Plc is a multinational power management company
with 2017 sales of $20.4 billion, founded in the United States with
corporate headquarters in Dublin, Ireland. Eaton has approximately
96,000 employees and sells products to customers in more than 175
countries.[BN]
The Plaintiff appears pro se.
ESUB INC: Sullivan Files ADA Suit in S.D. New York
--------------------------------------------------
An Americans with Disabilities Act class action lawsuit has been
filed against eSub, Inc. The case is styled as Phillip Sullivan,
Jr. on behalf of himself and all others similarly situated,
Plaintiff v. eSub, Inc., Defendant, Case No. 1:18-cv-09318 (S.D.
N.Y., Oct. 11, 2018).
eSub Inc. designs and develops construction management software for
subcontractors. The company's products include project management,
time card management, corporate management, and resource management
software, as well as field works mobile application and scheduling
tools. It caters to electrical, mechanical, specialty, and drywall
contractors.[BN]
The Plaintiff appears pro se.
FCA US: Files Petition for Writ of Certiorari
---------------------------------------------
FCA US LLC AND HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED, the
Petitioners, v. BRIAN FLYNN, GEORGE & KELLY BROWN, AND MICHAEL
KEITH , INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,
the Respondents, Case No. 18-398 (U.S.), is an appeal filed in the
Supreme Court of United States on Sept. 28, 2018,from a lower Court
decision in Case No. 18-8010 (7th Cir.).
The Petitioners filed a Petition for writ of certiorari on Sept.
26, 2018. Response due date is October 29, 2018.[BN]
Attorneys for Petitioner:
Thomas Henderson Dupree Jr., Esq.
Gibson, Dunn & Crutcher, LLP
1050 Connecticut Ave.,
NW Washington, DC 20036
E-mail: tdupree@gibsondunn.com
FEDEX SUPPLY: Martel Seeks Unpaid Wages under Labor Code
--------------------------------------------------------
RALPH MARTEL, an individual and on behalf of all other similarly
situated aggrieved employees, the Plaintiff, vs FEDEX SUPPLY CHAIN,
INC., a Delaware corporation; EMPLOYBRIDGE HOLDING COMPANY, a
Delaware corporation, doing business as PROLOGISTIX; WESTAFF, INC,
a California corporation; WESTAFF WORKFORCE SOLUTIONS LLC, a
Delaware corporation; and DOES 1-100, the Defendants, Case No.
BC723892 (Cal. Super. Ct., Oct. 1, 2018), alleges that the
Defendants have had a consistent policy of failing to pay agrieved
employees for all hours worked; failing to pay overtime hours;
failing to provide written notice of their rate of pay and their
regular payday; providing inadequate wage statements; failing to
pay employees by the appropriate pay period; failing to provide all
of their wages at the time of termination or resignation and are
entitled to waiting time penalties; failing to pay wages by
appropriate pay period -- twice per month; and failing to provide
paid sick days.
According to the complaint, the Plaintiff was employed by the
Defendants and was assigned to work at Fedex Supply Chain, Inc.'s
shipping facility. For one, the Defendants did not pay California's
daily overtime rate for all time worked over eight hours and 40
hours per week. This scheme to deny the Plaintiff and other
aggrieved employees their rightful overtime pay violated the
California Labor Code section.[BN]
Attorneys for Plaintiff:
Preston H. Lim, Esq.
LIM LAW GROUP, P.C.
3435 Wilshire Blvd., Suite 2350
Los Angeles, CA 90010
Telephone: (213) 900-3000
Facsimile: (213) 204-3000
E-mail: phl@limlawgroup.com
- and -
Kyle Todd, Esq.
LAW OFFICES OF KYLE TODD
1055 West 7th Street, Suite 1920
Los Angeles, CA 90017
Telephone: (323) 208-9171
Facsimile: (323) 693-0822
E-mail: kyle@kyletodd.com
FIDELITY NATIONAL: Costs Award Ruling in Villanueva Suit Reversed
-----------------------------------------------------------------
In the case, MANNY VILLANUEVA et al. Plaintiffs and Appellants, v.
FIDELITY NATIONAL TITLE COMPANY, Defendant and Appellant, Case Nos.
H041870, H042504 (Cal. App.), Judge Franklin D. Elia of the Court
of Appeals of California for the Sixth District (i) reversed the
trial court's order awarding the Plaintiffs their costs, (ii)
directed the court to enter a new order awarding costs to Fidelity,
and (iii) remanded to the trial court to determine the amount of
the costs award.
In their first appeal (case No. H041870), both Plaintiff
Villanueva, individually and as class representative, and Fidelity
appeal from a judgment following a bench trial in the class action
lawsuit alleging violations of the Unfair Competition Law ("UCL").
Villanueva and the class allege Fidelity, an underwritten title
company that handled the Plaintiffs' escrow accounts, engaged in
unlawful conduct under the UCL when it charged overnight mail
delivery fees, courier fees, and document preparation or "draw
deed" fees that were not listed in its schedule of rates filed with
the Department of Insurance in violation of Insurance Code
provisions governing the business of title insurance. Fidelity
argues, among other things, that the lawsuit is barred by the
statutory immunity in section 12414.26 for matters related to
ratemaking.
The trial court rejected Fidelity's immunity claim based on section
12414.26. It found that Fidelity's charges for overnight mail and
courier services and some of the draw deed fees were unlawful
because they were not included in Fidelity's rate schedules. The
court granted the Plaintiffs injunctive relief under the UCL, but
denied their restitution claims.
On appeal, the Plaintiffs contend the trial court erred in failing
to award them restitution under the UCL and by granting judgment on
the pleadings on their breach of fiduciary duty claim. In its
appeal, Fidelity argues the trial court lacked subject matter
jurisdiction over the action because section 12414.26 confers
exclusive original jurisdiction over ratemaking on the Insurance
Commissioner and the case involves ratemaking. Plaintiffs respond
that Fidelity waived its immunity defense by limiting it to certain
claims below.
Fidelity also argues the named class representative lacked
standing. It contends that under the statutory scheme it was
required to file rates only for services it provided and not for
services provided by third parties. It argues other allegedly
unlawful charges were authorized by the Insurance Code and the
trial court erred by enjoining past acts that are not likely to be
repeated.
Judge Elia concludes that Fidelity's immunity defense (Section
12414.26) is not subject to the forfeiture doctrine because it
implicates the court's subject matter jurisdiction. He also holds
that the civil action is barred by the immunity in section 12414.26
and is subject to the exclusive original jurisdiction of the
Insurance Commissioner because it challenges Fidelity's
ratemaking-related activity. He will therefore reverse the
judgment.
In their second appeal, the Plaintiffs challenge the trial court's
post-judgment order denying their motion for attorney fees under
the private attorney general attorney fees doctrine. In that same
appeal, Fidelity challenges the trial court's order awarding costs
to the Plaintiffs and granting the Plaintiffs' motion to tax
Fidelity's costs.
Since the Judge concludes the civil action is barred by statutory
immunity (Section 12414.26), the Plaintiffs are no longer the
prevailing party and are therefore not entitled to an award of
attorney fees. He will therefore affirm the trial court's order
denying Plaintiffs' motion for attorney fees. In light of our
conclusion on the merits, we will also reverse the trial court's
order awarding the Plaintiffs their costs, direct the court to
enter a new order awarding costs to Fidelity, and remand to the
trial court to determine the amount of the costs award.
For these reasons, Judge Elia reversed the judgment in case No.
H041870. He remanded the cause to the superior court with
directions to vacate the judgment and enter a new judgment
dismissing the action since it is barred by the section 12414.26
immunity.
He affirmed the postjudgment order denying the Plaintiffs' motion
for attorney fees in case No. H042504. He reversed the
postjudgment order denying Fidelity's motion to tax the Plaintiffs'
costs, awarding the Plaintiffs their costs of suit, and granting
the Plaintiffs' motion to tax Fidelity's costs. He remanded the
cause to the superior court with directions to vacate its order
awarding costs to the Plaintiffs, to enter a new order awarding
Fidelity its costs of suit, and to conduct a hearing on the
Plaintiffs' motion to tax Fidelity's costs.
The parties will bear their own costs on appeal.
A full-text copy of the Court's Sept. 7, 2018 Order is available at
https://is.gd/414DSc from Leagle.com.
Chavez & Gertler Nance F. Becker -- nance@chavezgertler.com -- Mark
A. Chavez -- mark@chavezgertler.com -- The Kick Law Firm, Taras
Kick -- info@kicklawfirm.com -- Thomas Segal, Attorneys for
Plaintiffs and Appellants: Manny Villanueva et al.
Hahn Loeser & Park Michael J. Gleason -- mgleason@hahnlaw.com --
Rupa G. Singh, Erica L. Calderas -- elcalderas@hahnlaw.com --
Steven A. Goldfarb -- sagoldfarb@hahnlaw.com -- Attorneys for
Defendant and Appellant: Fidelity National Title Company.
FIRST FEDERAL: Accused by Racette Class Suit of Violating FDCPA
---------------------------------------------------------------
LANE DONOVAN RACETTE, on behalf of herself and all others similarly
situated v. FIRST FEDERAL CREDIT CONTROL, INC., an Ohio
incorporated company, Case No. 2:18-cv-14402-RLR (S.D. Fla.,
October 1, 2018), accuses the Defendant of violating the Fair Debt
Collection Practices Act.
First Federal Credit Control, Inc., is an Ohio company engaged in
the business of collecting consumer debts. The Defendant operates
from offices located in Cleveland, Ohio.[BN]
The Plaintiff is represented by:
Leo W. Desmond, Esq.
Sovathary K. Jacobson, Esq.
DESMOND LAW FIRM, P.C.
5070 Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 231-9600
Facsimile: (772) 231-0300
E-mail: lwd@desmondlawfirm.com
jacobson@desmondlawfirm.com
FLORIDA: Faces Civil Rights Class Action
----------------------------------------
A civil rights class action lawsuit has been filed against the
Florida officials. The case is styled as John Does #1-60 on behalf
of themselves and others similarly situated, Plaintiffs v. Rick
Scott governor of the State of Florida, in official capacity, Rick
Swearingen commissioner of the Florida Department of Law
Enforcement, in official capacity, Defendants, Case No.
6:18-cv-01731-CEM-KRS (M.D. Fla., Oct. 15, 2018).
The Plaintiff filed the case under the Civil Rights Act.
Richard Lynn Scott is an American businessman and politician. Since
2011, Scott has served as the 45th Governor of Florida.
Richard L. Swearingen was named Commissioner of the Florida
Department of Law Enforcement on Dec. 16, 2014 by Governor Rick
Scott.[BN]
The Plaintiffs are represented by:
Shon J. Douctre, Esq.
Private Counsel, LLC
733 W Colonial Dr
Orlando, FL 32804
Phone: (407) 849-2949
Fax: (407) 849-2951
Email: sdouctre@gmail.com
GC SERVICES: Jackson Files FDCPA Suit in New York
-------------------------------------------------
A class action lawsuit has been filed against GC Services Limited
Partnership. The case is styled as Latoya Jackson on behalf of
herself and all others similarly situated, Plaintiff v. GC Services
Limited Partnership, John Does 1-25, Defendants, Case No.
1:18-cv-05763 (E.D. N.Y., Oct. 15, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
GC Services Limited Partnership provides accounts receivable and
customer care solutions to public and private sector organizations.
It offers first party receivable programs, including cure programs,
early stage collections, and pre charge-off collections; third
party receivables management programs, such as post charge-off
collections and skip tracing services.[BN]
The Plaintiff is represented by:
Joseph Karl Jones, Esq.
Jones, Wolf & Kapasi, LLC
One Grand Central Place
60 East 42nd Street, 46th Floor
New York, NY 10165
Phone: (646) 459-7971
Fax: (646) 459-7973
Email: jkj@legaljones.com
GEORGIA: Dingler Files Appeal in Supreme Court
----------------------------------------------
Joseph Dingler, Petitioner vs. Georgia, et al., the Respondents,
Case No. 18-6142 (U.S.), is an appeal filed in the Supreme Court of
United States from the lower court decision in Case No 17-13253
(11th Cir.) on Sept. 28, 2018.
The Petitioner filed an application to extend the time to file a
petition for writ of certiorari from July 23, 2018, to September
21, 2018.
The Petition for writ of certiorari and motion for leave to proceed
in forma pauperis were filed on Sept. 19, 2018. Response due is
October 29, 2018.[BN]
The Petitioner appears pro se.
GOLDEN STATE OVERNIGHT: Birdlong Seeks Unpaid Wages
---------------------------------------------------
MANSON BIRDLONG on behalf of himself and all others similarly
situated, the Plaintiff, vs. GOLDEN STATE OVERNIGHT DELIVERY
SERVICE, INC. a California corporation, and DOES 1 through 50,
inclusive, the Defendants, Case No.: RG18922751 (Cal. Super. Ct.,
Oct. 1, 2018), alleges that the Defendants failed to pay lawful
wages, failed to provide lawful meal periods, failed to provide
lawful rest periods, and failed to timely pay wages, and failed to
reimburse employee expenses pursuant to the California Labor Code.
According to the complaint, the Plaintiff was employed by Golden
State as a truck driver in or about January 2015 and drove
Defendant's company owned vehicles/trucks. The Plaintiff occupied
non-exempt, hourly position until the last day of his employment on
or about July 19, 2018.
The Plaintiff and Class Members drove Defendant's trucks delivering
packages according the schedules provided to them daily by
Defendant. Due to the time constraints and work load requirements,
Plaintiff and Class Members were occasionally required to complete
certain deliveries and job duties "off the clock" and therefore not
paid all lawful wages earned including proper overtime
compensation, the lawsuit says.
Golden State provides ground and overnight delivery services in
California and Utah.[BN]
Attorneys for Plaintiff:
James R. Hawkins, Esq.
Isandra Fernandez, Esq.
HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387 7200
Facsimile: (949) 387 6676
H&M HENNES: Fischler Files Class Suit Under ADA
-----------------------------------------------
A class action lawsuit has been filed against H&M Hennes & Mauritz
L.P. The case is styled as Brian Fischler individually and on
behalf of all other persons similarly situated, Plaintiff v. H&M
Hennes & Mauritz L.P. doing business as: & Other Stories,
Defendant, Case No. 1:18-cv-09338 (S.D. N.Y., Oct. 12, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
H&M Hennes & Mauritz LP retails apparel and cosmetics for men,
women, teenagers, and children. The company is based in New York,
New York. H&M Hennes & Mauritz LP operates as a subsidiary of H & M
Hennes & Mauritz AB (publ).[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
HAIR CLUB: Rincon Suit Alleges Labor Code Violation
---------------------------------------------------
Ashley Rincon, on behalf of herself and others similarly situated
v. Hair Club for Men Ltd, Inc. and Does 1 through 100, Case No.
CGC-18-569098 (Calif. Super., August 22, 2018), is brought against
the Defendants for violation of the California Labor Code.
The Plaintiff Ashley Rincon is a citizen and resident of the State
of California. The Plaintiff was employed by the Defendants.
The Defendant is a corporation organized and existing under the
laws of the State of Florida, with its principal executive office
in Boca Raton, Florida. [BN]
The Plaintiff is represented by:
Matthew J. Matern, Esq.
Joshua D. Boxer, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Tel: (310) 531-1900
Fax: (310) 531-1901
E-mail: mmatern@maternlawgroup.com
jboxer@maternlawgroup.com
IMAGE STREAM: White Seeks Unpaid Overtime under FLSA
----------------------------------------------------
JAMES WHITE, Individually and for Others Similarly Situated, the
Plaintiff, vs. IMAGE STREAM MEDICAL, INC., the Defendant, Case No.:
1:18-cv-12048-WGY (D. Mass., Oct. 1, 2018), seeks to recover unpaid
overtime and other damages under the Fair Labor Standards Act
According to the complaint, Image Stream Medical, Inc. did not pay
overtime to its Field Service Engineers. Instead, Image Stream paid
these workers a set amount each week, with no overtime compensation
for hours worked in excess of 40 in a workweek. From November 2016
until August 2018, James White was one of Image Stream's Field
Service Engineers.
For most of his employment, White worked far more than 40 hours a
week without receiving overtime pay. Although Image Stream recently
began paying its Field Service Engineers overtime, it did not offer
them anything for the thousands of hours of overtime they had
worked in the past, the lawsuit says.[BN]
Attorneys for Plaintiff:
Philip J. Gordon, Esq.
Kristen M. Hurley, Esq.
GORDON LAW GROUP, LLP
585 Boylston St.
Boston, MA 02116
Telephone: 617-536-1800
Facsimile: 617-536-1802
E-mail: pgordon@gordonllp.com
khurley@gordonllp.com
- and -
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
INNOVATIVE LANGUAGE: Sullivan Files ADA Suit in New York
--------------------------------------------------------
Innovative Language Learning USA, LLC is facing a class action
lawsuit in New York.
The case is captioned Phillip Sullivan, Jr. on behalf of himself
and all others similarly situated, Plaintiff v. Innovative Language
Learning USA, LLC, Defendant, Case No. 1:18-cv-09348 (S.D. N.Y.,
Oct. 12, 2018) filed pursuant to the American with Disabilities
Act.
Innovative Language Learning LLC is a language education mobile
application developer, with over 690 apps in over 40 languages for
sale in the iTunes Apps store.[BN]
The Plaintiff appears pro se.
INTELLICHECK INC: Attorney Yeremian Replaces Cunha Class Counsel
----------------------------------------------------------------
In the case, JAMES CUNHA, an individual, on behalf of himself and
all others similarly situated, Plaintiffs, v. INTELLICHECK, LLC, a
California Limited Liability Company; CHICO PRODUCE, INC., d/b/a
PROPACIFIC FRESH, INC., a California Corporation; and DOES 1
through 100, inclusive, Defendants, Case No. 17-CV-00597-JST (N.D.
Cal.), Judge Jon S. Tigar of the U.S. District Court for the
Northern District of California, San Francisco Division, approved
the Plaintiff's request to substitute David H. Yeremian as counsel
of record in place of Patrick N. Keegan of Keegan & Baker LLP, and
Walter L. Haines of United Employees Law Group.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/Apfwbz from Leagle.com.
James Cunha, an individual, on behalf of himself and all others
similarly situated, Plaintiff, represented by David Harmik
Yeremian, David Yeremian & Associates, Inc.
Chico Produce, Inc., a California Corporation, Defendant,
represented by Derek Stanley Sachs -- sachs@lbbslaw.com -- Lewis
Brisbois Bisgaard & Smith LLP, Ashley Nicole Arnett --
Ashley.Arnett@lewisbrisbois.com -- Lewis Brisbois Bisgaard and
Smith LLP & Sharon G. Gelbart -- Sharon.Gelbart@lewisbrisbois.com
-- Lewis Brisbois Bisgaard & Smith LLP.
KAISER FOUNDATION: Gretler Files Labor Suit in Calif. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Kaiser Foundation
Health Plan, Inc. The case is styled as Tiffany Gretler, Laura
Carmona, Shelia Taylor, Shalyse Kemp individuals on behalf of
themselves and all others similarly situated, Plaintiffs v. Kaiser
Foundation Health Plan, Inc., a corporation, Kaiser Foundation
Hospitals, a corporation, Southern California Permanente Medical
Group, a partnership, Defendants, Case No. 5:18-cv-02175 (C.D.
Cal., Oct. 12, 2018).
The Plaintiffs filed the case under the Fair Labor Standards Act.
Kaiser Foundation Health Plan, Inc. provides managed healthcare
services. The company was founded in 1955 and is headquartered in
Oakland, California. Kaiser Foundation Health Plan, Inc. operates
as a subsidiary of Kaiser Permanente Inc.
Kaiser Foundation Hospitals, Inc. owns and operates hospitals. The
company was founded in 1948 and is based in Oakland, California.
Kaiser Foundation Hospitals, Inc. operates as a subsidiary of
Kaiser Permanente Inc.
Southern California Permanente Medical Group, Inc. provides medical
care services to Kaiser Permanente members in Southern California.
The company offers healthcare services in various therapeutic
areas. It also provides medical and group healthcare plans to
physicians. The company is based in Pasadena, California. Southern
California Permanente Medical Group operates as a subsidiary of
Kaiser Permanente Inc.[BN]
The Plaintiffs appear pro se.
KNIGHTS OF COLUMBUS: Duran Seeks Damages, Reimbursements
--------------------------------------------------------
David Duran, an individual, on behalf of himself and all others
similarly situated, Plaintiff, v. Knights of Columbus, Defendant,
Case No. 18-cv-05855, (N.D. Cal., September 24, 2018), seeks to
recover illegal deductions, an additional amount as liquidated
damages, reimbursement for business-related expenses, reasonable
attorneys' fees and costs under the California Labor Code.
Knight of Columbus is a Catholic fraternal society that sells
insurance to Catholics across the nation. Duran worked as an
insurance agent. He claims to have incurred business-related
expenses that were not reimbursed. Defendant also deducts money for
licensing, laptops and business insurance from his pay and failed
to provide wage statements, says the Plaintiff. [BN]
Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex Tomasevic, Esq.
David G. Greco, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
Email: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
dgreco@nicholaslaw.org
LACROIX SPARKLING: Rice Sues over "100% Natural" Claim
------------------------------------------------------
LENORA RICE, on behalf of herself and other persons similarly
situated, the Plaintiff, vs NATIONAL BEVERAGE CORP. d/b/a LaCROIX
SPARKLING WATERS, the Defendant, Case No. 2018CH12302 (Ill. Cir.
Ct., Cook Cty., Oct. 1, 2018), contends that the Defendant
manufactures, markets and sells the popular beverage LaCroix
Sparkling water. The Defendant markets and labels its water as "all
natural" and "100% natural." The Defendant's water is neither all
natural or 100% natural. In fact, the Defendant's water contains
chemical compounds that have been adjudged synthetic and/or
artificial by the Food and Drug Administration.
Thousands of consumers purchase the Defendant's water under the
mistaken belief that it conforms with representations made by the
Defendant on LaCroix's packaging and advertisements. i.e. it is
"all natural" and/or "100% natural." Because LaCroix water is, in
fact, composed of substances that are not "all natural" there are
thousands of purchasers of the Defendant's product -- including
Plaintiff and class members -- who would not have purchased LaCroix
water had they known Defendant's representations were false, the
lawsuit says.[BN]
Attorneys for Plaintiff Lenora Rice and the Proposed Class:
William H. Beaumont, Esq.
BEAUMONT COSTALES LLC
3151 W. 26th Street, 2nd Floor
Chicago, IL 60623
Telephone: (773) 831 8000
LEXINGTON NATIONAL: Petition for Writ of Certiorari Filed
---------------------------------------------------------
BRITTAN HOLLAND , individually and on behalf of all others
similarly situated; LEXINGTON NATIONAL
INSURANCE CORPORATION , the Petitioners, v. KELLY ROSEN, Pretrial
Services Team Leader; MARY COLALILLO , Camden County Prosecutor;
GURBIR GREWAL, Attorney General of New Jersey; CHRISTOPHER S.
PORRINO, the Respondents, Case No.: 18-396 (U.S.), is an appeal
filed in the Supreme Court of the United States from a lower court
decision in Case no. 17-3104 (3rd Cir.) on Sept. 28, 2018.
The Petitioners filed a Petition for Writ of Certiorari to the
United States Court of Appeals for the Third Circuit on Sept. 21,
2018. Response is due October 29, 2018.[BN]
Counsel for Petitioners:
Paul D. Clement, Esq.
Michael F. Williams, Esq.
Edmund G. Lacour Jr., Esq.
Andrew C. Lawrence
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
Telephone: (202) 879 5000
E-mail: paul.clement@kirkland.com
LLR INC: Lauren Porsch Files Class Action
-------------------------------------------
A class action lawsuit has been filed against LLR, Inc. et al. The
case is styled as Lauren Porsch individually and on behalf of all
others similarly situated, Plaintiff v. LLR, Inc. d/b/a LuLaRoe,
LuLaRoe, LLC, Defendants, Case No. 1:18-cv-09312 (S.D. N.Y., Oct.
11, 2018).
LuLaRoe is a United States-based multi-level marketing company that
sells women's clothing. LuLaRoe was founded in 2012 by Deanne Brady
and her husband Mark Stidham, and is based in Corona,
California.[BN]
The Plaintiff appears pro se.
LOEWS COH: Duron Sues Over Illegal Retention of Biometrics Data
---------------------------------------------------------------
Joseph Duron, individually and on behalf of a class of similarly
situated individuals, Plaintiff, v. Loews COH Operating Company,
LLC and Loews Chicago Hotel, Inc., Defendants, Case No. 18-cv-06479
(N.D. Ill., September 24, 2018), seeks an injunction requiring
Defendants to destroy biometrics in its possession; to cease all
unlawful activity related to the capture, collection, storage and
use of biometrics; statutory damages together with costs and
reasonable attorneys' fees for violation of the Illinois Biometric
Information Privacy Act.
Loews is a luxury hospitality company that owns and operates two
hotels in Illinois. Duron alleges that the Defendants implemented a
timekeeping system that relied on the collection, storage, and
usage of employees' fingerprints and biometric information without
informed consent in violation of the Illinois Biometric Information
Privacy Act. [BN]
Plaintiff is represented by:
Steven A. Hart, Esq.
John S. Marrese, Esq.
HART MCLAUGHLIN & ELDRIDGE, LLC
22 W. Wacker Dr., Ste. 1600
Chicago, IL 60602
Tel. (312) 955-0545
Fax. (312) 971-9243
Email: shart@hmelegal.com
jmarrese@hmelegal.com
LOOMIS ARMORED: Sued by Myers for Not Paying Overtime Under FLSA
----------------------------------------------------------------
SHAKEERA MYERS, on behalf of herself and all others similarly
situated v. LOOMIS ARMORED US, LLC, Case No. 3:18-cv-00532
(W.D.N.C., October 1, 2018), arises out of the Defendant's alleged
systemic, company-wide willful failure to compensate the Plaintiff
for all hours worked, and for overtime hours worked at the
appropriate overtime rate, in violation of the Fair Labor Standards
Act and the North Carolina Wage and Hour Act.
Loomis Armored US, LLC, is a Texas limited liability corporation,
with its principal place of business located in Houston, Texas.
The Defendant's primary business address in North Carolina is in
Charlotte.
According to its Web site, the Defendant is a cash management
specialist, and is in the business of securely transporting cash
and valuables in armored vehicles, typically to or from stores,
banks, deposit boxes, and ATMs. The Defendant also provides cash
management software; ATM replenishment, pickup, and maintenance
services; and cash exchanges for businesses, among other
services.[BN]
The Plaintiff is represented by:
Gilda A. Hernandez, Esq.
Emma J. Smiley, Esq.
THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC
1020 Southhill Drive, Suite 130
Cary, NC 27513
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: ghernandez@gildahernandezlaw.com
esmiley@gildahernandezlaw.com
MACROPOINT LLC: William Bland Sues over Unpaid Commissions
----------------------------------------------------------
WILLIAM BLAND, the Plaintiff, vs. MACROPOINT, LLC, THE DESCARTES
SYSTEMS GROUP INC.; BENNETT ADELSON CONSULTING, INC.; and BENNETT
ADELSON, the Defendants, Case No.: CV 18 904630 (Court of Common
Pleas, Cuyahoga Cty., Oct. 1, 2018), seeks judgment against the
Defendants in an amount in excess of $25,000 to fully, fairly, and
justly compensate him for injury, damage, and loss, and asks the
Court to enter judgment in his favor and award him past and future
economic and non-economic compensatory damages, fringe benefits,
consequential damages, incidental damages, punitive damages,
liquidated damages, interest, all reasonable attorney's fees, costs
and expenses, and any additional legal or equitable relief
available under law, including, but not limited to back pay, future
losses, reinstatement, and promotion.
According to the complaint, in June 2016, Bland and the Defendants
entered into a legally binding oral contract. Bland performed all
the conditions, covenants, and promises required in accordance with
the contract. The Defendants breached its contract with Bland when
they refused to compensate Bland for his commissions and submitted
expense reports. As a direct result of the Defendants' unlawful
conduct, Bland suffered and continues to suffer pecuniary harm.
In or around April 2015, Bland was hired by MacroPoint and Adelson
Consulting. Bland was hired as Vice President of Customer
Management. Bland began his employment, MacroPoint was a subsidiary
of
Adelson Consulting. Bland's paychecks listed Adelson Consulting as
the payor. Bland's first employment agreement, dated in September
2015, listed MacroPoint as Bland's employer. MacroPoint and Adelson
Consulting were joint employers of Bland, the lawsuit says.[BN]
Attorney for Plaintiff:
Sean H. Sobel, Esq.
SOBEL, WADE & MAPLEY, LLC
2460 Fairmount Boulevard, Suite 314
Cleveland, OH 44106
Telephone: (216) 223-7213
Facsimile: (216) 223-7213
E-mail: sobel@swmlawfirm.com
MARINOSCI LAW: Faces Sullivan FDCPA Class Suit in Florida
---------------------------------------------------------
A class action lawsuit has been filed against Marinosci Law Group,
P.C., P.A. The case is styled as Kimberly S. Sullivan also known
as: Kimn S. Sullivan on behalf of herself and others similarly
situated, Plaintiff v. Marinosci Law Group, P.C., P.A., Defendant,
Case No. 9:18-mc-81368-DMM (S.D. Fla., Oct. 11, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Marinosci Law Group, P.C. was founded in 1997. The company's line
of business includes searching real estate titles.[BN]
The Plaintiff is represented by:
James Lee Davidson, Esq.
Greenwald Davidson PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Phone: (561) 826-5477
Fax: (561) 869-1919
Email: jdavidson@gdrlawfirm.com
MAZ PARTNERS: Shear Files Appeal to U.S. Supreme Court
------------------------------------------------------
Bruce A. Shear, Petitioner, vs. MAZ Partners, LP, Individually and
on Behalf of All Others Similarly Situated, the Respondent, Case
No. 18-403 (U.S.) is an appeal filed in the Supreme Court of United
States from a lower court decision in Case Nos. 17-1821, 17-1904
(1st Cir.) on Sept. 28, 2018.
The petition for writ of certiorari was filed on Sept. 28, 2018.
Response is due October 29, 2018.
Attorneys for the Petitioner:
James Harold Hulme, Esq.
ARENT FOX LLP
1717 K Street, NW
Washington, DC 20006-5342
E-mail: james.hulme@arentfox.com
MCDONALD'S CORP: Workers to Protest Over Sexual Harassment
----------------------------------------------------------
Sarah Jones, writing for The New Republic, reports that on
September 18, McDonald's workers in 10 cities will make history,
striking to protest what they say is a persistent failure to
enforce company rules against sexual harassment at work. The Time's
Up Legal Defense Fund will provide legal support for women who have
filed sexual harassment claims, and the strike is backed by the
Fight for 15 movement of fast-food workers organizing for a living
minimum wage. As reported by Fortune, hundreds of employees in
worker-led women's committees organized the strike, "demanding
improved procedures for receiving and responding to sexual
harassment complaints, plus required anti-harassment training for
managers and employees." It will be the first time McDonald's
workers have taken such action on sexual harassment.
For nearly a year, the #MeToo moment calling out sexual misconduct
has revolved mostly around the already-famous: in Hollywood, in
media, and in politics. On Sept. 14, Supreme Court nominee Brett
Kavanaugh became the latest to be accused publicly of assault. But
#MeToo originally had nothing to do with the rich and powerful.
Tarana Burke, a Bronx-based activist, coined the term over a decade
before it became a hashtag; at the time, Burke intended it as a
response to the prevalent sexual abuse of young, working-class
women of color. Sexual harassment and assault has also been a focal
point for the Coalition of Immokalee Workers, which organizes
farmworkers against the exploitation and sexual harassment of women
in the fields. CIW activists recently held a hunger strike in front
of the corporate headquarters of Wendy's over the chain's refusal
to comply with CIW's Fair Food program, which sets out a program of
rules and regulations meant to protect workers from harassment and
abuse. "There's no new news here, aside from the CIW trying to
exploit the positive momentum that has been generated by and for
women in the #MeToo and Time's Up movement to advance their
interests," a Wendy's spokeswoman asserted to the Huffington Post
in March.
The Sept. 18 strike is a reminder that #MeToo's roots are deep, and
they were planted by working-class women. But the strike is still
an unusual tactic. "There's not a deep history of large coordinated
strikes over sexual harassment," Rebecca Kolins Givan, an associate
professor of labor studies and employment relations at Rutgers
University, told me. "Usually when sexual harassment has been an
issue, it's one of many issues about disrespect and lack of dignity
in the workplace and, like with McDonald's, it's in the context of
a broader campaign of organizing for recognition and respect."
"There are some key recent cases, not necessarily of strikes but of
demands around sexual harassment, the major recent one being the
hotel workers in Chicago, with what they called their 'Hands Off,
Pants On' campaign to get panic button for housekeepers," Givan
said. In October 2017, the Chicago city council approved an
ordinance that requires hotel owners to give panic buttons to
workers and to develop anti-sexual harassment policies.
Annelise Orleck, a professor of history at Dartmouth College who
has participated in a public relations campaign on behalf of
striking McDonald's workers, told me that the earliest example she
could find of a strike provoked by sexual harassment dates to 1912.
"Corset-makers in Kalamazoo, Michigan were the first that I could
find to publicly say that they were walking out to protest physical
and verbal harassment by their foreman, in addition to his demands
for quid pro quo sex," she said. According to
Ms. Orleck, unions were "nervous" about the prospect of taking
action on workplace sexual harassment, and preferred
behind-the-scenes action as opposed to a strike.
McDonald's already has a company-wide sexual harassment policy, but
in 2016, 15 workers filed formal complaints about its
non-enforcement with the National Labor Relations Board. In May,
ten more women filed complaints with the NLRB, also over the
company's failure to stop sexual harassment. Many women said they
experienced retaliation for reporting the behavior. "The claimants,
including a 15-year-old from St. Louis, said in a conference call
with journalists that they were ignored, mocked or terminated for
reporting the behavior. The accusations included claims that
co-workers or supervisors sexually propositioned, groped or exposed
themselves to the women," Reuters reported at the time. Filing a
complaint with a Republican-dominated NLRB is a risk, and so is a
strike, but women have few other options. Any complaint about
sexual harassment puts workers in a vulnerable position.
"All the men feel like they have all the power, so they'll cut your
hours. Or if they can't, they'll just make your day a living hell.
They make you feel like you are nothing, just because you tried to
stand up against them," said Adriana Alvarez, who has worked at a
Chicago McDonald's for nine years and helped organize the Sept. 18
strike.
Strikes can also provoke retaliation against workers. "They may
have their hours docked, they may be fired outright," Ms. Orleck
said. "But these kinds of actions get much more attention, as
they're intended to, than an individual complaint or even then a
kind of legal complaint like those that have been brought before
the NLRB," she added, due to greater media attention.
"There is no place for harassment or discrimination of any kind at
McDonald's," McDonald's spokeswoman Andrea Abate said in a
statement provided to The New Republic. "Since our founding, we've
been committed to a culture that fosters the respectful treatment
of everyone. We have policies, procedures and training in place
that are specifically designed to prevent sexual harassment at our
company and company-owned restaurants, and we firmly believe that
our franchisees share this commitment."
The statement further asserts that the corporation is working with
the Rape, Abuse and Incest Network and Seyfarth Shaw at Work, which
describes itself as a "legal compliance and consulting services
company" on its website, on prevention measures. The choice of
consultant is an inadvertent reminder that sexual harassment
pervades all industries, and victimizes workers in all income
brackets: A Seyfarth Shaw partner, Gerald Maatman, previously
represented The Weinstein Company after six actresses filed a
class-action lawsuit against it. That wasn't the first time Maatman
had represented an employer in a sexual harassment case, either;
according to Variety, he also represented Garban LLC., a brokerage
firm, after female employees accused it of rampant gender
discrimination. Male employees had reportedly circulated
pornography, and hired strippers for company events.
Even if McDonald's has good intentions -- a generous assumption ---
Ms. Givan warns that the "pro forma training" many employers
conduct in response to sexual harassment has been shown to have
little impact. It does, however, help protect employers from legal
liability. "It sounds like they are working with the typical
management-side firm that will help them stay in legal compliance
and avoid liability while also trying to deny workers the ability
to unionize or have a stronger voice. All with the goal of staying
on the right side of the law," she added.
For some workers, this show of commitment from McDonald's only
underlines how little action the massive corporation has taken
until now. "They have the power to stop the sexual harassment. They
have more than enough money to educate these managers and let them
know what's right and what's wrong, which should have been done in
the beginning," said Alvarez. "They have more than enough of
everything to fix this." Taking the chain's obvious resources into
account, McDonald's workers on Sept. 18 will take an unprecedented
action to demand unprecedented accountability. [GN]
MDL 2641: Court Remands 10 Mature Cases in Bard IVC Filters Suit
----------------------------------------------------------------
In the case, IN RE: Bard IVC Filters Products Liability Litigation,
Case No. MDL 15-02641-PHX-DGC (D. Ariz.), Judge David G. Campbell
of the U.S. District Court for the District of Arizona suggested
that the U.S. Judicial Panel for Multidistrict Litigation remands
the 10 mature cases listed on Schedule A to their transferor
districts for further proceedings.
The multidistrict litigation proceeding involves thousands of
personal injury cases brought against Defendants C. R. Bard, Inc.
and Bard Peripheral Vascular, Inc. Bard manufactures and markets
medical devices, including inferior vena cava ("IVC") filters. The
MDL Plaintiffs have received implants of Bard IVC filters and claim
that they are defective and have caused them to suffer serious
injury or death.
The MDL Plaintiffs allege that Bard filters are more dangerous than
other IVC filters because they have higher risks of tilting,
perforating the IVC, or fracturing and migrating to vital organs.
They further allege that Bard failed to warn patients and
physicians about these higher risks.
The Defendants dispute these allegations, contending that Bard
filters are safe and effective, that their complication rates are
low and comparable to those of other IVC filters, and that the
medical community is aware of the risks associated with IVC
filters.
The MDL was transferred to the Court in August 2015 when 22 cases
had been filed. More than 4,000 cases have been filed in the MDL
since its inception in 2015.
In October 2015, the parties identified 13 cases that were
sufficiently advanced to be considered for remand. These cases
were designated as "mature cases" in the Court's initial orders.
Although the mature cases were more advanced than other cases in
the MDL, the parties agreed that they should not be remanded
immediately, but instead should remain part of the MDL as possible
bellwether cases.
In February 2016, the Court directed the parties to confer and
identify the specific discovery, motion practice, and other
litigation steps needed for the mature cases. he purpose was to
remand these cases as soon as reasonably possible, rather than
postponing their disposition until the end of the MDL proceeding.
In April 2016, the parties agreed that 3 of the 13 cases should no
longer be deemed mature and instead should be treated like all
other cases in the MDL. The remaining 10 cases continue to be
designated as mature cases: (i) Tillman v. C. R. Bard, Inc., No.
3:13-cv-0222 (M.D. Florida); (ii) Ocasio v. C. R. Bard, Inc., No.
8:13-cv-01962 (M.D. Florida); (iii) Cason v. C. R. Bard, Inc., No.
1:12-cv-01288 (N.D. Georgia); (iv) Coker v. C. R. Bard, Inc., No.
1:13-cv-00515 (N.D. Georgia); (v) Rivera (McClarty) v. C. R. Bard,
Inc., No. 4:14-cv-13627 (E.D. Michigan); (vi) Ebert v. C. R. Bard,
Inc., No. 5:12-cv-01253 (E.D. Pennsylvania); (vii) Keen v. C. R.
Bard, Inc., No. 5:13-cv-05361 (E.D. Pennsylvania); (viii) Smith v.
C. R. Bard, Inc., No. 1:13-cv-00633 (E.D. Texas); (ix) Fox v. C. R.
Bard, Inc., No. 3:14-cv-00133 (N.D. Texas); and (x) Henley v. C. R.
Bard, Inc., No. 2:14-cv-00059 (E.D. Wisconsin).
In August 2016, the parties stipulated that remand of the mature
cases should await completion of expert discovery because such
discovery may be relevant in trials of the mature cases. The Court
agreed, concluding that general expert disclosure and discovery,
and any related Daubert motions, should be handled in the MDL. It
further concluded that case-specific discovery in the mature cases
should await their remand.
Following the second bellwether trial earlier this year, the Court
directed the parties to file memoranda addressing the appropriate
time for remand of the mature cases. The Defendants argued that
the cases should be remanded in 2019 after completion of the
remaining bellwether trials. The Plaintiffs argued that the cases
should be remanded now because retaining the cases in the MDL will
provide no additional benefits and there is no reason to delay.
Judge Cambell agrees with the Plaintiffs. All common fact and
expert discovery in this MDL have been completed, and the Court has
ruled on Daubert motions and the Defendants' summary judgment
motion on preemption. The mature cases are nearly ready for trial
and would no longer benefit from inclusion in the MDL. The
remaining case-specific issues in the mature cases are best left to
the transferor courts to resolve. He therefore suggests that the
Panel remand the 10 mature cases to the transferor courts for
further proceedings.
For these reasons, pursuant to J.P.M.L. Rule 10.1(b)(i), Judge
Campbell suggested that the Panel remand the 10 mature cases to
their transferor districts for further proceedings. The Clerk will
forward a certified copy of the Order to the Panel.
A full-text copy of the Court's Sept. 7, 2018 Order is available at
https://is.gd/zwcFBl from Leagle.com.
Bard IVC Filters Products Liability Litigation, Plaintiff,
represented by Kristine Lucille Gallardo, Snell & Wilmer LLP, Mark
Stephen O'Connor -- mark.oconnor@gknet.com -- Gallagher & Kennedy
PA, Ramon Rossi Lopez, Lopez McHugh LLP & Richard B. North, Jr. --
richard.north@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLC.
Marina Corodemus, Special Master, pro se.
George Leus, Plaintiff, represented by Amanda Montee, Montee Law
Firm, James P. Cannon, Montee Law Firm, James Albert Montee, Montee
Law Firm, Joseph R. Johnson -- jjohnson@babbitt-johnson.com --
Babbitt & Johnson PA & Ramon Rossi Lopez, Lopez McHugh LLP.
Gary Milton & Emily Landress, Plaintiffs, represented by Ben C.
Martin, Law Offices of Ben C. Martin, Robert M. Hammers, Jr. --
shllc-intakes@schneiderhammers.com -- Schneider Hammers LLC, Thomas
William Arbon, Law Offices of Ben C. Martin & Ramon Rossi Lopez,
Lopez McHugh LLP.
Denise Ocasio, an individual & Carmelo Ocasio, an individual,
Plaintiffs, represented by Ben C. Martin, Law Offices of Ben C.
Martin, John J. Glenn -- glenn@asglaw.com -- Anderson Glenn LLC,
Joseph R. Johnson, Babbitt & Johnson PA, Thomas William Arbon, Law
Offices of Ben C. Martin, Wilnar Jeanne Julmiste --
julmiste@asglaw.com -- Anderson Glenn LLC & Ramon Rossi Lopez,
Lopez McHugh LLP.
C R. Bard Incorporated, Defendant, represented by Aaron A. Clark --
aclark@mcgrathnorth.com -- McGrath North Law Firm, Alex Cameron
Walker -- alex.walker@modrall.com -- Modrall Sperling Roehl Harris
& Sisk PA, Andrew J. Rosenzweig --
andrew.rosenzweig@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLC, Andrew J. Trevelise, Reed Smith LLP, Angela M.
Higgins -- higgins@bscr-law.com -- Baker Sterchi Cowden & Rice LLC,
Brandee J. Kowalzyk -- brandee.kowalzyk@nelsonmullins.com -- Nelson
Mullins Riley & Scarborough LLC, Catherine A. Faught Pollard --
catherine.faught@quarles.com -- Quarles & Brady LLP, Christopher
Brian Watt -- cwatt@reedsmith.com -- Reed Smith LLP, Courtland
Carter Chillingworth -- cchillingworth@reedsmith.com -- Reed Smith
LLP, Daniel K. Winters, Reed Smith LLP, David J. Cooner, McCarter &
English LLP, David W. Ledyard, Strong Pipkin Bissell & Ledyard,
David Michael Melancon, Irwin Fritchie Urquhart & Moore LLC, David
J. Walz , Carlton Fields Jorden Burt PA, Debra A. Djupman, Reed
Smith LLP, Dennis Hom -- dennis.hom@nelsonmullins.com -- Nelson
Mullins Riley & Scarborough LLC, Diana Rabeh, Reed Smith LLP,
Edward W. Gerecke , Carlton Fields Jorden Burt PA, Elizabeth S.
Fenton, Chamberlain Hrdlicka, Elizabeth C. Helm --
kate.helm@nelsonmullins.com -- Nelson Mullins Riley & Scarborough
LLC, Eric J. Buhr -- ebuhr@reedsmith.com -- Reed Smith LLP, Gary
Robert Tulp, McCarter & English LLP, James P. Catalano, Nelson
Mullins Riley & Scarborough LLP, James R. Condo, Snell & Wilmer
LLP, James Auman Haltom -- james.haltom@nelsonmullins.com -- Nelson
Mullins Riley & Scarborough LLP, James F. Rogers --
jim.rogers@nelsonmullins.com -- Nelson Mullins Riley & Scarborough
LLP, Jane Thompson Davis -- jane.davis@nelsonmullins.com -- Nelson
Mullins Riley & Scarborough LLP, Jay Joseph Schuttert, Evans Fears
& Schuttert LLP, Jennifer A. Guidea, Gorham Rees Scully Mansukhani
LLP, Jennifer J. Hageman, Ulmer & Berne LLP, John A. Camp, Carlton
Fields Jorden Burt, John G. Mitchell , Secrest Wardle, Jordan L.
Chaikin , Parker Waichman LLP, Joshua D. Cools, Snell & Wilmer LLP,
Kara Trouslot Stubbs , Baker Sterchi Cowden & Rice LLC, Kevin M.
Hara -- khara@reedsmith.com -- Reed Smith LLP, Kevin George Lohman
-- klohman@reedsmith.co -- Reed Smith LLP, Mark A. Sentenac, Reed
Smith LLP, Matthew E. Brown -- matt.brown@nelsonmullins.com --
Nelson Mullins Riley & Scarborough LLP, Matthew B. Lerner --
matthew.lerner@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLC, Meera Unnithan Sossamon, Irwin Fritchie Urquhart &
Moore LLC, Melanie M. Atha , Cabaniss Johnston Gardner Dumas &
ONeal LLP, Melissa Dorman Matthews , Hartline Dacus Dreyer & Kern
LLP, Michael Kevin Brown, Reed mith LLP, Neville H. Boschert ,
Jones WalkerWaechter Poitevent Carrere & Denegre, Patrick T.
Clendenen, Nelson Mullins Riley & Scarborough LLP, Philip M. Busman
-- phil.busman@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLP, Raymond G. Mullady, Jr. --
ray.mullady@nelsonmullins.com -- Nelson Mullins Riley & Scarborough
LLP, Richard B. North, Jr. -- richard.north@nelsonmullins.com --
Nelson Mullins Riley & Scarborough LLC, Ruth A. Horvatich , McGrath
North Law Firm, Sanjay Ghosh -- sanjay.ghosh@nelsonmullins.com --
Nelson Mullins Riley & Scarborough LLC, Steven James Boraian --
sboranian@reedsmith.com -- Reed Smith LLP, Taylor Tapley Daly --
taylor.daly@nelsonmullins.com -- Nelson Mullins Riley & Scarborough
LLC, Thomas Melone, Allco Renewable Energy Limited, Tiffany L.
Roach Martin, MNodrall Sperling Roehl Harris & Sisk PA, Vivian M.
Quinn, Nixon Peabody LLP, Dell P. Chappell --
dell.chappell@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLP, Mark R. Nash -- mark.nash@nelsonmullins.com --
Nelson Mullins Riley & Scarborough LLC & Lucas Liben --
lliben@reedsmith.com -- Reed Smith LLP.
Bard Peripheral Vascular Incorporated, Defendant, represented by
Aaron A. Clark, McGrath North Law Firm, Alex Cameron Walker,
Modrall Sperling Roehl Harris & Sisk PA, Andrew J. Rosenzweig,
Nelson Mullins Riley & Scarborough LLC, Andrew J. Trevelise, Reed
Smith LLP, Angela M. Higgins, Baker Sterchi Cowden & Rice LLC,
Brandee J. Kowalzyk, Nelson Mullins Riley & Scarborough LLC,
Catherine A. Faught Pollard, Quarles & Brady LLP, Christopher Brian
Watt, Reed Smith LLP, Courtland Carter Chillingworth, Reed Smith
LLP, Daniel K. Winters, Reed Smith LLP, David J. Cooner, McCarter &
English LLP, David W. Ledyard, Strong Pipkin Bissell & Ledyard,
David Michael Melancon, Irwin Fritchie Urquhart & Moore LLC, David
J. Walz, Carlton Fields Jorden Burt PA, Debra A. Djupman, Reed
Smith LLP, Dennis Hom, Nelson Mullins Riley & Scarborough LLC,
Diana Rabeh, Reed Smith LLP, Edward W. Gerecke, Carlton Fields
Jorden Burt PA, Elizabeth S. Fenton, Chamberlain Hrdlicka,
Elizabeth C. Helm, Nelson Mullins Riley & Scarborough LLC, Eric J.
Buhr, Reed Smith LLP, Gary Robert Tulp, McCarter & English LLP,
James P. Catalano, Nelson Mullins Riley & Scarborough LLP, James R.
Condo, Snell & Wilmer LLP, James F. Rogers, Nelson Mullins Riley &
Scarborough LLP, Jane Thompson Davis, Nelson Mullins Riley &
Scarborough LLP, Jay Joseph Schuttert, Evans Fears & Schuttert LLP,
Jennifer A. Guidea, Gorham Rees Scully Mansukhani LLP, Jennifer J.
Hageman, Ulmer & Berne LLP, John A. Camp, Carlton Fields Jorden
Burt, John G. Mitchell, Secrest Wardle, Joshua D. Cools, Snell &
Wilmer LLP, Kara Trouslot Stubbs, Baker Sterchi Cowden & Rice LLC,
Kevin M. Hara, Reed Smith LLP, Kevin George Lohman, Reed Smith LLP,
Lucas Liben, Reed Smith LLP, Mark A. Sentenac, Reed Smith LLP,
Matthew E. Brown, Nelson Mullins Riley & Scarborough LLP, Matthew
B. Lerner, Nelson Mullins Riley & Scarborough LLC, Meera Unnithan
Sossamon, Irwin Fritchie Urquhart & Moore LLC, Melanie M. Atha,
Cabaniss Johnston Gardner Dumas & ONeal LLP, Melissa Dorman
Matthews, Hartline Dacus Dreyer & Kern LLP, Michael Kevin Brown,
Reed Smith LLP, Neville H. Boschert, Jones WalkerWaechter Poitevent
Carrere & Denegre, Patrick T. Clendenen, Nelson Mullins Riley &
Scarborough LLP, Philip M. Busman, Nelson Mullins Riley &
Scarborough LLP, Raymond G. Mullady, Jr., Nelson Mullins Riley &
Scarborough LLP, Richard B. North, Jr., Nelson Mullins Riley &
Scarborough LLC, Ruth A. Horvatich, McGrath North Law Firm, Sanjay
Ghosh, Nelson Mullins Riley & Scarborough LLC, Steven James
Boranian, Reed Smith LLP, Taylor Tapley Daly, Nelson Mullins Riley
& Scarborough LLC, Thomas Melone, Allco Renewable Energy Limited,
Tiffany L. Roach Martin, MNodrall Sperling Roehl Harris & Sisk PA,
Vivian M. Quinn, Nixon Peabody LLP, Dell P. Chappell, Nelson
Mullins Riley & Scarborough LLP & Mark R. Nash, Nelson Mullins
Riley & Scarborough LLC.
Christian Mottas, an individual, Defendant, represented by David J.
Walz -- dwalz@carltonfields.com -- Carlton Fields Jorden Burt PA,
Edward W. Gerecke -- egerecke@carltonfields.com -- Carlton Fields
Jorden Burt PA, Matthew B. Lerner, Nelson Mullins Riley &
Scarborough LLC & Richard B. North, Jr., Nelson Mullins Riley &
Scarborough LLC.
California Pacific Medical Center, Defendant, represented by Hilary
E. Youngblood -- Hilary@orplaw.com -- Davidovitz & Bennett & Robert
Diemer -- robert@orplaw.com -- Davidovitz & Bennett.
Bard Medical Division, Defendant, represented by Richard B. North,
Jr., Nelson Mullins Riley & Scarborough LLC.
C.R. Bard Incorporated, Defendant, represented by Elizabeth C.
Helm, Nelson Mullins Riley & Scarborough LLC & Richard B. North,
Jr., Nelson Mullins Riley & Scarborough LLC.
MDL 2672: Court Denies Bid to Dismiss Clean Diesel Suit
-------------------------------------------------------
In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates
To: Dkt. Nos. 5019, 5021, 5153, Case MDL No. 2672 CRB (JSC) (N.D.
Cal.), Judge Charles R. Breyer of the U.S. District Court for the
Northern District of California denied both (i) the Defendants'
motions to dismiss and (ii) the Plaintiff's motion to amend the
complaint.
The Order addresses whether the allegations in a Volkswagen
bondholder's second amended complaint (1) satisfy the reliance
element of its Section 10(b) and Rule 10b-5(b) claims against
Volkswagen and the related Defendants; (2) give rise to a strong
inference of scienter as to Defendant Michael Horn and Volkswagen
Group of America, Inc.; and (3) are sufficient to support Section
20(a) control person claims against Horn. It addresses whether the
bondholder should be given leave to amend its complaint for a third
time to add insider trading claims.
On three occasions in 2014 and 2015, Volkswagen Group of America
Finance LLC ("VWGoAF") issued U.S.-dollar denominated bonds to
institutional investors. It issued the bonds in private
placements, which were led primarily by U.S.-based investment
banks. The bonds were exempt from registration with the SEC under
Rule 144A and so could be purchased only by qualified institutional
buyers. After the initial offerings, the bonds traded in a
secondary market.
Each of the initial offerings was made pursuant to an Offering
Memorandum. The Lead Plaintiff, a public pension fund, purchased
bonds on May 23, 2014 pursuant to the terms of a May statements
about Volkswagen's R&D priorities and exposure to regulatory risks.
The Plaintiff contends that the R&D and regulatory-risk statements
were materially misleading, in violation of Section 10(b) and Rule
10b-5(b), because the Defendants failed to disclose that Volkswagen
was using a defeat device in many of the diesel vehicles it was
selling in the United States and around the globe, which enabled
Volkswagen to deceptively pass emission tests and to sell vehicles
that emitted certain pollutants at levels up to 40 times the legal
limits.
In Bondholders I, the Court concluded that the R&D and
regulatory-risk statements were plausibly misleading becuase the
statements that Volkswagen's top priority and focal point for R&D
was to develop engines that reduced emissions could have led a
reasonable investor to conclude that Volkswagen was committed to
emissions-reducing technology.
The Court in Bondholders I also concluded that Martin Winterkorn
(the former CEO of Volkswagen AG ("VWAG")) and Michael Horn (the
former CEO of Volkswagen Group of America, Inc. ("VWGoA"))
plausibly made the statements in the Offering Memorandum, and that
Winterkorn and VWAG (but not Horn and VWGoA) did so with scienter.
It also concluded that the Plaintiff was entitled to a presumption
of reliance under Affiliated Ute Citizens of Utah v. United States,
and that Section 20(a) control person claims were well pled as to
Winterkorn, but not as to Horn.
The Plaintiff responded to Bondholders I by filing a first amended
complaint. In Bondholders II, the Court ruled on motions to
dismiss the amended complaint. In its order, the Court
reconsidered the element of reliance in light of new authority
cited by the Defendants and held that the Plaintiff could not rely
on Affiliated Ute to plead reliance. The Court also considered two
other theories of reliance -- direct reliance and fraud on the
market -- but concluded that neither was well pled. Having
determined that the reliance element was not satisfied, the Court
dismissed the first amended complaint in its entirety with leave to
amend.
The Plaintiff responded by filing the second amended complaint, and
the Defendants responded by filing separate motions to dismiss the
second amended complaint, one by Horn and the other by the
remaining Defendants.
In opposition to Defendants' motions to dismiss the second amended
complaint, the Plaintiff asserted for the first time that when the
Defendants sold VWGoAF bonds in the initial offerings, they engaged
in insider trading in violation of Section 10(b) and Rule 10b-5
subsections (a) and (c) and Section 20A of the Exchange Act because
they sold the bonds without disclosing the emissions fraud. In
raising these claims, the Plaintiff noted that insider trading can
be committed without affirmative statements, and so the Plaintiff
asserted that Affiliated Ute's presumption of reliance would apply
under this "pure omissions" theory.
Judge Breyer concludes that the allegations in the second amended
complaint have cured previously noted deficiencies with respect to
the elements of reliance and scienter. As a result, the Plaintiff
has now sufficiently pled Section 10(b) and Section 20(a) claims
against the Defendants and the parties may proceed with discovery.
He denied the Defendants' motions to dismiss.
Although the Plaintiff has plausibly alleged that it relied
directly on the misleading statements at issue in the May 2014
Offering Memorandum, the Judge finds that the Plaintiff is not
entitled to a presumption of reliance under Basic or under the
fraud-created-the-market or fraud-on-the-regulatory-process
theories. He will, however, reconsider at the class certification
stage whether the Plaintiff may invoke a presumption of reliance
under Affiliated Ute.
The Judge denied the Plaintiff's motion to amend the complaint. He
finds that the insider trading claims that the Plaintiff seeks to
add are based upon nondisclosure. As a result, they would be
actionable only if the Defendants had information that the
Plaintiff was entitle to know because of a fiduciary or other
similar relation of trust and confidence. No such fiduciary duty
or relation of trust existed because the Plaintiff was a purchaser
of corporate debt.
The Defendants shall answer the complaint by Sept. 28, 2018.
A full-text copy of the Court's Sept. 7, 2018 Order is available at
https://is.gd/Ey4EQx from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, pro hac vice.
David Fiol, Plaintiff, represented by William M. Audet, Audet &
Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP,
Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of
Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP,
pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro
hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro
hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro
-- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro.
Nicholas Allen, Plaintiff, represented by Caleb Marker --
caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman
Reed, PLLP, pro hac vice.
Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser,
Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff
Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser,
Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser
Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser
Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com --
Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann,
Bernstein.
Donald Ardine, Plaintiff, represented by Amy Williams-Derry --
awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean
Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback
LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller
Rohrback, LLP, Gretchen Freeman Cappio --
gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice,
Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller
Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek
William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio,
Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Arkansas State Highway Employees Retirement System, Plaintiff,
represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein
Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod --
jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP,
Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L.
Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M.
Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law
Offices of Susan R. Podolsky.
Volkswagen Group of America, Inc., Defendant, represented by Amie
Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin &
White, Casey Erin Lucier -- clucier@mcguirewoods.com --
McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com --
Womble Carlyle Sandridge and Rice, Colin Hampton Tucker --
chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable,
Dana Woodrum Lang -- wlang@wcsr.com -- Womble Carlyle Sandridge and
Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC,
Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - - Kirkland &
Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and
Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger &
Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King,
Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey
L. Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg,
Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux,
Gibbons PC, John W. Cowden, Baker, Sterchi, Cowden & Ric, LLC-KCMO,
John W. Cowden, Baker Sterchi Cowden and Rice LLC, John L. Hone,
Lipshultz and Hone Chtd, John H. Tucker, Rhodes Hieronymus Jones
Tucker & Gable, Kerry R. Lewis, Rhodes Hieronymus Jones Tucker &
Gable, Kurt E. Lindquist, II, Womble Carlyle Sandridge & Rice,
PLLC, Larry Martin Roth, Rumberger,
Kirk & Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell,
PA, Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase
Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone
Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan
Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara
Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer,
McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch,
Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt
Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell
LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R.
Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory,
Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan,
Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam
Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill
Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline,
Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M.
Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M.
Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr.,
McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk &
Caldwell, Christine Kingston, Nelson Mullins Riley & Scarborough
LLP, Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan
R. Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline
Dacus Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC,
David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David N.
May, Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein, Sullivan
& Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP, Edward W.
Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado, Sullivan and
Cromwell, Elizabeth Righton Johnson, Balch & Bingham LLP, Emily
Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R. Burris,
Brownstein Hyatt Farber Schreck, Erin Patricia Mead, Thorn,
Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber Law Firm
PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan I. Prater,
IV, Lightfoot, Franklin & White, Hugh Brown McNatt, McNatt, Greene
& Peterson, J. Gordon Cooney, Jr., Morgan Lewis & Bockius LLP,
James L. Hollis, Balch & Bingham, Jeffrey L. Chase, Herzfeld &
Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E. Peifer, Lavin,
O'Neil, Ricci, Cedrone & DiSipio, John David Ayers, WATKINS &
EAGER, PLLC, John D. Donovan, Jr., Ropes and
Gray LLP, John Alan Knox, Williams Kastner & Gibbs, John Garrett
McCarthy, Sullivan and Cromwell LLP, pro hac vice, John Thomas
Prisbe, Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy
Goldberg Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams,
McGuire Woods LLP, Kevin P. Polansky, Nelson Mullins Riley &
Scarborough LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark
A. Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom,
Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and
Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson,
Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble
Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle
Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael
B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale,
Barber Law Firm PLLC, Michael L. O'Don ell, Wheeler Trigg
O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP,
Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson
Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White,
LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez
Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios
Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP,
pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd.,
Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews, Jr.,
Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J.
Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan,
Lewis & Bockius LLP, Ryan A.
Morrison, Dinsmore & Shohl LLP, S. Keith Hutto, Nelson Mullins
Riley & Scarborough, Sarah Motley Stone, Womble Carlyle Sandridge &
Rice, PLLC, Sharon L. Nelles, Sullivan and Cromwell LLP, Sharon L.
Nelles, Sullivan & Cromwell LLP, pro hac vice, Shawn P. George,
George & Lorensen, Stanley Abbott Roberts, McGuireWoods LLP,
Stephen D. Bell, Dorsey & Whitney LLP, Steve S. Tervooren, Hughes
Gorski Seedorf Odsen & Tervooren LLC, Stuart A. Drake, Kirkland and
Ellis LLP, pro hac vice, Suhana S. Han, Sullivan and Cromwell LLP,
pro hac vice, Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas
R. Ferguson, III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W.
Purcell, MB Law Group LLP, William B. Monahan, Sullivan and
Cromwell LLP, pro hac vice & William Henry Wagener, Sullivan and
Cromwell LLP, pro hac vice.
Audi AG, Defendant, represented by Elizabeth L. Deeley --
elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry
Marmolejo -- mmarmolejo@mayerbrown.com -- Mayer Brown LLP, Michael
Howard Steinberg -- steinbergm@sullcrom.com -- Sullivan & Cromwell,
LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com -- Kirkland &
Ellis, pro hac vice, Andrew R. Levin -- levin@sugarmanrogers.c0m -
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland -
bleland@verrilldana.com -- Verrill Dana LLP, David Maxwell James
Rein -- reind@sullcrom.com -- Sullivan & Cromwell LLP, G. Stewart
Webb, Jr. -- gswebb@Venable.com -- Venable LLP, Garrett L. Boehm,
Jr. -- boehmg@jbltd.com -- Johnson & Bell LTD, J. Gordon Cooney,
Jr. -- gordon.cooney@morganlewis.com -- Morgan Lewis & Bockius
LLP,
James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, John
Thomas Prisbe -- jtprisbe@venable.com -- Venable LLP, Laura Kabler
Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell LLP, Robert
J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan and Cromwell
LLP, Ryan P. McCarthy -- ryan.mccarthy@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Sharon L. Nelles -- nelless@sullcrom.com --
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stephen D. Bell -- bell.steve@dorsey.com -- Dorsey & Whitney
LLP, Stuart A. Drake -- stuart.drake@kirkland.com -- Kirkland and
Ellis LLP, pro hac vice & William B. Monahan --
monahanw@sullcrom.com -- Sullivan and Cromwell LLP.
Volkswagen AG, Defendant, represented by Elizabeth L. Deeley,
Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP,
Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian
Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman,
Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein,
Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D.
Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake,
Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan
and Cromwell LLP.
Audi of America LLC, Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan &
Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice,
Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R.
Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb,
Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura
Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr.,
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice &
William B. Monahan, Sullivan and Cromwell LLP.
Volkswagen Group of America, a New Jersey corporation, Defendant,
represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC,
Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth
Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell
LLP & William B. Monahan, Sullivan and Cromwell LLP.
Audi of America, Inc., Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell
LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC,
Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David M.J.
Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes
Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley &
Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC,
Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B.
Monahan, Sullivan and Cromwell LLP.
Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L.
Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding
LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.
Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP,
Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon
Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines,
King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert,
King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP,
Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A.
Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T.
Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP, W.
Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F.
Kiniry, Jr., DLA Piper LLP, pro hac vice.
David Antellocy, Defendant, represented by Thomas Eric Loeser,
Hagens Berman Sobol Shapiro LLP, pro hac vice, Scott Moen,
Defendant, represented by Peter B. Fredman, Law Office of Peter
Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac
vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac
vice.
Porsche AG, Defendant, represented by Alexander K. Haas, King &
Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl
Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler
Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper
LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall
Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper
LLP.
Robert Bosch GmbH, Defendant, represented by Matthew D. Slater,
Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D.
Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice &
David Lloyd Anderson, Sidley Austin LLP.
Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie
Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC.
Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan &
Cromwell LLP.
MDL 2741: Hightower Suit over Monsanto's Roundup Consolidated
-------------------------------------------------------------
The class action lawsuit titled JUNE HIGHTOWER, the Plaintiffs, v.
MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01449, was
transferred from the U.S. District Court for the Eastern District
of Missouri, to the U.S. District Court for the Northern District
of California (San Francisco) on Oct. 2, 2018. The Northern
District of California Court Clerk assigned Case No.
3:18-cv-06024-VC to the proceeding.
This is an action for 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.
The Hightower case is being consolidated with MDL 2741 in re:
Roundup Products Liability Litigation. The MDL was created by Order
of the United States Judicial Panel on Multidistrict Litigation on
October 3, 2016. These actions share common factual questions
arising out of allegations that Monsanto's Roundup herbicide,
particularly its active ingredient, glyphosate, causes
non-Hodgkin's lymphoma. Plaintiffs each allege that they or their
decedents developed non-Hodgkin's lymphoma after using Roundup over
the course of several or more years. Plaintiffs also allege that
the use of glyphosate in conjunction with other ingredients, in
particular the surfactant polyethoxylated tallow amine (POEA),
renders Roundup even more toxic than glyphosate on its own. Issues
concerning general causation, the background science, and
regulatory history will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the actions
in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is
3:16-md-02741-VC.[BN]
Attorneys for Plaintiff:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MDL 2741: Johnson Suit vs Monsanto over Roundup Consolidated
------------------------------------------------------------
The class action lawsuit titled MACK JOHNSON, the Plaintiff, v.
MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01450, was
transferred from the U.S. District Court for the Eastern District
of Missouri, to the U.S. District Court for the Northern District
of California (San Francisco) on Oct. 2, 2018. The Northern
District of California Court Clerk assigned Case No.
3:18-cv-06025-VC to the proceeding.
This is an action for 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.
The Johnson case is being consolidated with MDL 2741 in re: Roundup
Products Liability Litigation. The MDL was created by Order of the
United States Judicial Panel on Multidistrict Litigation on October
3, 2016. These actions share common factual questions arising out
of allegations that Monsanto's Roundup herbicide, particularly its
active ingredient, glyphosate, causes non-Hodgkin's lymphoma.
Plaintiffs each allege that they or their decedents developed
non-Hodgkin's lymphoma after using Roundup over the course of
several or more years. Plaintiffs also allege that the use of
glyphosate in conjunction with other ingredients, in particular the
surfactant polyethoxylated tallow amine (POEA), renders Roundup
even more toxic than glyphosate on its own. Issues concerning
general causation, the background science, and regulatory history
will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the actions
in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is
3:16-md-02741-VC.[BN]
Attorneys for Plaintiff:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MDL 2741: Smith Suit vs Monsanto over Roundup Consolidated
----------------------------------------------------------
The class action lawsuit titled AMOS L. SMITH JR. and RUBY SMITH,
the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No.
4:18-cv-01470, was transferred from the U.S. District Court for the
Eastern District of Missouri, to the U.S. District Court for the
Northern District of California (San Francisco) on Oct. 2, 2018.
The Northern District of California Court Clerk assigned Case No.
3:18-cv-06027-VC to the proceeding.
This is an action for damages suffered by Plaintiffs as a direct
and proximate result of Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Smith case is being consolidated with MDL 2741 in re: Roundup
Products Liability Litigation. The MDL was created by Order of the
United States Judicial Panel on Multidistrict Litigation on October
3, 2016. These actions share common factual questions arising out
of allegations that Monsanto's Roundup herbicide, particularly its
active ingredient, glyphosate, causes non-Hodgkin's lymphoma.
Plaintiffs each allege that they or their decedents developed
non-Hodgkin's lymphoma after using Roundup over the course of
several or more years. Plaintiffs also allege that the use of
glyphosate in conjunction with other ingredients, in particular the
surfactant polyethoxylated tallow amine (POEA), renders Roundup
even more toxic than glyphosate on its own. Issues concerning
general causation, the background science, and regulatory history
will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the actions
in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is
3:16-md-02741-VC.[BN]
Attorneys for Plaintiff:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MDL 2741: Thompson Suit vs Monsanto over Roundup Consolidated
-------------------------------------------------------------
The class action lawsuit titled KIMBERLY B. THOMPSON, INDIVIDUALLY
AND ON BEHALF OF JOYCE C. THOMPSON (DECEASED), the Plaintiffs, v.
MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01465, was
transferred from the U.S. District Court for the Eastern District
of Missouri, to the U.S. District Court for the Northern District
of California (San Francisco) on Oct. 2, 2018. The Northern
District of California Court Clerk assigned Case No.
3:18-cv-06026-VC to the proceeding.
This is an action for 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.
The Thompson case is being consolidated with MDL 2741 in re:
Roundup Products Liability Litigation. The MDL was created by Order
of the United States Judicial Panel on Multidistrict Litigation on
October 3, 2016. These actions share common factual questions
arising out of allegations that Monsanto's Roundup herbicide,
particularly its active ingredient, glyphosate, causes
non-Hodgkin's lymphoma. Plaintiffs each allege that they or their
decedents developed non-Hodgkin's lymphoma after using Roundup over
the course of several or more years. Plaintiffs also allege that
the use of glyphosate in conjunction with other ingredients, in
particular the surfactant polyethoxylated tallow amine (POEA),
renders Roundup even more toxic than glyphosate on its own. Issues
concerning general causation, the background science, and
regulatory history will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the actions
in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is
3:16-md-02741-VC.[BN]
Attorneys for Plaintiff:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MEDLINE INDUSTRIES: Marshall Sues over Use of Biometric Info
------------------------------------------------------------
QUA TISHA MARSHALL, individually and on behalf of a class of
similarly situated individuals, the Plaintiff, vs MEDLINE
INDUSTRIES, INC., an Illinois corporation, the Defendant, Case No.
2018CH12300 (Ill. Cir. Ct., Cook Cty., Oct. 1, 2018), seeks to stop
the Defendant's collection, use, and storage of individuals'
biometric identifiers and/or biometric information in violation of
the Illinois Biometric Information Privacy Act, and to obtain
redress for all persons injured by its conduct.
According to the complaint, the Defendant's practice of capturing,
collecting, storing, disseminating and using its workers'
biometrics, without their informed written consent, is in violation
of Illinois law. Choosing to shun more traditional timekeeping
methods, the Defendant instead implemented an invasive time
tracking program that relied on the capture, collection, storage,
dissemination, and use of its workers' fingerprints, while
disregarding the relevant Illinois regulations and the privacy
interests they protect, the lawsuit says.
Medline Industries is a private American company based in
Northfield, Illinois. It is the largest privately held manufacturer
and distributor of medical supplies providing products, education
and services across the continuum of care with offices in 20
different countries.[BN]
Attorneys for Plaintiff and the Putative Class:
William P. Kingston, Esq.
Jad Sheikali, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
Telephone: (312) 893-7002
Facsimile: (312) 275-7895
E-mail: wkingston@mcgpc.com
jsheikali@mcgpc.com
MERCK & CO: Ingoglia Sues over Inoculation of Zostavax Vaccine
--------------------------------------------------------------
STEVE INGOGLIA, the Plaintiff, vs. MERCK & CO., INC., MERCK SHARP &
DOHME CORP., the Defendants, Case 2:18-cv-00923-GJF-CG (D.N.M.,
Oct. 2, 2018), alleges that Mr. Ingoglia was inoculated with the
Defendants' Zostavax vaccine on October 8, 2015, at Wal-Mart
Pharmacy located in Belen, New Mexico 87002 for routine health
maintenance and for the prevention of shingles.
According to the complaint, shortly after receiving the Zostavax
vaccine, the Plaintiff was admitted to a hospital due to a sudden
and severe right-sided facial paralysis and was diagnosed with
Bell's Palsy and later diagnosed with hearing loss.
As a direct and proximate result of these malfunctions, the
Plaintiff suffered painful injuries and damages, and required
extensive medical care and treatment. As a further proximate
result, the Plaintiff has suffered and will continue to suffer
significant medical expenses, pain and suffering, and other
damages, the lawsuit says.
Merck developed, tested, designed, set specifications for,
licensed, manufactured, prepared, compounded, assembled, packaged,
processed, labeled, marketed, promoted, distributed, and/or sold
the Zostavax vaccine to be administered to patients throughout the
United States, including New Mexico.[BN]
Attorneys for Plaintiff
Adam T. Funk, Esq.
POTTS LAW FIRM
3737 Buffalo Speedway, Suite 1900
Houston, TX 77098
Telephone: (713) 963-8881
Facsimile: (713) 583-5388
E-mail: afuntk@potts-law.com
- and -
Michael Goetz, Esq.
MORGAN & MORGAN
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 222-4737
E-mail: MGoetz@ForThePeople.com
- and -
Elizabeth Wilkins, Esq.
SCHLICTER, BOGARD & DENTON, LLP
100 South Fourth Street, Suite 1200
St. Louis, MI 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-7151
E-mail: bwilkins@uselaws.com
MERCK & CO: Piwnickis Sue over Inoculation of Zostavax Vaccine
--------------------------------------------------------------
RONALD PIWNICKI and KAREN PIWNICKI, individual, the Plaintiffs, vs.
MERCK & CO., INC., MERCK SHARP & DOHME CORP., the Defendants., Case
No. 1:18-cv-06654 (N.D. Ill., Oct. 1, 2018), alleges that the
Plaintiff was inoculated with Defendants' Zostavax vaccine at
Plaintiff's local pharmacy for routine health maintenance and for
the prevention of shingles.
According to the complaint, shortly after receiving Zostavax
vaccine, the Plaintiff began to experience tremors in hands, which
progressed into significant cognitive decline including the losses
in his ability to speak and walk. The Plaintiff presented to his
primary care physician, specialists and local hospital and was
ultimately diagnosed with Corticobasal Degeneration (CBD).
The Plaintiff suffered painful injuries and damages, and required
extensive medical care and treatment. As a further proximate
result, the Plaintiff has suffered and will continue to suffer
significant medical expenses, and pain and suffering, and other
damages, the lawsuit says.
Merck developed, tested, developed, tested, designed, set
specifications for, licensed, manufactured, prepared, compounded,
assembled, packaged, processed, labeled, marketed, promoted,
distributed, and/or sold the Zostavax vaccine to be administered to
patients throughout the United States, including Florida. Merck has
conducted business and derived substantial revenue from within the
State of Florida, from including, but not limited to, its business
activities related to the Zostavax vaccine.
Merck & Company, Inc. is an American pharmaceutical company and one
of the largest pharmaceutical companies in the world.[BN]
The Plaintiffs are represented by:
Panagiotis V. Albanis, Esq.
Michael Goetz, Esq.
MORGAN & MORGAN
12800 University Drive, Suite 600
Fort Myers, FL 33907
Telephone: (239) 432-6605
Facsimile: (239) 204-3798
E-mail: PAlbanis@ForThePeople.com
MGoetz@ForThePeople.com
- and -
Mark T. Sadaka, Esq.
SADAKA ASSOCIATES
155 North Dean Street, Suite 4-D
Englewood, NJ 07631
Telephone: (201) 266-5670
Facsimile: (201) 266-5651
E-mail: mark@sadakafirm.com
MIDLAND CREDIT: Seventh Cir. Appeal Filed in Preston FDCPA Suit
---------------------------------------------------------------
Plaintiff Neal Preston filed an appeal from a court ruling in the
lawsuit titled Neal Preston v. Midland Credit Management, Inc.,
Case No. 1:18-cv-01532, in the U.S. District Court for the Northern
District of Illinois, Eastern Division.
As reported in the Class Action Reporter on Oct. 15, 2018, Judge
Sara L. Ellis granted MCM's motion to dismiss the case.
After MCM sent a debt collection letter with an allegedly
time-sensitive discount offer, Neal Preston filed the putative
class action suit against MCM claiming violations of the Fair Debt
Collection Practices Act, and the Illinois Consumer Fraud and
Deceptive Business Practices Act.
The appellate case is captioned as Neal Preston v. Midland Credit
Management, Inc., Case No. 18-3119, in the U.S. Court of Appeals
for the Seventh Circuit.
The briefing schedule in the Appellate Case states that Appellant's
brief is due on or before November 13, 2018, for Neal Preston.[BN]
Plaintiff-Appellant NEAL PRESTON, individually and on behalf of a
nationwide class of similarly situated individuals, is represented
by:
James C. Vlahakis, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue
Lombard, IL 60148
Telephone: (630) 575-8181
E-mail: jvlahakis@sulaimanlaw.com
Defendant-Appellee MIDLAND CREDIT MANAGEMENT, INCORPORATED, is
represented by:
Jennifer Weller, Esq.
HINSHAW & CULBERTSON LLP
151 N. Franklin Street
Chicago, IL 60606
Telephone: (312) 704-3000
E-mail: jweller@hinshawlaw.com
NAGLE & ZALLER: Jones Sues Over Illegal Debt Collection
--------------------------------------------------------
JAMES JONES, individually and on behalf of all others similarly
situated v. NAGLE & ZALLER, P.C. and CRAIG BRIAN ZALLER and COUNCIL
OF UNIT OWNERS OF TREETOP CONDOMINIUM, Case No. 8:18-cv-03010-PWG
(D. Md., October 1, 2018), is brought on behalf of Treetop
Condominium's unit owners arising from the Defendants' alleged
willful violations of the Fair Debt Collection Practices Act, the
Maryland Consumer Debt Collection Act and the Maryland Consumer
Protection Act.
Treetop Unit Owners had previously sued in the Circuit Court for
Prince George's County, Maryland, and obtained a declaratory
judgment that certain actions by Treetop in its efforts to collect
consumer debt from Unit Owners were illegal, null, void, and
unenforceable and that amounts previously collected must be
refunded to Treetop Unit Owners.
Nagle & Zaller, P.C., is a Maryland corporation with its principal
place of business located in Columbia, Maryland. N&Z has been a
"debt collector" as that term is defined by the FDCPA. Craig Brian
Zaller, Esq., is a natural person and attorney admitted to the
practice of law in Maryland. He has been a "debt collector" as
that term is defined by the FDCPA.
Treetop Condominium is a condominium regime located in Upper
Marlboro, Prince George's County, Maryland, which was established
by the filing of its Declaration in the county land records.
Council of Unit Owners of Treetop Condominium is a condominium
association within Maryland.[BN]
The Plaintiff is represented by:
Matthew D. Skipper, Esq.
SKIPPER LAW, LLC
2110 Priest Bridge Drive, Suite 2
Crofton, MD 21114
Telephone: (443) 274-6106
Facsimile: (443) 292-4735
E-mail: matt@skipperlawllc.com
- and -
Jeffrey A. Kahntroff, Esq.
SKIPPER LAW, LLC
2110 Priest Bridge Drive, Suite 2
Crofton, MD 21114
Telephone: (443) 274-6106
Facsimile: (443) 292-4735
E-mail: jeff@skipperlawllc.com
NATIONAL PUBLIC: Faces ADA Class Action in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against National Public
Radio, Inc. The case is styled as Phillip Sullivan, Jr. on behalf
of himself and all others similarly situated, Plaintiff v. National
Public Radio, Inc., Defendant, Case No. 1:18-cv-09311 (S.D. N.Y.,
Oct. 11, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
National Public Radio, Inc., a multimedia news organization,
creates and distributes news, information, and music programming to
a network of independent stations. It produces news, talk, music,
and entertainment programs, including news magazines, and
distributes programs produced by member stations and independent
producers.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Phone: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
NAVISTAR INTERNATIONAL: MaxxForce Engine Suits in Canada Underway
-----------------------------------------------------------------
Navistar International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on September 6,
2018, for the quarterly period ended July 31, 2018, that the
company continues to defend itself from putative class action
lawsuits filed in Canada in connection with the MaxxForce Engine
EGR Warranty Litigation.
On June 24, 2014, N&C Transportation Ltd. ("N&C") filed a putative
class action lawsuit against Navistar International Corporation
(NIC), Navistar, Inc. (NI), Navistar Canada Inc., and Harbour
International Trucks in Canada in the Supreme Court of British
Columbia (the "N&C Action"). Subsequently, seven additional,
similar putative class action lawsuits have been filed in Canada
(together with the N&C Action, the "Canadian Actions").
From June 13-17, 2016, the court conducted a certification hearing
in the N&C Action. On November 16, 2016, the court certified a
Canada-wide class comprised of persons who purchased heavy-duty
trucks equipped with Advanced EGR MaxxForce 11, MaxxForce 13, and
MaxxForce 15 engines designed to meet 2010 Environmental Protection
Agency (EPA) regulations. The court in the N&C Action denied
certification to persons who operated but did not buy the trucks in
question. On November 2, 2017, NIC, NI, Navistar Canada Inc. and
Harbour International Trucks filed a notice of appeal.
On December 8, 2017, the plaintiff filed a notice of cross-appeal.
Both the appeal and cross-appeal were heard by the British Columbia
Court of Appeal on February 9, 2018. On August 1, 2018, the
appellate court denied Navistar's appeal and granted, in part,
N&C's cross-appeal and as such certified three narrow issues on
whether misrepresentations were made in Navistar's advertising
materials. The next step will be an attendance before the case
management judge regarding the details of the notice of
certification to be given to the class. No date for this attendance
has been set.
On June 5, 2017, a hearing was held in the Quebec putative class
action lawsuit captioned 4037308 Canada Inc. v. Navistar Canada
Inc., NI, and NIC. At that hearing, the court ruled on certain
motions regarding evidence related to certification but deferred a
ruling on plaintiff's proposed amendment to narrow the proposed
class to Quebec-only purchasers and lessees of model year 2010-13
vehicles containing MaxxForce 11, 13, and 15 liter engines.
On November 23, 2017, the company filed a motion to stay the Quebec
case until the British Columbia Court of Appeal rules on the
certification order in the N&C Action. The stay motion was filed on
November 23, 2017 and was granted on December 7, 2017. The decision
of the British Columbia Court of Appeal was provided to the Quebec
court. The decision triggered a 30 day period within which the
defendants must agree with class counsel on the presentation of its
outstanding motions or on a date for the hearing of the motion to
authorize proceeding as a class. An agreement has not yet been
reached on the presentation of the outstanding motions nor have any
hearing dates been set.
In the Manitoba putative class action lawsuit captioned Vern Brown
v. Navistar International Corporation and Navistar Canada, Inc.,
the Court held a case management conference on June 29, 2018, after
the plaintiff failed to file a complete certification record by the
previously court-ordered due date. The plaintiff advised that it
expected to file its remaining certification affidavits by August
31, 2018, and the court suspended certification scheduling in the
interim. The plaintiff filed an additional affidavit on July 5,
2018. A new certification schedule is expected to be ordered at the
next case management conference on September 6, 2018. There are no
certification or other hearings scheduled in any of the other
Canadian Actions at this time.
Navistar International Corporation manufactures and sells
commercial and military trucks, diesel engines, school and
commercial buses, and service parts for trucks and diesel engines
worldwide. The company operates through four segments: Truck,
Parts, Global Operations, and Financial Services.
NAVISTAR INTERNATIONAL: U.S. EGR Warranty-Related Suits Ongoing
---------------------------------------------------------------
Navistar International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on September 6,
2018, for the quarterly period ended July 31, 2018, that the
company continues to defend itself in the EGR Warranty
Litigation-Related Suits.
On July 7, 2014, Par 4 Transport, LLC filed a putative class action
lawsuit against Navistar, Inc.(NI) in the United States District
Court for the Northern District of Illinois (the "Par 4 Action").
Subsequently, 17 additional putative class action lawsuits were
filed in various United States district courts, including the
Northern District of Illinois, the Eastern District of Wisconsin,
the Southern District of Florida, the Middle District of
Pennsylvania, the Southern District of Texas, the Western District
of Kentucky, the District of Minnesota, the Northern District of
Alabama, and the District of New Jersey (together with the Par 4
Action, the "U.S. Actions").
Some of the U.S. Actions name both Navistar International
Corporatio (NIC) and NI, and allege matters substantially similar
to the Canadian Actions. More specifically, the Canadian Actions
and the U.S. Actions (collectively, the "EGR Class Actions") seek
to certify a class of persons or entities in Canada or the United
States who purchased and/or leased a ProStar or other Navistar
vehicle equipped with a model year 2008-2013 MaxxForce Advanced EGR
engine.
In substance, the EGR Class Actions allege that the MaxxForce
Advanced EGR engines are defective and that the Company and NI
failed to disclose and correct the alleged defect. The EGR Class
Actions assert claims based on theories of contract, breach of
warranty, consumer fraud, unfair competition, misrepresentation and
negligence. The EGR Class Actions seek relief in the form of
monetary damages, punitive damages, declaratory relief, interest,
fees, and costs.
On October 3, 2014, NIC and NI filed a motion before the United
States Judicial Panel on Multidistrict Litigation (the "MDL Panel")
seeking to transfer and consolidate before Judge Joan B. Gottschall
of the United States District Court for the Northern District of
Illinois all of the then-pending U.S. Actions, as well as certain
non-class action MaxxForce Advanced EGR engine lawsuits pending in
various federal district courts.
On December 17, 2014, Navistar's motion to consolidate the U.S.
Actions and certain other non-class action lawsuits was granted.
The MDL Panel issued an order consolidating all of the U.S. Actions
that were pending on the date of Navistar's motion before Judge
Gottschall in the United States District Court for the Northern
District of Illinois (the "MDL Action").
The MDL Panel also consolidated into the MDL Action certain
non-class action MaxxForce Advanced EGR engine lawsuits pending in
the various federal district courts. Non-class federal lawsuits
presenting pre-trial issues similar to the MDL Action continue to
be transferred to the MDL Action. Approximately 24 such actions are
currently pending.
At the request of the various law firms representing the plaintiffs
in the MDL Action, on March 5, 2015, Judge Gottschall entered an
order in the MDL Action appointing interim lead counsel and interim
liaison counsel for the plaintiffs. On May 11, 2015, lead counsel
for the plaintiffs filed a First Master Consolidated Class Action
Complaint ("Consolidated Complaint"). The parties to the MDL Action
exchanged initial disclosures on May 29, 2015.
The Company answered the Consolidated Complaint on July 13, 2015.
On September 22, 2016, lead counsel for the plaintiffs filed a
First Amended Consolidated Class Action Complaint (the "Amended
Consolidated Complaint"). The Amended Consolidated Complaint added
twenty-five additional named plaintiffs. NI and NIC answered the
Amended Consolidated Complaint on October 20, 2016.
On May 27, 2016, Judge Gottschall entered a Case Management Order
setting a July 13, 2017 date for plaintiffs' class certification
motion. On November 30, 2016, the court entered an order referring
discovery matters to a magistrate judge for supervision. Pursuant
to the magistrate's order, the parties jointly filed a new proposed
case management order on January 25, 2017, which extended the fact
discovery deadline to November 22, 2017. On January 31, 2017, the
parties filed a joint motion with Judge Gottschall requesting
adjustment of the class action briefing schedule to April 24, 2018.
On February 2, 2017, Judge Gottschall granted the parties' motion
extending the deadline to complete the class certification briefing
to April 24, 2018.
On February 6, 2017, the magistrate approved the parties' schedule
set forth in the case management order jointly filed on January 25,
2017. In September 2017, the plaintiffs filed a motion to further
extend the case deadlines. On October 5, 2017, Judge Gottschall
entered an Agreed Order Extending the Discovery Cutoff ordering
that fact discovery relevant to class certification be completed by
March 13, 2018 and that the class certification briefing be
completed by July 31, 2018.
On March 5, 2018, Judge Gottschall extended the fact discovery
deadline to be completed by May 25, 2018 and ordered that the class
certification briefing be completed by October 22, 2018. Fact
discovery relevant to class certification is now substantially
complete. On June 19, 2018, Judge Gottschall extended the deadline
for completion of a class certification briefing to November 30,
2018.
On October 13, 2017, lead counsel for the plaintiffs filed a Motion
for Leave to File a Second Amended Consolidated Class Action
Complaint, as well as a Motion for Voluntary Dismissal of Claims
without Prejudice relating to 15 previously named plaintiffs. On
January 4, 2018, Judge Gottschall granted both motions. On January
9, 2018, the plaintiffs filed a Second Amended Consolidated Class
Action Complaint. The Second Amended Consolidated Class Action
Complaint removed 15 named plaintiffs and substituted in eight new
named plaintiffs.
As a result, the total number of named plaintiffs is now 37 and
three class action cases were dismissed entirely without prejudice
because there were no longer any remaining plaintiffs in those
cases. On August 16, 2018, Judge Gotschall entered a minute order
setting a status hearing for September 26, 2018 in light of the
ongoing settlement efforts of the parties.
On November 11, 2017, seven plaintiffs (the "Direct Action
Plaintiffs") in the MDL moved for a separate trial and discovery
schedule independent of the class action schedule. On January 2,
2018, Judge Gottschall granted in part and denied in part the
Direct Action Plaintiffs' motion, allowing two of the Direct Action
Plaintiffs to begin limited discovery on plaintiff-specific issues.
The parties submitted competing proposed discovery schedules.
In a minute order dated January 26, 2018, Judge Gottschall declined
to enter either schedule but ordered the parties to confer on a
schedule for prioritizing the plaintiff-specific discovery after
the close of fact discovery relevant to class certification issues.
The parties are currently engaged in discovery.
Navistar International Corporation manufactures and sells
commercial and military trucks, diesel engines, school and
commercial buses, and service parts for trucks and diesel engines
worldwide. The company operates through four segments: Truck,
Parts, Global Operations, and Financial Services.
NEW PENN FINANCIAL: Not a Licensed Debt Collector, Carson Says
--------------------------------------------------------------
James Carson, individually and on behalf of all others similarly
situated, Plaintiff v. New Penn Financial, LLC, Defendants, Case
No. 18-cv-00532 (D. R.I., September 24, 2018), seeks to recover
actual damages, statutory damages, attorney fees and costs under
the Fair Debt Collection Practices Act.
New Penn Financial operates as Shellpoint Mortgage Servicing who
was assigned to collect a debt from Carson when he fell behind on
his mortgage payments after suffering a severe injury at work. New
Penn acquired his loan when it was already in default and initiated
the foreclosure process by sending a series of letters demanding
payment and notifying him of the pending foreclosure. Carson claims
that New Penn was not licensed as a debt collector in Rhode Island.
[BN]
Plaintiff is represented by:
Peter N. Wasylyk, Esq.
LAW OFFICES OF PETER N. WASYLYK
1307 Chalkstone Avenue
Providence, RI 02908
Telephone: (401) 831-7730
Facsimile: (401) 861-6064
Email: pnwlaw@aol.com
- and -
Carlin Phillips, Esq.
PHILLIPS GARCIA LAW
13 Ventura Drive
Dartmouth, MA 02742
Telephone: (508) 998-0800
Facsimile: (508) 998-0919
Email: cphillips@phillipsgarcia.com
OCEAN SPRAY: Frojo Hits Product Mislabeling
-------------------------------------------
Michael Froio and Mikhail Surman, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Ocean Spray Cranberries,
Inc., Defendant, Case No. 18-cv-12005 (D. Mass., September 24,
2018), files suit for fraud, negligent misrepresentation, unjust
enrichment, breach of express warranty and violation of New York
General Business Laws.
Ocean Spray manufactures, distributes, advertises, and sells
several products with specific representations that the products
contain "No High Fructose Corn Syrup, Artificial Colors or
Flavors." Among these are purportedly non-artificial colored or
flavored juice beverage products. Contrary to the labeling,
however, said products contain artificial flavoring that is used to
simulate and affect the fruit flavors, says the Plaintiff. [BN]
Plaintiff is represented by:
David S. Godkin, Esq.
James E. Kruzer, Esq.
BIRNBAUM & GODKIN, LLP
280 Summer Street
Boston, MA 02210
Tel: (617) 307-6100
Fax: (617) 307-6101
Email: godkin@birnbaumgodkin.com
kruzer@birnbaumgodkin.com
- and -
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Tel: (925) 300-4455
Fax: (925) 407-2700
Email: ltfisher@bursor.com
jsmith@bursor.com
- and -
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W. Pacific Coast Highway, Suite 200
Newport Beach, CA 92663
Tel: (949) 270-2798
Email: rnathan@nathanlawpractice.com
OPKO HEALTH: Kaplan Fox Files Securities Class Action in New York
-----------------------------------------------------------------
Kaplan Fox & Kilsheimer LLP on Sept. 17 disclosed that it has filed
a class action suit in the United States District Court for the
Southern District of New York against OPKO Health, Inc. ("OPKO" or
the "Company") (Nasdaq: OPK), and its CEO and Chairman, Phillip
Frost ("Frost").
The complaint alleges that OPKO and Frost violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 (the "Exchange
Act") and Rule 10b-5 promulgated thereunder by the SEC, and is
brought by plaintiff on behalf of all persons and entities who
purchased the common stock of Opko between September 26, 2013 and
September 7, 2018, inclusive (the "Class Period").
The complaint further alleges that, throughout the Class Period,
OPKO's SEC filings represented that part of its growth strategy
stemmed from pursuing "complementary, accretive, or strategic
acquisitions and investments" and that the Company has and may
continue to "make investments in early stage companies that we
perceive to have valuable proprietary technology and significant
potential to create value for OPKO as a shareholder." The
complaint alleges that "OPKO further represented that its
management team, including its CEO and Chairman, Defendant Phillip
Frost . . . 'has significant experience in identifying, executing
and integrating these transactions. We expect to use well-timed,
carefully selected acquisitions, licenses and investments to
continue to drive our growth.'"
The Complaint further alleges that on September 7, 2018, investors
began to learn the truth when the SEC issued a Litigation Release
titled "SEC charges Microcap Fraudsters for Roles in Lucrative
Market Manipulation Scheme" and disclosed the filing of an action
by the SEC's New York Regional Office against Defendants and others
for perpetrating an illegal "pump-and-dump" scheme between 2013 and
2018. On this news, OPKO shares declined from a closing price on
September 6, 2018 of $5.59 per share, to $4.58 per share, a decline
of approximately 18% on heavier than usual volume.
At or around 2:34 p.m. on September 7, 2018, trading in OPKO was
halted at $4.58 per share by Nasdaq. On September 14, 2018,
trading in OPKO shares resumed, and OPKO shares further declined.
At the close of trading on September 14, 2018, OPKO shares declined
from $4.58 per share at the time Nasdaq halted trading on September
7, 2018, to close at $3.90 per share, a decline of $0.68 per share,
or approximately 15% on heavier than usual volume. Between the
close of trading on September 6, 2018 and the close of trading
September 14, 2018, OPKO shares declined from $5.59 per share to
close at $3.90 per share, a decline of $1.69 per share, or
approximately 30%, on heavier than usual volume.
If you are a member of the proposed Class, you may move the court
no later than NOVEMBER 13, 2018to serve as a lead plaintiff for the
proposed Class. You need not seek to become a lead plaintiff in
order to share in any possible recovery.
Plaintiff seeks to recover damages on behalf of the proposed Class
and is represented by Kaplan Fox & Kilsheimer LLP
(www.kaplanfox.com). Our firm, with offices in New York, San
Francisco, Los Angeles, Chicago, and New Jersey, has decades of
experience in prosecuting investor class actions and actions
involving violations of the Federal securities laws.
If you have any questions about this Notice, the action, your
rights, or your interests, please e-mail attorneys Jeff Campisi
(jcampisi@kaplanfox.com), or Larry King (lking@kaplanfox.com), or
contact them by phone, regular mail, or fax:
Jeffrey P. Campisi, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Toll-Free Telephone: (800) 290-1952
Telephone: (212) 687-1980
Fax: (212) 687-7714
E-mail address: jcampisi@kaplanfox.com
Laurence D. King, Esq.
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, CA 94104
Telephone: (415) 772-4700
Fax: (415) 772-4707
E-mail address: lking@kaplanfox.com [GN]
PHD FITNESS: Deceptive Labeling Class Action Settled
----------------------------------------------------
Rick Archer, writing for Law360, reports that dietary supplement
manufacturer PhD Fitness LLC and a putative class of consumers have
told a South Carolina federal court they've agreed to end a suit
accusing the company of deceptively labeling its product. [GN]
PRADA USA: Violates Disabilities Act, Fischler Suit Says
---------------------------------------------------------
A class action lawsuit has been filed against Prada USA Corp. The
case is styled as Brian Fischler individually and on behalf of all
other persons similarly situated, Plaintiff v. Prada USA Corp.
doing business as: Miu Miu, Defendant, Case No. 1:18-cv-09336 (S.D.
N.Y., Oct. 12, 2018).
The case was filed under the Americans with Disabilities Act.
Prada USA Corp. owns and operates a chain of boutiques for men and
women in the United States. It offers ready to wear, bags, shoes,
accessories, jewelry, sunglasses, fragrances, and gifts for women;
and ready to wear, bags, shoes, accessories, travel products,
sunglasses, fragrances, and gifts for men. Prada USA Corp. was
incorporated in 1993 and is based in New York, New York. Prada USA
Corp. operates as a subsidiary of Prada Holding B.V.[BN]
The Plaintiff appears pro se.
PROGRESSIVE CORP: Fails to Repay Medicare Payments, MSP Suit Says
-----------------------------------------------------------------
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity; SERIES
15-09-157, a designated series of MSP Recovery Claims, Series LLC;
SERIES 16-11-509, a series of MSP Recovery Claims, Series LLC; and
MSPA CLAIMS 1, LLC, Florida entity v. PROGRESSIVE CORPORATION, an
Ohio corporation, including its direct and indirect subsidiaries
and affiliates, PROGRESSIVE GROUP OF INSURANCE COMPANIES,
PROGRESSIVE AMERICAN INSURANCE COMPANY, PROGRESSIVE SELECT
INSURANCE COMPANY, PROGRESSIVE DIRECT HOLDINGS, INC., PROGRESSIVE
CASUALTY INSURANCE COMPANY, PROGRESSIVE CLASSIC INSURANCE,
PROGRESSIVE NORTHWESTERN, PROGRESSIVE INSURANCE COMPANY, AND
PROGRESSIVE CLAIMS MANAGEMENT, Case No. 1:18-cv-02273 (N.D. Ohio,
October 1, 2018), is brought on behalf of the Plaintiffs and all
others similarly situated alleging violations of the Medicare
Secondary Payer Act arising from the Defendants' systematic and
uniform failure to reimburse conditional Medicare payments.
The Defendants have failed to fulfill their statutory duties under
the MSP Act as a "no-fault" insurer, the Plaintiffs allege.
Specifically, the Defendants have repeatedly failed to provide
primary payment, or reimburse secondary payments made by the
Plaintiffs' assignors and Class Members, on behalf of Medicare
beneficiaries enrolled in Part C of the Medicare Act (the
"Enrollees") for medical expenses resulting from injuries sustained
in automobile accidents (the "accident-related medical expenses").
The Enrollees were enrolled in Medicare Advantage health plans
offered and/or administered by the Plaintiffs' assignors and Class
Members.
Progressive Corporation is a corporation organized and existing
under the laws of the state of Ohio with its principal place of
business located in Mayfield Village, Ohio.
Progressive Corporation is an insurance holding company and is the
parent or affiliate of the other Defendants. The Defendants write
automobile insurance in all 50 states and the District of
Columbia.[BN]
The Plaintiffs are represented by:
Tracy L. Turner, Esq.
PENDLEY, BAUDIN & COFFIN, LLP
7573 Ogden Woods Blvd.
New Albany, OH 43054
Telephone: (614) 657-3454
E-mail: tturner@pbclawfirm.com
- and -
Christopher L. Coffin, Esq.
PENDLEY, BAUDIN & COFFIN, LLP
1100 Poydras Street, Suite 2505
New Orleans, LA 70163
Telephone: (504) 355-0086
Facsimile: (504) 355-0089
E-mail: ccoffin@pbclawfirm.com
- and -
Rafael de la Grana, Esq.
MSP RECOVERY LAW FIRM
5000 SW 75th Avenue, Suite 400
Miami, FL 33155
Telephone: (305) 614-2222
E-mail: rdelagrana@msprecoverylawfirm.com
PURDUE PHARMA: Green-Kuchta Files RICO Class Suit in South Dakota
-----------------------------------------------------------------
A class action lawsuit has been filed against Purdue Pharma L.P.,
et al. The case is styled as Deborah Green-Kuchta individually and
on behalf of all others similarly situated, Plaintiff v. Purdue
Pharma LP, Purdue Pharma Inc., The Purdue Frederick Company Inc.,
Insys Therapeutic Inc., Teva Pharmaceutical Industries Ltd, Teva
Pharmaceuticals USA Inc., Cephalon Inc., Johnson & Johnson, Janssen
Pharmaceuticals Inc., Endo Health Solutions Inc., Endo
Pharmaceuticals Inc., Actavis PLC, Actavis Inc., Watson
Pharmaceuticals Inc., Watson Laboratories Inc., McKesson
Corporation, Cardinal Health Inc., Amerisourcebergen Corporation,
Defendants, Case No. 4:18-cv-04132-KES (D. S.D., Oct. 15, 2018).
The Plaintiff filed the case under the Racketeer Influenced and
Corrupt Organizations Act.
Purdue Pharma L.P. is a privately held pharmaceutical company owned
principally by parties and descendants of Mortimer and Raymond
Sackler. The company's branches include Purdue Pharma Inc., The
Purdue Frederick Company, Purdue Pharmaceutical Products L.P., and
Purdue Products L.P.
The Frederick Purdue Company provides research, development,
production, marketing, sales, and licensing of prescription and
non-prescription medicines and healthcare products. The Company
offers specializes in pain medication research, as well as other
therapeutic areas, including sleep and gastrointestinal disorders.
The Frederick Purdue operates in the United States.
Insys Therapeutics, Inc., a specialty pharmaceutical company,
develops and commercializes supportive care products. The company
markets SUBSYS, a sublingual fentanyl spray for breakthrough cancer
pain in opioid-tolerant adult patients; and SYNDROS, an orally
administered liquid formulation of dronabinol for the treatment of
chemotherapy-induced nausea and vomiting, and anorexia associated
with weight loss in patients with AIDS.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
The Generic Medicines segment offers sterile products, hormones,
narcotics, high-potency drugs, and cytotoxic substances in various
dosage forms, including tablets, capsules, injectables, inhalants,
liquids, ointments, and creams. This segment also develops,
manufactures, and sells active pharmaceutical ingredients.
Teva Pharmaceuticals USA, Inc. manufactures and markets generic
drugs in the United States. It offers generic products for various
therapeutic options, such as cardiovascular, anti-infective,
central nervous system, anti-inflammatory, oncolytic,
anti-diabetic, analgesic, dermatologic, respiratory, and women’s
health. The company offers its products in various dosage forms,
such as tablets, capsules, injectables, creams, ointments,
inhalants, solutions, and suspensions. It serves patients through
distributors. Teva Pharmaceuticals USA, Inc. was formerly known as
Lemmon Pharmacal Company and changed its name to Teva
Pharmaceuticals USA, Inc. in 1996.
Cephalon, Inc. engages in the discovery and development of
medicines for central nervous system disorders, pain, and cancer.
It offers NUVIGIL (armodafinil) tablets for improving wakefulness
in patients with excessive sleepiness associated with treated
obstructive sleep apnea and shift work disorder, also known as
shift work disorder and narcolepsy; TREANDA (bendamustine HCl) for
injection for the treatment of patients with chronic lymphocytic
leukemia; and AMRIX (Cyclobenzaprine Hydrochloride extended-release
capsules), which is indicated as an adjunct to rest and physical
therapy for relief of muscle spasm associated with acute and
painful musculoskeletal conditions.
Johnson & Johnson is an American multinational medical devices,
pharmaceutical and consumer packaged goods manufacturing company
founded in 1886. Its common stock is a component of the Dow Jones
Industrial Average and the company is listed among the Fortune
500.
Janssen Pharmaceuticals, Inc. manufactures and markets prescription
pharmaceutical products. It provides medicines for health concerns
in various therapeutic areas, including attention deficit
hyperactivity disorder, pain management, acid reflux and infectious
diseases, women’s health, and mental health (bipolar I disorder
and schizophrenia); neurologics, including Alzheimer’s disease,
epilepsy, and migraine prevention and treatment; and SYMTUZATM, a
darunavir-based single-tablet regimen for the treatment of human
immunodeficiency virus type 1 (HIV-1) in treatment-naïve and
certain virologically suppressed adults.
Endo Health Solutions Inc. provides specialty healthcare solutions
in the United States and internationally. The company’s Endo
Pharmaceuticals segment offers branded prescription products,
including Lidoderm, Opana ER, Percocet, Voltaren Gel, Frova,
Supprelin LA, Vantas, Valstar, and Fortesta Gel for pain, urology,
endocrinology, and oncology. Its Qualitest segment provides
non-branded generic products in the pain management, urology,
central nervous system disorders, immunosuppression, oncology,
women’s health, and hypertension markets.
Endo Pharmaceuticals Inc. engages in the research and development,
production, sale, and marketing of branded and generic
pharmaceutical products primarily in the United States. It offers
injections, sustained release capsules, gels, tablets, oral
suspensions, nasal sprays, extended-release tablets, capsules,
mucoadhesive for buccal administration, subcutaneous implants, and
sterile solutions for intravesical instillation; and clinical
research services.
Actavis Generics is a global pharmaceutical company focused on
developing, manufacturing and commercializing branded
pharmaceuticals, generic and over-the-counter medicines, and
biologic products. Actavis has a commercial presence across
approximately 100 countries.
Watson Laboratories, Inc. manufactures pharmaceutical drugs. The
company was incorporated in 1992 and is based in Corona,
California. Watson Laboratories, Inc. operates as a subsidiary of
ATeva Pharmaceutical Industries Limited.
McKesson Corporation provides pharmaceuticals and medical supplies
in the United States and internationally. It operates in three
segments: U.S. Pharmaceutical and Specialty Solutions, European
Pharmaceutical Solutions, and Medical-Surgical Solutions. The
company distributes branded, generic, specialty, biosimilar, and
over-the-counter pharmaceutical drugs, as well as other
healthcare-related products; and offers practice management,
technology, clinical support, and business solutions to
community-based oncology and other specialty practices.
Cardinal Health, Inc. operates as an integrated healthcare services
and products company in the United States and internationally. It
provides medical products and pharmaceuticals, and solutions that
enhance supply chain efficiency for hospitals, healthcare systems,
pharmacies, ambulatory surgery centers, clinical laboratories, and
physician offices.
AmerisourceBergen Drug Corporation distributes pharmaceuticals
products, equipment, and systems. The company provides global
product sourcing, generic purchasing programs, technology
solutions, pharmacy network and programs, and pharmaceutical
packaging solutions. The company serves healthcare providers,
independent retailers, and pharmacies. AmerisourceBergen Drug
Corporation was formerly known as AmeriSource Corporation and
changed its name to AmerisourceBergen Drug Corporation in January
1995.[BN]
The Plaintiff is represented by:
Michael D. Bornitz, Esq.
Cutler Law Firm, LLP
140 North Phillips Avenue, Fourth Floor
PO Box 1400
Sioux Falls, SD 57101
Phone: (605) 335-4950
Fax: (605) 335-4961
Email: mikeb@cutlerlawfirm.com
REGAL BELOIT: Hoffman Alleges Time-shaving on Wages
---------------------------------------------------
George Hoffman, individually and on behalf of all others similarly
situated, Plaintiff, v. Regal Beloit Corporation, Defendant, Case
No. 18-cv-01491, (E.D. Wis., September 24, 2018), seeks unpaid
minimum wages, civil penalties, costs, attorneys' fees, declaratory
and/or injunctive relief and/or any such other relief under the
Fair Labor Standards Act of 1938 and Wisconsin wage and hour laws.
Regal Beloit is a manufacturer of electric motors, mechanical and
electrical motion controls and power generation products. Hoffman
worked as an hourly-paid worker for their Wisconsin facility. Regal
Beloit allegedly rounded down their workers' time in fifteen-minute
increments, despite the fact that employees performed compensable
work during the period of time which was rounded. [BN]
Plaintiff is represented by:
Summer H. Murshid, Esq.
Larry A. Johnson, Esq.
Timothy P. Maynard, Esq.
Claire G. Roehre, Esq.
HAWKS QUINDEL, S.C.
222 East Erie, Suite 210
P.O. Box 442
Milwaukee, WI 53201-0442
Telephone: 414-271-8650
Fax: 414-271-8442
E-mail: ljohnson@hq-law.com
smurshid@hq-law.com
tmaynard@hq-law.com
croehre@hq-law.com
REMEDIAL TRANSPORTATION: Felix Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Remedial
Transportation Services, Inc. The case is styled as Victor Felix
individually and on behalf of other members of the general public
similarly situated, Plaintiff v. Remedial Transportation Services,
Inc., a California Company, Defendant, Case No. BCV-18-102595 (Cal.
Super. Ct., Kern Cty., Oct. 12, 2018).
The case type is stated as "Other Employment – Civil Unlimited".
Remedial Transportation Services, Inc. was founded in 2002. The
Company's line of business includes providing trucking or transfer
services.[BN]
The Plaintiff is represented by:
Han, Douglas, Esq.
RETREAT CAPITAL: Misclassified Centeno as Independent Contractor
----------------------------------------------------------------
Robert Centeno, on behalf of himself and other similarly situated
employees, Plaintiff, v. Retreat Capital Management, Inc.,
Allsectech, Inc., Allsec Technologies Ltd. and Adiseshan Saravanan,
individually, Defendants, Case No. 18-cv-02539-S (N.D. Tex.,
September 24, 2018), seeks to recover overtime premium pay,
liquidated damages and reasonable attorneys' fees and costs
pursuant to the Fair Labor Standards Act.
Defendants all operate as Retreat Capital Management where Centeno
worked at their Irving, Texas office as a Financial Transaction
Analyst. He claims to be misclassified as an independent
contractor. Despite working more than forty hours per week, Allsec
failed to pay him overtime compensation at a rate of time and a
half their regular rate of pay for the hours they worked over forty
in each workweek, says the complaint. [BN]
Plaintiff is represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
600 N. Pine Island Road, Suite 400
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3016
Email: afrisch@forthepeople.com
- and -
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
191 Peachtree Street, N.E., Suite 4200
Post Office Box 57007
Atlanta, GA 30343-1007
Tel: (404) 965-8811
Facsimile: (404) 496-7405
Email: RMorgan@forthepeople.com
ROBERTA ROLLER: Faces ADA Suit in S.D. New York
-----------------------------------------------
Brian Fischler brought a class action lawsuit against Roberta
Roller Rabbit, LLC in New York. The case is styled as Brian
Fischler individually and on behalf of all other persons similarly
situated, Plaintiff v. Roberta Roller Rabbit, LLC, Defendant, Case
No. 1:18-cv-09377 (S.D. N.Y., Oct. 13, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Roberta Roller Rabbit, LLC designs, manufactures, and sells
apparel, accessories, and home and bedding products. It offers
shirts and tops, kurtas, dresses and skirts, tunics, sleepwear, and
classic print collections for women; shirts, boxer shorts,
loungewear, and pocket squares for men; and kurtas, shirts and
tops, dresses and skirts, bottoms, sleepwear, toys, and classic
print collections for kids.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
ROZLIN FINANCIAL: Faces FDCPA Class Action in South Carolina
------------------------------------------------------------
A class action lawsuit has been filed against Rozlin Financial
Group, Inc. under the Fair Debt Collection Practices Act. The case
is styled as Vanesa Jumper individually and on behalf of all others
similarly situated, Plaintiff v. Rozlin Financial Group, Inc., John
Does 1-25, Defendants, Case No. 3:18-cv-02787-MGL (D. S.C., Oct.
12, 2018).
Rozlin Financial Group, (RFGI) is an accounts receivable recovery
and debt collection agency located in west of Chicago
Illinois.[BN]
The Plaintiff is represented by:
Kenneth Edward Norsworthy, Jr., Esq.
Norsworthy Law Ltd Co
505 Pettigru Street
Greenville, SC 29601
Phone: (864) 804-0581
Fax: (864) 756-1153
Email: kenorsworthy@me.com
S&A UNIFIED: Dikhanova Files FLSA Suit in New York
--------------------------------------------------
A Fair Labor Standards Act class action lawsuit has been filed
against S & A Unified Home Care Inc.
The case is styled as Khalima Nix Dikhanova on behalf of herself
and all others similarly situated, Plaintiff v. S & A Unified Home
Care Inc., Defendant, Case No. 1:18-cv-05732 (E.D. N.Y., Oct. 14,
2018).
S & A Unified Home Care, Inc., is New York State Licensed Home Care
Service Agency. S & A Unified Home Care provides an array of
services to meet the needs of a growing population. Through their
individualized services, they promote independence and well being
while evaluating, monitoring, and caring for their patients.[BN]
The Plaintiff appears pro se.
SMITH-PALLUCK: Kibbee Sues Over Auto-dialed Collection Calls
------------------------------------------------------------
Jason Kibbee, indvidually and on behalf of all and others similarly
situated, Plaintiff, v. Smith-Palluck Associates Corp., Defendant,
Case No. 18-cv-01848 (D. Nev., September 24, 2018), seeks actual,
statutory and punitive damages, pre-judgment and post-judgment
interest, attorney's fees and costs and such other relief under the
Telephone Consumer Protection Act.
Smith-Palluck Associates Corp. operates as Las Vegas Athletic Clubs
where Kibbee is a member. He claims to have received numerous
collection calls from Smith-Palluck from an auto-dialler using
pre-recorded messages. [BN]
Plaintiff is represented by:
David H. Krieger, Esq.
George Haines, Esq.
Shawn Miller, Esq.
HAINES & KRIEGER, LLC
8985 S. Eastern Avenue, Suite 350
Henderson, NV 89123
Tel: (702) 880-5554
Fax: (702) 385-5518
Email: dkrieger@hainesandkrieger.com
ghaines@hainesandkrieger.com
smiller@hainesandkrieger.com
- and -
Matthew I. Knepper, Esq.
Miles N. Clark, Esq.
KNEPPER & CLARK LLC
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
Tel: (702) 825-6060
Fax: (702) 447-8048
Email: matthew.knepper@knepperclark.com
miles.clark@knepperclark.com
SOUTHWEST AIRLINES: Pilots to Get $19MM Benefits Under Settlement
-----------------------------------------------------------------
Madison Alder, writing for Bloomberg BNA, reports that Southwest
Airlines Inc. pilots would get about $19 million in sick leave and
retirement benefits they say they were denied while on military
leave, under a new proposed settlement.
The settlement, filed Sept. 13 in the U.S. District Court for the
Northern District of California, is the latest in a class action
brought against Southwest by pilot Jayson Huntsman and covering as
many as 2,000 current and former employees. The pilots say the
airline violated service members' civil rights by allegedly failing
to account for accrued sick leave benefits and to pay pension
contributions while the employees took leave for military service.
The Uniformed Services Employment and Reemployment Rights Act
requires an employer to maintain sick leave accruals during
military service leave if it also maintains accruals for other
absences, such as jury duty, which Southwest does, the lawsuit
says.
Under the settlement the pilots would have access to 100 percent of
the sick leave they say they were denied between 2008 and the date
the preliminary approval for the settlement was filed, and 77
percent of the average sick leave allegedly denied between 2001 and
2007. The sick leave benefits would cost Southwest more than $13
million.
Southwest would also pay $5.8 million into a fund that will, among
other payments, provide class members 401(k)-related benefits and
payments to former pilots who no longer have use for sick leave.
The motion is unopposed and awaits approval from Judge James
Donato.
Southwest didn't respond to a Bloomberg Law request for comment.
Mr. Huntsman is represented by Outten & Golden LLP, the Law Office
of Thomas Jarrard, and the Crotty & Son Law Firm PLLC. Southwest is
represented by Ogletree, Deakins, Nash, Smoak & Stewart PC.
The case is Huntsman v. Southwest Airlines Co., N.D. Cal.,
plaintiffs' motion for preliminary approval of class action
settlement 9/13/18. [GN]
SUBARU OF AMERICA: To Extend Warranties Under Settlement
--------------------------------------------------------
Jim Walsh, writing for Cherry Hill Courier-Post, reports that
Subaru of America would extend warranties and cover the costs of
prior repairs under the proposed settlement of a lawsuit alleging
an engine defect in its WRX and STi models.
The settlement would resolve claims that a design flaw can cause
catastrophic engine failure in the high-performance cars for model
years 2012 through 2017.
Camden-based Subaru denies any wrongdoing under the proposed
settlement, according to an attorney for the firm.
Subaru "believes that it can prevail" in court but has decided to
settle "given the significant time, expense, and unpredictability
of continued litigation," the lawyer, Casey Watkins of Cherry Hill,
said in a Sept. 5 letter to U.S. District Judge Joseph Rodriguez in
Camden.
He said the proposed settlement would provide "significant benefits
to Subaru customers."
Subaru initially faced three proposed class-action lawsuits over
alleged flaws in its vehicles.
The suits -- brought by Subaru owners in California, Michigan and
New Jersey -- were consolidated into a single challenge earlier
this year.
According to the lawsuits, owners of affected vehicles faced repair
bills of several thousand dollars, as well as unsafe driving
conditions, due to premature failure of the engine connecting rod
and main bearing.
The lawsuits, which alleged Subaru concealed the defect from
consumers, cited numerous complaints to the National Highway
Traffic Safety Administration.
Under the proposed settlement, Subaru would reimburse eligible
customers for "certain prior out-of-pocket repairs and costs." It
also would reimburse "those who sold or traded in a settlement
class vehicle with a failed engine."
The settlement class would be made up of WRX and STi models with
EJ-series 2.5-liter turbocharged engines, according to a court
filing.
Subaru also would offer a warranty extension for eight years or
100,000 miles, according to the proposed settlement.
"This extended warranty is more than twice the length of Subaru's
new vehicle limited warranty and a significant increase over
Subaru's Powertrain Limited Warranty," Matthew Schelkopf, a Berwyn,
Pa., attorney for the vehicle owners, said in a court filing.
Subaru also is to pay up to $625,000 to attorneys for the vehicle
owners and $3,500 each to the three drivers who filed the original
lawsuits.
According to Mr. Schelkopf's filing, Subaru will identify class
members through its records and contact them by mail, if possible.
The company also would maintain a website with the settlement
agreement and a claim form.
Both sides have asked Rodriguez to grant preliminary approval for
the settlement. The judge would decide on final approval after a
future hearing.
The WRX and STi models represent a shrinking share of Subaru's
growing market.
The models' sales fell 9.6 percent for the year through August,
compared to an increase of 5.3 percent for all Subaru vehicles. WRX
and STi sales dropped by 5.8 percent last year.
Subaru recently reported August was its best-ever sales month, with
64,088 vehicles sold. That included 2,523 WRX and STi vehicles.
Two years ago, Subaru settled a class-action suit alleging
excessive oil consumption by multiple models made between 2011 and
2015.
It also denied wrongdoing under that agreement, which extended
warranty protections for Forester, Impreza, Crosstrek, Legacy and
Outback models made from 2011 through 2015. [GN]
TALON INT'L: Ontario Court Certifies Unit Owners' Class Action
--------------------------------------------------------------
Tess Kalinowski, writing for Toronto Star, reports that an Ontario
court has certified a class-action lawsuit by the buyers in a
Toronto hotel that once bore the name of U.S. President Donald
Trump.
The buyers want to sue Talon International, the company that built
the property, to recoup the deposits they paid on five-star hotel
condominium suites.
The Trump Tower included 261 hotel condominiums and another 118
residential units.
The class action, which involves only the hotel unit owners, almost
certainly ensures that the legal battles surrounding the original
luxury property will continue for at least another three years.
Now part of the Marriott chain, the hotel was last year stripped of
Trump's name, which Talon was licensed to use. It is now known as
the Adelaide Hotel.
The class action could involve as many as 150 hotel condo buyers
looking to recoup deposits worth an estimated $30 million, said
lawyer Mitchell Wine.
He represents Ashleka Persaud, a Toronto-area woman who bought one
of those suites in 2007. She and her husband, under the company
name Ten Eight Vacations, paid a $227,500 deposit on a $910,000
unit in the property at Bay and Adelaide Sts.
The hotel was originally supposed to open in March 2009. But it
took until January 2012 for the official opening, and Ms. Persaud
gained occupancy of her unit the following month, according to
court documents. About a month later, Trump would be photographed
shaking hands on the property with the late former Toronto Mayor
Rob Ford.
Ms. Persaud, however, never closed on the sale as scheduled by the
end of that year.
Court heard that the estimates provided to the buyers in the hotel
overstated the revenue potential of the suites, and understated or
failed to disclose the expenses. The occupancy rates on the hotel
suites, which were supposed to rent for $550 to $600 a night, were
so poor buyers like Ms. Persaud were losing between $4,000 and
$5,000 per month.
According to the application decision by Justice Paul Perell, the
class action will determine whether Talon made fraudulent or
negligent representations to the buyers in its revenue and cost
estimates for the hotel units.
Only 50 of the hotel condo sales closed, according to court
documents. It is believed some units were never sold.
Under Ontario class action provisions, it is up to the buyers to
opt out of the suit once contacted by the applicant's lawyers. But
given the length of the Trump Hotel saga, it could take some time
to locate all the potential applicants, according to Wine.
He also successfully represented warehouse supervisor Sarbjit Singh
and homemaker Se Na Lee at an Ontario appeal court where they
claimed to have lost hundreds of thousands of dollars in the Trump
Tower. The appeal court ruled the buyers should be released from
their commitments in the hotel and compensated for their losses.
The Supreme Court in March dismissed Talon's application to appeal
that decision.
"What I've said is the position of Ms. Persaud and everyone else
who is in the class is exactly the same as Mr. Singh," said Wine on
Sept. 14.
It is not known whether Talon will appeal the class action
certification ruling. [GN]
TAMPA BAY: Faces Another TCPA Class Action Over Text Campaign
-------------------------------------------------------------
Susan n. Nikdel, writing for TCPAland, reports that a tough season
just got tougher for baseball's Tampa Bay Rays.
As reported a few months back, a class action was filed against the
team in the Middle District of Florida alleging that the team was
sending unsolicited text messages to boost ticket sales, in
violation of the TCPA. Now, the team faces yet another TCPA class
action. The Plaintiff in this case, Chad Fernandez, alleges that
the team sent him texts with messages like "Happy Opening Day
2018!" and "Today only: $20 Press Level tickets for Blue Jays vs.
Rays" with links to more information about the game and how to buy
Rays tickets. He alleges that these texts constitute a clear
violation of the TCPA, as they are advertising texts sent without
his prior express written consent.
Plaintiff seeks to represent the following class: "All persons
within the United States who received a SMS text message, sent by
or on behalf of Defendant or an affiliate, subsidiary, or agent of
Defendant from the short-code telephone number 420-86."
Plaintiff is represented by Carey Rodriguez Milian Gonya LLP.
Counsel for Defendant Tampa Bay Rays has not yet made an
appearance.
While the Rays are a respectable 82-66 on the season, they are 20
games behind the Boston Red Sox in the American League East. The
Rays also rank #29 (out of 30 Major League Baseball teams) in home
attendance, per ESPN. So sadly for Tampa Bay fans, it looks like
the team's 2018 season will be remembered as much for what happened
in the courtroom as what took place on the field. [GN]
TEVA PHARMACEUTICAL: Seeks Dismissal of Price-Hike Class Action
---------------------------------------------------------------
Adam Lidgett, writing for Law360, reports that Teva Pharmaceutical
Industries Ltd. has urged a Connecticut federal judge to let it
escape a proposed class action accusing it of engaging in a
price-hike scheme. [GN]
TRADER JOE'S: Settles Tuna Can Underfilling Class Action
--------------------------------------------------------
Mike Curley, writing for Law360, reports that Trader Joe's has
agreed to settle for $1.3 million a proposed class action in
California federal court from customers claiming the retailer
underfilled 5-ounce tuna cans. [GN]
ULTA BEAUTY: Customers Challenge Class Action Dismissal Bid
-----------------------------------------------------------
Diana Novak Jones, writing for Law360, reports that a proposed
class of Ulta Beauty Inc. customers told an Illinois federal judge
to reject the makeup retailer's bid to dismiss their claims the
company sold used products. [GN]
UNION ALARMTRONIC: Brown Labor Suit Seeks Unpaid Overtime Wages
---------------------------------------------------------------
Kyle Anthony Brown, individually and on behalf of all others
similarly situated, Plaintiff, v. Union Alarmtronic, LLC and Fred
Rosenfeld, Defendant, Case No. 18-cv-14219 (D. N.J., September 24,
2018), seeks compensation for all hours due and overtime hours for
which they have not been properly compensated. The Plaintiff
further seeks liquidated damages, reasonable attorneys' fees and
costs of suit, and all other appropriate relief for violation of
the Fair Labor Standards Act and the New Jersey State Wage and Hour
Law.
Alarmtronic provides alarm services to customers throughout the tri
state area where Brown was employed full time performing alarm
system repairs and installations. He worked approximately forty
five hours per week but was rarely paid one and one half times his
regular rate of pay for his hours worked over forty in a workweek,
notes the complaint. [BN]
Plaintiff is represented by:
Jodi J. Jaffe, Esq.
Andrew I. Glenn, Esq.
JAFFE GLENN LAW GROUP, P.A.
301 N Harrison Street, Suite 9F, #306
Princeton, NJ 08540
Telephone: (201) 687-9977
Facsimile: (201) 595-0308
Email: JJaffe@JaffeGlenn.com
AGlenn@JaffeGlenn.com
UNIVERSITY OF MARYLAND: Rape Cover-Up Suit Seeks $19MM in Damages
-----------------------------------------------------------------
Tyler Waldman, writing for WBAL NewsRadio 1090, reports that two
former University of Maryland, Baltimore County students have filed
a class action lawsuit against the University of Maryland,
Baltimore County; county police; county government; and State's
Attorney Scott Shellenberger, alleging a cover-up of sexual assault
complaints.
The Baltimore Sun reports the suit seeks $10 million in damages.
The paper is withholding their names, as they are victims of
alleged sexual assaults.
The women say the assaults happened on UMBC's campus, according to
a copy of the filing obtained by The Sun.
One plaintiff alleges she was gang-raped by three UMBC baseball
players, after she had transferred from UMBC to Towson. The victim
alleged she was drugged and raped by the men, who later maintained
to county police that the sex was consensual. Prosecutors didn't
initially pursue charges, but the victim sought rape charges from a
court commissioner. Those charges were later dismissed. After that,
she alleged, Mr. Shellenberger's office attempted to intimidate
her, sending county officers to her Baltimore home and firing her
sister from her internship in the domestic violence section of Mr.
Shellenberger's office.
The other plaintiff said she was a freshman in 2015 when she was
lured to a man's dorm room and raped. She alleged UMBC Police Chief
Paul Dillon persuaded her not to go to county police, in violation
of the institution's memorandum of understanding with county
police. The Title IX coordinator stated as much, but Dillon
allegedly said the incident wasn't serious enough to take to county
police. The alleged victim underwent an exam at Greater Baltimore
Medical Center, but the forensic nurse examiner recorded the
incident as a suspicious circumstance, not a rape, according to the
suit. The kit was later destroyed.
The suit follows police plans to review rape cases thought
unfounded, and a BuzzFeed investigation that found police put
little effort into investigating rapes. The suit alleges that
campus police also failed to report the incidents on campus to the
FBI or disclose them under the Clery Act.
"While it is not appropriate for us to comment on specific
litigation, it is essential to state that our campus is committed
to safety and respect for all people and takes matters related to
sexual misconduct very seriously," UMBC President Freeman Hrabowski
and Provost Philip Rous said in a statement.
Student leaders are calling for Dillon's ouster, as well as that of
the head baseball coach and officials in the university's Title IX
office, The Sun reports. Mr. Hrabowski pledged an external review.
[GN]
VALEANT PHARMA: Judge Refuses to Toss Deceptive Pricing Claims
--------------------------------------------------------------
Jeannie O'Sullivan, writing for Law360, reports that a New Jersey
federal judge has refused to toss claims in a hedge fund group's
lawsuit accusing Valeant Pharmaceuticals International Inc. of
duping investors about the sustainability of its business model.
[GN]
WANDERING MINSTREL: Faces Suit in New York for ADA Breach
---------------------------------------------------------
A class action lawsuit has been filed against Wandering Minstrel
LLC. The case is styled as Brian Fischler individually and on
behalf of all other persons similarly situated, Plaintiff v.
Wandering Minstrel LLC, Defendant, Case No. 1:18-cv-09378 (S.D.
N.Y., Oct. 13, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Wandering Minstrel LLC is a Domestic Limited Liability Company in
the State of New York. It is located at 44 E 32nd St, New York, NY
10016-5508.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
WASHINGTON REGIONAL: Randolph Challenges Billing Practices
----------------------------------------------------------
CURTIS RANDOLPH, Individually, and on Behalf of All Other Similarly
Situated Persons v. WASHINGTON REGIONAL MEDICAL CENTER; AETNA
HEALTH AND LIFE INSURANCE COMPANY; AMCO INSURANCE COMPANY; USABLE
MUTUAL INSURANCE COMPANY D/B/A ARKANSAS BLUE CROSS BLUE SHIELD ALSO
D/B/A FIRST SOURCE PPO, TRUE BLUE PPO, HEALTH ADVANTAGE HMO, AND
BLUE ADVANTAGE ADMINISTRATORS; USABLE LIFE; CIGNA HEALTH AND LIFE
INSURANCE COMPANY; HEALTHLINK HMO, INC.; HUMANA REGIONAL HEALTH
PLAN, INC.; QUALCHOICE LIFE AND HEALTH INSURANCE COMPANY, INC.; QCA
HEALTH PLAN INC. D/B/A QUALCHOICE; UNITED HEALTH AND LIFE INSURANCE
COMPANY; AMERICAN UNITED LIFE INSURANCE COMPANY; AND FIRST HEALTH
LIFE & HEALTH INSURANCE COMPANY, Case No. 5:18-cv-05194-TLB (W.D.
Ark., October 1, 2018), alleges that the Defendants violated the
rights of the Plaintiff and the class in connection with WRMC's
improper billing practices.
Through its bill collection practices, WRMC attempts to optimize
the amount received for services rendered by seeking from patients
the full amount billed (or more than it is entitled to for the
covered treatment), rather than accepting the discounted amount
they have agreed to accept from the patient's health insurance
carrier, the Plaintiff contends. The Plaintiff adds that WRMC
fails to inform patients, including the Plaintiff and the class, at
the time of treatment that it will not honor the patient's health
insurance if the circumstances create the possibility of another
source of recovery.
Washington Regional Medical Center is an Arkansas Corporation with
its principal place of business in Washington County, Arkansas.
Aetna Health and Life Insurance Company is a Connecticut Insurance
Company authorized to do business and is in fact doing business in
Arkansas.
AMCO Insurance Company is a foreign insurance corporation
authorized to do business and is in fact doing business in
Arkansas.
USAble Mutual Insurance Company d/b/a Arkansas Blue Cross Blue
Shield also d/b/a First Source PPO, True Blue PPO, Health Advantage
HMO, and Blue Advantage Administrators is an Arkansas insurance
company. USAble Life is an Arkansas insurance company.
CIGNA Health and Life Insurance Company is a foreign insurance
corporation authorized to do business and is in fact doing business
in Arkansas. Healthlink HMO, Inc., is an Arkansas insurance
corporation. Humana Regional Health Plan, Inc., is an Arkansas
insurance corporation. QualChoice Life and Health Insurance
Company, Inc., is an Arkansas insurance corporation.
QCA Health Plan Inc. d/b/a QualChoice, is an Arkansas insurance
company. United Health and Life Insurance Company, d/b/a United
Health Care, is a foreign insurance corporation and is listed on
WRMC's Web site as one of its Health Partners.
American United Life Insurance Company is a foreign insurance
corporation authorized to do business and is in fact doing business
in Arkansas. First Health Life & Health Insurance Company is a
foreign insurance corporation authorized to do business and is in
fact doing business in Arkansas.
The insurance companies are "WRMC's Health Partners," or simply the
"Health Partners."[BN]
The Plaintiff is represented by:
Stevan E. Vowell, Esq.
Rick Woods, Esq.
TAYLOR LAW PARTNERS, LLP
303 E. Millsap Road
P.O. Box 8310
Fayetteville, AR 72703
Telephone: (479) 443-5222
Facsimile: (479) 443-7842
E-mail: svowell@taylorlawpartners.com
rwoods@taylorlawpartners.com
- and -
Shawn B. Daniels, Esq.
DANIELS LAW FIRM, PLLC
129 W. Sunbridge Drive
Fayetteville, AR 72703
Telephone: (479) 521-7000
Facsimile: (479) 437-2007
E-mail: shawn@danielsfirm.com
YP HOLDINGS: Lopez Files Fraud Class Suit in Calif. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against YP Holdings LLC and
other parties. The case is styled as Connie Lopez dba Building
Blocks Preschool and all others similarly situated, Plaintiff v. YP
Holdings LLC, YP LLC, Dex Media Inc., Damien Haliburton, DOES 1
through 10, inclusive, Defendants, Case No. 2:18-cv-08791 (C.D.
Cal., Oct. 12, 2018).
The nature of suit is stated as Other Fraud.
YP Holdings LLC was acquired by Dex Media, Inc. as of June 30,
2017. YP Holdings LLC, through its subsidiaries, publishes yellow
pages. YP Holdings LLC was founded in 2012 and is based in Tucker,
Georgia.
Dex Media Holdings, Inc., doing business as DexYP, provides
marketing solutions to business clients in the United States. Its
flagship product is Thryv, a software as a service solution that
allows to automate everyday business functions, such as building a
customer list, communicating with customers via email and text,
updating business listings across the Internet, accepting
appointments, sending notifications and reminders, managing ratings
and reviews, generating estimates and invoices, processing
payments, and issuing receipts and coupons.[BN]
The Plaintiff appears pro se.
[*] Alien Tort Cases Will Survive Supreme Court Trim
----------------------------------------------------
Peter B. "Bo" Rutledge and Michael Baker, writing for Law.com,
report that for over four decades, the Alien Tort Statute has
served as a central battleground in some of the country's (and
world's) most significant international human rights litigation.
Following a trend in its ATS jurisprudence that started with its
opinion in Sosa v. Alvarez-Machain, the Supreme Court recently
trimmed the statute's scope yet further. In Jesner v. Arab Bank
PLC, the Court held that suits arising under the ATS did not extend
to claims against corporations (at least some of them, a nuance
explained below). Once again, postdecisional commentary decried the
demise of ATS suits and a blow, more generally, to the cause of
human rights.
The reality, however, is much more complex. Despite Jesner's
holding, several potentially viable avenues for ATS litigation
remain. This essay maps out three anticipated battlegrounds in
future ATS litigation in the wake of Jesner.
A first and obvious battleground left open by the Sosa-Jesner line
is whether Jesner's holding extends to domestic corporations or is
limited to foreign ones. Jesner is especially turgid on this point.
In some passages, Justice Anthony Kennedy, writing for a plurality
of the court, suggests a narrow scope: "[J]udicial deference
requires that any imposition of corporate liability on foreign
corporations for violations of international law must be determined
in the first instance by the political branches of the Government."
The emphasis in this passage (and elsewhere) ties the holding to
concerns about interference in the foreign relations of the United
States, a particularly acute matter in cases involving foreign
defendants. Elsewhere, when writing for the court, Kennedy's
opinion sweeps more broadly, noting that the court's caution about
"judicially created private rights of action" extends to "whether
the courts should exercise the judicial authority to mandate a rule
imposing liability upon artificial entities like corporations."
Passages like this (as well as portions of the plurality opinion
addressing analogies to the Torture Victim Protection Act) rest on
principles of judicial restraint, principles that apply with equal
force regardless of corporate nationality.
In re Chiquita provides an example where these divergent threads in
Jesner will be tested. Chiquita began in 2007 with an action by 144
Columbians filing suit under the ATS against Chiquita Brands in the
federal court in the District of Columbia. Chiquita Brands made
payments to the United Self-Defense Forces of Columbia, also known
as the AUC. The AUC was named as a terrorist organization by the
United States government in 2001 and 2003. As a result of this
designation, Chiquita was sued by the United States, pleading
guilty in March 2007 to providing material support and resources to
the AUC. The plaintiffs in Chiquita alleged that the payments made
by Chiquita to the AUC resulted in the deaths of 173 plaintiffs'
relatives, a fraction of the thousands killed by the AUC. Since
2007, Chiquita has blossomed into a massive MDL case, with dozens
of large cases, including at least one class action, being
transferred to the MDL proceeding in the Southern District of
Florida. A key strand of Jesner -- whether domestic corporations
are liable under the ATS -- is likely to be resolved through
Chiquita, one of the few remaining ATS complaints yet to be heard
on the merits.
A second battleground to be decided by the line of cases that come
after Jesner is the issue of individual liability. Regardless of
the resolution of the corporate liability question, Jesner makes
clear that individuals might be liable in claims arising under the
ATS. This possibility aligns ATS jurisprudence with the related
TVPA jurisprudence, where the Supreme Court made clear in Mohamad
v. Palestinian Authority that liability did not extend to juridical
entities like corporations. To be sure, these suits present special
challenges, whether prejudgment challenges (like service and
personal jurisdiction) or postjudgment ones (like the
collectability of any judgment or settlement). These challenges,
while daunting, are not necessarily insurmountable.
Argon v. Ku provides a good example of a plausible suit against an
individual defendant. In Aragon, 12 foreign Latino plaintiffs sued
two CEOs, individually, and five Minnesota corporations owning
several chains of grocery stores. The plaintiffs alleged that they
were physically restrained at their workplace, threatened with
deportation, with some plaintiffs being physically assaulted. The
suit was filed under the Civil Rights Act of 1866 and the ATS,
among others. The defendants moved to dismiss all the claims but
were unsuccessful. Specifically addressing the defendants' claims
that the ATS is not applicable against private individuals, the
court surveyed sister circuits and, looking to the Second Circuit,
found that "certain forms of conduct violate the law of nations
whether undertaken by those acting under the auspices of a state or
only as private individuals." Shortly before the case was to
proceed to trial, the parties agreed to participate in a settlement
conference conducted by the magistrate judge hearing the claim, set
for late August 2018.
A third and final battle ground after Jesner is the degree of
domestic conduct necessary for the ATS to have effect. This traces
to the Supreme Court's earlier decision in Kiobel v. Royal Dutch
Petroleum. Building on earlier jurisprudence that toughened the
presumption against extraterritorial application of federal law,
Kiobel required that any claim arising under the ATS must involve
conduct that touches and concerns the territory of the United
States "with sufficient force to displace the presumption against
extraterritorial application." While theoretically tempting,
Kiobel's formulation left many open questions, including, among
others, what satisfied the "touch and concern" requirement and,
even when it is satisfied, how a court should decide whether it
does so with "sufficient force." Jesner did little to resolve this
confusion.
Salim v. Mitchell provides a good example of how lower court
litigation tests the answers to these unresolved questions. In
Salim, three foreign plaintiffs sued two psychologists who were
employed by the CIA allegedly to design, implement, and personally
administer an experimental torture program. The foreign plaintiffs
sued the CIA psychologists under the ATS in November 2016, alleging
that they were subjected to waterboarding, stress positions,
prolonged sleep deprivation, dietary manipulation, cramped
confinement, facial and abdominal slaps and being kept nude in
below-freezing temperatures. The alleged torture was so severe that
one of the plaintiffs died and was represented in the case by his
estate. In his memorandum opinion on, and denying, the defendants'
motion for summary judgment, Judge Lowe Quackenbush of the U.S.
District Court for the Eastern District of Washington specifically
recognized the ATS "legal landscape is evolving," and specifically
found that the "touch and concern test of Kiobel" was satisfied.
Shortly after, the parties reached a confidential settlement.
In sum, just as commentators wrongly predicted the demise of ATS
litigation in the wake of Sosa, so too does similar commentary in
the wake of Jesner appear to prematurely predict the demise of ATS
litigation. Several battlegrounds will be active. To be sure --
these three do not encompass them all. Questions remain about
numerous other strands in Sosa. And, in Jesner, several members of
the court suggested a certain level of receptivity to reconsidering
Sosa. For now, the only certainty is that ATS litigation remains a
ripe area for international human rights litigation.
Peter B. "Bo" Rutledge is dean of the University of Georgia School
of Law, where he holds the Herman Talmadge Chair of Law. A former
clerk to Justice Clarence Thomas of the Supreme Court of the United
States, Rutledge pursues teaching and research of international
dispute resolution, arbitration, international business
transactions and the U.S. Supreme Court.
Michael Baker graduated from the University of Georgia School of
Law in May. He now clerks for Judge Ron Mullins on the Superior
Courts of the Chattahoochee Judicial Circuit. [GN]
[*] Big Coal Industry Braces for Class Actions Over Casual Pay
--------------------------------------------------------------
Matthew Stevens, writing for Australian Financial Review, reports
that the coal industry and the contract work firms that deliver it
with casual workers are said to be preparing for a new and expanded
round of class actions in the wake of the landmark federal court
decision that has overturned a legacy of assumed industrial law
logic in awarding a coal truck driver the right to holiday pay.
There is a broad base of speculation that several large labour law
firms are working with international litigation funders on
campaigns of class actions that aim to test the legal reach of a
case that threatens to recast the casual working landscape.
The likelihood that coal will be the opening target of this effort
has been identified as rich.
While the mining sector is not as dependent on casual workers as
the retail, manufacturing and agriculture sectors, it does pay its
people a whole lot more and it tends to employ them under the same
terms, conditions and work patterns that have been exposed as
failing the casual test by the Federal Court.
Our fateful truck driver's name is Paul Skene. And consecutive
federal court decisions have reinforced his right to remuneration
that most Australian employers would have assumed was relieved of
him by his casual status.
The background to this misadventure is critical to understand.
Mr. Skene joined the coal industry on April 17, 2010, when he
joined WorkPac to drive a truck at Anglo Coal's Queensland coal
mines. Just three months later he moved to Rio Tinto's Clermont
mine where he continued to work with WorkPac under the terms and
conditions of his original employment contract. It described Mr
Skene as a "casual or fixed-term employee" and it detailed the
terms and conditions of his employment.
Decision upheld
The court observed that Mr. Skene left Clermont and WorkPac in
April 23, 2012, after "conduct allegations" had been levelled
against him.
Mr. Skene worked the same 12.5-hour, seven-day shift patterns of
full-time workers and while working at Clermont he was delivered
with 52-week rosters. And, while WorkPac said he was paid a casual
loading, that was not apparent in the way he was paid.
Mr. Skene was employed in a $50-an-hour flat rate and that rose to
$55 an hour through his time at Clermont.
In the end, the original and appellant court found that Mr. Skene
had worked in a way that meant he could not be regarded as casual
even though that classification was determined by his work
contract.
In March last year the Federal Court ruled that Mr. Skene should be
paid $21,054.69 in unpaid holiday pay and a further $6735.03 in
interest in lieu of the late payments of remuneration his employer
had not imagined he might be entitled to.
In essence the original judge found that Mr. Skene was not a casual
worker for all that his employment terms implied he was.
Both WorkPac and Mr. Skene appealed that decision. WorkPac argued
the judge had erred, that Mr. Skene was casual and that the
decision left him earning a double-dip on benefits because he was
paid a 25 per cent loading in return for the surrender of rights to
the remunerative benefits of permanency.
Mr. Skene's lawyers, Slater & Gordon, argued that he was entitled
to more than just back payment of holiday pay and that the judge
had erred in not accepting his claim for pecuniary penalties.
In August, in another bleak surprise for the employers of casual
workers, a full bench of the Federal Court rejected the WorkPac
proposition in grinding detail before finding that Mr. Skene was
indeed entitled to payment of the gamut of entitlements that would
accrue to a permanent worker and, for good measure, that he was
also due some form of penalty for the "objective seriousness" of
WorkPac's failure to comply with its obligations.
WorkPac has decided not to appeal this matter further to the High
Court and will instead return to the Federal Court, at a date to be
set, for further contemplation of what it might owe its former
driver.
Common law definition
Meanwhile the rest of casual-reliant Australian industry has been
working feverishly to assess whether the circumstances of WorkPac v
Skene have relevance to their employment patterns.
At a simple level, the court has assigned a meaning to casual that
does not appear to allow for rostered permanence.
In taking this view the court appears to have assessed that
"industrial history" was bunk and so, too, were the common
understandings that had shaped the Fair Work Commission's
consistent view that if your employment contract defined you as
casual then that is what you are.
Instead the court applied a long-standing common law definition of
the term "casual" saying that, in the workplace, it implied
"irregular work pattern uncertainty, intermittency of work and
unpredictability". These requirements are not met by year-long
rosters that the full bench appeared to feel made it difficult for
Mr. Skene to attract the benefits of his casual worker status.
The Australian Industry Group, for one, fears that the decision has
deeply worrisome implications that require immediate legislative
clarification. As The Australian Financial Review reported, the
industry lobby has put the "potential cost" of paying annual leave
to Australia's 1.6 million casual workers about $6 billion to $8
billion.
Ai Group also argues that the decision risks widespread
"double-dipping" with casuals potentially being entitled to a
loading to compensate for impermanence while also being entitled to
the benefits of permanence like holiday pay.
Given that a casual loading really is routinely and very
specifically offered in return for surrendered holiday or sick pay,
then this would seem a proposition fair enough.
Mind you, on this point the full bench view was interesting and
potentially informative of potential mitigation.
"In this case," the full bench reported in its August decision, "Mr
Skene was paid an all-in flat rate (initially $50 and later $55 per
hour) under his contract of employment. It is not clear that he was
paid a casual loading at all . . . Mr Skene's contract did not
allocate any part of the rate of pay to a casual loading or as
monies in lieu of paid annual leave.
"Assuming, however, that Mr Skene was paid a casual loading which
was at least in part in lieu of paid annual leave, it may be said
he will be paid twice for the same entitlement if he is now
compensated for not being paid annual leave as the primary judge
found he should be.
"However, that Mr Skene was paid a casual loading when he need not
have been is not a legitimate basis for construing [section] 86 of
the FW Act in the manner for which WorkPac contends," the full
bench concluded.
Obvious lessons
The corollary of that set of observations would appear to be that
if workers like Mr. Skene cannot be classified as casuals and they
really are entitled to the benefits of permanent workers, then they
should be paid a special loading.
Given that advice, once the matter of Mr. Skene's compensation is
settled, I wonder whether WorkPac might not consider testing
whether it can legally recover the loading it paid to Mr. Skene
that he might not have been entitled to.
More generally, the lessons of the Skene case stand obvious. Ahead
of any attempt by government to better clarify for the courts the
intent of the law and the meaning of casual employment, those
businesses that rely on a class of rostered permanent casual
workers need to actively audit their employment arrangements and
clean up anything at all that looks messy or vulnerable to the
Skene interpretation.
Given the unhelpful and particular implications the Skene decision
holds for the fly-in-fly-out sector, miners that avail themselves
of contracted casuals might want to embrace the sort of active
flexibility that already sees casual workers technically terminated
at the end of every swing and then re-employed at the start of the
next one.
And the other thing business needs to do here is stand up and be
counted. When the unions and their class action lawyers come
shopping, force the issue. Do not roll over.
This case sits as just another moment in the union-led war on
casual employment. The unions do not like casual and contract
workers because industries like mining have used their deployment
to change the way work is done.
From miners to retailers, employers generally use casual workers to
deal with the peaks and troughs of marketplaces and their many and
varied cycles. But these employment relationships have also been
used as one of the tools for productivity-enhancing reforms.
To be clear, it is plain enough that workers like Paul Skene enter
casual agreements knowingly and they get well rewarded for it. So,
while it might be important to debate the meaning of the word
"casual" and the intent any particular parliament may have had in
its use, it beggars belief that employers and employees might now
be constrained from exercising their discretion to enjoy the
benefits of a casual relationship. [GN]
[*] ClassActionLawsuit.com Launched to Publicize Settlements
------------------------------------------------------------
Aggregated to keep "the little guy" in the know, a new website
called TheClassActionLawsuit.com is launched to help even the
score. Created to inform consumers, who would otherwise have no
clue they qualify for a settlement, the site is a veritable go-to
resource for found money. Listing some of the nation's
heaviest-hitters, big money settlements currently listed include
corporations like Volkswagen, Bank of America, and Costco to name a
very few.
Simplistic to use, consumers need only search the website's
extensive listings to find a lawsuit or class action rebate they
qualify for. They can also register with the new site to receive
settlement email alerts via the convenience of their inbox. Once a
lawsuit is found, consumers are directed to a platform whereby they
can file a claim form online or by mail. Within approximately two
months of a settlement being reached, their payment for
restitution, rebate, or coupons for free products are sent in the
mail.
Thomas Valmeyer, the owner of NGM Gold LLC, said of the usefulness
of TheClassActionLawsuit.com, "By putting information all in one
easily navigated place, consumers can basically cut to the chase
and get what's legally theirs. I receive messages every day
praising me for informing them about a class action lawsuit they
just qualified for thanks to our platform."
The website includes a forum for consumers who would like to
discuss the process of being in a large group of people, who cite
wrongdoing and have thereby taken legal action against a company or
an individual.
Class Action Lawsuit Information: Participating in a class action
suit typically waives one's right to sue independently. If
seriously harmed by a particular product or service, consumers
should speak with a lawyer before filing a class action claim.
Additionally, they should not file for a claim they are not
eligible for as they are submitted under penalty of perjury.
For more information visit
https://theclassactionlawsuit.com/class-action-lawsuit/.
About NGM Gold LLC
NGM Gold LLC -- https://theclassactionlawsuit.com/ -- is the parent
company of TheClassActionLawsuit.com. The platform provides the
latest news about class action lawsuits. [GN]
Asbestos Litigation
ASBESTOS UPDATE: 5 Indicted in Asbestos False Permit Scheme
-----------------------------------------------------------
The Real Deal reported that Brooklyn District Attorney Eric
Gonzalez indicted five New Yorkers in an alleged asbestos removal
scheme at a luxury duplex renovation in the Greenwood neighborhood
of Brooklyn.
The accused include expediter Scott Schnall, who was previously
"banned for life" by the Department of Buildings, after it found
Schnall had "regularly used his professional filing privileges to
try to circumvent the zoning resolution and construction codes."
According to the DA, Schnall and four others conspired to conceal
the existence of asbestos at 816-817 Fifth Avenue before applying
for construction work permits.
"These defendants are accused of greedily taking dangerous
shortcuts -- bypassing safety measures that are put in place to
protect the public from serious and unnecessary health risks -- to
maximize profits at any cost, including the well-being of employees
and prospective tenants," Gonzalez said in a statement.
The indictment includes 61 counts, with charges including
fifth-degree conspiracy, first-degree falsifying business records,
and second-degree reckless endangerment.
To carry out the scheme, the co-conspirators are alleged to have
forged the signature of a licensed DOB contractor and filed false
assessment reports about the existence of asbestos in the
buildings.
Building records show the homes were owned and developed by Richard
Juliano, who, along with his employee Carmine Casale, was also
indicted. One still unsold home went on the market for $2.5 million
last year.
ASBESTOS UPDATE: American Optical Had 56,760 Claims at July 1
-------------------------------------------------------------
Pfizer Inc. said in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended July 1,
2018, that approximately 56,760 claims naming American Optical and
numerous other defendants were pending as of July 1, 2018, in
various federal and state courts seeking damages for alleged
personal injury from exposure to asbestos and other allegedly
hazardous materials.
The Company states, "Between 1967 and 1982, Warner-Lambert owned
American Optical Corporation, which manufactured and sold
respiratory protective devices and asbestos safety clothing. In
connection with the sale of American Optical in 1982,
Warner-Lambert agreed to indemnify the purchaser for certain
liabilities, including certain asbestos-related and other claims.
As of July 1, 2018, approximately 56,760 claims naming American
Optical and numerous other defendants were pending in various
federal and state courts seeking damages for alleged personal
injury from exposure to asbestos and other allegedly hazardous
materials.
"Warner-Lambert was acquired by Pfizer in 2000 and is a
wholly-owned subsidiary of Pfizer. Warner-Lambert is actively
engaged in the defense of, and will continue to explore various
means of resolving, these claims."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2P6ICb5
ASBESTOS UPDATE: Asbestos Disease Attributed to Charity Work
------------------------------------------------------------
Mesothelioma.net reported that "when we hear about a death from
malignant mesothelioma, we tend to immediately picture an elderly
man -- perhaps a laborer or veteran of the U.S. Navy. But
mesothelioma recently claimed the life of a 33-year-old woman in
the United Kingdom who was exposed to asbestos as a teenager. Rose
Wharton was a medical researcher who was described by her family as
having been fit and healthy prior to her diagnosis with the rare
and fatal form of cancer. A deep dive into her medical history and
possible asbestos exposures revealed that her illness was probably
a direct result of work she did in Argentina in the year between
completing high school and heading off to college."
In trying to determine where Ms. Wharton's mesothelioma came from,
her family told the Oxfordshire coroner that she had helped build a
school using asbestos when she was just 18 years old. According to
the coroner, Darren Salter, the case was extremely unusual, as in
their area the illness is generally only diagnosed in older
construction workers. At an inquest into the death, he said, "I
don't think I have seen a case like this," then continued to say,
"Mesothelioma normally affects men working as plumbers or heating
engineers for 30 or 40 years, but this is very different from
that." The young woman died just nine months after having been
diagnosed, and though Mr. Salter’s opinion was clearly directed
towards the family’s stated source, they also indicated that
there was no way of knowing exactly where it came from.
Mesothelioma is diagnosed in roughly 3,500 people in the United
States each year and roughly 2,600 people in the United Kingdom,
and it is feared that despite the fact that the material's use has
been largely discontinued in both countries in the last few
decades, more people will continue to be diagnosed as a result of
exposures from asbestos already in place, both at home and abroad.
If you or someone you love has been diagnosed with mesothelioma and
you need information about available resources, we can help.
Contact the Patient Advocates at Mesothelioma.net at
1-800-692-8608.
ASBESTOS UPDATE: Asbestos Found at San Onofre Nuclear Plant
-----------------------------------------------------------
Rob Nikolewski of The San Diego Union-Tribune reported that areas
in the Unit 2 and Unit 3 containment domes at the San Onofre
Nuclear Generating Station are under restricted access after
workers recently discovered particles of asbestos and the plant's
operator, Southern California Edison, has hired a contractor to
test and clean up the areas.
Workers on Aug. 2 found what are called "friable" amounts of
asbestos -- materials that when dry can be easily reduced to powder
by hand -- as part of the preparations to eventually dismantle
buildings at the plant, which is in the process of being
decommissioned.
Officials with Edison said asbestos was commonly used in nuclear
power plants back in the 1970s and '80s when the two containment
buildings were constructed.
"It was not unexpected for us to find this," said Edison
spokeswoman Liese Mosher. "We have all the appropriate safeguards
in place for our people."
Mosher said no amounts of airborne asbestos have been detected so
far. Only plant workers whose jobs require them to enter the
affected areas are allowed in and protective equipment is
provided.
"We have all the appropriate safeguards in place for our people,"
Mosher said. "As always, the safety of our employees and the public
are our No. 1 priority."
Edison has hired a firm called Arcadis to assist with remediation
and testing. The utility would not speculate on a time table for
how long the job will take.
The friable amounts of asbestos were found in Unit 2 and 3 cable
trays -- three-sided boxes that electrical cables are routed
through in nuclear power plants, almost like a larger version of a
breaker box found in homes. Wipe samples also found some asbestos
in some rooms next to Unit 3. None was found in general office
areas of the plant.
Years ago, Mosher said asbestos was also found in the
now-dismantled Unit 1 dome.
"I don't think it's a big deal," said Dave Lochbaum, a nuclear
engineer and former director of the Nuclear Safety Project at the
Union of Concerned Scientists. "Asbestos has been found in nuclear
plants in other places . . . . (Asbestos) is something that causes
the hair on poeple's neck to go up. That's because it has caused
harm in the past."
Until the mid-1970s asbestos was commonly used to insulate steam
pipes, turbines and boilers in power plants across the country.
Workers were vulnerable to inhaling asbestos fibers and even
unknowingly carrying it home on their clothing.
Even though asbestos is a naturally occurring mineral, high levels
of exposure have been linked to malignant mesothelioma, a rare form
of cancer that affects the thin lining of the body's internal
organs.
Edison notified the SONGS Community Engagement Panel, a group that
holds public meetings every three months to discuss the plant's
decommissioning plans, of the asbestos issue.
"I think the good news is there are methods in place" to clean up
the areas, Lochbaum said. "Southern California Edison doesn't have
to devise some way to deal with this. They just need to go out and
find what's worked in the past and do it again."
Ray Lutz, national coordinator for the San Diego area advocacy
group Citizens Oversight and a frequent critic of Edison, said he
was not taken aback by the news.
"There's been so much of that asbestos in old buildings so I'm not
surprised at all," Lutz said. "I'd actually be surprised if they
didn't find it. They're just going to have to take special
precautions to take that stuff out . . . . But that's really the
least of our worries compared to the radioactive stuff that they
(Edison) have to deal with."
The discovery comes as the Nuclear Regulatory Commission is in the
midst of an inspection at SONGS following an incident at the
plant's newly constructed dry storage facility.
On Aug. 3, a 45-ton canister filled with spent nuclear fuel ended
up getting wedged into a 20-foot enclosure. Workers thought the
canister had been inserted correctly but instead it was suspended
on an inner-ring, some 18 feet from the cavity's floor.
An oversight team noticed the mistake but the canister remained
stuck for about 45 minutes to an hour before it was safely
lowered.
Tom Palmisano, vice president of decommissioning and chief nuclear
operator of the plant said the "very robust design" of the canister
would have prevented any radiological leak -- even if it had fallen
18 feet -- but he halted all future transfers of canisters at the
plant until the NRC has completed its inspection.
Others have questioned the durability of the canisters.
Twenty-nine canisters have been transferred so far this year and 44
more are scheduled to be completed by next year.
A team of three NRC inspectors spent five days at the plant in
September. Their report is not expected to be released until
November at the earliest.
ASBESTOS UPDATE: Asbestos Lawyers Push $50MM in NY Case
-------------------------------------------------------
Forbes reported that a staggering amount of money is at stake as
New York's top court is asked to decide if New York City's
controversial asbestos court is treating defendants fairly.
Recently, the New York Court of Appeals -- the state's highest
court -- declined to hear the appeal of asbestos defendants
challenging a judicial order that exposes them to punitive
damages.
How costly could that order be? Well, in at least one case out of
hundreds still pending, lawyers at Weitz & Luxenberg are seeking
$50 million in punitive damages.
The request came in Thomas Scott's lawsuit filed last year, just
before Justice Peter Moulton granted plaintiffs attorneys' request
to reintroduce punitive damages in New York City Asbestos
Litigation cases.
This April, a NYCAL jury awarded $60 million, including punitive
damages, to the family of a man who died from mesothelioma, holding
A.O. Smith, Burnham LLC and Peerless Industries liable.
Combined with the practice of consolidating lawsuits for trial,
defendants claim they are placed at a disadvantage and want the
Court of Appeals to hear their pleas.
But whether the court will remains unknown. Companies can argue
their constitutional rights are being violated while defending
themselves, but the Court of Appeals is initially unconvinced.
A defendant can also wait to appeal an actual verdict that features
punitive damages.
An intermediate appellate court affirmed the new case management
order in March.
In briefs submitted to that court, defendants said their ability to
fight claims all the way through trial is hampered in two major
ways: An Accelerated Docket that leaves them only five months to
conduct their investigations and prepare for trial and a threat of
punitive damages that makes simply going to trial a
multimillion-dollar gamble.
ASBESTOS UPDATE: Asbestos Summary Judgment Partially Vacated
------------------------------------------------------------
JD Supra reported that the Second Circuit has partially vacated
summary judgment rulings in a case involving the reinsurance of
asbestos-related risks. The case involves Utica Mutual Insurance
Company and it reinsurer Clearwater Insurance Company, regarding
Clearwater’s reinsurance obligations arising from claims of
Utica’s insured, Goulds Pumps, Inc. Utica had issued various
primary and umbrella liability insurance policies to Goulds from
the 1950s to the 1990s. In the 1990s, Goulds faced many thousands
of asbestos-related person injury claims, for which it turned to
Utica for coverage. Clearwater had reinsured the 1978 and 1979
umbrella policies under two reinsurance certificates (the
"Clearwater Certificates") and the 1979-1981 umbrella policies
under three reinsurance contacts as part of a pool of reinsurers
managed by Towers, Perrin, Forster & Crosby, Inc. (the "TPF&C
Memoranda"). When Utica sought coverage from Clearwater, Clearwater
objected on three grounds: (1) Utica had no liability for the
asbestos-related claims under the umbrella policies reinsured by
Clearwater; (2) Clearwater’s liability under the Clearwater
Certificates was capped at $5 million and $2 million for 1978 and
1979, inclusive of expenses; and (3) Clearwater was not obligated
to pay amounts Utica had voluntarily paid Goulds through
settlements.
The Second Circuit found that Clearwater's first objection turned
on language in the Utica umbrella policies stating that Utica would
cover expenses "not covered by" the primary policies. Clearwater
argued this meant that the umbrella policies did not cover
asbestos-related claims because such claims were covered by the
primary polices, but Utica said it meant the umbrella policies had
to cover amounts that Utica did not pay under the primary policies
because it interpreted those policies to have aggregate limits of
liability that were exceeded. The trial court, which had granted
Clearwater summary judgment on other grounds, had not decided what
"not covered" meant in this context, and the Second Circuit
remanded the matter so the trial court could rule on this issue.
The Second Circuit rejected Clearwater's second objection, because
the Clearwater Certificates contained "follow the form" clauses,
the umbrella policies specifically stated that Utica would
"reimburse the insured for all reasonable expenses . . . in
addition to the applicable limit of liability of this policy," and
the Clearwater Certificates contained nothing inconsistent with an
obligation to cover expenses in addition to the limits of liability
contained in those Certificates.
Finally, the Second Circuit agreed with Clearwater's third
objection, finding that Clearwater was not obligated to reimburse
Utica for its voluntary settlements with Goulds because the
Clearwater Certificates did not contain an express
follow-the-settlements clause and no such obligation was implied
under New York Law. Further, it found that the TPF&C Memoranda only
required Clearwater to reimburse Utica for settlements that were
authorized by TPF&C, which authorization had never been requested
or given. Utica objected that this condition was excused because
it was impossible, as TPF&C had stopped managing the reinsurance
pools decades ago, but the court found that, regardless of
impossibility, such prior approval was still a condition precedent
to Clearwater's obligation to reimburse Utica for the settlements.
ASBESTOS UPDATE: Asbestos Warning for Older Pools and Spas
----------------------------------------------------------
Pool+Spa reported that asbestos warning for older pools and spas,
SPASA WA has issued a warning in relation to the presence of
asbestos in older pools and spas, saying maintenance, repair or
renovation work may introduce a hazard that is not commonly
recognised.
Marblesheen (Marblelite) finishes have been identified as
potentially containing asbestos.
Marblesheen is a decorative coating applied to pool shells and is
primarily composed of white cement and white marble chips.
Marblesheen-coated pools built before 1990 should be assumed to
contain asbestos while pools built before 1990 which may have been
resurfaced (leaving the original Marblesheen coating in place
underneath) could also potentially contain asbestos.
If the pool or spa coating is not disturbed and in good condition,
there is a low risk of asbestos fibres being released. However, the
risk with older pools and spas is that the coatings may have aged
and cracked, which could potentially release the asbestos fibres
during renovation or demolition/removal.
Working with asbestos requires strict controls in accordance with
the Code of Practice for the Safe Removal of Asbestos and the Code
of Practice for the Management and Control of Asbestos in
Workplaces.
In addition to these codes, the Occupational Safety and Health
Regulations 1996 provide that:
-- asbestos at workplaces must be identified and the risks
assessed;
-- a licence is required for removal of friable*
asbestos-containing material or for removal of more than 10 m2 of
non-friable# asbestos-containing material;
-- people must not be exposed to asbestos dust;
-- asbestos work areas must be left in a clean state;
-- waste asbestos must be correctly disposed of;
-- records must be kept, and WorkSafe notified, if a person has
been exposed to asbestos at a workplace; and
-- where there is a risk to health from asbestos exposure,
health surveillance must be provided.
*Friable asbestos means any material that contains asbestos and is
in the form of a powder or can be easily crumbled or reduced to a
powder by hand pressure when dry. Examples of friable asbestos
include, but are not limited to, asbestos lagging, sprayed
insulation, millboard, felt and woven asbestos matting.
#Non-friable asbestos means any asbestos-containing material other
than friable asbestos. Examples of non-friable asbestos include,
but are not limited to, asbestos cement building products, vinyl
floor tiles, friction materials and any product where the asbestos
is locked in.
The presence of asbestos cannot be confirmed unless a sample is
analysed by a laboratory. The laboratory will provide a report of
the sample findings. An accredited facility can be sourced through
the National Association of Testing Authorities (NTA). To ensure
your business is working within the requirements for asbestos
management in Western Australia, contact the team at Safety
Solutions WA at info@sswa.net.au
ASBESTOS UPDATE: Borg-Warner Remains Entitled to Summary Judgment
-----------------------------------------------------------------
The Hon. James L. Robart of the United States District Court for
the Western District of Washington has issued an order to clarify
its resolution of Borg-Warner's motion for summary judgment filed
in the case titled Leslie Jack, individually and as Personal
Representative of Patrick Jack; David Jack, individually,
Plaintiffs, v. Asbestos Corporation Ltd., et al., Defendants, No.
2:17-cv-00537-JLR, (W.D. Wash.), with respect to the issue of David
Jack's alleged exposure to asbestos-containing Borg-Warner brakes.
On September 17, 2018, the court issued an order resolving several
motions for summary judgment, and among those motions was Defendant
Borg-Warner Morse TEC, LLC's motion for summary judgment.
In moving for summary judgment, Borg-Warner argued that Plaintiffs
Leslie Jack and David Jack could not show that Mr. Jack was exposed
to asbestos on account of Borg-Warner's conduct.
In response, Plaintiffs contended that Mr. Jack was exposed to
asbestos-containing Borg-Warner automotive products, including
Borg-Warner-branded brakes. Plaintiffs emphasized that Mr. Jack
recalled using Borg-Warner brakes between 1964 and approximately
2007 in connection with various racecars. Specifically, Mr. Jack
testified that he used Borg-Warner brakes in the course of
maintaining his 1960 and 1962 Pontiac racecars. He further stated
that he used Borg-Warner brakes on cars he and his neighbor built
for racing in the Bonneville Salt Flats many years later. However,
in the body of their response, Plaintiffs cited no evidence that
Borg-Warner brakes contained asbestos between 1964 and 2007.
The court granted summary judgment to Borg-Warner on the issue of
Mr. Jack's alleged exposure from Borg-Warner brakes on the ground
that Plaintiffs failed to show that Borg-Warner manufactured
asbestos-containing brakes during the relevant period.
Notably, in the section of their briefing dedicated to showing that
"BorgWarner friction products contained asbestos," Plaintiffs did
not mention Borg-Warner brakes. However, Plaintiffs embedded in
their statement of facts a footnote declaring that "BorgWarner
manufactured brakes from 1971 to 1975." To support that assertion,
Plaintiffs cited one of Borg-Warner's responses to Plaintiffs'
requests for admission. In that admission, Borg-Warner conceded
that its predecessor, Borg-Warner Corporation, "manufactured disc
brake pads, which incorporated chrysotile (serpentine) asbestos
fibers. . . under the 'Borg-Warner' brand name for limited Ford and
Mercury vehicles, models 1971-1975, for special and limited
applications." The court's summary judgment order does not
expressly address this admission.
The Court concludes that Borg-Warner remains entitled to summary
judgment on the issue of Mr. Jack's alleged exposure to
asbestos-containing Borg-Warner brakes. The admission concerning
disc brake pads pertains only to "limited Ford and Mercury
vehicles." Yet Plaintiffs provide no evidence that Mr. Jack ever
raced or maintained a Ford or Mercury vehicle produced between 1971
and 1975. To the contrary, the only racecars Mr. Jack specifically
recalled having worked on were 1960 and 1962 Pontiacs and cars he
and his neighbor "built" themselves nor do Plaintiffs produce any
evidence that Borg-Warner manufactured asbestos-containing
replacement brakes that Mr. Jack could have acquired for use on his
racecars.
In short, Plaintiffs fail to establish a "reasonable connection"
between Mr. Jack's injury and Borg-Warner's asbestos-containing
brakes. Borg-Warner is thus entitled to summary judgment on the
issue of Mr. Jack's alleged exposure to asbestos-containing
Borg-Warner brakes. The court further notes that its ruling on
Borg-Warner's second motion in limine, which concerned the
exclusion of evidence of Borg-Warner products not linked to Mr.
Jack's asbestos exposure, remains unchanged.
A copy of the Order dated September 20, 2018, is available at
https://tinyurl.com/y7kocbmr from Leagle.com.
Leslie Jack, individually and as Personal Representative of Patrick
Jack & David Jack, individually, Plaintiffs, represented by
Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP,
pro hac vice, Charles W. Branham, III , Dean Omar & Branham, LLP,
pro hac vice, Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lisa W. Shirley -- lshirley@dobllp.com -- Dean
Omar Branham, LLP, pro hac vice, Lucas W.H. Garrett --
houser@sgb-law.com -- Schroeter Goldmark & Bender, William Joel
Rutzick , Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & Thomas J.
Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender.
Borg-Warner Morse Tec LLC, sued individually and as
successor-in-interest to Borg-Warner Corporation, Defendant,
represented by Gary D. Elliston -- gelliston@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Michael J. Madderra --
mmadderra@bbllaw.com -- Bennett Bigelow & Leedom & Richard D. Ross
, Bennett Bigelow & Leedom.
Ford Motor Company, Defendant, represented by Harry S. Johnson --
hjohnson@wtplaw.com -- Whiteford Taylor Preston LLP, pro hac vice,
Daniel K. Reising -- dan@frllp.com -- Fucile & Reising & Mark J.
Fucile -- mark@frllp.com -- Fucile & Reising.
Honeywell International Inc, sued as successor-in-interest to
Bendix Corporation, Defendant, represented by Joseph S. Pevsner --
Joseph.Pevsner@tklaw.com -- Thompson & Knight LLP, pro hac vice,
Kristine E. Kruger -- KKruger@perkinscoie.com -- Perkins Coie &
Mary P. Gaston -- MGaston@perkinscoie.com -- Perkins Coie.
Union Pacific Railroad Company, Defendant, represented by Robert H.
Berkes -- rberkes@bcrslaw.com -- Berkes Crane Robinson & Seal, pro
hac vice, Ryan T. Moore , Berkes Crane Robinson & Seal, pro hac
vice, Viiu Spangler Khare -- vspanglerkhare@bcrslaw.com -- Berkes
Crane Robinson & Seal, pro hac vice, Andrew Gordon Yates --
yatesa@lanepowell.com -- Lane Powell PC, Brian D. Zeringer --
zeringerb@lanepowell.com -- Lane Powell PC, Jeffrey M. Odom --
odomj@lanepowell.com -- Lane Powell PC & Tim D. Wackerbarth --
wackerbartht@lanepowell.com -- Lane Powell PC.
Dana Companies, LLC, sued as successor in interest to Victor Gasket
Manufacturing Company, Defendant, represented by Mahsa Kashani
Tippins -- mktippins@dehay.com -- Dehay & Elliston LLP, pro hac
vice, R. Thomas Radcliffe -- tradcliffe@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Diane J. Kero -- dkero@gth-law.com --
Gordon Thomas Honeywell & Michael Edward Ricketts --
mricketts@gth-law.com -- Gordon Thomas Honeywell.
ASBESTOS UPDATE: Breen's Exhibits Allowed in Spouses Jack's List
----------------------------------------------------------------
The Hon. James L. Robart of the United States District Court for
the Western District of Washington grants Plaintiffs Leslie Jack
and David Jack's motion to modify its exhibit list to include those
exhibits listed in Exhibit 1 to Thomas J. Breen's declaration in
support of Plaintiffs' motion, and allows Defendants Ford Motor
Company and DCo, LLC to designate additional exhibits responsive to
Plaintiffs' new ones. The Court makes no ruling on the authenticity
or admissibility of the exhibits at this time.
A copy of the Order dated September 20, 2018, is available at
https://tinyurl.com/ybtsysxq from Leagle.com.
Leslie Jack, individually and as Personal Representative of Patrick
Jack & David Jack, individually, Plaintiffs, represented by
Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP,
pro hac vice, Charles W. Branham, III , Dean Omar & Branham, LLP,
pro hac vice, Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lisa W. Shirley -- lshirley@dobllp.com -- Dean
Omar Branham, LLP, pro hac vice, Lucas W.H. Garrett --
houser@sgb-law.com -- Schroeter Goldmark & Bender, William Joel
Rutzick , Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & Thomas J.
Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender.
Borg-Warner Morse Tec LLC, sued individually and as
successor-in-interest to Borg-Warner Corporation, Defendant,
represented by Gary D. Elliston -- gelliston@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Michael J. Madderra --
mmadderra@bbllaw.com -- Bennett Bigelow & Leedom & Richard D. Ross
, Bennett Bigelow & Leedom.
Ford Motor Company, Defendant, represented by Harry S. Johnson --
hjohnson@wtplaw.com -- Whiteford Taylor Preston LLP, pro hac vice,
Daniel K. Reising -- dan@frllp.com -- Fucile & Reising & Mark J.
Fucile -- mark@frllp.com -- Fucile & Reising.
Honeywell International Inc, sued as successor-in-interest to
Bendix Corporation, Defendant, represented by Joseph S. Pevsner --
Joseph.Pevsner@tklaw.com -- Thompson & Knight LLP, pro hac vice,
Kristine E. Kruger -- KKruger@perkinscoie.com -- Perkins Coie &
Mary P. Gaston -- MGaston@perkinscoie.com -- Perkins Coie.
Union Pacific Railroad Company, Defendant, represented by Robert H.
Berkes -- rberkes@bcrslaw.com -- Berkes Crane Robinson & Seal, pro
hac vice, Ryan T. Moore , Berkes Crane Robinson & Seal, pro hac
vice, Viiu Spangler Khare -- vspanglerkhare@bcrslaw.com -- Berkes
Crane Robinson & Seal, pro hac vice, Andrew Gordon Yates --
yatesa@lanepowell.com -- Lane Powell PC, Brian D. Zeringer --
zeringerb@lanepowell.com -- Lane Powell PC, Jeffrey M. Odom --
odomj@lanepowell.com -- Lane Powell PC & Tim D. Wackerbarth --
wackerbartht@lanepowell.com -- Lane Powell PC.
Dana Companies, LLC, sued as successor in interest to Victor Gasket
Manufacturing Company, Defendant, represented by Mahsa Kashani
Tippins -- mktippins@dehay.com -- Dehay & Elliston LLP, pro hac
vice, R. Thomas Radcliffe -- tradcliffe@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Diane J. Kero -- dkero@gth-law.com --
Gordon Thomas Honeywell & Michael Edward Ricketts --
mricketts@gth-law.com -- Gordon Thomas Honeywell.
ASBESTOS UPDATE: D/C Distribution Still Defends A&F Suit at June 30
-------------------------------------------------------------------
Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation,
still defends itself against the insurance coverage lawsuit filed
by American & Foreign Insurance Company, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2018.
The Company states, "On February 15, 2005, D/C was served with a
lawsuit entitled American & Foreign Insurance Company v. D/C
Distribution and Amfac Corporation, Case No. 04433669 filed in the
Superior Court of the State of California for the County of San
Francisco, Central Justice Center. No other purported party was
served. In the eight-count complaint for declaratory relief,
reimbursement and recoupment of unspecified amounts, costs and for
such other relief as the court might grant, plaintiff alleged that
it is an insurance company to whom D/C tendered for defense and
indemnity various personal injury lawsuits allegedly based on
exposure to asbestos containing products. Plaintiff alleged that
because none of the parties have been able to produce a copy of the
policy or policies in question, a judicial determination of the
material terms of the missing policy or policies is needed.
"Plaintiff sought, among other things, a declaration: of the
material terms, rights, and obligations of the parties under the
terms of the policy or policies; that the policies were exhausted;
that plaintiff is not obligated to reimburse D/C for its attorneys'
fees in that the amounts of attorneys' fees incurred by D/C have
been incurred unreasonably; that plaintiff was entitled to
recoupment and reimbursement of some or all of the amounts it has
paid for defense and/or indemnity; and that D/C breached its
obligation of cooperation with plaintiff. D/C filed an answer and
an amended cross-claim. D/C believed that it had meritorious
defenses and positions, and intended to vigorously defend.
In addition, D/C believed that it was entitled to amounts from
plaintiffs for reimbursement and recoupment of amounts expended by
D/C on the lawsuits previously tendered. In order to fund such
action and its other ongoing obligations while such lawsuit
continued, D/C entered into a Loan Agreement and Security Agreement
with Kaanapali Land, in August 2006, whereby Kaanapali Land
provided certain advances against a promissory note delivered by
D/C in return for a security interest in any D/C insurance policy
at issue in this lawsuit. In June 2007, the parties settled this
lawsuit with payment by plaintiffs in the amount of US$1,618,000.
Such settlement amount was paid to Kaanapali Land in partial
satisfaction of the secured indebtedness.
Because D/C was substantially without assets and was unable to
obtain additional sources of capital to satisfy its liabilities,
D/C filed with the United States Bankruptcy Court, Northern
District of Illinois, its voluntary petition for liquidation under
Chapter 7 of Title 11, United States Bankruptcy Code during July
2007, Case No. 07-12776. Such filing is not expected to have a
material adverse effect on the Company as D/C was substantially
without assets at the time of the filing. Kaanapali Land filed
claims in the D/C bankruptcy that aggregated approximately
US$26,800,000, relating to both secured and unsecured intercompany
debts owed by D/C to Kaanapali Land. In addition, a personal
injury law firm based in San Francisco that represents clients with
asbestos-related claims, filed proofs of claim on behalf of
approximately two thousand claimants. While it is not likely that
a significant number of these claimants have a claim against D/C
that could withstand a vigorous defense, it is unknown how the
trustee will deal with these claims. It is not expected, however,
that the Company will receive any material additional amounts in
the liquidation of D/C.
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Izrg4v
ASBESTOS UPDATE: D/C Lift Stay Issue Remains Pending at June 30
---------------------------------------------------------------
A motion to lift stay remains pending in the bankruptcy cases of
Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
The Company states, "On or about April 28, 2015, eight litigants
who filed asbestos claims in California state court (hereinafter,
"Petitioners") filed a motion for relief from the automatic stay in
the D/C bankruptcy (hereinafter "life stay motion"). Under
relevant provisions of the bankruptcy rules and on the filing of
the D/C bankruptcy action, all pending litigation claims against
D/C were stayed pending resolution of the bankruptcy action. In
their motion, Petitioners asked the bankruptcy court to lift the
stay in the bankruptcy court to name D/C and/or its alternate
entities as defendants in their respective California state court
asbestos actions and to satisfy their claims against insurance
policies that defend and indemnify D/C and/or their alternate
entities. The Petitioner's motion to lift stay thus in part has as
an objective ultimate recovery, if any, from, among other things,
insurance policy proceeds that were allegedly assets of both the
D/C and Oahu Sugar bankruptcy estates.
"Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar
bankruptcy and the Fireman's Fund policies are allegedly among the
assets of the Oahu Sugar bankruptcy estate as well. For this and
other reasons, Kaanapali, the EPA and the Navy opposed the motion
to lift stay.
"After briefing and argument, on May 14, 2015, the United States
Bankruptcy Court, for the Northern District of Illinois, Eastern
Division, in In Re D/C Distribution, LLC, Bankruptcy Case No.
07-12776, issued an order lifting the stay. In the order, the
court permitted the Petitioners to "proceed in the applicable
nonbankruptcy forum to final judgment (including any appeals) in
accordance with applicable nonbankruptcy law. Claimants are
entitled to settle or enforce their claims only by collecting upon
any available insurance Debtor's liability to them in accordance
with applicable nonbankruptcy law. No recovery may be made
directly against the property of Debtor, or property of the
bankruptcy estate." Kaanapali, Firemen's Fund and the United States
appealed the bankruptcy court order lifting the stay.
"In March 2016, the district court reversed the bankruptcy court
order finding that the bankruptcy court did not apply relevant law
to the facts in the case to arrive at a reasoned decision. On
appeal the district court noted that the law requires consideration
of a number of factors when lifting a stay to permit certain claims
to proceed, including consideration of the adequacy of remaining
insurance to meet claims still subject to the stay. Among other
things, the court noted that the bankruptcy court failed to explain
why it was appropriate for the petitioners to liquidate their
claims before the other claimants whose claims remained subject to
the stay. The district court remanded the case for further
proceedings. It is uncertain whether such further proceedings on
the lift stay will take place.
"The parties in the D/C and Oahu Sugar bankruptcies have reached
out to each other to determine if there is any interest in pursuing
a global settlement of the claims in the Oahu Sugar and D/C
bankruptcies insofar as the Fireman's Fund insurance policies are
concerned. If such discussions take place, they may take the form
of a mediation or other format and involve some form of resolution
of Kaanapali's interest in various of the Fireman's Fund insurance
policies for Kaanapali's various and future insurance claims.
Kaanapali may consider entering into such discussions, but there is
no assurance that such discussions will take place or prove
successful in resolving any of the claims in whole or in part."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Izrg4v
ASBESTOS UPDATE: Eden Residents Wait on $850K Asbestos Settlements
------------------------------------------------------------------
Andrew Martin of Stowe Today reported that it will be a few months
before Eden residents learn how nearly $400,000 will be used to
improve roads, bridges and other infrastructure in their town.
The money is coming from an $850,000 settlement with the former
owner of the inactive Vermont Asbestos Group mine, located on
Belvidere Mountain in Eden and Lowell.
Huge piles of asbestos tailings left at the mine have caused
problems, and the former mine owner agreed to pay the $850,000 to
settle damage claims.
Eden will get $375,000 of that total, as will Lowell, but town
leaders don't simply get to decide when and where to use the
money.
Officials with the U.S. Fish and Wildlife Service and the Vermont
Agency of Natural Resources developed plans for using the money in
the two towns, but also wanted local suggestions, and held an open
comment period that closed in August. A total of 13 comments were
received; state and federal officials are taking them into account
and will issue a final plan on using the money in December or
January.
"The only update we've gotten was an email saying the comment
period had ended," Tracey Morin, administrative assistant for the
Eden Select Board, said. "We're just waiting."
"We are currently reviewing and considering these comments and will
be developing a summary and response to them," John Schmeltzer, an
environmental analyst with the Vermont Agency of Natural Resources,
told the Eden Select Board in that email in late September.
Federal officials rejected a News & Citizen request to view the 13
comments.
The state and federal agencies want the settlement money to be used
for projects in areas similar to those damaged by runoff from the
asbestos tailings piles at the mine.
In Eden, the draft plan, which was issued in June and can be found
at bit.ly/asbestosminefunds, proposed using the money to help
replace a failed double culvert that has closed down part of
Knowles Flat Road for several years. Another culvert would be
replaced on the Class 4 Square Road, which connects Eden with
Craftsbury and Albany, but there hasn’t been much support among
Eden residents for that idea, since the road is seldom used, and is
open only during the warmer months.
Schmeltzer and other state and federal staff plan to meet with the
Eden and Lowell select boards in November, and a final plan will be
issued in December or January. Actual construction work could begin
as soon next spring.
ASBESTOS UPDATE: Ford Parts Substantial Cause of DeCastro's Injury
------------------------------------------------------------------
The Hon. Sherry R. Fallon of the United States District Court for
the District of Delaware recommends denying Ford Motor Company's
motion for summary judgment with respect to Ford's negligence for
John De DeCastro's injuries allegedly caused by asbestos-containing
products.
Plaintiffs John Decastro and his wife Vicki Decastro, originally
filed this personal injury action against multiple defendants in
the Superior Court of Delaware, asserting claims arising from Mr.
DeCastro's alleged harmful exposure to asbestos. Plaintiffs allege
that Mr. DeCastro developed lung cancer as a result of exposure to
asbestos-containing materials during his service in the United
States Air Force, civilian employment with Pacific Bell Telephone
and United Airlines, and personal automotive and aircraft
maintenance work. Plaintiffs contend that Mr. DeCastro was injured
due to exposure to asbestos-containing products that defendants
manufactured, sold, distributed, licensed, or installed.
Accordingly, Plaintiffs assert claims for negligence, willful and
wanton conduct, strict liability, and loss of consortium.
Plaintiffs' claims require proof that Ford caused or contributed to
Mr. DeCastro's exposure to asbestos, and that Ford's products were
a "substantial factor in bringing about the injury." The Court
finds that Plaintiffs have presented sufficient evidence to raise a
material issue of fact as to whether Ford supplied original
asbestos-containing parts, and whether Mr. DeCastro was exposed to
asbestos when he performed personal automotive work on the eight
Ford vehicles he owned or encountered in his lifetime.
The Court recommends denying Ford's motion for summary judgment
with respect to Ford's negligence for Mr. DeCastro's injuries
allegedly caused by asbestos-containing products. The Court
determines that over the span of decades, Mr. Decastro identified
multiple instances where he worked directly with Ford products when
performing personal automotive repair work. Moreover, the Court
finds that Plaintiffs proffered evidence that Ford incorporated
asbestos-containing friction products into its vehicles since it
began selling mass production vehicles in the early 1900s, and such
asbestos-containing friction products were not phased out of its
vehicles until 1984.
The Court concludes that Ford supplied original,
asbestos-containing carburetor gaskets, brakes, and other parts to
which Mr. Decastro was exposed and which were a substantial factor
in causing his alleged injuries. This raises a genuine issue of
material fact as to whether Mr. DeCastro's exposure is substantial
enough that an expert can establish medical causation for the
alleged injuries.
Plaintiffs argue that Ford is liable for failing to warn about
asbestos-containing replacement parts manufactured by other
companies. The parties stipulate and agree that California
substantive law shall apply to the claims and defenses asserted in
this case. California has recognized the "bare metal defense." As
such, "a product manufacturer may not be held liable in strict
liability or negligence for harm caused by another manufacturer's
product unless the defendant's own product contributed
substantially to the harm, or the defendant participated
substantially in creating a harmful combined use of the products."
Nor does a manufacturer have a duty to warn "about dangers arising
entirely from another manufacturer's product, even if it is
foreseeable that the products will be used together."
The Court finds that Plaintiffs have presented evidence sufficient
to create a dispute of fact as to whether original parts and
materials supplied directly by Ford were a potential source of Mr.
DeCastro's asbestos exposure, causing his alleged injuries. Mr.
DeCastro owned a 1955 Ford Crown Victoria from 1955 to 1959, which
was new when purchased. During this time, he personally performed
carburetor repairs "about five times." Mr. DeCastro also testified
that he installed Ford hydraulic brakes on the used 1936 Ford
three-window he owned from 1952 to 1955, identified Ford as the
brand of intake manifolds, exhaust manifolds, and heads he
installed on the used dark-green 1936 Ford coupe he owned from 1952
to 1953, and stated that he installed Ford brakes on the "the '35
five-window, the '36 chopped vehicle, and the '36 three-window that
was in the Roadster Show." Plaintiffs have also presented testimony
based on Mr. DeCastro's first-hand exposure to particular Ford
vehicles and parts that is sufficient to create an issue of fact on
the duty to warn of foreseeable harm, precluding summary judgment.
Plaintiffs have presented sufficient evidence to establish a
genuine dispute of material fact as to whether Mr. DeCastro's
exposure to asbestos-containing Ford parts was a substantial factor
in causing his alleged injuries. Additionally, Plaintiffs have
presented testimony based on Mr. DeCastro's first-hand exposure to
particular Ford vehicles and parts that is sufficient to create an
issue of fact on the duty to warn of foreseeable harm, precluding
summary judgment. Therefore, the Court recommends denying Ford's
motion for summary judgment as to Plaintiffs' strict liability
claim.
The Court, however, recommends granting Ford's motion for summary
judgment with respect to Plaintiffs' punitive damages claim.
Plaintiffs allege that Ford, and other defendants, acted "willfully
and wantonly for their own economic gain and with reckless
indifference to the health and safety of Plaintiff John DeCastro"
in including asbestos in their products and failing to warn of the
associated hazards.
Plaintiffs argue that they have presented sufficient evidence to
support their claim for punitive damages. Plaintiffs rely on
evidence that, as early as 1935, researchers saw a connection
between asbestos exposure and asbestosis and pulmonary carcinoma.
However, this does not speak to what Ford knew specifically, and
"mere carelessness or ignorance of the defendant does not justify
the imposition of punitive damages." Additionally, Plaintiffs
allege that evidence shows that as early as 1970, Ford "knew that
asbestos was a carcinogen and that asbestos dust would be created
from the use of its brakes." However, Mr. DeCastro testified about
owning and performing work on Ford vehicles from 1948 to 1962,
years before Ford's alleged knowledge. The only Ford vehicle Mr.
Decastro owned and serviced after 1970 was from 1979 to 1982, on a
used 1936 Ford "three-window chopped full custom" that contained a
Chevrolet engine, which was removed and replaced with another
Chevrolet engine.
Since Plaintiffs fail to present evidence sufficient to create a
factual issue in dispute as to whether Ford's conduct constitutes
"oppression, fraud, or malice," therefore, the Court recommends
granting Ford's motion for summary judgment with respect to
Plaintiffs' punitive damages claim.
The case is In Re Asbestos Litigation, John De Castro and Vicki
Decastro, his wife, Plaintiffs, v. Aerojet Rocketdyne Holdings,
Inc., et al., Defendants, Civ. No. 16-951-LPS-SRF, (D. Del.)
Report and Recommendation dated August 15, 2018
https://tinyurl.com/y7lefylc
John DeCastro & Vicki DeCastro, 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.
BorgWarner Morse TEC LLC, Defendant, represented by Matthew P.
Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin &
Mellott, LLC.
Ford Motor Company, Defendant, represented by Christian J.
Singewald -- singewaldc@whiteandwilliams.com -- White & Williams &
Rochelle Libid Gumapac -- gumapacr@whiteandwilliams.com -- White &
Williams.
Goodyear Tire & Rubber Company, Defendant, represented by Paul
Seward -- pseward@mgmlaw.com -- Manning Gross + Massenburg LLP, Ann
Marie Kashishian , Manion Gaynor & Manning LLP & Ryan William
Browning -- rbrowning@mgmlaw.com -- Manning Gross + Massenburg
LLP.
BorgWarner Morse TEC LLC, Cross Defendant, represented by Matthew
P. Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin
& Mellott, LLC.
Ford Motor Company, Cross Defendant, represented by Christian J.
Singewald -- singewaldc@whiteandwilliams.com -- White & Williams &
Rochelle Libid Gumapac -- gumapacr@whiteandwilliams.com -- White &
Williams.
John DeCastro & Vicki DeCastro, his wife, 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 -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A.
BorgWarner Morse TEC LLC, Cross Claimant, represented by Matthew P.
Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin &
Mellott, LLC.
ASBESTOS UPDATE: Forestry Expert Accused of Asbestos Dumping
------------------------------------------------------------
Bexhill Observer reported that the trial of a forestry expert who
was accused of dumping waste in woodland near Rye has ended after
he pleaded guilty part-way through. Hove Crown Court heard how
Timothy Saunders, 44, and others dumped items such as
refrigerators, large rubber tyres, barbed wire and asbestos in pits
dug at Barnet's Hill, Peasmarsh. A satellite images taken in 2008,
which was shown to the jury Officers investigating one pit found a
'black liquid' four feet down that caused them to wretch, the jury
heard. Saunders, from Wittersham in Kent, pleaded guilty to three
charges and was sentenced. He admitted that he: deposited
controlled waste in privately owned woodland, that he knowingly
caused or permitted others to do the same and treating, keeping or
disposing of controlled waste, the court confirmed.
He had already pleaded guilty to one charge that on April 7, 2015
he permitted controlled waste to be dumped at the site. A satellite
image taken in 2015, which was shown to the jury Opening the case,
Gary Grant, prosecuting on behalf of Rother District Council, said:
"Mr Saunders is charged with serious environmental crimes. The
disposal of waste is big business. But for land to be legitimately
used for depositing waste strict controls must be complied with."
Mr Saunders had no lawful permission or authorisation to allow this
waste to be dumped. The offending is alleged to have taken place
over several years between 2009 and 2015. The place where the waste
was dumped is an Area of Outstanding Natural Beauty. The
prosecution said that others as well as Mr Saunders may have
fly-tipped at the site. He told the jury that Saunders was 'not
naive' and knew what he was doing. Saunders was sentenced to two
years' imprisonment, suspended for two years. He was ordered to
carry out 200 hours of unpaid work and pay GBP1,000 in prosecution
costs.
ASBESTOS UPDATE: GBP50MM Screening Program for Grenfell Residents
-----------------------------------------------------------------
The Independent reported that the NHS has said it will fund a
GBP50m screening programme for survivors of the Grenfell Tower
fire, following warnings they could have suffered asbestos
poisoning.
Senior coroner Dr Fiona Wilcox, who is examining the deaths caused
by the fire, wrote to the head of NHS England Simon Stevens in
September urging him to take action to stop any more people dying
as a result of the inferno.
Citing the long-term health problems suffered by firefighters who
attended the 9/11 attack, Dr Wilcox said she was concerned no
formal health programme was in place for Grenfell Tower residents
and the first responders to the scene.
Grenfell Tower was built in 1974, when asbestos was regularly used
as a fire retardant. If inhaled, asbestos can cause a fatal lung
disease called mesothelioma.
Most of the 72 people who died as a result of the blaze on 14 June
last year are thought to have died from inhaling poisonous smoke.
Announcing the new screening programme, Mr Stevens said the NHS and
local health groups would invest up to £10m a year in the service
for the next five years.
Former Grenfell Tower residents would be invited to regular "health
MOTs" that would would monitor their physical and psychological
health, he said.
A mental health service for the fire's survivors has already
screened about 4,000 residents, according to NHS figures. Longer GP
appointments have also been available for former residents of the
highrise.
Speaking at NHS Providers conference in Manchester, Mr Stevens
said: "Since (the Grenfell Tower fire), the NHS has been one of the
public services that has most fulfilled the contract between those
working in public services and communities reliant on us in their
time of need.
"We've knocked on more than 4,000 doors, helped 3,800 residents
(with) their GP and mental health needs and more than a third of
those have gone on to be referred to specialist mental health
services.
"Which is why it's important that when a local community, such as
those in North Kensington says 'you need to raise your game over
how the community is supported,' we respond."
In a separate statement, Mr Stevens said: "For those people who
were affected by this horrendous tragedy, their pain is not over
and many continue to face real difficulty.
"NHS staff and the local community have been working hard from day
one to support the Grenfell community. The NHS was there when
people needed us and we’re determined to stay the course. That's
why we are now introducing a new dedicated service to ensure those
affected continue to have their health needs fully met."
A public inquiry into the fire at Grenfell Tower is hearing
evidence from survivors of the blaze at Holborn Bars in central
London. A number of those who have given evidence have said they
have suffered breathing problems in the immediate aftermath and in
the months after the fire.
ASBESTOS UPDATE: Honeywell's Summary Judgment in Leech Granted
--------------------------------------------------------------
The Hon. Nannette Jolivette Brown of the United States District
Court for the Eastern District of Louisiana has issued an order
granting Defendant Honeywell International Inc.'s unopposed "Motion
for Summary Judgment" filed in the case styled Leech, et al., v. 3M
Company, Et Al., Section: "G"(4), Civil Action Case No. 17-446,
(E.D. La.).
Plaintiffs Margaret A. Leech and her adult children allege that
Decedent William Leech was diagnosed with malignant mesothelioma on
January 11, 2016, and that asbestos-related mesothelioma was a
cause of William Leech's death on January 14, 2016. According to
Plaintiffs, Decedent was a construction engineer who worked with
and was exposed to asbestos at numerous sites in Louisiana,
California, Arizona, Virginia, and other states from approximately
1965 through 1992. Plaintiffs bring survival and wrongful death
claims against various defendants, including Honeywell, as
successor to Bendix Corporation.
Plaintiffs originally filed the petition in this matter on January
10, 2017, in the Civil District Court for the Parish of Orleans,
State of Louisiana. On January 19, 2017, Honeywell removed the
action to the United States District Court for the Eastern District
of Louisiana.
On December 28, 2017, Honeywell filed a Motion for Summary
Judgment, which was set for submission on January 17, 2018.
In its Motion for Summary Judgment, Honeywell argues that
Plaintiffs' claims against Honeywell should be dismissed because
Plaintiffs have presented no evidence to show that Decedent worked
with or around a product produced by Bendix. Honeywell asserts that
Plaintiffs' petition does not recite any facts against Honeywell,
but only alleges that Decedent generally was exposed to asbestos in
his work as a construction engineer. Moreover, according to
Honeywell, Plaintiffs did not provide any initial disclosures to
Honeywell, so there is no evidence to be found in that manner.
Honeywell further avers that Plaintiffs have not identified any
witnesses or produced any documents that state that Decedent worked
with a Bendix product. Honeywell argues that considering that
Plaintiffs cannot cite any evidence that shows that Decedent worked
with a product made by Bendix or Honeywell, Plaintiffs cannot meet
their burden of proving that Honeywell's products were a
cause-in-fact of Decedent's injuries.
On January 12, 2018, the Court granted Plaintiffs' motion for an
extension of time to file an opposition to Honeywell's motion for
summary judgment, and continued the submission date to February 23,
2018. Again, on February 26, 2018, the Court granted an additional
motion for an extension of time to file an opposition and continued
the deadline for Plaintiffs to file an opposition to March 7, 2018.
Despite two continuances, Plaintiffs have filed no opposition to
the motion, and therefore Defendants' motion is deemed to be
unopposed.
Plaintiffs bring claims against Honeywell for negligence and strict
liability. Under Louisiana law, to recover against Honeywell,
Plaintiffs must show that Honeywell exposed Decedent to asbestos
and that the exposure caused Plaintiffs' injury.
The Court determines that Honeywell have identified portions of the
record that demonstrates the absence of a genuine issue of material
fact. Plaintiffs have filed no opposition to the pending motion,
despite being granted two extensions of time to do so. Therefore,
Plaintiffs have come forward with no evidence to show that
Honeywell was a cause-in-fact of Plaintiffs' injury. The Court
explains that cause-in-fact is found when defendant's conduct was a
substantial factor in the injury -- it need not be the sole cause.
As a result, the Court finds that Honeywell's motion has merit as
there are no material facts at issue.
A copy of the Order dated August 15, 2018, is available at
https://tinyurl.com/y7tfh5ms from Leagle.com.
Margaret A. Leech, individually and on behalf of Decedent, William
Leech, Thomas Leech, individually and on behalf of Decedent,
William Leech & Sarah Leech, individually and on behalf of
Decedent, William Leech, Plaintiffs, represented by Lindsey A.
Cheek & Rubiante Lolana Brown -- lcheek@thecheeklawfirm.com --
Cheek Law Firm, LLC.
Air & Liquid Systems Corporation, Successor by Merger to Buffalo
Pumps, Inc., Defendant, represented by Stacey Leigh Strain --
strain@hubbardmitchell.com -- Hubbard, Mitchell, Williams & Strain,
PLLC.
Calaveras Asbestos Ltd., Defendant, represented by Kay Barnes
Baxter , Cosmich Simmons & Brown, PLLC, Ashley A. Edwards , Cosmich
Simmons & Brown, PLLC, Forrest Ren Wilkes , Cosmich Simmons &
Brown, PLLC, Georgia Noble Ainsworth -- georgia@cs-law.com --
Cosmich Simmons & Brown, PLLC, Jason K. Elam --
jason.elam@cs-law.com -- Cosmich Simmons & Brown, PLLC, Margaret
Adams Casey , Cosmich Simmons & Brown, PLLC & Martin James Dempsey,
Jr. -- jimmy@cs-law.com -- Cosmich Simmons & Brown, PLLC.
CBS Corporation, Successor by Merger to CBS, Corp a Pennsylvania
Corp. & General Electric Company, Defendants, represented by John
Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela
M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown,
Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long --
klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan --
keagan@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin --
mpuente@frilot.com --Frilot L.L.C.
Certain-Teed Corporation, Defendant, represented by Arthur Wendel
Stout, III -- wstout@deutschkerrigan.com -- Deutsch Kerrigan LLP,
Barbara Bourgeois Ormsby -- bormsby@deutschkerrigan.com -- Deutsch
Kerrigan LLP, Jason P. Franco -- jfranco@deutschkerrigan.com --
Deutsch Kerrigan LLP, Jennifer E. Adams --
jadams@deutschkerrigan.com -- Deutsch Kerrigan LLP & William Claudy
Harrison, Jr. -- wharrison@deutschkerrigan.com -- Deutsch Kerrigan
LLP.
Foster Wheeler LLC, as Survivor to the Merger with Foster Wheeler
Corporation, Defendant, represented by John Joseph Hainkel, III --
jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin --
abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. --
jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long --
klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan --
keagan@frilot.com -- Frilot L.L.C., Magali Ann Puente-Martin --
mpuente@frilot.com -- Frilot L.L.C. & Peter R. Tafaro , Frilot
L.L.C.
Georgia Pacific LLC, Defendant, represented by Gayla M. Moncla --
gayla.moncla@keanmiller.com -- Kean Miller, Alexandra E. Rossi --
alexandra.rossi@keanmiller.com -- Kean Miller, Allison N. Benoit --
allison.benoit@keanmiller.com -- Kean Miller, Barrye Panepinto
Miyagi -- barrye.miyagi@taylorporter.com -- Taylor, Porter, Brooks
& Phillips LLP, Gregory M. Anding -- greg.anding@keanmiller.com --
Kean Miller, Jay Morton Jalenak, Jr. -- jay.jalenak@keanmiller.com
-- Kean Miller, Robert E. Dille -- RDille@maronmarvel.com -- Maron
Marvel Bradley Anderson & Tardy LLC & Sarah W. Anderson --
sarah.anderson@keanmiller.com -- Kean Miller.
Goulds Pumps LLC, formerly known as Goulds Pumps, Incorporated &
Grinnell LLC, Defendants, represented by Lauren Ann McCulloch --
lauren.mcculloch@morganlewis.com -- Morgan, Lewis & Bockius.
Hajoca Corp, Defendant, represented by Kay Barnes Baxter , Cosmich
Simmons & Brown, PLLC, Ashley A. Edwards , Cosmich Simmons & Brown,
PLLC, Georgia Noble Ainsworth -- georgia@cs-law.com -- Cosmich
Simmons & Brown, PLLC, Jason K. Elam -- jason.elam@cs-law.com --
Cosmich Simmons & Brown, PLLC, Margaret Adams Casey , Cosmich
Simmons & Brown, PLLC & Martin James Dempsey, Jr. --
jimmy@cs-law.com -- Cosmich Simmons & Brown, PLLC.
Taylor-Seidenbach, Inc., Defendant, represented by Christopher
Kelly Lightfoot -- klightfoot@hmhlp.com -- Hailey, McNamara, Hall,
Larmann & Papale, Edward J. Lassus, Jr. , Hailey, McNamara, Hall,
Larmann & Papale & Richard J. Garvey, Jr. -- rgarvey@hmhlp.com --
Hailey, McNamara, Hall, Larmann & Papale.
Union Carbide Corporation, Defendant, represented by McGready Lewis
Richeson -- mricheson@pugh-law.com -- Pugh, Accardo, Haas, Radecker
& Carey, Francis Xavier deBlanc, III -- fdeblanc@pugh-law.com --
Pugh, Accardo, Haas, Radecker & Carey & Milele N. St. Julien --
mstjulien@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey.
Morton Salt, Inc., Defendant, represented by Scott C. Seiler --
scseiler@liskow.com -- Liskow & Lewis, Charles B. Wilmore --
cbwilmore@liskow.com -- Liskow & Lewis, Patrick B. Reagin , Liskow
& Lewis, Philip Dore -- pdore@liskow.com -- Liskow & Lewis &
Tiffany L. Delery Davis -- tdavis@liskow.com -- Liskow & Lewis.
Metropolitan Life Insurance Company, Defendant, represented by Jay
Morton Jalenak, Jr. -- jay.jalenak@keanmiller.com -- Kean Miller &
Patrick Dale Roquemore -- patrick.roquemore@keanmiller.com -- Kean
Miller.
Dow Chemical Company, individually and as Successor to Morton
International, Inc, Defendant, represented by David Mark Bienvenu,
Jr. -- David.Bienvenu@bblawla.com -- Bienvenu, Bonnecaze, Foco,
Viator & Holinga, APLLC, Anthony Joseph Lascaro --
anthony.lascaro@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator &
Holinga, APLLC, Colin Patrick O'Rourke -- colin.orourke@bblawla.com
-- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Percy
Tadie -- erin.tadie@bblawla.com -- Bienvenu, Bonnecaze, Foco,
Viator & Holinga, APLLC, John Allain Viator --
John.Viator@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator &
Holinga, APLLC, Katie Dampier Chabert , Bienvenu, Bonnecaze, Foco,
Viator & Holinga, APLLC & Lexi T. Holinga --
lexi.holinga@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator &
Holinga, APLLC.
Rohm and Haas Chemicals LLC, incorrectly sued as Rohm & Haas,
Individually and as Successor to Morton International, Inc.,
Defendant, represented by Tyson B. Shofstahl --
tyson.shofstahl@arlaw.com -- Adams & Reese, LLP.
ASBESTOS UPDATE: In Settlement Talks in Suit v. E-Source Holdings
-----------------------------------------------------------------
Vertex Energy, Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the fiscal quarter ended
June 30, 2018, that negotiations are in the early stages regarding
an asbestos-related lawsuit against the Company's subsidiary.
The Company states, "E-Source Holdings, LLC ("E-Source"), the
wholly-owned subsidiary of Vertex Operating, was named as a
defendant (along with Motiva Enterprises, LLC, ("Motiva")) in a
lawsuit filed in the Sixtieth (60th) Judicial District, Jefferson
County, Texas, on April 22, 2015. Pursuant to the lawsuit, Whole
Environmental, Inc. ("Whole"), made certain allegations against
E-Source and Motiva. The claims include Breach of Contract and
Quantum Meruit actions relating to asbestos abatement and
remediation operations performed for defendants at Motiva's
facility in Port Arthur, Jefferson County, Texas.
"The plaintiff alleges it is due monies earned. Defendants have
denied any amounts due to plaintiff. The suit seeks damages of
approximately US$864,000, along with pre-judgment and post-judgment
interest, the fair value of certain property alleged to be
converted by defendants and reimbursement of legal fees.
"E-Source has asserted a counterclaim against Whole for the filing
of a mechanic's lien in excess of any amount(s) actually due, as
well as a cross-claim against Motiva. Under the terms of
E-Source's contract with Motiva, Motiva was to pay all sums due to
any sub-contractors of E-Source.
"In management's opinion, any monies due to Whole, should be paid
by Motiva. E-Source seeks to recover the balance due under its
contract with Motiva of approximately US$1,000,000. The Company is
in the early stages of negotiations and hopes to reach a settlement
in the third quarter.
"As of the date of this filing, we do not expect a material loss to
impact the financial statements as a whole in connection with the
planned settlement."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Iyvysx
ASBESTOS UPDATE: IntriCon Corp. Still Faces Lawsuits at June 30
---------------------------------------------------------------
IntriCon Corporation continues to defend itself against asbestos
lawsuits related to its discontinued heat technologies segment,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
IntriCon Corp. states, "The Company is a defendant along with a
number of other parties in lawsuits alleging that plaintiffs have
or may have contracted asbestos-related diseases as a result of
exposure to asbestos products or equipment containing asbestos sold
by one or more named defendants. These lawsuits relate to the
discontinued heat technologies segment which was sold in March
2005. Due to the non-informative nature of the complaints, the
Company does not know whether any of the complaints state valid
claims against the Company.
"Certain insurance carriers have informed the Company that the
primary policies for the period August 1, 1970-1978 have been
exhausted and that the carriers will no longer provide defense and
insurance coverage under those policies. However, the Company has
other primary and excess insurance policies that the Company
believes afford coverage for later years.
"Some of these other primary insurers have accepted defense and
insurance coverage for these suits, and some of them have either
ignored the Company's tender of defense of these cases, or have
denied coverage, or have accepted the tenders but asserted a
reservation of rights and/or advised the Company that they need to
investigate further. Because settlement payments are applied to
all years a litigant was deemed to have been exposed to asbestos,
the Company believes that it will have funds available for defense
and insurance coverage under the non-exhausted primary and excess
insurance policies.
"However, unlike the older policies, the more recent policies have
deductible amounts for defense and settlements costs that the
Company will be required to pay; accordingly, the Company expects
that its litigation costs will increase in the future. Further,
many of the policies covering later years (approximately 1984 and
thereafter) have exclusions for any asbestos products or
operations, and thus do not provide insurance coverage for
asbestos-related lawsuits.
"The Company does not believe that the asserted exhaustion of some
of the primary insurance coverage for the 1970-1978 period will
have a material adverse effect on its financial condition,
liquidity, or results of operations. Management believes that the
number of insurance carriers involved in the defense of the suits,
and the significant number of policy years and policy limits under
which these insurance carriers are insuring the Company, make the
ultimate disposition of these lawsuits not material to the
Company's consolidated financial position or results of
operations."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2zMh5GE
ASBESTOS UPDATE: Jack's Claim vs. Viad Dismissed Without Prejudice
------------------------------------------------------------------
The Hon. James L. Robart of the United States District Court for
the Western District of Washington, upon consideration of the
Stipulation of the Parties, has dismissed Plaintiffs' action
against Defendant, Viad Corp in the case styled Leslie Jack,
individually and as Personal Representative of Patrick Jack; David
Jack, individually, Plaintiffs, v. Asbestos Corporation Ltd., et
al., Defendants, No. 2:17-cv-00537-JLR, (W.D. Wash.), without
prejudice.
A copy of the Order dated September 18, 2018, is available at
https://tinyurl.com/yab5tyv4 from Leagle.com.
Leslie Jack, individually and as Personal Representative of Patrick
Jack & David Jack, individually, Plaintiffs, represented by
Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP,
pro hac vice, Charles W. Branham, III , Dean Omar & Branham, LLP,
pro hac vice, Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lisa W. Shirley -- lshirley@dobllp.com -- Dean
Omar Branham, LLP, pro hac vice, Lucas W.H. Garrett --
houser@sgb-law.com -- Schroeter Goldmark & Bender, William Joel
Rutzick , Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & Thomas J.
Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender.
Borg-Warner Morse Tec LLC, sued individually and as
successor-in-interest to Borg-Warner Corporation, Defendant,
represented by Gary D. Elliston -- gelliston@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Michael J. Madderra --
mmadderra@bbllaw.com -- Bennett Bigelow & Leedom & Richard D. Ross
, Bennett Bigelow & Leedom.
Ford Motor Company, Defendant, represented by Harry S. Johnson --
hjohnson@wtplaw.com -- Whiteford Taylor Preston LLP, pro hac vice,
Daniel K. Reising -- dan@frllp.com -- Fucile & Reising & Mark J.
Fucile -- mark@frllp.com -- Fucile & Reising.
Honeywell International Inc, sued as successor-in-interest to
Bendix Corporation, Defendant, represented by Joseph S. Pevsner --
Joseph.Pevsner@tklaw.com -- Thompson & Knight LLP, pro hac vice,
Kristine E. Kruger -- KKruger@perkinscoie.com -- Perkins Coie &
Mary P. Gaston -- MGaston@perkinscoie.com -- Perkins Coie.
Union Pacific Railroad Company, Defendant, represented by Robert H.
Berkes -- rberkes@bcrslaw.com -- Berkes Crane Robinson & Seal, pro
hac vice, Ryan T. Moore , Berkes Crane Robinson & Seal, pro hac
vice, Viiu Spangler Khare -- vspanglerkhare@bcrslaw.com -- Berkes
Crane Robinson & Seal, pro hac vice, Andrew Gordon Yates --
yatesa@lanepowell.com -- Lane Powell PC, Brian D. Zeringer --
zeringerb@lanepowell.com -- Lane Powell PC, Jeffrey M. Odom --
odomj@lanepowell.com -- Lane Powell PC & Tim D. Wackerbarth --
wackerbartht@lanepowell.com -- Lane Powell PC.
Dana Companies, LLC, sued as successor in interest to Victor Gasket
Manufacturing Company, Defendant, represented by Mahsa Kashani
Tippins -- mktippins@dehay.com -- Dehay & Elliston LLP, pro hac
vice, R. Thomas Radcliffe -- tradcliffe@dehay.com -- Dehay &
Elliston LLP, pro hac vice, Diane J. Kero -- dkero@gth-law.com --
Gordon Thomas Honeywell & Michael Edward Ricketts --
mricketts@gth-law.com -- Gordon Thomas Honeywell.
ASBESTOS UPDATE: JP Bushnell Sued for Failure to Warn
-----------------------------------------------------
St. Louis Record reported that a man formerly employed at locations
in California and Iowa alleges exposure to asbestos caused him to
develop lung cancer.
Charles Winters filed a complaint on Oct. 2 in the St. Louis 22nd
Judicial Circuit Court against J P Bushnell Packing Supply Co.,
Metropolitan Life Insurance Co. and Welco Manufacturing Co.
alleging products liability.
According to the complaint, the plaintiff alleges that during his
employment and military career beginning in 1962, he experienced
occupational and bystander exposure to asbestos-containing products
emanating from certain products manufactured, sold, distributed or
installed by defendants. The suit states that on or about May 1, he
first became aware that he developed lung cancer, an
asbestos-induced disease, and later learned that the disease was
wrongfully caused.
The plaintiff holds J P Bushnell Packing Supply Co., Metropolitan
Life Insurance Co. and Welco Manufacturing Co. responsible because
the defendant 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 all damages of more than $25,000 and any
further relief as the court may deem just and proper. He is
represented by Wilson D. Sikes of Napoli Shkolnik PLLC in
Edwardsville.
St. Louis 22nd Judicial Circuit Court case number 1822-CC11348
ASBESTOS UPDATE: Kaanapali Insurance Discussions Ongoing at June 30
-------------------------------------------------------------------
Kaanapali Land, LLC disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018, that discussions are ongoing with Fireman's Fund
Insurance Corporation related to insurance coverage on the asbestos
lawsuits that the Company is facing.
The Company states, "On February 12, 2014, counsel for Fireman's
Fund, the carrier that has been paying defense costs and
settlements for the Kaanapali Land asbestos cases, stated that it
would no longer advance fund settlements or judgments in the
Kaanapali Land asbestos cases due to the pendency of the D/C and
Oahu Sugar bankruptcies.
"In its communications with Kaanapali Land, Fireman's fund
expressed its view that the automatic stay in effect in the D/C
bankruptcy case bars Fireman's Fund from making any payments to
resolve the Kaanapali Land asbestos claims because D/C Distribution
is also alleging a right to coverage under those policies for
asbestos claims against it. However, in the interim, Fireman's
Fund advised that it presently intends to continue to pay defense
costs for those cases, subject to whatever reservations of rights
may be in effect and subject further to the policy terms.
"Fireman's Fund has also indicated that to the extent that
Kaanapali Land cooperates with Fireman's Fund in addressing
settlement of the Kaanapali Land asbestos cases through
coordination with its adjusters, it is Fireman's Fund's present
intention to reimburse any such payments by Kaanapali Land,
subject, among other things, to the terms of any lift-stay order,
the limits and other terms and conditions of the policies, and
prior approval of the settlements.
"Kaanapali Land continues to pursue discussions with Fireman's Fund
in an attempt to resolve the issues, however, Kaanapali Land is
unable to determine what portion, if any, of settlements or
judgments in the Kaanapali Land asbestos cases will be covered by
insurance."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Izrg4v
ASBESTOS UPDATE: Kaanapali Land Still Faces Lawsuits at June 30
---------------------------------------------------------------
Kaanapali Land, LLC remains a defendant in personal injury suits
related to asbestos exposure, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
For the quarterly period ended June 30, 2018.
The Company states, "Kaanapali Land, as successor by merger to
other entities, and D/C have been named as defendants in personal
injury actions allegedly based on exposure to asbestos. While
there are relatively few cases that name Kaanapali Land, there were
a substantial number of cases that were pending against D/C on the
U.S. mainland (primarily in California).
"Cases against Kaanapali Land (hereafter, "Kaanapali Land asbestos
cases") are allegedly based on its prior business operations in
Hawaii and cases against D/C are allegedly based on sale of
asbestos-containing products by D/C's prior distribution business
operations primarily in California. Each entity defending these
cases believes that it has meritorious defenses against these
actions, but can give no assurances as to the ultimate outcome of
these cases. The defense of these cases has had a material adverse
effect on the financial condition of D/C as it has been forced to
file a voluntary petition for liquidation.
"Kaanapali Land does not believe that it has liability, directly or
indirectly, for D/C's obligations in those cases. Kaanapali Land
does not presently believe that the cases in which it is named will
result in any material liability to Kaanapali Land; however, there
can be no assurance in that regard."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Izrg4v
ASBESTOS UPDATE: Major Asbestos Dumper Fined
--------------------------------------------
Ben Langsford of St George and Sutherland Shire Leader reported
that a significant asbestos dumper in Helensburgh -- who has taken
more than 10 tonnes of contaminated material onto his property --
has been fined and ordered once again to clean it up, Environment
Protection Authority documents show.
The EPA issued a clean-up notice last September directing Craig
Williams to clean up asbestos contaminated material at his property
at 5 Baines Place, Helensburgh, after officers had investigated and
found large quantities of contaminated material.
He has now been slapped with another clean-up notice after failing
to comply with some of the directions for cleaning up the
property.
The agency said Mr Williams had arranged for asbestos contaminated
waste to be transported to his property -- more than 10 tonnes of
material.
The full extent of the environmental pollution at this property is
not yet known. The EPA has ordered Mr Williams to engage a suitably
qualified consultant to investigate the waste dumped there, and
propose a method for identifying what it is, and how it should be
removed.
In the recent notice, issued in August, he was given until
September 28 to remove certain stockpiles of asbestos contaminated
material, for disposal in a lawful waste facility.
On September 14 last year, EPA officers "saw a truck and dog enter
[and] parked in the north eastern corner of the premises," the
notice said.
EPA officers saw a truck and dog enter [and] saw waste stockpiled
and applied to land in the north east area of the premises.
"EPA officers saw waste stockpiled and applied to land in the north
east area of the premises. EPA officers collected a number of
samples of material . . . . later confirmed to contain asbestos."
Samples showed "high concentrations of metals" which would be
classified as restricted solid waste, to be cleaned up.
The EPA had issued Mr Williams $15,750 in penalties and fines,
including for not complying with the earlier notice.
"The EPA reasonably suspects that the application of waste to land
at the premises has caused or is likely to cause degradation of the
land resulting in potential harm to human health and environmental
health," the notice said.
ASBESTOS UPDATE: Metropolitan Life Had 1,754 New Claims in 1H 2018
------------------------------------------------------------------
Metropolitan Life Insurance Company disclosed in its Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2018, that it received
approximately 1,754 new asbestos-related claims during the six
months ended June 30, 2018.
The Company states, "Metropolitan Life Insurance Company 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.
Metropolitan Life Insurance Company has never engaged in the
business of manufacturing, producing, distributing or selling
asbestos or asbestos-containing products nor has Metropolitan Life
Insurance Company 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 Metropolitan Life Insurance Company's employees during the
period from the 1920's through approximately the 1950's and allege
that Metropolitan Life Insurance Company 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. Metropolitan Life Insurance Company 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 Metropolitan Life Insurance Company. Metropolitan
Life Insurance Company 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 Metropolitan Life Insurance Company have
included negligence, intentional tort and conspiracy concerning the
health risks associated with asbestos. Metropolitan Life Insurance
Company's defenses (beyond denial of certain factual allegations)
include that: (i) Metropolitan Life Insurance Company 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 Metropolitan Life
Insurance Company; (iii) Metropolitan Life Insurance Company'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 Metropolitan Life
Insurance Company, while other trial courts have denied
Metropolitan Life Insurance Company's motions. There can be no
assurance that Metropolitan Life Insurance Company will receive
favorable decisions on motions in the future. While most cases
brought to date have settled, Metropolitan Life Insurance Company
intends to continue to defend aggressively against claims based on
asbestos exposure, including defending claims at trials.
"As reported in the 2017 Annual Report, Metropolitan Life Insurance
Company received approximately 3,514 asbestos-related claims in
2017. During the six months ended June 30, 2018 and 2017,
Metropolitan Life Insurance Company received approximately 1,754
and 1,896 new asbestos-related claims, respectively.
"The number of asbestos cases that may be brought, the aggregate
amount of any liability that Metropolitan Life Insurance Company
may incur, and the total amount paid in settlements in any given
year are uncertain and may vary significantly from year to year."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2NXQkYF
ASBESTOS UPDATE: Mikelsen Claims vs. Air & Liquid Systems Dismissed
-------------------------------------------------------------------
The Hon. Robert S. Lasnik of the United States District Court for
the Western District of Washington, upon the Stipulation between
Plaintiffs and defendant Air & Liquid Systems Corporation, has
dismissed with prejudice all plaintiffs' right of action, claims,
and demands against Air & Liquid Systems in the case styled Alice
Mikelsen, Surviving Spouse, and Susan Page, as Personal
Representative for Arthur Melvin Mikelsen, Deceased, Plaintiffs, v.
Air & Liquid Systems Corporation, et al., Defendants, No.
2:17-cv-00700-RSL, (W.D. Wash.).
A copy of the Order dated October 2, 2018, is available at
https://tinyurl.com/yaex48z5 Leagle.com.
Alice Mikelsen, surviving spouse & Susan Page, as personal
representative for Arthur Melvin Mikelsen, deceased, Plaintiffs,
represented by Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb-law.com --
Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com
-- Schroeter Goldmark & Bender, Craig A. Sims -- csims@sgb-law.com
-- Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender, Kaitlin T.
Wright -- wright@sgb-law.com -- Schroeter Goldmark & Bender &
William Joel Rutzick , Schroeter Goldmark & Bender.
CBS Corporation, fka Viacom, Inc., successor by merger with CBS
Corporation fka Westinghouse Electric Corporation & Foster Wheeler
Energy Corporation, Defendants, represented by Christopher S. Marks
-- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser --
efraser@tktrial.com -- Tanenbaum Keale LLP.
Crane Co, Defendant, represented by G William Shaw --
bill.shaw@klgates.com -- K&L Gates LLP.
General Electric Company, Defendant, represented by Christopher S.
Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser
-- efraser@tktrial.com -- Tanenbaum Keale LLP & John Heller --
JHELLER@SIDLEY.COM -- Sidley Austin, pro hac vice.
Goulds Pumps (IPG), Inc., Defendant, represented by Ronald C.
Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc.
PLLC.
Metropolitan Life Insurance Company, Defendant, represented by
Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran
& Dickerson.
Warren Pumps LLC, sued individually and as successor-in-interest to
Quimby Pump Company, Defendant, represented by Allen Eraut --
aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC.
ASBESTOS UPDATE: Mikelsen Claims vs. Asbestos Corporation Dismissed
-------------------------------------------------------------------
The Hon. Robert S. Lasnik of the United States District Court for
the Western District of Washington, upon the Stipulation between
Plaintiffs and defendant Asbestos Corporation Limited, has
dismissed with prejudice all plaintiffs' right of action, claims,
and demands against Asbestos Corporation in the case styled Alice
Mikelsen, Surviving Spouse, and Susan Page, as Personal
Representative for Arthur Melvin Mikelsen, Deceased, Plaintiffs, v.
Air & Liquid Systems Corporation, et al., Defendants, No.
2:17-cv-00700-RSL, (W.D. Wash.).
A copy of the Order dated October 2, 2018, is available at
https://tinyurl.com/y7y2ej5b from Leagle.com.
Alice Mikelsen, surviving spouse & Susan Page, as personal
representative for Arthur Melvin Mikelsen, deceased, Plaintiffs,
represented by Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb-law.com --
Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com
-- Schroeter Goldmark & Bender, Craig A. Sims -- csims@sgb-law.com
-- Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender, Kaitlin T.
Wright -- wright@sgb-law.com -- Schroeter Goldmark & Bender &
William Joel Rutzick , Schroeter Goldmark & Bender.
CBS Corporation, fka Viacom, Inc., successor by merger with CBS
Corporation fka Westinghouse Electric Corporation & Foster Wheeler
Energy Corporation, Defendants, represented by Christopher S. Marks
-- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser --
efraser@tktrial.com -- Tanenbaum Keale LLP.
Crane Co, Defendant, represented by G William Shaw --
bill.shaw@klgates.com -- K&L Gates LLP.
General Electric Company, Defendant, represented by Christopher S.
Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser
-- efraser@tktrial.com -- Tanenbaum Keale LLP & John Heller --
JHELLER@SIDLEY.COM -- Sidley Austin, pro hac vice.
Goulds Pumps (IPG), Inc., Defendant, represented by Ronald C.
Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc.
PLLC.
Metropolitan Life Insurance Company, Defendant, represented by
Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran
& Dickerson.
Warren Pumps LLC, sued individually and as successor-in-interest to
Quimby Pump Company, Defendant, represented by Allen Eraut --
aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC.
ASBESTOS UPDATE: Mikelsen PI Claims vs. Ingersoll-Rand Dismissed
----------------------------------------------------------------
The Hon. Robert S. Lasnik of the United States District Court for
the Western District of Washington, pursuant to the Stipulation
between the Plaintiffs and defendant Ingersoll-Rand Company, has
dismissed with prejudice all the plaintiffs' right of action,
claims, and demands against Ingersoll-Rand in the case styled Alice
Mikelsen, Surviving Spouse, and Susan Page, as Personal
Representative for Arthur Melvin Mikelsen, Deceased, Plaintiffs, v.
Air & Liquid Systems Corporation, et al., Defendants, No.
2:17-cv-00700-RSL, (W.D. Wash.).
A copy of the Order dated October 2, 2018, is available at
https://tinyurl.com/ycxao2fs from Leagle.com.
Alice Mikelsen, surviving spouse & Susan Page, as personal
representative for Arthur Melvin Mikelsen, deceased, Plaintiffs,
represented by Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb-law.com --
Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com
-- Schroeter Goldmark & Bender, Craig A. Sims -- csims@sgb-law.com
-- Schroeter Goldmark & Bender, Elizabeth Jean McLafferty --
mclafferty@sgb-law.com -- Schroeter Goldmark & Bender, Kaitlin T.
Wright -- wright@sgb-law.com -- Schroeter Goldmark & Bender &
William Joel Rutzick , Schroeter Goldmark & Bender.
CBS Corporation, fka Viacom, Inc., successor by merger with CBS
Corporation fka Westinghouse Electric Corporation & Foster Wheeler
Energy Corporation, Defendants, represented by Christopher S. Marks
-- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser --
efraser@tktrial.com -- Tanenbaum Keale LLP.
Crane Co, Defendant, represented by G William Shaw --
bill.shaw@klgates.com -- K&L Gates LLP.
General Electric Company, Defendant, represented by Christopher S.
Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser
-- efraser@tktrial.com -- Tanenbaum Keale LLP & John Heller --
JHELLER@SIDLEY.COM -- Sidley Austin, pro hac vice.
Goulds Pumps (IPG), Inc., Defendant, represented by Ronald C.
Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc.
PLLC.
Metropolitan Life Insurance Company, Defendant, represented by
Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran
& Dickerson.
Warren Pumps LLC, sued individually and as successor-in-interest to
Quimby Pump Company, Defendant, represented by Allen Eraut --
aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC.
ASBESTOS UPDATE: Park Ridge Library to Close for Asbestos Abatement
-------------------------------------------------------------------
Chicago Tribune reported that the Park Ridge Public Library will be
closed for two days this week as it enters the final phase of a
seven-month interior remodeling project.
Floor tiles, similar to ones previously removed by an asbestos
abatement company elsewhere in the building, were found in a staff
area of the second floor and will be removed while the library is
closed to employees and patrons on Thursday and Friday, the library
announced.
"The licensed abatement company assured us we could remain open
during the abatement, but the [library] trustees felt that the
safety of the community and staff is paramount, and we are
comfortable being even more cautious than advised," Library
Executive Director Heidi Smith said of the decision to close the
building.
Air in the library will be monitored, and the work area will be
closed off from the rest of the building while the tiles are
removed, Smith said. According to information on the library's
website, the asbestos contained in the floor tile is "not airborne
and is not dangerous unless disturbed."
At this time, no additional full-day building closures are planned,
though the library may be closed for part of the day prior to
opening the new circulation desk, Smith said.
Work on the final phase of the interior renovations has begun,
resulting in the closure of the first floor, including the lobby
and circulation area. A new, temporary entrance is located on the
Touhy Avenue side of the building, sending visitors directly onto
the second floor, where materials will also be checked out.
The Children's Department, also on the first floor, will be closed
during the final phase as it is redesigned and new space for
technology and studying are added, the library said. However,
children's books and some other materials have been relocated to an
area on the second floor, Smith said.
"They are in orange, temporary crates in the adult areas," she
said. "But there are a few collections that we boxed up that will
be unavailable."
Much of the second floor is now sporting new carpeting, paint,
shelves, lighting, tables, chairs, furniture and a media center.
Work on the second floor began in early May.
"We've had a lot of comments about how bright it looks," Smith
said. "One of the comments I received the other day was that [the
building] looks bigger, more spacious. I think someone used the
word 'exquisite,' that it just looked exquisite. And that really
pleased us."
Some patrons also "really appreciated that we kept the original
wood work and didn't change it or try to enhance it," Smith said.
The renovation project, budgeted at $2.3 million, is expected to be
complete before Christmas, Smith said.
ASBESTOS UPDATE: Park-Ohio Holdings Faces 92 Cases at June 30
-------------------------------------------------------------
Park-Ohio Holdings Corp. continues to face approximately 92 cases
alleging personal injury as a result of exposure to asbestos,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
The Company states, "We were a co-defendant in approximately 92
cases asserting claims on behalf of approximately 199 plaintiffs
alleging personal injury as a result of exposure to asbestos.
These asbestos cases generally relate to production and sale of
asbestos-containing products and allege various theories of
liability, including negligence, gross negligence and strict
liability, and seek compensatory and, in some cases, punitive
damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
US$25,000 to US$75,000), or do not specify the monetary damages
sought. To the extent that any specific amount of damages is
sought, the amount applies to claims against all named defendants.
"There are four asbestos cases, involving 21 plaintiffs, that plead
specified damages against named defendants. In each of the four
cases, the plaintiff is seeking compensatory and punitive damages
based on a variety of potentially alternative causes of action. In
three cases, the plaintiff has alleged three counts at US$3.0
million compensatory and punitive damages each; one count at US$3.0
million compensatory and US$1 million punitive damages; one count
at US$1.0 million. In the fourth case, the plaintiff has alleged
compensatory and punitive damages, each in the amount of US$20.0
million, for three separate causes of action, and US$5.0 million
compensatory damages for the fifth cause of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-containing
product manufactured or sold by us or our subsidiaries. We intend
to vigorously defend these asbestos cases, and believe we will
continue to be successful in being dismissed from such cases.
However, it is not possible to predict the ultimate outcome of
asbestos-related lawsuits, claims and proceedings due to the
unpredictable nature of personal injury litigation. Despite this
uncertainty, and although our results of operations and cash flows
for a particular period could be adversely affected by
asbestos-related lawsuits, claims and proceedings, management
believes that the ultimate resolution of these matters will not
have a material adverse effect on our financial condition,
liquidity or results of operations. Among the factors management
considered in reaching this conclusion were: (a) our historical
success in being dismissed from these types of lawsuits on the
bases mentioned above; (b) many cases have been improperly filed
against one of our subsidiaries; (c) in many cases the plaintiffs
have been unable to establish any causal relationship to us or our
products or premises; (d) in many cases, the plaintiffs have been
unable to demonstrate that they have suffered any identifiable
injury or compensable loss at all or that any injuries that they
have incurred did in fact result from alleged exposure to asbestos;
and (e) the complaints assert claims against multiple defendants
and, in most cases, the damages alleged are not attributed to
individual defendants. Additionally, we do not believe that the
amounts claimed in any of the asbestos cases are meaningful
indicators of our potential exposure because the amounts claimed
typically bear no relation to the extent of the plaintiff's injury,
if any.
"Our cost of defending these lawsuits has not been material to date
and, based upon available information, our management does not
expect its future costs for asbestos-related lawsuits to have a
material adverse effect on our results of operations, liquidity or
financial position."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2xSJoCc
ASBESTOS UPDATE: Pfizer Still Faces Various Lawsuits at July 1
--------------------------------------------------------------
Pfizer Inc. still defends itself against a number of
asbestos-related lawsuits, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended July 1, 2018.
The Company states, "Numerous lawsuits are pending against Pfizer
in various federal and state courts seeking damages for alleged
personal injury from exposure to products allegedly containing
asbestos and other allegedly hazardous materials sold by Pfizer and
certain of its previously owned subsidiaries.
"There also are a small number of lawsuits pending in various
federal and state courts seeking damages for alleged exposure to
asbestos in facilities owned or formerly owned by Pfizer or its
subsidiaries."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2P6ICb5
ASBESTOS UPDATE: Plumbing Co. Sues Over Asbestos Coverage
---------------------------------------------------------
Matthew Santoni of Law360 reported that a plumbing manufacturing
company formerly based in Erie asked a Pennsylvania federal court
to make Allstate Insurance cover the company’s asbestos-related
settlements and defense costs, including claims about exposures to
asbestos.
ASBESTOS UPDATE: Summary Judgment Favoring Abex Reversed on Appeal
------------------------------------------------------------------
Plaintiffs, John and Deborah Jones, brought an action against
defendants, Pneumo Abex LLC and Owens-Illinois, Inc., among others,
to recover for harm that John allegedly suffered as a result of
asbestos exposure that occurred while John was employed in
construction. Plaintiffs' complaint alleged Abex was responsible
for John's injuries because it entered into a civil conspiracy with
Johns-Manville and other manufacturers of asbestos-containing
products to suppress information about the harmful health effects
of asbestos and to falsely assert asbestos exposure was safe. The
complaint further alleged that Owens-Illinois entered into the same
conspiracy with Owens-Corning Fiberglas Corporation
(Owens-Corning), a nonparty in this case.
In June 2015, Abex filed a motion for summary judgment, asking the
trial court to follow Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App
(4th) 100463, Menssen v. Pneumo Abex Corp., 2012 IL App (4th)
100904, and Gillenwater v. Honeywell International, Inc., 2013 IL
App (4th) 120929, all Fourth District cases that found there was
insufficient evidence to show Abex had agreed with other companies
to suppress or misrepresent the health hazards of asbestos. In
August 2015, Owens-Illinois filed a separate motion for summary
judgment, also arguing, in pertinent parts, that there was
insufficient evidence to support a finding of conspiracy. Relying
on these Fourth District civil conspiracy cases, the trial court
granted summary judgment in favor of defendants. This appeal
followed.
On appeal, plaintiffs argue that the trial court erred in granting
summary judgment because genuine issues of material fact exist as
to (1) whether defendants entered into a conspiratorial agreement
to suppress or misrepresent information about the health hazards of
asbestos and (2) whether defendants committed acts in furtherance
of such an agreement.
The Appellate Court of Illinois for the Fifth District reverses the
trial court's order granting summary judgment in favor of
defendants in the appealed case styled John Jones and Deborah
Jones, Plaintiffs-Appellants, v. Pneumo Abex LLC and
Owens-Illinois, Inc., Defendants-Appellees, No. 5-16-0239, (Ill.
App. Ct. 5th), and remands the case for further proceedings.
The two defendants in this appeal are (1) Abex, a manufacturer of
asbestos-containing brake linings, and (2) Owens-Illinois, a
manufacturer and distributor of Kaylo, an asbestos-containing
insulation, between 1948 and 1958. Plaintiffs' complaint against
defendants is based on civil conspiracy. Neither defendant employed
John, and plaintiffs' conspiracy claim against Abex does not allege
any asbestos exposure directly attributable to Abex. According to
plaintiffs' complaint, John contracted lung cancer from his
exposure to asbestos-containing insulation during his career in
construction, which began in 1969. The complaint asserted John
worked with Johns-Manville and Owens-Corning insulation during his
construction career.
The Court explains that summary judgment is appropriate only where
the pleadings, depositions, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law. A triable issue precluding summary judgment
exists where the material facts are disputed or where the material
facts are undisputed but reasonable persons might draw different
inferences from those facts.
The Court finds the record in this case is replete with genuine
issues of material fact from which a trier of fact could reasonably
conclude the existence and acts in furtherance of a civil
conspiracy. The Court refers to plaintiffs' evidence showing that
Abex allegedly entered into an agreement with Johns-Manville to
suppress or misrepresent information regarding the health hazards
of asbestos. Specifically, plaintiffs introduced evidence that Abex
signed a 1936 agreement to underwrite experiments with asbestos
dust to be performed by Dr. LeRoy Gardner (a former director of the
Saranac Laboratory for the Study of Tuberculosis).
Further evidence shows that after Abex received a copy of the 1948
report of Dr. Gardner's dusting experiments, which was published
two years after Dr. Gardner's death, Abex returned the report at
the request of Johns-Manville's general counsel, Vandiver Brown,
who wanted all references to cancers and tumors deleted from the
report. Brown felt it would be unwise to have any copies of the
draft report outstanding if the final report was to be different in
any substantial respect. Plaintiffs also produced evidence that
shows Abex asked Brown to act on its behalf at a conference in
which the sponsoring companies of Dr. Gardner's experiments agreed
to delete any reference to cancer and tumors from the final
published report.
Similarly, plaintiffs presented evidence that Owens-Illinois
allegedly entered into an agreement with Owens-Corning to suppress
information about the hazards of asbestos. Owens-Corning was formed
by Owens-Illinois and Corning Glass in 1938. Plaintiffs presented
evidence that Owens-Illinois began manufacturing and selling a
thermal insulation product named Kaylo in 1943, and Owens-Illinois
continued to sell Kaylo after it received warning that it was
potentially a respiratory hazard. One such warning was from Dr.
Arthur Vorwald -- a former director at Saranac Laboratory from 1948
through 1951 -- who wrote to Owens-Illinois in 1952 that studies
showed "Kaylo dust is capable of producing a peribronchiolar
fibrosis typical of asbestosis."
Moreover, the Court finds Plaintiffs' evidence indicates
Owens-Illinois and Owens-Corning entered into a distributorship
agreement in 1953. Under the agreement, Owens-Illinois continued to
manufacture Kaylo and Owens-Corning distributed it. This agreement
lasted until 1958 when Owens-Illinois sold its Kaylo division to
Owens-Corning. Plaintiffs presented evidence that during this
agreement, the two companies did not place any warning on Kaylo
packaging. Rather, plaintiffs' evidence shows the companies
advertised Kaylo as "non-toxic" despite knowing the advertisement
was false.
Plaintiffs' evidence further indicates the two companies remained
close after Owens-Illinois sold its Kaylo division to Owens-Corning
in 1958. Owens-Illinois continued to provide warning-free packaging
for Kaylo until the late 1960s, and Owens-Illinois maintained a
major investment in Owens-Corning into the 1970s. Plaintiffs
produced evidence that Owens-Illinois owned over 750,000 shares of
Owens-Corning stock as late as 1978. Plaintiffs' evidence also
indicates that the profits and earnings of Owens-Corning were a
recurrent topic of conversation at Owens-Illinois directors
meetings from the 1940s through the 1970s.
The Court explains that since this case, is at the summary judgment
stage, not the judgment notwithstanding the verdict (n.o.v.), stage
as in the Fourth District cases, Plaintiffs were not required to
prove a conspiracy by clear and convincing evidence in order to
survive a motion for summary judgment. Rather, plaintiffs were
merely required to present sufficient facts, when viewed in the
light most favorable to plaintiffs, from which a trier of fact
could find the existence of a conspiracy by clear and convincing
evidence.
At this stage of the litigation, the Court determines that there
are genuine factual issues from which a trier of fact may conclude
by a clear and convincing standard the elements of civil
conspiracy. These questions should have been considered by the
trier of fact. In sum, there are no definitive answers to the
disputed questions of fact presented by plaintiffs at this point in
the litigation, thereby precluding summary judgment. The Court
reiterates the purpose of summary judgment is to determine whether
a genuine issue of material fact exists, not to try a question of
fact.
Consequently, the trial court erred in granting summary judgment in
favor of defendants and against plaintiffs.
A copy of the Opinion dated August 10, 2018, is available at
https://tinyurl.com/y8tty5kv from Leagle.com.
James R. Wylder , Charles L. Corwin , Stephen F. Wood , Wylder,
Corwin, Kelly, LLP, 207 E. Washington, Suite 102, Bloomington, IL
61701, Attorneys for Appellants.
Robert H. Riley -- rriley@rshc-law.com -- Matthew V. Chimienti ,
Matthew J. Fischer -- mfischer@rshc-law.com -- Alissa B. Kelso --
akelso@rshc-law.com -- Riley, Safer, Holmes & Cancila, LLP, Three
First National Plaza, 70 W. Madison Street, Suite 2900, Chicago, IL
60602 (attorneys for Owens-Illinois, Inc.); Raymond H. Modesitt --
rhmodesitt@wilkinsonlaw.com -- Wilkinson, Goeller, Modesitt,
Wilkinson & Drummy, 333 Ohio Street, Terre Haute, IN 47807; Robert
W. Scott, Jr. -- bobscott@peorialaw.com -- Swain, Hartshorn &
Scott, 411 Hamilton Blvd., Suite 1812, Peoria, IL 61602-1104;
Reagan W. Simpson -- rsimpson@yettercoleman.com -- Yetter, Coleman,
LLP, 909 Fannin, Suite 3600, Houston, TX 77010; Craig L. Unrath --
cunrath@heylroyster.com -- Heyl, Royster, Voelker & Allen, 300
Hamilton Blvd., P.O. Box 6199, Peoria, IL 61601-6199 (attorneys for
Pneumo Abex LLC), Attorneys for Appellees.
ASBESTOS UPDATE: Tadley Man Dies of Mesothelioma
------------------------------------------------
Charlotte Booth of Newbury Weekly News Group reported that a Tadley
man died of a lung condition caused by working with asbestos in the
1970s, an inquest heard.
Roger Tarrant Case, 69, died in the Royal Berkshire Hospital of
mesothelioma on August 13, two-and-a-half years after he was given
five months to live.
His widow Heather Case, 71, told the coroner: "Having watched him
for two-and-a-half years after they had given him five months to
live was awful.
"That's one reason that I'm here today.
"If he hadn't been so bloody- minded and stubborn, he wouldn't have
lasted as long."
Senior coroner Heidi Conner said: "He must have been made of strong
stuff to last four times longer than he was given."
The inquest was held at Reading Coroners Court, September 17, and
the coroner ruled death was caused by industrial disease associated
with Mr Case's working life.
Mr Case worked for a construction company in Henley in the 1970s,
when he was a teenager.
"He wrote a report before he died describing his working
environment, which was read out at the inquest.
It stated: "Asbestos was pulled down and cut up as part of the
demolition process.
"I wasn't warned or provided with a mask. I would return home
covered in dust.
"I was working in close proximity. Asbestos was in a lot of our
materials in the building."
Asbestos is a natural fibre widely used in construction to insulate
and fireproof buildings.
It was banned in 1999.
Breathing in asbestos dust can cause mesothelioma, a form of lung
cancer that affects the cells that form a membrane around the
lungs.
It can take between 30 and 40 years to develop following contact
with asbestos and results in shortness of breath, coughing, chest
pains and a build-up of fluid in the lining of the lungs.
In 2016, Mr Case underwent surgery, when asbestos was discovered in
his lungs, leaving little doubt as to the cause of his illness.
Mrs Case said: "There are so many men who are coming on who are not
yet 60 years who are carrying it.
"It takes 30 to 40 years to come to light.
"When he was given five months to live he was not going to take
that.
"No-one that he went to the clinic with is still alive.
"He never complained about pain and he never said 'Why me?'
"His main objective in life was to hand out to others the care they
needed.
"During that time he managed to get three holidays in and he even
went to work two days before he died to sort his office out."
Mr and Mrs Case had filed a claim for damages which was successful,
but the process took the final two-and-a-half years of Mr Case's
life, even though asbestos was discovered following surgery in
2016.
Mrs Case said: "The general behaviour of solicitors is absolutely
disgusting.
"It was a successful claim in that blame was attributed, but having
said that, the way that it was handled was terrible."
The coroner ruled that Mr Case's death was an industrial disease
associated with his place of work.
ASBESTOS UPDATE: Tornado May Have Kicked Up Asbestos Risks
----------------------------------------------------------
Tom Spears of Ottawa Citizen reported that the tornado has lifted
the lid off an old hazard that usually sits quietly in older
buildings without bothering anyone: asbestos.
The fibrous mineral was once a common ingredient in building
materials, used for heat resistance, for strength and as
insulation.
The use of asbestos in building materials fell off quickly in the
late 1900s as hazards became known. Tiny asbestos fibres can embed
themselves in the lungs and cause a form of cancer called
mesothelioma.
Now, with walls and ceilings torn apart by the fierce winds that
whipped this region, the potential for asbestos risk has
reappeared.
Gatineau's public housing office has had damage to two low-rise
buildings in the Mont-Blue area, with 12 apartments. It's unknown
whether they contain asbestos, but they were built before 1980 at a
time when asbestos may have been used in the walls or ceilings.
Karina Osiecka, a spokeswoman for the Office de l'habitation de
l'Outaouais, said early indications are that the risk to cleanup
workers is "almost non-existent," but they will follow the formal
asbestos-handling procedures just in case. "We're not taking
chances."
Provincial labour ministries regulate the removal of
asbestos-containing materials, such as plaster, acoustic ceiling
tiles, vinyl sheet flooring and insulation around pipes.
"It's nothing to fool around with," but at the same time, it is a
manageable renovation problem, said Gary Sharp, director of
renovator services with the Canadian Home Builders' Association.
"If the asbestos is contained -- if it's in a building material
(such as) exterior siding or shingles or floor tiles" then it stays
relatively safe, Sharp said. "It's when the asbestos is loose and
floating around in the air" that it becomes dangerous, "for
instance if it's in floor tile and somebody took a sander to it."
The association is preparing a renovators' manual and one chapter
deals with risks such as mould and asbestos.
Asbestos was once very common in buildings, he said. "We estimated
that at one time or another asbestos was used in up to 3,000
different building products.
"It could be used in pipe insulation, insulation around wood
stoves, in apartment buildings as sheet material . . . . under the
flooring as a fire retardant between units, drywall compound,
electrical wire insulation, pipe insulation (and) gaskets on
furnaces."
Although there are different types of repair projects with
different asbestos-control requirements, these are some of the
common measures required in Ontario:
* Visible dust must be removed by damp-wiping followed by
high-efficiency vacuuming;
* Drop sheets must not be re-used. They are sealed in dust-proof
containers after use for disposal;
* A wetting agent must be used to stop the spread of dust;
* Workers must wear respirator masks and protective clothing.
There are decontamination procedures for the clothing;
* Workers must not eat, drink, smoke or chew gum in the work
area, because these activities would make them remove their masks;
* Compressed air must not be used to blow away dust;
* There must be a place to wash faces and hands, and workers
must wash when they leave the site; and
* Some work sites also require warning signs and physical
barriers to keep people from wandering in.
ASBESTOS UPDATE: Weirick Talc Case Unable to Reach Verdict
----------------------------------------------------------
KJ McElrath of The Ring of Fire Network reported that after nearly
a week of deliberations, the jury in the most recent talcum powder
case to go to trial was unable to reach a verdict -- meaning that
plaintiff Carol Weirick and defendant Johnson & Johnson (JNJ) will
be heading back to court for Round 2.
Lawyers for Weirick, who suffers from a rare and deadly form of
cancer known as mesothelioma, asked for $29.2 million in damages.
Mesothelioma, a cancer of the visceral lining, is painful,
invariably fatal and has only one known cause: asbestos exposure.
JNJ claims that its products, Baby Powder and Shower to Shower,
have never contained asbestos.
Meanwhile, JNJ's co-defendant and talc supplier decided not to risk
a judgment in the plaintiff's favor. Imrys Talc America settled
its portion of the liability for an undisclosed amount before its
attorneys were scheduled to give their closing arguments.
Recently, the Paris, France-based mining company settled with 22
plaintiffs for a reported amount of $5 million before their case
went to trial last summer. That trial ended in a judgment for over
$4.5 billion against JNJ.
In a media statement, JNJ attorney Christopher Vejnoska said "The
jury still found that the plaintiffs couldn't carry their burden of
proof on the very fundamental question of whether Johnson & Johnson
had acted negligently, which I think fits with the fact that people
have been using Johnson & Johnson baby powder for over a century
with no problem."
Weirick's lawyers so far have not commented on the case. However,
when they had a sample of Baby Powder from the plaintiff's home
subject to testing, it was found to contain asbestos fibers.
During opening arguments, plaintiff's counsel Jay Stuemke offered a
bottle of Baby Powder into evidence that had undergone testing and
was found to contain approximately 6 million asbestos fibers. He
also cited hundreds of other studies that have found asbestos in
the product, noting that JNJ's own studies were inadequate. In his
opening argument, Stuemke commented on JNJ's own studies: "They're
using a bathroom scale to test for needles, and then they're
telling you there's no needles because it doesn't show up on the
scale."
In response, Vejnoska argued that asbestos was not necessarily the
cause of Ms. Weirick's disease -- although medical science has
determined that asbestos exposure is the sole cause of
mesothelioma. Last year, evidence came to light indicating that
JNJ has long been aware of the presence of asbestos fibers in the
talc used to manufacture its products. So far, the defendant has
lost four out of five cases -- and there are 10,000 more plaintiffs
waiting to be heard.
ASBESTOS UPDATE: Woman Dies of Asbestos Cancer After 50 Years
-------------------------------------------------------------
Adam Smith of Metro reported that an 83-year-old woman who died
from asbestos-related cancer could have developed the disease when
washing her first husband's work overalls fifty years ago, lawyers
claim. Joan Morris died, aged 83, just four months after she was
diagnosed with mesothelioma, a cancer of the lining of the lung
associated with exposure to asbestos. Following her death last
year, Joan's family instructed lawyers at Irwin Mitchell to
investigate how she developed the illness.
Joan Morris died last year from mesothelioma The firm believes Joan
may have been exposed to asbestos while washing the work clothes of
her late first husband Donald Merrells, who worked as a tally clerk
at Tilbury Docks in the late 1960s and early 1970s. Joan's family
are now appealing for anyone who may have information regarding
working conditions at the docks to come forward and help the family
gain vital answers. 'We are terrified for the future' say young
people as Brexit crunch talks fail again Alexia Kapranos, who is
representing the family, said: 'While many of the cases we are
involved in are related to those who have been directly exposed to
asbestos during their working lives, instances when family members
have had "secondary" exposure are sadly not uncommon.
From our initial investigations we believe that there is a
possibility that Joan's illness may have been caused by contact
with her first husband's work clothes, so would be keen to hear
from anyone who could shed light on whether his role at Tilbury
Docks could have caused asbestos exposure. 'We would be hugely
grateful to anyone who can help, as any information could prove key
to getting this family justice.' Donald, who was also a councillor
for Thurrock Council in the 1960s and 1970s, worked at Tilbury
Docks for the National Dock Labour Board. His role would see him
count the various products which came onto the site. It is thought
these would have included asbestos powder stored in hessian bags,
and asbestos sheeting. During this time Joan lived at two addreses
in Tilbury and Benfleet. She was married to Donald up until 1975
and also worked as a barmaid at the Tarpots pub in Benfleet in the
1970s.
Joan had two daughters with Donald -- Louise Merrells and Tracie
Sharkey -- before the couple separated. She married William Morris
in May 1981 and the couple lived in Basildon. Prince Harry and
Meghan land in Sydney at start of 16-day Australia and South
Pacific tour Joan started complaining of symptoms in June 2016 and
tests revealed the mesothelioma. She was diagnosed in November and
died in March last year. William, 79, who Joan was married to at
the time of her death, said: 'It was incredibly difficult losing
Joan and two years on we are still trying to come to terms with the
fact that she is not around anymore. 'We understand that it was
unlikely that she personally worked in environments where asbestos
was present, so we are now keen for information regarding whether
her exposure was caused by washing Donald's clothing.'
He added: 'We would be so grateful to anyone who might be able to
shine a spotlight on this issue and help us push forward with our
efforts to get justice regarding Joan’s death.' In June, the
funeral of another woman, mother-of-two Vivienne Swain, was held.
She too died of mesothelioma years after washing her husband’s
work overalls. The incurable cancer killed 2,595 in Britain in
2016, according to the Health and Safety Executive -- 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. Annual
asbestos-related deaths are expected to remain around current
levels for the rest of the decade before beginning to decline.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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