Daniel B. Lowe v. Veris Gold USA, Inc. and Jerritt Canyon Gold, LLC and Matthew A. Varady v. Veris Gold USA, Inc. and Jerritt Canyon Gold, LLC (ALJ decision, March 27, 2017)

Plain-English summary

Daniel Lowe and Matthew Varady had established discrimination claims against Veris Gold in an earlier ruling. The judge also held that bankruptcy sale orders barred their claims against Jerritt Canyon Gold and other proposed successor entities. Lowe and Varady were offered the option to seek personal-relief payment orders against Veris Gold. They declined because Veris had no remaining assets and they considered payment claims futile. Judge David P. Simonton therefore dismissed both discrimination cases while preserving their right to seek Commission review of the earlier successor-liability decision.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: Both discrimination proceedings were dismissed after the claimants declined payment orders against the assetless employer.
• Key point: A proven discrimination claim can end without a payment order when bankruptcy leaves the liable employer without assets and successor claims are barred.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

March 27, 2017

DANIEL B. LOWE,

Complainant,

v.

VERIS GOLD USA, INC., and JERRITT CANYON GOLD, LLC,

Respondents.

MATTHEW A. VARADY,

Complainant,

v.

VERIS GOLD USA, INC., and
JERRITT CANYON GOLD, LLC,

Respondents.

DISCRIMINATION PROCEEDINGS

Docket No. WEST 2014-614-DM

WE-MD 14-04

Docket No. WEST 2014-307-DM

WE-MD 14-03

Mine: Jerritt Canyon Mill

Mine ID: 26-01621

ORDER
OF DISMISSAL

These
cases are before me upon complaints of discrimination under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) by Daniel Lowe and Matthew Varady (“Complainants”) against Veris Gold USA, Inc. (“Veris”) and Jerritt Canyon Gold LLC (“JCG”).

On
March 20, 2017, this court issued an Order granting JCG’s Motion to Dismiss and Denying the Complainants’ motion to add additional parties as successors in interest to Veris Gold.  The court found that while the Complainants established their discrimination claims against Veris Gold, the Bankruptcy Court’s Sale Order and Enforcement Order barred their claims against JCG and other entities as successors in interest to the sale of Veris’s assets.  The Order instructed the Complainants that should they choose to do so, they may obtain an order of payment against Veris Gold by resubmitting claims for personal relief.  If the Complainants elected not to so, they were to inform the court, and the Court would immediately issue an Order of Dismissal.

On
March 21, 2017, the Complainants notified the Court via email that they “d[id] not seek to make claims against Veris Gold USA, Inc., at this time because to do so would be futile as there are no assets left to make claims against due to the sale of Veris Gold USA, Inc. in accordance with the Bankruptcy Order.”

Accordingly,
IT IS ORDERED that these cases be DISMISSED .  The Complainants have 30 days from the date of this Order to appeal the March 20, 2017 decision to the Commission for discretionary review.

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution:  (U.S. First Class Mail)

Cathy L. Reece, Fennemore
Craig, P.C., 239 East Camelback Rd., Suite 600, Phoenix, AZ 85016

Mark Kaster, Dorsey &
Whitney, 1500 South 6 th Street, Minneapolis, MN 55402

Annette Jarvis, Dorsey &
Whitney, 136 South Main Street, Suite 1000, Salt Lake City, UT 54101

Eric Sprott, 200 Bay Street
Suite 2700, P.O. Box 27, Toronto, Ontario, Canada M5J 2J1

Matthew A. Varady, 701 South
5 th Street, #6, Elko, NV 89801

Daniel Lowe, P.O. Box 2608, Elko,
NV 89803

Shaun Heinrichs, Veris Gold,
688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, Canada

Tevia Jeffries, Dentons
Canada LLP, 250 Howe Street, 20 th Fl., Vancouver, BC V6C 3R8, Canada

Brad J. Mantel, Office of
the Solicitor, U.S. Department of Labor, 201 12 th Street South, Suite 401, Arlington, VA 22202

Benjamin R. Botts, Office of
the Solicitor, U.S. Department of Labor, 90 7 th Street, Suite 3-700, San Francisco, CA 94103

W. Christian Schumann, Office
of the Solicitor, U.S. Department of Labor, 201 12 th Street South, Suite 401, Arlington, VA 22202