/raid1/www/Hosts/bankrupt/CAR_Public/080125.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 25, 2008, Vol. 10, No. 18
Headlines
AK STEEL: Feb. 12 Hearing Set for $663M Settlement in Ohio Suit
ALLIED MORTGAGE: Mo. Court Reverses Class Certification Ruling
COFFEYVILLE GROUP: Kan. Court Dismisses Oil Spill Lawsuit
C&O MOTORS: Faces Suit in W. Va. Over Destruction of Evidence
DANNON CO: Faces False Advertising Suit Over “Probiotic” Yogurt
DEERE & CO: Recalls Utility Tractors Due to Collision Hazard
DISCOUNT SCHOOL: Recalls Play Mats on Paint's High Lead Level
GEORGIA: Dougherty County Property Owners Sue Over Revaluation
ILLINOIS: Engineers' Union Accused of Privacy Rights Violations
ILLINOIS: Court to Hear Oral Arguments in Atheist Student's Suit
INTEL CORP: Faces Antitrust Lawsuit Over Windows, Linux OS
LIBERTY NATIONAL: Accused of Discriminating Against Haitian
MISSOURI: Eight Circuit Affirms Ruling in Inmate's Abortion Case
NEW YORK: Faces Suit Over Home Energy Assistant Program Benefits
NEW YORK: City of Buffalo, Mayor Face Lawsuit Over Pay Raise
NEW YORK: Couple Sues Department, Chancellor Over Racial Quotas
PENNSYLVANIA: Dauphin County Seeks Nixing of Strip Search Suit
RC2 CORP: $30M T&F Suit Settlement Inadequate, Lawyers Claim
SEARS ROEBUCK: Faces Customer Privacy Litigation in Illinois
SHIMS BARGAIN: Recalls “BabyTown” Pacifiers Due to Choking Risk
STUBHUB INC: Faces Litigation in Oregon Over “Online Scalping”
UNITED STATES: Deportees' Suit v. ICE to Continue, Despite Memo
Asbestos Alerts
ASBESTOS LITIGATION: ONCONASE in Phase III for Cancer Treatment
ASBESTOS LITIGATION: PPG Ind. Settlement Totals $593M at Dec. 31
ASBESTOS LITIGATION: Everest Re Records $311M Charge at Dec. 31
ASBESTOS LITIGATION: Mediation on ASARCO Claims Set for Jan. 24
ASBESTOS LITIGATION: Asarco Inc. Urges Court to Appoint Examiner
ASBESTOS LITIGATION: U.K. Inquest Links Worker's Death to Hazard
ASBESTOS LITIGATION: Police Officer's Death Linked to Asbestos
ASBESTOS LITIGATION: Legal Statement Submitted for Probe in Del.
ASBESTOS LITIGATION: Ohio Ct. Issues Split Ruling in A-Best Case
ASBESTOS LITIGATION: Federal-Mogul Corp. Gets $125M from Trust
ASBESTOS LITIGATION: Remand Motion in Scott Case Pending in Pa.
ASBESTOS LITIGATION: Prison Inmates File Action v. State of Ohio
ASBESTOS LITIGATION: Congoleum Corp. Claimants File Amended Plan
ASBESTOS LITIGATION: Protesters to Head to London on Jan. 29
ASBESTOS LITIGATION: U.K. Plumber's Widow Gets GBP100,000 Payout
ASBESTOS LITIGATION: Council to Probe Hazard on Railroad Tracks
ASBESTOS LITIGATION: Asbestos Discovered at Burned Down Va. Site
ASBESTOS LITIGATION: Two Die From Exposure in Cape Former Mines
ASBESTOS LITIGATION: Arkansas Town Council OKs Money for Cleanup
ASBESTOS LITIGATION: Mass. School Deals with Asbestos Abatement
ASBESTOS LITIGATION: Fireman's Fund Partial Summary Judgment OKd
ASBESTOS LITIGATION: Delaware Court Favors ICI in Riedel Action
ASBESTOS LITIGATION: Plaintiffs Favored in A-C Product Lawsuits
ASBESTOS LITIGATION: Court Upholds Arbitration Denial in Crowley
ASBESTOS LITIGATION: Court Issues Split Ruling in Ericsson Case
ASBESTOS LITIGATION: Court Partially OKs Ruling in Bolick Action
ASBESTOS LITIGATION: Summary Judgment Upheld in Van Fossen Case
ASBESTOS LITIGATION: Court Junks McCord Motion in Wilkerson Case
ASBESTOS LITIGATION: Ky. Court Upholds Ruling in Favor of DuPont
ASBESTOS LITIGATION: Ill. Board Conducts Probe Before Demolition
ASBESTOS LITIGATION: Factory Worker's Death Linked to Asbestos
ASBESTOS LITIGATION: Tests Continue for Marine Atlantic Workers
ASBESTOS LITIGATION: Botched Criminal Raid Triggers Hazard Scare
ASBESTOS LITIGATION: Panel Conducts Talks on Out-of-State Trials
ASBESTOS LITIGATION: Asbestos Discovered in 124 Scotland Schools
ASBESTOS LITIGATION: Florida County Assumes 70% of Entek's Claim
ASBESTOS LITIGATION: Minn. Local Sues 10 Companies in Ill. Court
ASBESTOS LITIGATION: DoD to Prioritize Mesothelioma in Research
ASBESTOS LITIGATION: NICE Dismisses Appeal on Mesothelioma Drug
ASBESTOS LITIGATION: McDermott Ind. Staff Evacuated from Barge
ASBESTOS LITIGATION: Ore. DEP Issues $23T Penalty to Seven Lakes
ASBESTOS LITIGATION: 200 Workers to File Asbestos Suit v. Gov't.
New Securities Fraud Cases
LEAP WIRELESS: Lockridge Grindal Files Securities Fraud Suit
NATIONAL CITY: Coughlin Stoia Files Securities Suit in Ohio
*********
AK STEEL: Feb. 12 Hearing Set for $663M Settlement in Ohio Suit
---------------------------------------------------------------
The U.S. District Court for the Southern District of Ohio will
hold a fairness hearing on Feb. 12, 2008 for a proposed $663
million settlement in the matter, "Bailey et al. v. AK Steel
Corp., Case No. 1:06-cv- 00468-MRB."
Case Background
On June 1, 2006, AK Steel notified approximately 4,600 of its
current retirees (or their surviving spouses) who formerly were
hourly and salaried members of the Armco Employees Independent
Federation (AEIF) that AK Steel was terminating their existing
healthcare insurance benefits plan and implementing a new plan
more consistent with current steel industry practices which
would require the retirees to contribute to the cost of their
healthcare benefits, effective October 1, 2006.
On July 18, 2006, a group of nine former hourly and salaried
members of the AEIF filed a purported class action (the “Retiree
Action”) in the United States District Court for the Southern
District of Ohio, Case No. 1-06CV0468, alleging that AK Steel
did not have a right to make changes to their healthcare
benefits. The named plaintiffs in the Retiree Action seek
injunctive relief (including an order retroactively rescinding
the changes) and unspecified monetary relief for themselves and
the other members of the putative class.
On August 4, 2006, the plaintiffs in the Retiree Action filed a
motion for a preliminary injunction seeking to prevent AK Steel
from implementing the previously announced changes to healthcare
benefits with respect to the AEIF-represented hourly employees.
AK Steel opposed that motion, but on September 22, 2006 the
trial court issued an order granting the motion. On that same
day, AK Steel filed a notice of appeal to the United States
Court of Appeals for the Sixth Circuit seeking a reversal of the
decision to grant the preliminary injunction.
While the appeal was pending, however, the Company announced on
October 8, 2007 that it had reached a tentative settlement of
the claims of the retirees in the Retiree Action.
Accordingly, on October 18, 2007, the pending appeal from the
preliminary injunction was dismissed at the request of the
parties.
The tentative settlement is subject to approval by the Court. In
connection with that settlement, on October 25, 2007, the
plaintiffs filed a renewed motion for class certification and on
October 26, 2007, AK Steel filed a response to that motion. On
October 25, 2007, the parties filed a joint motion asking the
Court to approve the settlement.
The number of Class Members has increased to approximately 5,000
since the original notification of the benefit changes was sent
on June 1, 2006. With dependents of the Class Members, the total
number of persons covered by the settlement is approximately
8,300.
A Feb. 12, 2008 fairness hearing has been set.
Settlement Terms
Under terms of the settlement, if approved, AK Steel will
transfer to a Voluntary Employees Beneficiary Association trust
(the VEBA) all post employment benefit obligations (the OPEB
Obligations) owed to the Class Members under the Company’s
applicable health and welfare plans. The VEBA will be utilized
to fund the future OPEB Obligations to the Class Members. AK
Steel will initially fund the VEBA with a contribution of $468
million in cash, with three subsequent annual cash contributions
of $65 million each, for a total of $663 million.
Under the terms of the settlement, AK Steel will have no further
liability for any OPEB Obligations to the Class Members.
If the Court does approve the settlement, AK Steel is obligated
to make the initial cash payment of $468 million to the VEBA
within two business days after entry of the judgment approving
the settlement. Claims for health and welfare benefits incurred
after the effective date of the settlement will be the
responsibility of the VEBA. After the effective date of the
settlement, Trustees of the VEBA will determine the scope of the
benefits to be provided to the Class Members.
A Judgment approving the settlement may be appealed to the
United States Court of Appeals for the Sixth Circuit. In the
event of such an appeal, the VEBA will continue to be
responsible for the OPEB Obligations to the Class Members
during the pendency of the appeal. If such an appeal is still
pending at the time the next payment is due from AK Steel to the
VEBA under the terms of the settlement, the funds which
otherwise would have been paid to the VEBA will be placed into
an escrow account to be invested by the Trustees of the VEBA.
If the Judgment is affirmed on appeal, the funds placed into the
escrow account, including interest or other earnings, will be
paid to the VEBA. If, however, the Judgment is reversed,
modified or vacated as a result of the appeal in such a way as
to place the responsibility on AK Steel for payment of all of
the OPEB Obligations to Class Members, then all of the monies
placed into the escrow account, including interest or other
earnings, will revert to AK Steel.
In addition, under those circumstances, the Company will be
immediately designated as the sole fiduciary controlling the
VEBA and all assets of the VEBA will be subject to, and payable
in connection with, any health or welfare plans maintained and
controlled by AK Steel for the benefit of any of its employees
or retirees, not just the Class Members. In the event of a
reversal, modification or vacation of the Judgment that results
in only part of the OPEB Obligations returning to the
responsibility of AK Steel, then AK Steel will be designated as
the sole fiduciary with respect to an appropriate pro-rata share
of the VEBA assets relative to the portion of the OPEB
Obligations for which AK Steel has resumed responsibility.
OPEB Liability
As of September 30, 2007, the Company’s total OPEB liability for
all of its retirees was approximately $2.1 billion. If and when
the Judgment approving the settlement is entered, the Company’s
total OPEB liability (prior to any funding of the VEBA) is
projected to be reduced to approximately $1.7 billion.
Once the settlement is final and no longer subject to appeal,
the Company’s only remaining liability with respect to the OPEB
Obligations to the Class Members will be to contribute whatever
portion of the $663 million due to the VEBA that has not yet
been paid. The Company will have no other liability or
responsibility with respect to OPEB Obligations to the Class
Members. After payment of the initial and subsequent annual
contributions due to the VEBA under the terms of the settlement,
the Company’s total OPEB liability will be further reduced by
the amount of each payment.
In total, it is expected that the $663 million settlement with
the Class Members ultimately will reduce the Company’s total
OPEB liability of $2.1 billion as of September 30, 2007 by
approximately $1.0 billion.
As noted above, if the Judgment is not affirmed on appeal, the
result will be that the Company resumes responsibility, in whole
or in part (depending upon the terms of the judicial decision
reversing, vacating or modifying the Judgment) for the OPEB
Obligations to some or all of the Class Members. Under such
circumstances, the Company’s total OPEB liability would increase
accordingly, but the Company cannot reliably project at this
time the amount of that increase because it is dependent upon
the specific terms of the judicial decision.
At that point, as to any such OPEB Obligations for which
the Company has resumed responsibility as a result of the
judicial decision, AK Steel may restart the retiree litigation
and seek to judicially enforce what it continues to believe is
its contractual right to unilaterally reduce, or even completely
eliminate, OPEB benefits provided to any Class Members as
to whom the settlement no longer applies.
The suit is "Bailey et al. v. AK Steel Corp., Case No. 1:06-cv-
00468-MRB," filed in the U.S. District Court for the Southern
District of Ohio under Judge Michael R. Barrett.
Representing the plaintiffs are:
David Marvin Cook, Esq.
Stephen A. Simon, Esq.
22 West Ninth Street
Cincinnati, OH 45202
Phone: 513-721-6500 and 513-721-7500
E-mail: dcook@dmcllc.com
ssimon@dmcllc.com
ALLIED MORTGAGE: Mo. Court Reverses Class Certification Ruling
--------------------------------------------------------------
The Missouri Supreme Court unanimously reversed a ruling that
certified a class in a lawsuit against Allied Mortgage Capital
Corp., a state mortgage company, Rob Luke of Legal News Line
reports.
The Supreme Court's reversal came in the lawsuit, “Brennan and
Kimberly Vandyne v. Allied Mortgage Capital Corp. (docket#
SC88273).”
In general, the plaintiffs in the suit alleged that Allied
Mortgage misrepresented third-party charges in their home-loan
contracts.
In rejecting class certification of the matter, the high court
pointed out that the problem was that the class had been
certified before its basis for its certification had been
proven.
Writing on behalf of the Supreme Court, Judge Richard B.
Teitelman said, "The circuit court abused its discretion in
certifying a class that includes a determination of a key
liability issue in the case and that does not sufficiently
define "loan-related" services and fees."
Judge Teitelman added, “The class definition in this case
contains a legal conclusion that requires the court to resolve a
paramount liability question in order to identify class
membership.” He pointed out, “This is an improper merit
determination.”
The Supreme Court also determined that the attorneys and lead
plaintiffs in the litigation could continue representing the
class.
Allied Mortgage had objected to a family relationship between
one lawyer and a named class-action plaintiff, however the high
court ruled it immaterial.
COFFEYVILLE GROUP: Kan. Court Dismisses Oil Spill Lawsuit
---------------------------------------------------------
The United States District Court for the District of Kansas at
Wichita dismissed a class action filed on behalf of numerous
individuals and business owners who have sustained losses as a
result of the Coffeyville Resources refinery oil spill
On July 1 and July 2, 2007, more than 71,000 gallons of crude
oil spilled from the Coffeyville Resources refinery, far more
than the 42,000 gallons that was initially reported. Due to
widespread flooding that was occurring at the time of the oil
spill, the crude oil reached and damaged a very large area.
More than 2,500 residents and businesses have been displaced by
the oil slick and "toxic soup" that made its way on the
Verdigris River. In excess of 200 properties have already been
destroyed by these uncontrolled waterborne poisons. Refinery
officials said they are still investigating how the spill
occurred.
On July 5, the law firms filed the suit on behalf of a man who
lost his house and business as a result of oil spilled from the
Coffeyville Resources refinery (Class Action Reporter, July 10,
2007).
The suit originally named the following as defendants:
-- Coffeyville Resources, LLC;
-- Coffeyville Resources Refining & Marketing, LLC;
-- Coffeyville Resources Crude Transportation, LLC;
-- Coffeyville Resources Terminal, LLC;
-- Coffeyville Resources Pipeline, LLC; and
-- Coffeyville Resources Nitrogen Fertilizers, LLC.
The economic effects of oil spills can be devastating and far-
reaching. Large companies, sole proprietors, and individuals
alike stand to endure major economic losses when oil spills
occur. Under the Oil Pollution Act of 1990, the responsible
party is liable for the costs associated with the containment
or cleanup of the spill and any damages resulting from the
spill.
Oil spills cause large-scale damage, destruction and death to
aquatic environments. The type of oil determines the type of
damage. Crude oil is suffocating and has a toxic effect because
it is like a heavy tar. Refined petroleum such as gasoline is
generally more toxic but evaporates quickly. Crude oil causes
much damage to birds and mammals; it sticks to their fur or
feathers, causing hypothermia by reducing insulation and making
them easy prey. It also causes loss of weight due to lack of
ability to feed and also causes damage to the digestive systems
when the oil is ingested.
Refined petroleum causes damage not due to stickiness but due to
toxicity. Animals become poisoned when they ingest refined
petroleum products, and the poison travels up the food chain.
Respiratory, immune and adrenal systems are also damaged. Blood
and organs are damaged. Breeding is interrupted or halted, or
offspring become poisoned and die.
In July 2007, the law firms Parker Waichman Alonso LLP, Hutton &
Hutton Law Firm LLC, Neblett, Beard & Arsenault and Becnel Law
Firm LLC named additional defendants to the suit (Class Action
Reporter, July 17, 2007).
The additional defendants include:
-- Coffeyville Acquisition, LLC, an entity principally
owned by Goldman Sachs Group, Inc.,
-- its subsidiary J. Aron & Company,
-- Kelso & Company and/or its affiliates
-- CVR Energy, Inc.
-- Coffeyville Group Holdings, LLC
-- Coffeyville Refining and Marketing Inc.
-- Coffeyville Resources Crude Transportation, LLC
-- Coffeyville Resources Terminal, LLC and
-- Coffeyville Resources Pipeline, LLC.
On November 6, 2007 the court dismissed the case for lack of
subject matter jurisdiction. Under the Class Action Fairness Act
of 2005, a court must decline jurisdiction if two-thirds or more
of the members of all proposed plaintiff classes in the
aggregate, and the primary defendants, are citizens of the state
in which the action was originally filed.
The suit was dismissed for lack of subject matter jurisdiction
because the court determined that two-thirds or more of the
members of all proposed plaintiff classes in the aggregate, and
the primary defendants, were citizens of Kansas.
It is possible that the plaintiffs in the federal suit may
appeal the dismissal in federal court or take other actions to
continue their claims, in which case, we plan on vigorously
defending against such claims.
Due to the uncertainty of such claims, the company is unable to
estimate a range of possible loss at this time. Presently, they
do not expect that the resolution of these claims will have a
significant adverse effect on their business and results of
operations.
The suit is “Dunham v. Coffeyville Resouces, LLC et al., Case
No. 6:07-cv-01186-JTM-DWB,” filed in the U.S. District Court for
the District of Kansas under Judge J. Thomas Marten with
referral to Judge Donald W. Bostwick.
Representing plaintiffs is:
Andrew W. Hutton
Hutton & Hutton
8100 E. 22nd St., North-Bldg. 1200
P. O. Box 638
Wichita, KS 67201-638
Phone: 316-688-1166
Fax: 316-686-1077
E-mail: andrew.hutton@huttonlaw.com
C&O MOTORS: Faces Suit in W. Va. Over Destruction of Evidence
-------------------------------------------------------------
C&O Motors, its president and chief operating officer, James F.
Love III, and its general manager Gene Walker face a class
action in Kanawha Circuit Court in West Virginia, alleging that
employees of the St. Albans car dealership destroyed evidence in
an older class action, Chris Dickerson of The West Virginia
Record reports.
James Dalton, as the class plaintiff, filed the suit Jan. 8,
2008. The suit is now assigned to Circuit Judge Jennifer Bailey
Walker, under Case No. 08-C-44.
Mr. Dalton and other potential plaintiffs previously were
represented by the law firm of Bell & Bands in civil actions
against C&O over misrepresentations and omissions that happened
in its Finance & Insurance offices, transactions that were
videotaped by C&O when vehicles were purchased.
According to the complaint in 2002, Bell & Bands filed two civil
suits against C&O alleging fraudulent acts in the sale of
vehicles. Subsequently, the firm filed numerous individual
fraud-based civil actions against C&O.
As those cases proceeded, Bell & Bands would learn that C&O
videotaped customer transactions in the Finance & Insurance
office.
The original 2004 civil actions have been settled, however, the
new complaint states that those plaintiffs and class were not
aware that "critical evidence" had been destroyed.
In the new suit, the class would consist of those previously
represented by Bell & Bands in the earlier Kanawha County suits
and reached settlement with C&O. That is at least 75 people,
according to Bell & Bands.
The plaintiff and all members of the class seek compensatory and
punitive damages, attorney fees, court costs and other relief.
For more details, contact:
Bell & Bands PLLC
30 Capitol Street, P.O. Box 1723
Charleston, WV 25326
Phone: (304) 932-4225 or (866) 912-3007
Fax: (304) 345-1715
Web site: http://www.belllaw.com
DANNON CO: Faces False Advertising Suit Over “Probiotic” Yogurt
---------------------------------------------------------------
A class action filed in the Central District of California
revealed that while spending more than $100 million to falsely
claim that "probiotic" yogurt products such as Activia and
DanActive have "clinically" and "scientifically" "proven" health
benefits not available in other yogurts, The Dannon Company,
Inc.'s own studies flatly disproved the Company's deceptive
boasts.
The marketing campaign promoting the supposed health benefits of
the products allegedly helped Dannon sell hundreds of millions
of dollars worth of yogurt in recent years.
According to the lawsuit filed, in its advertisements and on its
label for Activia, Dannon continues to falsely claim that it is
"proven" to improve one's "intestinal rhythm" and "regulate your
digestive system." Similarly, the label and ads for Dannon's
DanActive incorrectly state that it "has been clinically proven
to help naturally strengthen the body's defenses" and to improve
the body's "immune system."
As a result of the massively deceptive advertising campaign,
Dannon is able to charge consumers a 30% premium for its Activia
yogurt. In fact, Dannon's marketing for yogurts containing
"probiotics" led to one of the most successful product launches
in recent food-industry history. Dannon spent more than $100
million on what is described as a "360-degree marketing plan" to
falsely promote its probiotic yogurts. As a result, Dannon sold
$128 million of Activia in 2006 and is estimated to have sold
approximately $300 million last year.
However, Dannon itself knew that numerous scientific studies
failed to support the health benefits touted in the ads. In
fact, a study conducted by leading microbiologists and funded by
Dannon determined in 2006 that there was "no conclusive
evidence" of probiotics providing health benefits. The report,
entitled "Probiotic Microbes: The Scientific Basis," was
prepared by the American Academy of Microbiology, a leadership
group of the American Society of Microbiology.
In an interview with financial analysts, Franck Riboud, the
current Chairman and CEO of Dannon's France-based parent company
Groupe Danone admitted that Activia's success was based solely
on the product's fraudulent marketing, saying, "The success of
Activia is not coming from the product itself. The probiotic,
everybody knows now about probiotic all over the world. The
success is coming from the way you launch the product, how do
you enrich the product, the marketing...."
The class action, filed on behalf of tens of thousand of
consumers who paid a premium for the products because of the
deception, seeks redress for consumers who purchased the
products based on the bogus claims, and asks Dannon to replace
the misleading marketing with honest ads that correct the
record.
"Deceptive advertising has enabled Dannon to sell hundreds of
millions of dollars worth of ordinary yogurt at inflated prices
to responsible, health conscious consumers," said consumer
attorney Timothy G. Blood.
Lead counsel for plaintiffs are:
Timothy Blood
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800-449-4900
- and -
Jayne A. Goldstein
Mager & Goldstein LLP
1818 Market Street, Suite 3710
Philadelphia, Pennsylvania 19103
Phone: 215-640-3280
Fax: 215-640-3281
DEERE & CO: Recalls Utility Tractors Due to Collision Hazard
------------------------------------------------------------
Deere & Company, of Moline, Ill., in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 5,400
John Deere Compact Utility Tractors.
The company said the forward drive pedal can get stuck, posing a
risk of loss of control and injury to the operator and
bystanders.
Deere & Company has received seven reports of incidents. No
injuries have been reported.
The recalled tractor is model number 3203, which is painted on
the side of the tractor. The recall includes the following
serial numbers:
LV3203H000001 through LV3203H000010
LV3203H190001 through LV3203H193434
LV3203H393093
LV3203H394001 through LV3203H396669
The serial number plate is located on the tractor?s frame above
the right front wheel.
These recalled compact utility tractors were manufactured in the
United States and were being sold by John Deere dealers
nationwide from September 2005 through December 2007 for about
$15,500.
Picture of recalled compact utility tractors:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08536.jpg
Consumers should stop using the recalled vehicles immediately
and contact any John Deere dealer to schedule a free repair.
Registered owners were sent direct mail notification of this
recall.
For additional information, contact Deere & Company at (800)
537-8233 between 8 a.m. and 6 p.m. ET Monday through Friday and
between 9 a.m. and 3 p.m. ET Saturday, or visit the firm's Web
site: http://www.johndeere.com
DISCOUNT SCHOOL: Recalls Play Mats on Paint's High Lead Level
-------------------------------------------------------------
Discount School Supply, of Monterey, Calif., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
60 Tic Tac Turtle Toss Mats.
The company said the paint on the Tic Tac Turtle Toss mats
contains excess levels of lead, violating the federal lead paint
standard. No injuries have been reported.
This recall involves 50-inch vinyl/polyester play mats. The
double sided mats have a number design on one side and a turtle
design on the other. The mats are yellow with numbers and
designs painted in red, blue, green and black. The mat has the
Discount School Supply name and logo printed in the corner on
both sides of the mat. Bean bags pictured with the mat are sold
separately.
These recalled play mats were manufactured in China and were
being sold at Discount School Supply catalogs and the company?s
Web site from June 2007 through September 2007 for about $40.
Pictures of recalled playmats:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08537a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08537b.jpg
Consumers are advised to stop using the mat immediately and
contact Discount School Supply to receive a credit or refund.
For additional information, contact Discount School Supply at
(800) 993-3603 between 6 a.m. and 5 p.m. PT Monday through
Friday; visit the firm's Web site:
http://www.discountschoolsupply.comor email:
tossrecall@discountschoolsupply.com
GEORGIA: Dougherty County Property Owners Sue Over Revaluation
--------------------------------------------------------------
About 15 property owners in Dougherty County, Georgia filed a
purported class action in Dougherty County Superior Court
seeking equitable relief from a countrywide tax revaluation, The
Albany Herald On-line reports.
Calling the action “unconstitutional, illegal, null and void,”
the plaintiffs are asking the court to reinstate property values
based on the county’s 2006 tax digest.
The lawsuit, which named Dougherty County Tax Director Denver
Hooten and members of the Board of Tax Assessors as defendants,
was assigned to Judge John Crosby, senior judge with the Tifton
Judicial Circuit
Prepared by outgoing Albany City Commissioner Bo Dorough of the
Albany law firm Divine, Finney & Dorough PC, the suit lists the
following as plaintiffs:
-- Richard R. Thomas,
-- Fred Carter,
-- Lonnie H. Smith,
-- Dottie Smith,
-- Judy Lee,
-- Michael Smith,
-- C.W. Hopkins,
-- Curtis H. Smith,
-- John O’Brien,
-- Jerry Brooks,
-- Doug Miller,
-- Hilton Merchant,
-- Wayne Carter,
-- Tim Coley, and
-- Cecil Musgrove.
The plaintiffs ask, among other things:
-- that the suit be deemed a class action,
-- that an expedited hearing be held before Jan. 20 (the
date taxes are due),
-- that the revaluation be declared unconstitutional,
illegal, null and void,
-- that the plaintiffs receive a jury trial, and
-- that county taxpayers receive “such other and further
relief as may be deemed just and appropriate” by the
court.
For more details, contact:
Bo Dorough, Esq.
Divine, Finney & Dorough, P.C.
600 N. Jackson Street, P.O. Box 64
Albany, Georgia 31702-0064
Phone: 229.883-1610
Fax: 229.883.1647
E-mail: info@dfdpclaw.com
Web site: http://www.dfdpclaw.com/
ILLINOIS: Engineers' Union Accused of Privacy Rights Violations
---------------------------------------------------------------
Lawyer Robert Hanlon of Woodstock, Ill., representing a woman
whose identity is withheld, filed a class action accusing Local
150, International Union of Operating Engineers, AFL-CIO of
illegally obtaining and disclosing information from members'
drivers licenses, and of using the information to stalk,
intimidate, harass and assault the named plaintiff, a woman, and
violate her privacy, the CourtHouse News Service reports.
According to the complaint, the union allegedly obtained license
plate and personal data on "millions" of people, ostensibly to
check their plates at construction sites, which plaintiffs say
is an illegal use of the data.
Plaintiff claims the union's "pursuit agents" used the
information they obtained about her to stalk her for months, to
follow her home from work, to endanger her, to insist that she
"call" her stalker, and to assault her. She says she had to have
the police restrain the stalkers. She demands punitive damages
and a restraining order and injunction.
The class demands statutory damages, and punitive damages if the
illegal use of data was willful.
ILLINOIS: Court to Hear Oral Arguments in Atheist Student's Suit
----------------------------------------------------------------
The U.S. District Court for the Northern District District of
Illinois is set to hear oral arguments over whether to grant
class-action status to the case, “Sherman v. Township High
School District 214 et al., Case No. 1:07-cv-06048.”
The suit was filed by Buffalo Grove High School freshman Dawn S.
Sherman, an atheist, and her father, Robert I. Sherman on Oct.
26, 2007. It names as defendants:
-- Dr. Christopher Koch, State School Superintendent, and
-- Township High School District 214.
In general, it challenges an Illinois statute (105 ILCS 20/1
a.k.a “The Silent Reflection and Student Prayer Act”) requiring
public schools to provide a moment of silence each day for
“reflection and student prayer,” alleging that it violates the
plaintiff’s First Amendment rights under 42 U.S.C. Section 1983.
Plaintiff seeks a preliminary injunction preventing defendants
from implementing 105 ILCS 20/1, which mandates a period of
silence for silent prayer or reflection at the start of each
school day.
In November 2007, Dr. Koch moved to dismiss the case as against
him, which was denied. The court instead granted plaintiff’s
motion for a preliminary injunction.
In the injunction, Judge Robert W. Gettleman of the U.S.
District Court for the Northern District of Illinois ordered
Township High School District 214, which oversees Buffalo Grove
High, not to have a moment of silence.
Additionally, the judge also has barred the superintendent of
the state school board from enforcing the rule or issuing any
directive on how the issue should be handled in other schools.
Judge Gettleman is to hear oral arguments this month over
whether to grant class-action status to the Shermans' case.
The suit is “Sherman v. Township High School District 214 et
al., Case No. 1:07-cv-06048,” filed in the U.S. District Court
for the Northern District District of Illinois under Judge
Robert W. Gettleman.
Representing the plaintiffs is:
Gregory E. Kulis, Esq.
Gregory E. Kulis and Associates, Ltd.
30 North LaSalle Street, Suite 2140
Chicago, IL 60602
Phone: (312) 580-1830
E-mail: vsmith@kulislawltd.com
Representing the defendants are:
Thomas A. Ioppolo, Esq.
Illinois Attorney General's Office
100 West Randolph Street, 13th Floor
Chicago, IL 60601
Phone: (312) 814-3313
E-mail: tioppolo@atg.state.il.us
- and -
Brian Dennis McCarthy, Esq.
Franczek Sullivan, P.C.
300 South Wacker Drive, Suite 3400
Chicago, IL 60606
Phone: (312) 986-0300
Fax: 312-986-9192
E-mail: bdm@franczek.com
INTEL CORP: Faces Antitrust Lawsuit Over Windows, Linux OS
----------------------------------------------------------
Intel Corporation is facing a class-action complaint filed in
the U.S. District Court for the District of Idaho claiming it
holds a monopoly in microprocessors that run Windows and Linux
operating systems.
Named plaintiff Seininger Law Offices claims:
-- "Intel has forced major customers into exclusive or
near-exclusive deals;
-- "Intel has conditioned rebates, allowances and market
development funding on customers' agreement to severely
limit or forgo entirely purchases from AMD or other
competitors;
-- "Intel has established a system of discriminatory,
retroactive, first-dollar rebates triggered by purchases
at such high levels as to have the practical and
intended effect of denying customers the freedom to
purchase any significant volume of processors from AMD
and others;
-- "Intel has threatened retaliation against customers
introducing AMD computer platforms, particularly in
strategic market segments;
-- "Intel has established and enforced quotas with key
retailers, effectively requiring them to stock
overwhelmingly, if not exclusively, Intel-powered
computers, thereby artificially limiting consumer
choice;
-- "Intel has forced PC makers and technology partners to
boycott AMD product launches and promotions;
-- "Intel has abused its market power by forcing on the
industry technical standards that have as their central
purpose the handicapping of AMD and others in the
marketplace."
Plaintiff further claims, Intel has violated consumer and
antitrust laws from California to Maine in doing so.
Plaintiff brings this action under Federal Rule of Civil
Procedure 23(b)(2) and 23(b)(3) on behalf of all persons and
entities residing in the United States who from
June 28, 2001 through the present, purchased an x86
microprocessor in the United States, other than for resale,
indirectly from the Defendant or any controlled subsidiary or
affiliate of Defendant.
Plaintiff wants the court to rule on:
a. whether Intel has possessed monopoly power in the
relevant market since at least June 28, 2001;
b. whether Intel acquired or maintained monopoly power
within the relevant market through anticompetitive
activity;
c. whether Intel’s unlawful conduct has enabled Intel to
increase, maintain, or stabilize above competitive
levels the prices it charges for x86 microprocessors; if
so, whether such supra-competitive prices were passed on
to Class members; and if so, the appropriate class-wide
measure of damages;
d. whether Intel violated Section 2 of the Sherman Act;
e. whether Intel violated Sections 16720 and 17200 of the
California Business and Professions Code; and
f. whether Intel violated the antitrust, unfair
competition, consumer protection laws and unjust
enrichment laws as alleged below.
Plaintiff prays:
-- That Intel’s conduct alleged herein be adjudged and
decreed to violate the laws alleged in this Complaint.
-- That Plaintiff and the Class or Subclass members recover
damages, as provided by the state laws alleged in this
Complaint, and that a joint and several judgment in
favor of Plaintiff and the Class be entered against
Intel in the maximum amount permitted by such laws;
-- That Intel, its affiliates, successors, transferees,
assignees, and the officers, directors, partners,
agents, and employees thereof, and all other persons
acting or claiming to act on their behalf, be
permanently enjoined and restrained from in any manner
continuing, maintaining, or renewing its anticompetitive
conduct or adopting or following any practice, plan,
program, or device having a similar purpose or effect;
-- That Plaintiff and Class or Subclass members be awarded
restitution, including disgorgement of profits obtained
by Intel as a result of its acts of unfair competition
and unjust enrichment.
-- That Plaintiff and Class or Subclass members be awarded
pre- and post-judgment interest, and that that interest
be awarded at the highest legal rate from and after the
date of service of the initial complaint in this action;
-- That Plaintiff and Class or Subclass members recover
their costs of this suit, including reasonable
attorneys’ fees as provided by law; and
-- That Plaintiff and Class or Subclass members have such
further relief as the case may require and the Court may
deem just and proper under the circumstances.
The suit is "Seineger Law Offices, PA et al. v. INtel Corp.,"
filed in the U.S. District Court for the District of Idaho.
Representing plaintiffs are:
Phillip H. Gordon
Gordon Law Offices
623 W. Hays
Boise, ID 83702
Telephone: (208) 345-7100
Facsimile: (208) 345-0050
Email: pgordon@gordonlawoffices.com or
bbistline@gordonlawoffices.com
- and -
Steve W. Berman
Anthony Shapiro
Steven W. Fimmel
Hagens Berman Sobol Shapiro LLP
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
LIBERTY NATIONAL: Accused of Discriminating Against Haitian
-----------------------------------------------------------
Liberty National Life Insurance Co., a subsidiary of Torchmark
Corp., is facing a class-action complaint filed Jan. 14 in the
U.S. District Court for the Southern District of Florida
claiming the insurance company discriminated against Haitians,
the English Business News reports.
The lawsuit was filed by three Haitian-Americans who live in
Florida and is seeking at least $75,000 (euro51,461) in
compensatory damages.
Plaintiffs claim their insurance was canceled or undervalued
because of discrimination against Haitian-Americans. Liberty
National allegedly asked leading questions about their foreign
travel plans and that underwriters listened for a "Haitian"
accent.
According to the complaint, since 2004, Liberty National has
denied policies "based solely on the applicant's race and
Haitian ancestry, ethnicity and national origin," or replaced
them with policies normally only sold to the terminally ill.
The suit is “Joseph et al v. Liberty National Life Insurance
Company, Case Number: 1:2008cv20117,” filed in the U.S District
Court for the Southern District of Florida, under Judge Judge
Jose E. Martinez.
MISSOURI: Eight Circuit Affirms Ruling in Inmate's Abortion Case
----------------------------------------------------------------
The 8th U.S. Circuit Court of Appeals affirmed the right of
female Missouri inmates to obtain elective abortions while
incarcerated, Mark Morris of The Kansas City Star reports.
The unanimous decision by a three-judge panel came in a class
action challenging the state's policy banning inmates from
obtaining non-medically necessary abortions.
Case Background
The suit was originally brought by an inmate plaintiff known as
"Jane Roe," who was denied an abortion in 2005. Before that,
the Missouri Department of Corrections had provided
transportation for women seeking an abortion, but amended their
policy to do so if the abortion is not medically necessary
(Class Action Reporter, Sept. 28, 2007).
The American Civil Liberties Union filed the suit on behalf of
“Jane Roe.” U.S. District Judge Dean Whipple in Jefferson
ordered officials granted her request on the same year she filed
the case.
The office of the Attorney General, on behalf of the Department
of Corrections, appealed Judge Whipple's order up to the U.S.
Supreme Court. The Supreme Court upheld the district court's
ruling.
In 2006, Judge Whipple upheld his preliminary injunction. He
ruled that women prisoners maintain their constitutional right
to abortion and that prison officials must provide access to the
procedure.
The Attorney General appealed again. Assistant Attorney General
Michael Pritchard argued for the state. He said the prison
officials' primary concern is with the safety of prisoners,
guards and the public because the trip to the hospital poses an
increase risk of inmate escape.
On Jan. 22, the appeals court ruled in favor of female Missouri
inmates.
The suit is "Roe v. Crawford et al., Case No. 2:05-cv-04333-DW,"
filed in the U.S. District Court for the Western District of
Missouri under Judge Dean Whipple.
Representing the plaintiffs are:
Thomas Michael Blumenthal, Esq.
Paule Camazine & Blumenthal, PC
165 N. Meramec Ave., 6th Floor
St. Louis, MO 63105-3789
Phone: 314-727-2266
Fax: 314-727-2101
E-mail: tblumenthal@pcblawfirm.com
Talcott Camp, Esq.
Diana Kasdan, Esq.
Jennifer Nevins, Esq.
Chakshu Patel, Esq.
American Civil Liberties Union Foundation
125 Broad St., 18th Floor
New York, NY 10004-2427
Phone: (212) 549-2632
Fax: (212) 549-2652
E-mail: tcamp@aclu.org
dkasdan@aclu.org
jnevins@aclu.org
cpatel@aclu.org
- and -
James G. Felakos, Esq.
American Civil Liberties Union of Eastern Missouri
4557 Laclede Ave.
St. Louis, MO 63108
Phone: (314) 361-3635
Fax: (314) 361-3135
E-mail: jim@aclu-em.org
Representing the defendant is:
Michael Pritchett, Esq.
Missouri Attorney General
P.O. Box 899
Jefferson City, MO 65102
Phone: 573-751-8864
Fax: (573) 751-9456
E-mail: mike.pritchett@ago.mo.gov
NEW YORK: Faces Suit Over Home Energy Assistant Program Benefits
----------------------------------------------------------------
The New York State Department of Family Assistance and New York
city Department of Social Services are facing a class-action
complaint filed Jan. 22 in the U.S. District Court for the
Eastern District of New York alleging it illegally cut off Home
Energy Assistant Program benefits to poor people without proper
notice, the CourtHouse News Service reports.
This is an action for declaratory and injunctive relief pursuant
to the Low-income Home Energy Assistance Act of 1981, 42 USC
Section 8621 et seq.
Plaintiffs allege that defendants unlawfully deprived them of
their constitutional and statutory right to adequate notice and
an opportunity for a fair hearing to contest eligibility
determinations pertaining to their receipt of HEAP benefits.
They contest the following policies and practices:
(a) defendant Doar's provision of inadequate notices of
HEAP eligibility to persons identified by defendants'
"autopay" computer methodology as categorically
eligible to receive regualr HEAP benefits and who pay
separately to heat their abodes (autopay heater
households) that fail to explain how HEAP eligibility
and benefit amounts were computed or provide meaningful
citation to the specific laws, regulations and policy
issuances upon which the determinations were based; and
(b) defendants' failure to toll the time limit to request
an administrative fair hearing to autopay heater
households who received no notice or inadequate notice
of the regular HEAP benefit paid on their behalf and
who requested administrative review of the adequacy of
said benefits more than 105 days after the end of a
particular program year.
Plaintiffs bring this action pursuant to Rule 23(a) and (b) of
the Federal Rules of Civil Procedure on behalf of all New York
City households categorically eligible for regular HEAP benefits
with primary responsibility to heat their abodes who since Jan.
22, 2005 were not, or in the future will not be:
(1) mailed a notice of HEAP eligibility that explains how
financial eligibility and benefits amounts were
calculated to the same extent and in the same manner as
members of the plaintiff class in "Kapps v. Wing;"
and/or
(2) mailed a notice of HEAP eligibility that cites the
specific law, regulation and policy issuance supporting
the regular HEAP payment; and/or
(3) afforded an opportunity for a fair hearing more than
105 days after the end of a particular program year to
contest the amount of their regular HEAP benefit amount
lacking the aforementioned information is issued to
them.
They want the court to rule on:
(a) whether defendants' failure to provide class members
with adequate notices of HEAP eligibility which
explains the computation of financial eligibility and
benefit amounts violates their constitutional right to
due process and equal protection and 18 NYCRR Section
358-2.2(a)(14), and/or
(b) whether defendants' failure to provide class members
with adequate notices that cite the specific laws,
regulations and policy issuances supporting the
determination violates their constitutional right to
due process and equal protection and 18 NYCRR Section
358-2.29A0(4); and/or
(c) whether State Defendant's imposition of the 105 day
rule to deprive class members of an opportunity for a
fair hearing to contest the regular HEAP benefit amount
when defendants issue no notice or inadequate notice of
the HEAP payment amount violates New York Social
Services Law Section 22{4}(a) and their constitutional
right to due process and equal protection.
Plaintiffs ask that the court:
-- assume jurisdiction of this action pursuant to 28 USC
Sections 1331, 1337, 1343(3) and 1367;
-- enter an order pursuant to Rule 23(a) and (b) of the
Federal Rules of Civil Procedure that this action may be
maintained as a class action on behalf of the proposed
class;
-- enter a final judgment pursuant to 28 USC Section 2201
and Rules 54 and 57 of the Federal Rules of Civil
Procedure declaring that:
(1) City defendant's policy and practice of rendering
regular HEAP notices to plaintiffs and similarly
situated autopay heater households which fail to
explain how determinations of HEAP benefits, and
State defendant's tolerance of said practice, is
arbitrary, capricious and violates the Due Process
and Equal Protection guarantees of the Fourteenth
Amendment to the United States Constitution, Article
I Sections 6 and 11 of the New York State
Constitution and 18 NYCRR Section 358-2.2(a)(14);
(2) city defendants' policy and practice of rendering
regular HEAP notices to plaintiffs and similarly
situated autopay heater households which fail to
cite to specific laws, regulations and policy
issuances upon which the determination is based, and
State defendant's tolerance of said practice, is
arbitrary, capricious and violates the Due Process
and Equal Protection guarantees of the Fourteenth
Amendment to the United States Constitution, Article
I Sections 6 and 11 of the New York State
Constitution and 18 NYCRR Section 358-2.2(a)(4);
(3) State defendant's policy and practice of depriving
autopay heater households of the opportunity for a
fair hearing more than 105 days after the close of a
particular program year whenever these households
received no notice or inadequate notice of regular
HEAP benefits is arbitrary, capricious and violates
the Due Process and Equal Protection guarantees of
the Fourteenth Amendment to the United States
Constitution, 42 USC Section 8624(b)(13) and New
York Social Services Law Section 22[4](a);
(4) State defendant's 105 day rule, as set forth in 18
NYCRR Sections 358-3.5(b)(4) and 393.5(e), limits
the right to a fair hearing not set forth in federal
or state law or in New York's HEAP State Plan, is
arbitrary, capricious and violates the Due Process
and Equal Protection guarantees of the Fourteenth
Amendment to the United States constitution, 42 USC
Sections 8624(b)(13) and 8624(c)(1)(F) and New York
Social Services Law Section 22[4](a);
-- enter a final judgment pursuant to 28 USC Section 2202,
42 USC Section 1983 and Rule 65 of the Federal Rules of
Civil Procedure enjoining:
(1) City defendant from failing to0 render notices to
autopay heater households which explain how
determinations of HEAP eligibility and benefit
amounts are calculated and cite the specific laws,
regulations and policy issuances supporting the
determinations; and
(2) State defendant from failing to provide fair
hearings to autopay heater households who receive no
notice or inadequate notice of regular HEAP benefits
without regard to the dates on which their
administrative appeals are requested; and
(3) State defendant from failing to reverse and annul
the Decision After Fair Hearing to plaintiff Brian
Pedersen dated Sept. 20, 2007 to the extent that
State defendant declined to take jurisdiction of the
issues raised therein because the fair hearing
request was made more than 105 days after the
closure of the applicable HEAP seasons referenced
therein, and render a new Decision After Fair
Hearing without regard to the "105 day" rule;
-- award plaintiffs' counsel a reasonable attorney's fee
and litigation-related costs and disbursements pursuant
to Rule 54(d) of the Federal Rules of Civil Procedure,
42 USC Section 1988 and Article 86 of the New York Civil
Practice Law and Rules; and
-- grant such additional and further relief as the court
may deem just and proper.
The suit is "Brian Pedersen et al v. David A.Hansell et al.,
Case No. CV 08 313," filed in the U.S. District Court for the
Eastern District of New York.
Representing plaintiffs is:
Peter Vollmer
Vollmer & Tanck, P.C.
500 North Broadway, Suite 149
Jericho, New York 11753
Phone: (516) 870-0335
NEW YORK: City of Buffalo, Mayor Face Lawsuit Over Pay Raise
------------------------------------------------------------
The City of Buffalo, New York, and its Mayor Byron Brown face a
purported class action that was filed on behalf of 65 Seasonal
Workers who are seeking a pay raise, WGRZ-TV reports.
One plaintiff in the suit is Abraham McKinney, 54, a “Seasonal
Worker” who makes $8.15 per hour picking up garbage. His
lawyers claim that he and dozens of others like him should now
be making $11.11 per hour and that they've waited long enough to
get it. Aside from Mr. McKinney, there are three other
plaintiffs listed in the class action.
The suit, filed in the State Supreme Court, claims that the
workers are owed the raises under the City's Living Wage Law
passed more than four years ago.
Seasonal Workers often work side by side, doing the same job,
and for as many hours as full time workers, but they do so at a
significantly reduced rate of pay and without benefits,
according to a report by WGRZ-TV.
To maintain their status as “Seasonal,” the city merely lays
them off for a day or two every six months according to Allison
Duwe, Director of the Coalition for Economic Justice, the
advocacy group that was instrumental in pressuring the city to
pass the living wage law in August of 2003.
The suit seeks monetary compensation back to at least January
2002, according to Newsday.
NEW YORK: Couple Sues Department, Chancellor Over Racial Quotas
---------------------------------------------------------------
The New York City Department of Education, and Chancellor Joel
I. Klein face a purported class action in the U.S. District
Court for the Eastern District of New York over the city's
racial quotas that kept an Indian girl out of an elite public
school, The New York Post reports.
The suit, “Rau et al v. New York City Department of Education et
al., Case No. 1:08-cv-00210-JBW-KAM,” was filed on Jan. 15,
2008, by an Indian couple from Brooklyn whose daughter was kept
from entering the Mark Twain School in Coney Island because of
the quotas.
In May 2007, Dr. Anjan Rau's daughter Nikita was rejected by
Mark Twain. Officials said Nikita had to score at least 84.4
score to be accepted. However, white students needed to score
only 77. Nikita scored 79 on music admission test.
The U.S. Supreme Court has ruled in two other cities' cases that
race could not be used to decide which public schools kids
attend. However, Chancellor Klein has not sought to end the
quotas until now.
The suit is “Rau et al v. New York City Department of Education
et al., Case No. 1:08-cv-00210-JBW-KAM,” filed in the U.S.
District Court for the Eastern District of New York under Judge
Jack B. Weinstein with referral to Judge Kiyo A. Matsumoto.
Representing the plaintiffs are:
Michael Evan Rosman, Esq.
Center For Individual Rights
1233 20th Street, NW, Suite 300
Washington, DC 20036
Phone: (202) 833-8400
Fax: 202-833-8410
E-mail: rosman@cir-usa.org
- and -
Rosemarie Arnold, Esq.
Law Offices Rosemarie Arnold
1386 Palisade Avenue
Fort Lee, NJ 07024-5209
Phone: 201-461-1111
Fax: (201) 461-1666
Web site: http://www.rosemariearnold.com
PENNSYLVANIA: Dauphin County Seeks Nixing of Strip Search Suit
--------------------------------------------------------------
Attorneys for Dauphin County are seeking for the dismissal of a
purported class action pending in the U.S. District Court for
the Middle District of Pennsylvania over the strip searching of
several out-of-state partygoers at the county prison.
Case Background
The suit, “Reynolds et al. v. The County of Dauphin, Case No.
1:07-cv-01688-CCC,” was filed by Elmer Robert Keach, III, an
upstate New York attorney, on Sept. 16, 2007 (Class Action
Reporter, Oct. 15, 2007).
Listed as plaintiffs in the matter are:
-- Ashley McCormick,
-- Devon Shepard,
-- Herbert Carter, and
-- Jennifer Reynolds.
More than 125 partygoers in the Labor Day weekend rave at
McCormicks Island were arrested. At least 50 out-of-state
residents who were unable to make bail ended up in the Dauphin
County Prison.
The federal class action against the county is alleging that
those detainees’ civil rights were violated when they were
strip-searched at the prison. It seeks to end the prison's
alleged practice of strip-searching people facing misdemeanor
charges.
Recent Developments
In seeking for the dismissal of the case, lawyers representing
the county say that the prison has a written policy that spells
out when an incoming prisoner should be subjected to a strip
search, according to a report by Chris A. Courogen of The
Harrisburg Patriot-News.
Representing the plaintiffs are:
Elmer Robert Keach, III, Esq.
Law Offices of Elmer Robert Keach, III, PC
1040 Riverfront Center, P.O. box 70
Amsterdam, NY 12010
Phone: 518.434.1718
E-mail: bobkeach@keachlawfirm.com
Charles J. LaDuca, Esq.
Cuneo, Gilbert & LaDuca
507 C Street, NE
Washington, DC 20002
Phone: 202-789-3960
- and -
Daniel C. Levin, Esq.
Levin, Fishbein, Sedran & Berman
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: 215-592-1500
E-mail: dlevin@lfsblaw.com
Representing the defendants is:
James P. DeAngelo, Esq.
McNees Wallace & Nurick
100 Pine St., PO Box 1166
Harrisburg, PA 17108-1166
Phone: 717-232-8000
E-mail: jdeangelo@mwn.com
RC2 CORP: $30M T&F Suit Settlement Inadequate, Lawyers Claim
------------------------------------------------------------
Hagens Berman Sobol Shapiro is urging parents to oppose a
preliminarily approved proposed nationwide settlement in a case
against RC2 Cosp. (Nasdaq: RCRC), the manufacturer of Thomas the
Train toys, claiming the proposed settlement doesn't adequately
protect the interests of parents or children.
HBSS filed a proposed class action against toy manufacturer RC2
in June 2007, alleging the toys were produced using lead paint
which, if ingested by children, can cause severe health problems
and death. As a result, nearly 20 cases were consolidated in
Federal Court in Chicago in order to protect the interests of
the class of consumers whose children were exposed. In the
consolidated cases, the plaintiffs have vigorously pursued
discovery and defended an attempt to dismiss the case.
In order to avoid the oversight of the Federal Court and
participation with dozens of parents that stepped forward as
class representatives, another group of attorneys filed a case
in August 2007 in State Court in Illinois.
Rather than litigate the case and protect the exposure claims of
the children that played with the toys, the attorneys negotiated
a proposed nationwide settlement that compensates the lawyers
with fees up to $2.9 million. That settlement was recently
preliminarily approved by the Circuit Court of Cook County,
Illinois.
The settlement, which is valued at over $30 million, also
guarantees that RC2 Corporation – the manufacturer of the
popular children’s toys – will implement a battery of safeguards
to ensure that its toys are suitable for children to play with
in the future (Class Action Reporter, Jan. 22, 2008).
Under the settlement agreement, eligible class members can
receive full cash refunds or replacement toys with an additional
“bonus” toy. The settlement also provides for $100,000 to go to
an appropriate not-for-profit organization.
HBSS believes this settlement is not adequate and does not
protect the interests of parents or children. HBSS is urging
parents who have contacted HBSS regarding Thomas the Train toys
to voice opposition to this settlement. Among the concerns with
the settlement is that it does not provide any help in
recovering the costs to administer blood tests for children who
may have ingested dangerous amounts of lead from playing with
the toys nor compensate parents for the exposure of a toxic
substance to their children.
The parties have established a website at
http://www.thomastrainsettlement.comto provide additional
details about the settlement. That site will be operational by
no later than January 25, 2008.
For more information, contact:
Ivy Arai
Hagens Berman Sobol Shapiro
Phone: (206) 623-7292
E-mail: Ivy@hbsslaw.com
- and -
Mark Firmani
Firmani + Associates Inc.
Phone: (206) 443-9357
E-mail: Mark@firmani.com
SEARS ROEBUCK: Faces Customer Privacy Litigation in Illinois
------------------------------------------------------------
Sears, Roebuck and Co. faces a purported class action in the
Circuit Court of Cook County, Illinois for violating customer
privacy on their site.
The suit, “Christine Desantis, et al. v. Sears, Roebuck and
Co.,” alleges that the lack of privacy protections at Sears’s
http://wwww.managemyhome.comWeb site violated its own privacy
promises to consumers, and in so doing ran afoul of the Illinois
Consumer Fraud Act, which prohibits “unfair and deceptive
practices.”
According to a complaint seen by The Class Action Reporter, “in
an effort to promote its website and increase sales, Sears has
established a web-based system to allow customers to view their
purchase history on-line at http://www.managemyhome.com.”
A copy of the complaint is available free of charge at:
http://researcharchives.com/t/s?2758
The suit was filed by the KamberEdelson, LLC law firm on behalf
of Christine Desantis, a New Jersey resident.
It seeks class-action status, and more than $5 million in
damages, including attorneys’ fees.
The suit is “Christine Desantis, et al. v. Sears, Roebuck and
Co.,” filed in the Circuit Court of Cook County, Illinois
Representing the plaintiff is:
Jay Edelson, Esq.
Ethan Preston, Esq.
KAMBEREDELSON, LLC
53 West Jackson Blvd; Suite 1530
Chicago, IL 60604
Phone: 312-589-6370
Web site: http://www.kamberedelson.com/
SHIMS BARGAIN: Recalls “BabyTown” Pacifiers Due to Choking Risk
---------------------------------------------------------------
Shims Bargain Inc., of Los Angeles, Calif., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
45,000 “BabyTown” Pacifiers.
The company said these pacifiers fail to meet federal safety
standards for pacifiers. The pacifier shield is too small and
could easily enter the mouth of an infant. Also, ventilation
holes are too small and not placed to allow for the insertion of
a tool to remove the pacifier when lodged in the mouth of a
child. Finally, the package fails to display the required
warning instructing consumers not to tie a pacifier around a
child?s neck, which would present a strangulation hazard.
No injuries have been reported.
The recalled pacifiers were sold in a 4-pack of assorted colors.
“BabyTown” and model #39864 are written on the product?s
packaging.
These recalled pacifiers were manufactured in China and were
being sold at dollar stores nationwide from March 2004 through
December 2007 for $1.
Picture of recalled pacifiers:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08160.jpg
Consumers are advised to take these pacifiers away from children
immediately and return them to the store where purchased for a
full refund.
For additional information, contact Shims Bargain toll-free at
(866) 540-3334 between 9 a.m. and 5 p.m. PT Monday through
Friday.
STUBHUB INC: Faces Litigation in Oregon Over “Online Scalping”
--------------------------------------------------------------
StubHub, Inc., and its parent, eBay Inc. face a purported class
action in Multnomah County Circuit Court in Portland, Oregon,
alleging that both companies violated the city of Portland's
anti-scalping law, Brent Hunsberger of The Newhouse News Service
reports.
The suit was filed by Sharon Fehrs on Jan. 9, 2008. It states
that last month Ms. Fehrs tried to book four seats near the
stage for Bruce Springsteen and the E Street Band's March 28
show at the Rose Garden. But she could not find more than one
seat available. She later found choice seats already available
for sale on StubHub, an online ticket resale site. But they
were going for far in excess of their $95 face value.
Ms. Fehrs is asking the court to stop StubHub's practice and
award damages to customers who opt into her lawsuit.
For more details, contact:
John F. Neupert, Esq.
Miller Nash LLP
3400 U.S. Bancorp Tower, 111 S.W. Fifth Avenue
Portland, OR 97204-3699
Phone: (503) 224-5858 and (877) 220-5858
Fax: (503) 224-0155
E-mail: john.neupert@millernash.com
Web site: http://www.millernash.com/
UNITED STATES: Deportees' Suit v. ICE to Continue, Despite Memo
---------------------------------------------------------------
A federal class action against the U.S. Immigration and Customs
Enforcement (ICE) over the forced sedation of deportees will
continue despite an internal ICE memo issued recently that
explicitly requires agents to get a court order before
administering drugs “to facilitate an alien's removal,” The
Associated Press reports.
Immigration officials have acknowledged that 56 deportees were
given psychotropic drugs during a seven-month period in 2006 and
2007 even though most had no history of mental problems.
The memo by John Torres, detention and removal director of ICE,
the primary investigative arm of the Department of Homeland
Security (DHS) also stated, “There are no exceptions to this
policy.”
Despite the policy change, Mr. Arulanantham stressed that the
ACLU would go forward with the lawsuit to learn more details
about how sedation was used, who was drugged, and to get a court
ruling outlawing it in the future.
The ACLU had sued the agency to stop the practice, alleging it
could constitute torture and violates the Bill of Rights and
federal laws regarding the medical treatment of detainees.
The suit, entitled, "Diouf et al. v. Michael Chertoff et al.,
Case No. CV07-03977AHM," was filed in the U.S. District Court
for the Central District of California back in June 2007. It
seeks class-action status.
It was brought by two men, Mr. Diouf being one of them. The two
claimed that they were forcibly injected with drugs to make it
easier for DHS to deport them. (Class Action Reporter, Oct. 15,
2007).
According to the suit, “Federal officials have publicly admitted
that the government has a policy of forcibly injecting
immigrants with psychotropic drugs in order to render them less
'agitated' for deportation.”
The named plaintiffs in the case, Mr. Diouf, and Raymond Soeoth
claim they were both forcibly injected in anticipation of their
deportation although both lacked any history of mental illness
or exhibited behavior that indicated they would be mentally
unstable during deportation.
In both cases, the men were not examined by a doctor before
being injected with potentially fatal anti-psychotic drugs, the
suit states.
“No federal statue authorizes forcible injection under these
circumstances, and the Constitution clearly forbids it,” the
suit states.
Mr. Diouf, of Senegal, and Mr. Soeoth, of Indonesia, were
allegedly injected with haloperidol and cogentin, powerful drugs
often administered to psychotic people that stuns them and puts
them to sleep.
They also sued Division of Immigration Health Services Interim
Director Neil Sampson, and several official at the San Pedro
Service Processing Center (immigration prison), where they were
drugged.
The suit is "Diouf et al. v. Michael Chertoff et al., Case No.
CV07-03977AHM," filed in the U.S. District Court for the Central
District of California.
Representing plaintiffs are:
Ahilan T. Arulanantham
Mark D. Rosenbaum
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA 90026-5752
Phone: 213-977-9500
Fax: 213-250-3919
- and -
Bradley S. Phillips
Stephen M. Kristovich
Fred A. Rowley, Jr.
Fadia I. Raefedie
Munger Tolles & Olson LLP
355 South Grand Avenue
Thirty-Fifth Floor
Los Angeles, CA 90071-1560
Phone: 213-683-9100
Fax: 213-687-3702
Asbestos Alerts
ASBESTOS LITIGATION: ONCONASE in Phase III for Cancer Treatment
----------------------------------------------------------------
Par Pharmaceutical Companies Inc. states that Alfacell Corp.'s
product ONCONASE (ranpirnase) is currently in Phase III clinical
development for the treatment of inoperable malignant
mesothelioma, according to a Company report, on Form 8-K, filed
with the U.S. Securities and Exchange Commission on Jan. 16,
2008.
On Jan. 14, 2008, Par Pharmaceutical Inc., the Company's wholly
owned operating subsidiary, entered into an exclusive license
agreement with Alfacell.
Under the agreement, Par received the exclusive U.S.
commercialization rights to Alfacell's ONCONASE for the
treatment of cancer.
In exchange for the U.S. commercialization rights, Par made an
initial payment to Alfacell of US$5 million and will make a
subsequent payment of up to US$30 million upon (and subject to)
Alfacell's receipt of the Food and Drug Administration approval
for the product.
If the product receives FDA approval, Par will commercialize the
product in the United States and pay Alfacell royalties on net
sales of the product, and Alfacell will be eligible to receive
additional milestone payments if net sales reach certain
threshold amounts in any given calendar year.
In addition, Alfacell may be eligible to receive milestone
payments upon the achievement of certain development and
regulatory milestones with respect to future indications for
ONCONASE.
Under a separate supply agreement between Alfacell and Par,
Alfacell will supply commercial quantities of the product to
Par.
COMPANY PROFILE
Par Pharmaceutical Companies Inc.
300 Tice Blvd.
Woodcliff Lake, N.J. 07677
United States
Tel. No.: (201)802-4000
www.parpharm.com
Description:
The Company develops, manufactures and markets generic drugs and
innovative proprietary pharmaceuticals for specialty markets.
With manufacturing in Spring Valley, N.Y., and R&D facilities in
Spring Valley and in Somerset, N.J., the Company employs 750
people.
ASBESTOS LITIGATION: PPG Ind. Settlement Totals $593M at Dec. 31
----------------------------------------------------------------
PPG Industries Inc.'s asbestos settlement (under current
liabilities) amounted to US$593 million as of Dec. 31, 2007,
compared with US$597 million as of Dec. 31, 2006, according to a
Company press release dated Jan. 17, 2008.
The Company's current settlement for asbestos settlement
amounted to US$601 million as of Sept. 30, 2007, compared with
US$561 million as of Sept. 30, 2006. (Class Action Reporter,
Oct. 26, 2007)
The Company's net asbestos settlement amounted to US$2 million
for the three months ended Dec. 31, 2007, compared with US$5
million for the three months ended Dec. 31, 2006.
The Company's net asbestos settlement amounted to US$24 million
for the year ended Dec. 31, 2007, compared with US$28 million
for the year ended Dec. 31, 2006.
Pittsburgh-based PPG Industries Inc. is a global supplier of
paints, coatings, chemicals, optical products, specialty
materials, glass and fiber glass. The Company has more than 150
manufacturing facilities and equity affiliates and operates in
more than 60 countries. Sales in 2007 were US$11.2 billion.
ASBESTOS LITIGATION: Everest Re Records $311M Charge at Dec. 31
----------------------------------------------------------------
Everest Re Group Ltd. reported that it has completed a detailed
study of its potential asbestos exposures, in which the study
will result in a net pre-tax charge of US$311 million related to
the strengthening of its asbestos reserves in the 2007-4th
quarter, according to a Company press release dated Jan. 17,
2008.
After recognition of such reserve actions, management currently
expects after-tax operating income to range between US$55
million and US$75 million for the quarter and between US$769
million and US$789 million for the twelve months ended Dec. 31,
2007.
After-tax operating income is expected to be US$0.87 to US$1.19
per fully diluted share for the quarter and US$12.09 to US$12.40
per fully diluted share for the twelve months ended Dec. 31,
2007. For the year ended Dec. 31, 2006, after-tax operating
income1 was US$817.9 million or US$12.52 per fully diluted
share.
Net income for the quarter, including after-tax net realized
capital losses of US$51 million or US$0.81 per fully diluted
share, primarily relating to fair value accounting for the
equity portfolio, is expected to be between US$4 million and
US$24 million, or US$0.06 to US$0.38 per fully diluted share.
Net income for the full year, including after-tax net realized
capital gains of US$62 million or US$0.98 per fully diluted
share, is expected to range between US$831 million and US$851
million, which would be between US$13.06 and US$13.37 per fully
diluted share.
Craig Eisenacher, the Company's Chief Financial Officer said,
"Inasmuch as we had previously announced that we would be
conducting an in depth review of our potential asbestos
exposures, we believe that early disclosure of the outcome of
the review in the context of our expected operating results is
helpful to our investors and potential investors."
Hamilton, Bermuda-based Everest Re Group Ltd. operates through
various subsidiaries. Everest Reinsurance Co. provides
reinsurance to property and casualty insurers in both the U.S.
and international markets. Everest Reinsurance (Bermuda) Ltd.
provides reinsurance and insurance to worldwide property and
casualty markets and reinsurance to life insurers. Everest
National Insurance Co. and Everest Security Insurance Co.
provide property and casualty insurance to policyholders in the
U.S. Everest Indemnity Insurance Co. offers excess and surplus
lines insurance in the U.S.
ASBESTOS LITIGATION: Mediation on ASARCO Claims Set for Jan. 24
----------------------------------------------------------------
The Court-appointed mediator on ASARCO LLC's derivative asbestos
liability, Judge Elizabeth Magner of the U.S. Bankruptcy Court
for the Eastern District of Louisiana, has set Jan. 24, 2008 as
the continuation of the mediation on asbestos claims.
ASARCO discloses that mediation on the asbestos claims began in
October 2007 and continued in November 2007 and December 2007.
During those mediations, ASARCO says Judge Magner has identified
the need for a global resolution of the Company's bankruptcy
issues and began a dialog among ASARCO, the Official Committee
of Unsecured Creditors for Subsidiary Committee, Robert C. Pate,
the Court-appointed Future Claims Representative, the U.S.
Department of Justice and other parties.
Asarco Inc., in a Court filing, says the asbestos parties have
presented experts, expert testimonies and evidence during the
asbestos mediations.
Asarco Inc. discloses that ASARCO LLC's asbestos expert, Dr.
Francine Rabinovitz, has estimated that ASARCO LLC's asbestos
liabilities, assuming that it is fully liable for the acts of
its asbestos subsidiaries, is between $242,100,000 and
$446,900,000.
Asarco Inc. further discloses that Dr. Charles Bates, the expert
hired by the Asbestos Committee, estimated that ASARCO LLC's
maximum asbestos liability is US$180 million, again assuming
that ASARCO was fully liable for the acts of its subsidiaries.
American Home Assurance Co. and Lexington Insurance Co. join in
the response of Century Indemnity Co. to the extension of the
scope of the "neutrality" clause to other insurance companies
aside from Fireman's Fund Insurance Co.
(ASARCO Bankruptcy News, Issue No. 63; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Asarco Inc. Urges Court to Appoint Examiner
----------------------------------------------------------------
Asarco Inc., the 100-percent equity holder of ASARCO LLC, asks
the Court to appoint an examiner to:
(a) Investigate the facts and circumstances surrounding the good
faith of the ongoing negotiations among the Debtors and certain
other constituents with respect to the terms of the future plan
of reorganization for the Debtors;
(b) Determine the value of the Debtors;
(c) Investigate the good faith of the settlements of claims
reached among the Debtors, the asbestos claimants and the U.S.
Department of Justice with respect to asbestos and environmental
claims asserted against the Debtors; and
(d) Investigate whether ASARCO LLC has fulfilled its fiduciary
duties to its parent company, Asarco Inc.
Charles A. Beckham, Jr., at Haynes and Boone LLP, in Houston,
points out certain issues that he thinks creates a "disturbing
picture," not only as to whether the Debtors fulfilled their
fiduciary duties, settled claims in good faith, and entered into
appropriate plan negotiations, but also as to whether they have
fulfilled their responsibilities to the Court.
Mr. Beckham alleges that Asarco LLC is hiding "crucial
information regarding claims and valuation." He relates that in
November 2007, ASARCO LLC's counsel has led the Court to believe
that the Company did not have an estimate of claims or a
valuation analysis, and yet, ASARCO LLC, in December 2007,
presented claims analysis and valuation reports at the the
fraudulent complaint litigation against Americas Mining Corp. in
the U.S. District Court for the Southern District of Texas,
Brownsville Division.
Mr. Beckham says the claims analysis report was prepared by
AlixPartners and the valuation report was prepared by Lehman
Brothers Inc. Those reports, however, were subject to
confidentiality agreements and thus, were not publicly
available, he tells the Court.
"The lack of candor by the Debtors' professionals is symptomatic
of a 'win at all costs' approach to disenfranchising the Parent,
and calls into question the good faith of the Debtors' actions,"
Mr. Beckham asserts.
Mr. Beckham asserts that an examiner will probe into whether
ASARCO LLC's board of directors breached their fiduciary duties
by refusing to substantively respond to the stand-alone
reorganization plan, which intends to pay 100 percent to
creditors, that Asarco Inc. proposed in 2007.
In addition, the examiner will investigate ASARCO LLC's good
faith intention in entering into settlements. Mr. Beckham
discloses that ASARCO LLC has agreed to a settlement of its
derivative asbestos liabilities for a multiple of its own
expert's maximum liability estimate, without even contesting the
issue of its liability under a corporate-veil-piercing theory
for the liabilities of its subsidiaries.
Mr. Beckham asserts that appointment of an examiner is mandated
by Section 1104(c)(2) of the Bankruptcy Code, on the request of
a party-in-interest when a debtor's fixed, liquidated unsecured
debts, other than debts for goods, services, or taxes, owing to
an insider, exceed US$5 million. ASARCO LLC has stated, in its
Chapter 11 Petition, that its has at least US$440 million of
those debts, he notes.
Asarco Inc. thus asks the Court to afford any examiner a broad
mandate. The examiner should be empowered to provide an
independent investigation of ASARCO LLC's conduct and should be
allowed to begin an investigation as soon as possible, Mr.
Beckham asserts.
(ASARCO Bankruptcy News, Issue No. 63; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: U.K. Inquest Links Worker's Death to Hazard
----------------------------------------------------------------
An inquest at the Kettering Magistrates Court heard that the
death of Dennis Millward, a Northamptonshire, England native,
was linked to asbestos, Evening Telegraph reports.
Mr. Millward died at the age of 73 after he was diagnosed with
mesothelioma.
Mr. Millward's wife, June, told the Court that he worked for a
time moving asbestos window sills at a block of flats in London.
He would also cut and grind asbestos sheets without wearing any
protective clothing.
Mr. Millward went to the doctor after suffering from weight loss
and breathlessness at the start of 2007 and died in Cransley
Hospice on July 8, 2007.
Coroner Anne Pember recorded a verdict of death by industrial
disease and said, "He was exposed to asbestos when the dangers
were not known."
ASBESTOS LITIGATION: Police Officer's Death Linked to Asbestos
----------------------------------------------------------------
An inquest at a court in Doncaster, South Yorkshire, England,
court linked the death of retired constable Michael Jones to
asbestos exposure, The Star reports.
Mr. Jones may be the first South Yorkshire police officer to die
from an industrial disease. However, it is a mystery how Mr.
Jones, who was only aged 49 when he died, came into contact with
deadly asbestos during his career of almost 30 years.
The only line of inquiry for the Doncaster Coroner is a day
about 20 years ago when Mr. Jones is believed to have visited a
garage workshop where car brake pads were being made. At one
time brake linings were made from asbestos to increase their
heat resistance under heavy braking.
Mr. Jones' widow, 48-year-old Julie Jones, was with her husband
when he died on Jan. 11, 2008 in St John's Hospice at Balby. She
told the inquest her husband had started suffering with chest
pains and breathing difficulties in the summer of 2006 and went
to see his GP who referred him to a hospital consultant.
Mr. Jones had a biopsy taken and he was told in August 2006 that
he was suffering from mesothelioma.
Asked where Mr. Jones might have been exposed to the fibers,
Mrs. Jones said the only place she knew of was when he was
working as a traffic officer and visited a Ferodo garage where
they were making brake pads.
Mr. Jones spent some time in St John's Hospice last August 2007
and returned on Jan. 7, 2008.
Coroner Stanley Hooper, who said a preliminary post-mortem
report showed Mr. Jones had died from mesothelioma, adjourned
the inquest for further medical evidence.
ASBESTOS LITIGATION: Legal Statement Submitted for Probe in Del.
----------------------------------------------------------------
Lisa Rickard, President of the U.S. Chamber Institute for Legal
Reform, has submitted a statement for the record to the Delaware
Special Committee on Superior Court Asbestos Litigation on the
increase in asbestos claims in the Delaware court system,
according to a U.S. Chamber Institute for Legal Reform press
release dated Jan. 17, 2008.
The statement read:
Asbestos lawsuits from non-Delaware residents, for claims
occurring in other states, are being brought into Delaware at an
increasing rate. We applaud the Delaware judicial system for
investigating how to deal with the influx of these out-of-state
lawsuits. If left unchecked, these suits could overwhelm the
courts and threaten the fairness and efficiency that is the
foundation of Delaware's courts.
For the past seven years, Delaware has ranked number one on the
Institute for Legal Reforms annual Harris Survey of the 50 state
civil justice systems for its unbiased, efficient and fair court
system.
Maintaining the highest-ranked court system in the nation does
not happen without continual work to ensure that court dockets
are effectively managed and claims are fairly adjudicated on
their merits, and the Delaware courts are to be commended for
beginning to address the issue.
The mission of the Institute for Legal Reform is to make
America's legal system simpler, fairer, and faster for everyone.
It seeks to promote civil justice reform through legislative,
political, judicial, and educational activities at the national,
state, and local levels.
The U.S. Chamber of Commerce is the world's largest business
federation, representing more than 3 million businesses and
organizations of every size, sector, and region.
ASBESTOS LITIGATION: Ohio Ct. Issues Split Ruling in A-Best Case
----------------------------------------------------------------
The Court of Appeals of Ohio, 10th District, Franklin County,
entered split rulings in asbestos-related actions filed by
Robert Penn, Mack D. Price, Georgia Ward, and Toledo Harrison,
against various defendants including A-Best Products Co.
The cases are styled:
Robert Penn et al., Plaintiffs-Appellants, Lula Penn et al.,
Plaintiffs-Appellees, v. A-Best Products Co. et al., Defendants-
Appellees.
Mack D. Price, Plaintiff-Appellant, Ronald A. McKnight et al.,
Plaintiffs-Appellees, v. A-Best Products Co. et al., Defendants-
Appellees.
Georgia Ward, Individually and as Administrator of the Estate of
Herschel Ward, Plaintiff-Appellant, v. A-Best Products Co. et
al., Defendants-Appellees.
Toledo Harrison as the Administratrix of the Estate of Edward
Harrison et al., Defendants-Appellants, Robert Peters Jr. et
al., Defendants-Appellees, v. A-Best Products Co. et al.,
Defendants-Appellees.
Judges Brown, McGrath and Tyack entered judgment of Case Nos.
07AP-404, 07AP-405, 07AP-406, 07AP-407 on Dec. 31, 2007.
In these consolidated appeals Robert Penn; John R. Hubbard;
Marilyn Roth, individually, and as executor of the estate of
James H. Roth, deceased; William A. Siegel; Mack Price; Herschel
Ward; Robert L. Williams; and Edward Harrison appealed from
judgments of the Franklin County Court of Common Pleas, in which
the court denied appellants' motions to prove a prima facie case
and appellants' motion for trial setting.
Appellants were employed by various defendant-appellee companies
and were exposed to asbestos during the course of their
employment. In 2001 and 2002, the current appellants, along with
numerous other appellants, filed separate actions against
defendants-appellees.
The appellants in the actions claimed they had been diagnosed
with asbestos-related diseases caused by their employment with
appellees.
Appellants filed motions to prove a prima facie case and motions
to set trial date in June 2006 through September 2005.
On April 16, 2007, the trial court denied appellants' motions,
finding that those plaintiffs' claims based upon wrongful death,
asbestosis, and lung cancer had failed to demonstrate a prima
facie case and those plaintiffs' claims for colon and laryngeal
cancers had not accrued because they were not diagnosed by a
"competent medical authority."
Appellants have appealed the judgments of the trial court. Owens
Illinois Inc. has filed an appellee's brief with the Appeals
Court.
H.B. Fuller Co., Industrial Holdings Corp., Union Carbide Corp.,
Amchem Products Inc., Certainteed Corp., Foseco Inc., and
Caborundum Company Inc., have also filed an appellees' brief.
Accordingly, appellants' first and third assignments of error
were overruled, appellants' second and fourth assignments of
error were sustained, and appellants' fifth assignment of error
were moot.
The judgments of the Franklin County Court of Common Pleas were
affirmed in part and reversed in part, and these matters were
remanded to that court for further proceedings in accordance
with law.
ASBESTOS LITIGATION: Federal-Mogul Corp. Gets $125M from Trust
----------------------------------------------------------------
The Federal-Mogul Personal Injury Asbestos Trust, on Jan. 11,
2007, repaid its obligations to Federal-Mogul Corp. under the
Loan, Security and Pledge Agreement (US$125 Million Loan
Agreement) by paying US$125 million in cash to the Company,
according to a Company report, on Form 8-K, filed with the U.S.
Securities and Exchange Commission on Jan. 17, 2008.
On Dec. 27, 2007, the Company, in accordance with the 4th
Amended Joint Plan of Reorganization of Federal-Mogul Corp. and
its U.S. and U.K. subsidiaries that commenced chapter 11 cases,
entered into the USS$125 Million Loan Agreement with the
Asbestos Trust, in connection with the Asbestos Trust issuing
and delivering a US$125 million note to the Company ("US$125
Million Note").
The US$125 Million Note was non-interest-bearing and matured 10
business days after the Effective Date, which maturity date was
Jan. 11, 2008.
As a result of the Jan. 11, 2008 maturity, the Company has
released its security interest in the 6,958,333 shares of Class
B Common Stock of the Company that had been pledged by the
Asbestos Trust as security for the Asbestos Trust's obligations
under the US$125 Million Note.
In accordance with the terms of the Plan, US$40 million,
representing 32 percent of the cash repayment made by the
Asbestos Trust, has been put into escrow pending the resolution
of certain Relevant Claims.
Southfield, Mich.-based Federal-Mogul Corp. makes components for
cars, trucks, and construction vehicles. Products include
chassis and engine parts, pistons, and sealing systems sold
under brand names like Federal-Mogul, Glyco, and Signal-Stat.
The Company also distributes auto parts to aftermarket
customers.
ASBESTOS LITIGATION: Remand Motion in Scott Case Pending in Pa.
----------------------------------------------------------------
The U.S. District Court, W.D. Pennsylvania, will remand an
asbestos-related negligence case filed by Albert L. Scott and
spouse Laverne Scott to the Court of Common Pleas of Washington
County, in which the case is filed against Duquesne Light Co.
The case is styled Albert L. Scott and Laverne Scott, his wife,
Plaintiff(s), v. Duquesne Light Co., Defendant(s).
District Judge Arthur J. Schwab entered judgment of Case No.
07cv1690 on Dec. 28, 2007.
The Scotts alleged that Mr. Scott was exposed to asbestos-
containing products during his employment from 1941 through 1985
with Duquesne Light.
The complaint in this action was originally filed by the Scotts
in the Court of Common Pleas of Washington County, Pa.
However, Duquesne Light filed a notice of removal to the
District Court alleging that because Mr. Scott testified in
another case that he worked for the Shippingport Power Station,
a station which was "sponsored" or "operated" by the federal
government and is not a party to this action, that Duquesne
Light is entitled to a government contractor defense to this
action.
Duquesne Light sought removal of this action. Pending before the
District Court is the Scotts' motion to remand and Duquesne's
response.
Peter T. Paladino Jr., Jason T. Shipp, Goldberg, Persky,
Jennings & White, Pittsburgh, represented Albert L. Scott and
Laverne Scott.
Nicholas J. Zidik, Swartz Campbell, Pittsburgh, represented
Duquesne Light Co.
ASBESTOS LITIGATION: Prison Inmates File Action v. State of Ohio
----------------------------------------------------------------
Thirty-three current and former inmates at the Chillicothe
Correctional Institute have filed an asbestos-related federal
lawsuit against the State of Ohio, 10 Investigates reports.
The inmates allege that their health was put at risk while they
served prison time. In the suit, they claim prison officials
knew for years about an asbestos problem inside the Chillicothe
Correctional Institution, but failed to act.
Gerald Smith, who served 18 months at the prison, is one of the
plaintiffs listed on the suit. He said he was exposed to the
asbestos and continues to suffer from the effects.
According to Mr. Smith, he routinely encountered the asbestos
while working as a plumber inside the prison. He said, "If we
have a rupture in the pipe, this means the steam is blowing
through the asbestos, blowing all the asbestos in the air."
Mr. Smith, along with other inmates, said that they collected
samples of the alleged asbestos from areas inside the prison,
including floors.
Laboratory tests ordered by the inmates' lawyers showed that the
samples tested positive for asbestos.
The attorney for Mr. Smith and the other plaintiffs told 10
Investigates that money was not motivation for the suit.
The amount of the lawsuit has not yet been determined.
ASBESTOS LITIGATION: Congoleum Corp. Claimants File Amended Plan
----------------------------------------------------------------
Congoleum Corp., on Jan. 18, 2008, said that an amended
reorganization plan was filed by the future claimants'
representative in its Chapter 11 proceedings, RTT News reports.
The Company said it believes the plan would receive the support
of the official bondholders' committee and the official asbestos
claimants' committee.
A hearing to consider the adequacy of the disclosure statement
describing the plan is scheduled for Feb. 14, 2008.
If the plan is approved by the court and accepted by the
requisite creditor constituencies, it would permit the Company
to exit Chapter 11 free of liability for existing or future
asbestos claims.
As per the amended plan, a trust would be created that assumes
the liability for the Company's current and future asbestos
claims. That trust would receive the proceeds of various
settlements the Company has reached with a number of insurance
carriers, and would be assigned the Company's rights under its
remaining policies covering asbestos product liability.
Mercerville, N.J.-based Congoleum Corp. makes flooring products
for residential and commercial use. Products include resilient
sheet flooring (linoleum or vinyl flooring), do-it-yourself
vinyl tile, and commercial flooring. American Biltrite Inc. owns
about 66 percent of the Company.
ASBESTOS LITIGATION: Protesters to Head to London on Jan. 29
----------------------------------------------------------------
Representatives of trade unions, health groups, and law firms
specializing in industrial disease litigation, on Jan. 29, 2008,
will head to London to lobby the Government to overturn the
House of Lords' October 2007 ruling on asbestos-related pleural
plaques, The Star reports.
The campaigners are preparing to descend on the Houses of
Parliament to protest at the judgment which will deny thousands
of workers suffering an asbestos-related condition the right to
claim compensation.
The Law Lords ruled that pleural plaques, a scarring of the
lungs which can be a forerunner of deadly asbestosis and
mesothelioma, is not a disease in itself, and therefore
sufferers could not get compensation.
However, the campaigners believe the judgment ignores the
anxiety and fear caused by the condition.
Michael Clapham, MP for Barnsley West and Penistone, is at the
forefront of a growing parliamentary campaign calling on the
Government to introduce legislation to overturn the
controversial legal decision.
ASBESTOS LITIGATION: U.K. Plumber's Widow Gets GBP100,000 Payout
----------------------------------------------------------------
Daphne Reay, the widow of plumber Keith Reay, has received more
than GBP100,000 in asbestos compensation in an out-of-court
settlement after a five-year legal battle with insurers, HVR
reports.
Mr. Reay, of Stocksfield, Northumberland, England, was diagnosed
with mesothelioma in November 2002. He died nine months later at
the age of 52.
Mr. Reay was employed as an apprentice plumber by builders J.H.
Newman & Sons (Hexham) Ltd. for 17 years, between leaving school
in 1967 and 1984. As a plumber and heating engineer, he was
exposed to asbestos during the course of his work for J.H.
Newman.
The firm went out of business in 1993. By the time Mr. Reay was
diagnosed with cancer, the Company had not been operating for 10
years and documentation identifying the employer's insurer had
been destroyed.
Mr. Reay contacted solicitors to started the process of finding
the insurance company used by his former employers. Before he
died he asked the 55-year-old Mrs. Reay to carry on fighting for
compensation.
JH Newman's insurer was Guardian & Royal Exchange, now Axa, but
when contacted, they refused to pay out saying without written
evidence or policy numbers the claim could not be considered.
Written statements from two former JH Newman directors
confirming the insurers were Guardian & Royal Exchange did not
result in the insurer paying out.
Only on Jan. 9, 2008, the day before the case was due to be
heard did Axa offer to settle out of court (on the basis that
they had found a cover note for 1984, the last year of Mr.
Reay's employment).
ASBESTOS LITIGATION: Council to Probe Hazard on Railroad Tracks
----------------------------------------------------------------
WORK on the proposed GBP3.5 million railway underpass in
Royston, England, will not begin until a detailed survey is
carried out over asbestos deposits on the track, Herts 24
reports.
A spokesman for Herts County Council said, "We are aware that
some time in the 1920s asbestos was used to make up the track.
We have always known that it's there and we have taken it into
account when drawing up our plans."
The spokesman said there will be a full investigation into the
matter before "we start thinking about digging it up."
Asbestos had been discovered over the years on nearby allotments
and has been disposed of through safe measures
ASBESTOS LITIGATION: Asbestos Discovered at Burned Down Va. Site
----------------------------------------------------------------
Fire investigators have found asbestos littering the burned down
site of the Royster-Clark Fertilizer Plant in Lynchburg, Va.,
The News & Advance reports.
Fire investigators have finished their on-scene investigation at
the Royster-Clark Fertilizer Plant that burned down a week ago.
Lynchburg Fire Marshall Greg Wormser said that after analyzing
samples taken from the site, 50 percent of the samples contained
the flame-retardant material often used in insulation. Of those
samples, more than half contained 75 percent or more asbestos.
Mr. Wormser said the investigation as to the cause of the blaze
is still ongoing, but no more work will happen at the site. No
more crews are needed to man the site, he said, since the threat
of the fire rekindling is gone.
Mr. Wormser asserted that the asbestos at the site does not pose
a problem to people who live in the area, as long as they do not
go to the site.
ASBESTOS LITIGATION: Two Die From Exposure in Cape Former Mines
----------------------------------------------------------------
The South African Broadcasting Corp., on Jan. 19, 2008, reported
that two people have died from secondary pollution from asbestos
in Kuruman in the Northern Cape, Independent Online reports.
A 19-year-old and a 60-year-old man, both unnamed, were the
latest victims of the pollution.
SABC reported that the deaths come in the wake of a 2005/6
government study on the extent of pollution at former mining
areas. The objective of the study was to highlight the potential
extent of secondary pollution.
The two deaths also come amid recent government intentions to
introduce new legislation to prohibit the use, manufacture,
import and export of asbestos and any materials containing
asbestos.
Asbestos mining stopped in South Africa in the mid-1980s.
However, people are still being diagnosed and die from
associated illnesses on a regular basis.
ASBESTOS LITIGATION: Arkansas Town Council OKs Money for Cleanup
----------------------------------------------------------------
Town council members in Highfill, Ark., on Jan. 17, 2008,
approved at their meeting money for asbestos removal in two city
buildings and an overrun in expenditures for the renovation of a
building to be the town's police station, The Benton County
Daily Record reports.
In a 4 to 1 vote, the Town Council approved the expenditure of
US$15, 543 from the cash-management fund to have the asbestos
removed from the Webb House, in the city's park, and from the
home purchased from the Hobart Young Estate that will be
converted into a new city hall.
The amount needed to remove the asbestos is conditioned on
approval to remove asbestos from both locations at the same time
rather than having the company return for work at the second
site.
Once the asbestos is removed from the Webb House, it can be
burned and removed, said Rob Holland, the town's fire marshal.
Removal of the asbestos from the Hobart Young Estate home will
clear the way for renovation to convert the home into a city
hall.
ASBESTOS LITIGATION: Mass. School Deals with Asbestos Abatement
----------------------------------------------------------------
As talks are ongoing about the future of the Wellesley High
School building in Wellesley, Mass., the issue on how to deal
with asbestos abatement has been brought up, Wellesley Townsman
reports.
For the middle school and the elementary schools, several of
which have been renovated in recent years, a policy was set that
required all asbestos abatement activity take place after
school, when there were no children in the building.
With the elementary schools, working around that policy "was
relatively easy to do" because kids generally leave immediately
after school, said School Committee chairman Mike Young.
However, with the high school building project on the horizon,
the School Committee is starting to think about different
options for asbestos abatement, and "has requested that the
Permanent Building Committee revisit this policy now," said Mr.
Young, pointing out that, unlike at the middle and elementary
schools, students at the high school "are there well into the
evening."
At a hearing run by the PBC and the School Committee last Jan.
17, 2008, citizens raised questions and concerns, and discussed
options with the two boards — such as scheduling as much of the
work as possible during school vacations and holidays, or over
the summer — but "no real policy was voted," Mr. Young said.
It is unclear exactly how big the asbestos problem is at the
high school, but it does not currently pose any hazard to
students and teachers in the building, Mr. Young said.
ASBESTOS LITIGATION: Fireman's Fund Partial Summary Judgment OKd
----------------------------------------------------------------
The U.S. District Court, W.D. Washington, at Seattle, granted
Fireman's Fund Insurance Co.'s cross-motion for partial summary
judgment regarding joint & several liability.
The Court also denied Weyerhaeuser Co.'s amended cross-motion
for partial summary judgment regarding trigger of coverage.
The case is styled Weyerhaeuser Co., Plaintiff, v. Fireman's
Fund Insurance Co., Defendant and Fireman's Fund Insurance Co.,
Third-Party Plaintiff, v. General Insurance Company of America;
Northwestern National Insurance Company of Milwaukee, Wisconsin,
and Old Republic Insurance Co., Third-Party Defendants.
District Judge Marsha J. Pechman entered judgment of Case No.
C06-1189MJP on Jan. 2, 2008.
This case arose from 27 claims asserted against Weyerhaeuser
alleging liability for asbestos-related bodily injury. Fireman's
Fund issued insurance policies from 1954 to 1978.
In the mid-1980s, Weyerhaeuser and Fireman's Fund entered into
an informal arrangement whereby Weyerhaeuser assumed control of
defense and indemnity payments on asbestos bodily injury claims.
The parties agree that upon submission of a request for
reimbursement, the policies require Weyerhaeuser to select the
policy year in which it is seeking coverage.
The parties' dispute focuses on Fireman's Fund's indemnity
coverage in two underlying cases. In the "Anderson" case, Alex
and Joan Anderson sued Weyerhaeuser and other defendants in New
York, alleging that Mr. Anderson's asbestos-related illness
resulted from continuous exposure to asbestos throughout his
employment as a carpenter. In his interrogatory answers, he
stated that he was first exposed to asbestos in 1959.
Weyerhaeuser did not start manufacturing fire doors until August
1960. The parties agree that Mr. Anderson testified in
deposition that his first exposure to Weyerhaeuser's asbestos-
containing fire doors occurred in 1965.
Fireman's Fund has rejected Weyerhaeuser's election to place the
Anderson claim in the 1959-60 policy year, and seeks to place
the claim in the 1965-66 policy year on the grounds that 1965
was the first year that Mr. Anderson was exposed to
Weyerhaeuser's asbestos-containing fire doors.
In the "Reed" case, Harold Reed sued Weyerhaeuser and other
defendants in Missouri, alleging that his exposure to asbestos
from 1954 through 1999 resulted in his diagnosis of pleural
mesothelioma.
Mr. Reed testified in his deposition that he was first exposed
to asbestos in 1954, but that his earliest exposure to
Weyerhaeuser's asbestos-containing fire doors was after 1965.
This matter came before the District Court on cross-motions for
partial summary judgment. Weyerhaeuser and Fireman's Fund
disputed whether Weyerhaeuser can require Fireman's Fund to
process asbestos liability claims under policies that predate
the underlying claimants' alleged or actual exposure to
Weyerhaeuser's products or premises.
On Dec. 18, 2007, the Court heard oral argument on the motions.
Having considered Fireman's Fund's "Cross-Motion for Partial
Summary Judgment re: Joint & Several Liability" and
Weyerhaeuser's "Amended Cross-Motion for Partial Summary
Judgment Re: Trigger of Coverage," the parties' responses, all
documents in support thereof and the record herein, the Court
granted Fireman's Fund's cross-motion and denied Weyerhaeuser's
cross-motion.
James Robert Mccullagh, Marie G. Aglion, Perkins Coie, Jeffrey
I. Tilden, Franklin Dennis Cordell, Gordon Tilden Thomas &
Cordell LLP Seattle, represented Weyerhaueser Co.
Jodi Ann McDougall, John Charles Ditzler, Cozen O'Connor
Seattle, represented Fireman's Fund Insurance Co.
Curt H. Feig, Nicoll Black & Feig PLLC, Seattle, represented
General Insurance Company of America, Northwestern National
Insurance Company of Milwaukee, Wisconsin, and Old Republic
Insurance Co.
ASBESTOS LITIGATION: Delaware Court Favors ICI in Riedel Action
----------------------------------------------------------------
The Superior Court of Delaware, New Castle County, granted ICI
Americas Inc.'s Motion for Summary Judgment in an asbestos-
related action filed by Lillian Riedel.
Judge Slights entered judgment of Case No. 04C-07-099-ASB on
Dec. 21, 2007.
John Riedel Sr. worked for ICI from about 1962 to 1990 at the
Atlas Point facility. At the time, he began working for ICI, the
company's principle business was to manufacture explosives. Over
the subsequent years of his employment, ICI moved into other
businesses, including research, development and manufacture of
chemicals, pharmaceuticals, and various forms of insulation.
ICI was previously known as Atlas Powder Co. and is now known as
AstraZenaca L.P.
According to Mr. Riedel, ICI never warned him of the dangers
associated with asbestos. ICI never advised him of the need to
wear special clothing when working around asbestos, or of the
need to remove his clothing and leave it at the job site before
going home. Mr. Riedel worked at ICI in the clothes he wore from
home and returned home in those same clothes.
ICI did not provide uniforms to its employees. ICI also never
warned either Mr. or Mrs. Riedel of the dangers associated with
laundering clothing that was covered with asbestos dust.
Mrs. Riedel regularly laundered her husband's work clothes along
with her family's other clothes. She recalled that the clothing
was frequently covered in dust, although she did not appreciate
that the dust was asbestos. Mrs. Riedel was not exposed to
asbestos on ICI's premises.
By the late 1980s and/or early 1990s, ICI began to require its
employees to take steps to minimize the risk of asbestos
exposure.
ICI has moved for summary judgment on the ground that it owed no
duty to Mrs. Riedel. After carefully considering the parties'
arguments, the Court concludes that ICI owed no duty to Mrs.
Riedel to prevent her from being exposed to asbestos within her
own home.
The relationship between Mrs. Riedel and ICI is too tenuous to
support a legal duty of care running from ICI to Mrs. Riedel or
other members of her household. Accordingly, ICI's motion for
summary judgment was granted.
Thomas C. Crumplar, Jacobs & Crumplar P.A., Wilmington, Del.,
represented Lillian Riedel.
Mark L. Reardon and Krista R. Samis, Elzufon, Austin, Reardon,
Tarlov & Mondell P.A., Wilmington, Del., represented ICI
Americas Inc.
ASBESTOS LITIGATION: Plaintiffs Favored in A-C Product Lawsuits
----------------------------------------------------------------
The U.S. District Court, N.D. Ohio, Western Division, denied
Shipowner Defendants' Motion for Summary Judgment and/or Partial
Summary Judgment in several asbestos-related cases.
The Court found that reasonable minds could reach different
conclusions based upon the totality of the evidence.
The cases are styled Charles Wille, Plaintiff, v. A-C Product
Liability Trust, et al., Defendants, and Charles Rich, et al.,
Plaintiffs, v. A-C Product Liability Trust, et al., Defendants.
U.S. District Judge Jack Zouhary entered judgment of Case Nos.
1:98 CV 12997 and 1:98 CV 14094 on Dec. 28, 2007.
The District Court conducted a Record Hearing on pending Motions
for Summary Judgment on Dec. 20, 2007.
Trial date of Jan. 15, 2008 (Rich) was vacated and reset, with
agreement of counsel, to Jan. 29, 2008 at 9:00 a.m. (in Toledo
not Cleveland).
All pretrial filings, under the Trial Order filed
contemporaneously with this Order, were due by Jan. 8, 2008.
Trial date of Feb. 19, 2008 (backup March 20, 2008) (in Toledo
not Cleveland) (Wille) was confirmed.
Matthew C. O'Connell, Claire R. Hurley, Douglas R. Simek,
Sutter, O'Connell, Mannion & Farchone, Cleveland, represented A-
C Product Liability Trust and the other Defendants.
ASBESTOS LITIGATION: Court Upholds Arbitration Denial in Crowley
----------------------------------------------------------------
The Court of Appeal, 1st District, Division 1, California,
affirmed the ruling of the City & County of San Francisco
Superior Court, which denied a petition to compel arbitration in
asbestos litigation wherein Crowley Maritime Corp. is the
plaintiff.
The case is styled Crowley Maritime Corp., Plaintiff, v. Boston
Old Colony Insurance Co. et al., Defendants, Cross-Complainants
and Respondents.
Boston Old Colony Insurance Co. et al., Cross-Complainants and
Respondents, v. West of England Ship Owners Mutual Insurance
Association et al., Cross-Defendants and Appellants.
Judges Marchiano, Stein, and Margulies entered judgment of Case
No. A116710 on Jan. 11, 2008. City & County of San Francisco
Superior Court, Honorable Wallace P. Douglass.
Crowley is a tugboat company operating out of Oakland, Calif.
Two lawsuits were brought against Crowley alleging that two of
its tugboat captains had contracted mesothelioma from exposure
to asbestos on board Crowley tugboats. Crowley settled both
claims in an amount exceeding US$6 million.
Crowley sought indemnity from one of its insurers, Boston Old
Colony Insurance Co., which initially indemnified Crowley for a
portion of the settlements. Crowley then sued Boston to recover
the balance of the settlements.
Boston cross-complained against Crowley and several third-party
insurers who had issued policies to Crowley, including West of
England Ship Owners Mutual Insurance Association (Luxembourg)
and The United Kingdom Mutual Steam Ship Assurance Association
(Bermuda) Ltd.
Boston sought declaratory relief and equitable contribution,
alleging that sums it paid to Crowley must be "allocated,
according to applicable law, among all the Insurer Third Party
Defendants." These third party insurer defendants include
appellants.
At the same time, Glens Falls Insurance Co. filed a complaint in
intervention seeking similar relief, including equitable
contribution. Boston, and possibly also Glens Falls, eventually
settled with Crowley for the full amount of Crowley's
settlements.
Crowley had amended its original complaint against Boston to add
causes of action against appellants, but then dismissed
appellants from its lawsuit.
Appellants petitioned the trial court to stay the entire action
and to compel arbitration of the equitable contribution dispute.
Appellants, which are organized in Luxembourg and Bermuda and
managed out of London, had contracted with Crowley for
arbitration in London with resolution of disputes under English
law.
Respondents opposed the motion to compel arbitration. Appellants
conceded that respondents are not parties or signatories to
appellants' arbitration agreements with Crowley.
Although there are exceptions to the general rule against
compelling non-signatories to arbitrate, the exceptions relied
upon by appellants do not apply in this case. Therefore, the
Appeals Court affirmed.
ASBESTOS LITIGATION: Court Issues Split Ruling in Ericsson Case
----------------------------------------------------------------
The U.S. District Court, N.D. Illinois, Eastern Division,
entered various rulings in an asbestos-related action styled
Sycamore Industrial Park Associates (SIPA), an Illinois general
partnership, Plaintiffs, v. Ericsson Inc., a Delaware
corporation, Defendant.
U.S. District Judge David H. Coar entered judgment of Case No.
06 C 0768 on Jan. 9, 2008.
On May 30, 1985, Ericsson sold to Michael Kreiger, an Ericsson
employee until around May 1985, an industrial park (the "Site").
Once the transaction closed, Mr. Kreiger assigned his interests
in the Site to SIPA.
In his capacity as an Ericsson employee, Mr. Kreiger was in
charge of preparing the Site for sale. Ericsson used a boiler-
based heating system to provide heat throughout the buildings on
the Site. The boiler-based system consisted of boilers, pipes
and other equipment containing asbestos insulation.
Before eventually selling the Site to Mr. Kreiger, Ericsson
leased part of the property to UARCO in December of 1984. Until
January 1985, the complete boiler-based heating system was
providing heat to the buildings of the Site.
However, in the winter seasons of 1983 and 1984, the boiler-
based system was working with increasing difficulty. When UARCO
moved onto the Site in January 1985, Ericsson discontinued use
of the boiler-based system in UARCO's buildings and began using
a new non-asbestos containing heating system.
Ericsson never removed the old heating system. Neither Krieger
nor SIPA requested Ericsson to remove the old system.
According to Mr. Kreiger, he concluded in April 1985 that the
boiler system was garbage and had to be shut down. He stated
that Robert Boey, an Ericsson engineer in charge of determining
how to provide heat to the Site's buildings and who reported to
Mr. Kreiger, came to this conclusion in September 1983.
Ericsson obviously concluded at some point that it was not
economically reasonable to maintain, repair or operate the
boiler-based system and so it ceased its use.
SIPA now claimed that by discontinuing use of the boiler-based
heating system containing asbestos insulation but not removing
it from the Site, Ericsson abandoned it, thereby disposing of
hazardous waste under the terms of CERCLA and RCRA.
SIPA also claimed that the old heating system is a common law
nuisance and that leaving the system was an act of negligence
that continues to harm SIPA.
SIPA filed a civil action against Ericsson under the
Comprehensive Environmental Response, Compensation and Liability
Act and the Resource Conservation and Recovery Act.
Ericsson now moved for summary judgment on all claims of the
Complaint and SIPA moved for partial summary judgment on its
RCRA and CERCLA claims.
Ericsson's motion was granted in part, and SIPA's motion was
denied.
ASBESTOS LITIGATION: Court Partially OKs Ruling in Bolick Action
----------------------------------------------------------------
The Court of Appeals of North Carolina partially affirmed the
North Carolina Industrial Commission's Opinion and Award, dated
Sept. 19, 2007, which found that Billy Bolick was permanently
and totally disabled, and awarded him compensation, in an
asbestos case filed against ABF Freight Systems Inc.
The case is styled Billy Bolick, Employee, Plaintiff, v. ABF
Freight Systems Inc., Employer, (Self-Insured), Defendant.
Judges Calabria, Stephens, and McCullough entered judgment of
Case No. COA07-198 on Jan. 15, 2008.
This was an appeal filed by Mr. Bolick and ABF from an Opinion
and Award filed Sept. 27, 2006 by the Commission and heard in
the Court of Appeals on Sept. 19, 2007.
The evidence before the Commission tended to show that Mr.
Bolick, who is now 73 years of age with a ninth grade education,
was employed for roughly 30 years by ABF.
Mr. Bolick worked as a general laborer and local route driver
for ABF's Charlotte terminal. His final day of work was Sept.
30, 2007.
The evidence also showed that Mr. Bolick smoked cigarettes for
about 42 years and has a history of asthma. On Sept. 30, 1987,
he retired from employment due to shortness of breath and
respiratory problems.
On June 7, 1993, Mr. Bolick's family doctor, Dr. Cutchin, found
that he had multiple pleural nodules and plaques on his lungs,
consistent with asbestos exposure. On or about March 14, 1994,
Dr. Edward Landis diagnosed Mr. Bolick with asbestosis and a
Class II impairment.
The Commission first heard Mr. Bolick's claim for compensation
on May 14, 1996, following which an Opinion and Award was issued
on May 14, 1997. Mr. Bolick was found to have asbestosis and was
awarded 104 weeks of compensation at the rate of US$308.00 per
week. Under that order, Mr. Bolick has undergone three follow-up
medical examinations.
On April 4, 2002, Mr. Bolick filed a Motion for Immediate
Payment of Out-of-Pocket Expenses for Medications Prescribed for
Asbestos-Related Illness, which was granted by a June 4, 2002
order from Special Deputy Commissioner Elizabeth Maddox.
ABF appealed, contending that the Commission erred by:
(1) Not apportioning the extent of Mr. Bolick's disability
between non-occupational factors and occupational factors; and
(2) Requiring ABF to pay for prescription expenses related to a
non-occupational condition.
Mr. Bolick cross-appealed.
Accordingly, the Opinion and Award of the Commission was
affirmed in part and remanded for additional findings.
Huffman Law Firm P.A., by Richard L. Huffman, represented Billy
Bolick.
Hedrick Eatman Gardner & Kincheloe LLP, by Neil P. Andrews and
M. Duane Jones, represented ABF Freight Systems Inc.
ASBESTOS LITIGATION: Summary Judgment Upheld in Van Fossen Case
----------------------------------------------------------------
The Court of Appeals of Iowa upheld the Iowa District Court for
Woodbury County's ruling, granting summary judgment to
MidAmerican Energy Co. and Interstate Power and Light Co., in an
asbestos-related lawsuit filed by Roger Van Fossen.
The case is styled Roger Van Fossen, Individually, and as
Personal Representative of the Estate of Ann Van Fossen,
Deceased, Plaintiff-Appellant, v. MidAmerican Energy Co. and
Interstate Power and Light Co., Defendants-Appellees.
Judges Vogel, Mahan, and Zimmer entered judgment of Case No. 06-
1691 on Jan. 16, 2008.
Mr. Van Fossen was employed as an ironworker by two independent
contractors from 1973 until he retired in 1997. From 1973
through 1981, he worked for Ebasco Services, and from 1981
through 1997, he worked for W.A. Klinger Co.
Iowa Public Services, the predecessor of MidAmerican, hired
Ebasco and Klinger to do construction and maintenance work on
the electricity generating units at the Port Neal generating
station in Sioux City, Iowa. Port Neal consists of four power
units, designated as Unit 1 through Unit 4.
During his employment with Ebasco and Klinger, Mr. Van Fossen
performed work at all four generating units.
Mr. Van Fossen claimed that while working on or near the Port
Neal generating units, he was exposed to various asbestos-
containing products, and that he carried asbestos dust home on
his work clothes.
Mr. Van Fossen alleged that his wife, Ann Van Fossen, contracted
peritoneal mesothelioma as a result of washing his work clothes.
She died of peritoneal mesothelioma on July 2002.
In 2004, Mr. Van Fossen sued various defendants, including
MidAmerican and IPL, for the wrongful death of his wife and for
his own injuries. He included claims for negligent failure to
warn in his suit against MidAmerican and IPL.
MidAmerican and IPL each filed motions for summary judgment.
They contended that they owed no duty to Mrs. Van Fossen and
therefore could not be held liable for her death. Mr. Van Fossen
filed a resistance to both of these motions.
On Feb. 17, 2006, the court issued its ruling on all summary
judgment motions. The court concluded that neither defendant
owed a duty to Mrs. Van Fossen and granted MidAmerican's and
Interstate Power's motions for summary judgment.
Mr. Van Fossen subsequently filed a motion to enlarge or amend
findings of fact and conclusions of law. In his motion, he
Fossen requested that the court reconsider its ruling that there
can be no liability on behalf of MidAmerican and Interstate
Power for any alleged asbestos exposures while working at Port
Neal.
On May 11, 2006, the court denied Mr. Van Fossen's motion.
Mr. Van Fossen appealed. He asserted the district court erred in
granting summary judgment to MidAmerican and IPL on the basis
that neither entity owed a duty of care to Mrs. Van Fossen.
Because the Appeals Court agreed with the district court's
findings of fact, conclusions of law, and decision, it affirmed
the District Court's ruling.
Michael Jacobs of Rawlings, Nieland, Probasco, Killinger,
Elwanger, Jacobs & Mohrhauser, Sioux City, Iowa, and John
Herrick and Benjamin Cunningham of Motley Rice, Mt. Pleasant,
S.C., represented Roger Van Fossen.
William Hughes of Stuart, Tinley, Peters, Thorn, Hughes, Faust &
Madsen, Council Bluffs, Iowa, and Jason Kennedy and Adam
Jagadich of Segal, McCambridge, Singer & Mahoney, Chicago,
represented MidAmerican Energy Co.
Leonard Strand and Kerry Finley of Simmons Perrine, Cedar
Rapids, Iowa, represented Interstate Power and Light Co.
ASBESTOS LITIGATION: Court Junks McCord Motion in Wilkerson Case
----------------------------------------------------------------
The Superior Court of Delaware, New Castle County, denied McCord
Corp.'s motion for summary judgment, in an asbestos-related
lawsuit filed by Carl Wilkerson and Connie Wilkerson.
The case is styled Carl Wilkerson and Connie Wilkerson, his
wife, Plaintiffs, v. American Honda Motor Company Inc., et al.,
Defendants.
Justice Johnston entered judgment of Civil Action No. 04C-08-268
ASB on Jan. 17, 2008.
The Wilkersons filed this action with the Court on Aug. 30,
2004. Mr. Wilkerson claimed he developed asbestosis due to work
with asbestos-containing products. He served in the U.S. Navy,
the U.S. Air Force and worked as an automotive mechanic from
1954 to 1982.
Mr. Wilkerson routinely removed and installed gaskets from
vehicles during his career. He claimed asbestos-containing
gaskets manufactured and sold by McCord caused him to develop
asbestosis.
McCord filed a Motion for Summary Judgment on Oct. 12, 2007.
The parties did not dispute that McCord manufactured and sold
asbestos-containing gaskets. Additionally, the parties agreed
that installing the McCord gasket did not expose Mr. Wilkerson
to asbestos. The asbestos exposure could only occur in the
removal and replacement of an existing asbestos-containing
gasket.
Thus, the issue before the Superior Court was whether McCord had
a duty to warn Mr. Wilkerson that removing and replacing a
gasket, manufactured by McCord or another company, may lead to
asbestos exposure.
McCord used asbestos in manufacturing its automotive gaskets.
Mr. Wilkerson has made a prima facie case, raising genuine
issues of material fact: whether the probable use of the McCord
gasket involved the removal and replacement of an asbestos-
containing gasket; whether McCord knew or should have known,
based on the understanding of its own product, that the
installation of McCord gaskets placed Mr. Wilkerson at risk of
exposure to asbestos; and whether it was reasonably foreseeable
that the use of a McCord gasket would lead to asbestos-related
disease.
The Superior Court found that a genuine issue of material fact
existed as to whether McCord had a duty to warn. Therefore,
McCord's Motion for Summary Judgment was denied.
David A. Arndt, Jacobs & Crumplar P.A., Wilmington, Del.,
represented Carl Wilkerson and Connie Wilkerson.
Robert K. Beste, Smith, Katzenstein & Furlow LLP, Wilmington,
Del., represented McCord Corp.
ASBESTOS LITIGATION: Ky. Court Upholds Ruling in Favor of DuPont
----------------------------------------------------------------
The Court of Appeals of Kentucky affirmed the ruling of the
Jefferson Circuit Court, which granted summary judgment to E.I.
DuPont De Nemours and Co., in an asbestos-related action filed
by Mildred Lee on behalf of her husband Duel Lee.
The case is styled Mildred Lee, Individually, and as Executrix
of the Estate of Duel Lee, Appellant v. E.I. DuPont De Nemours
and Co., Appellee.
Judges Clayton, Keller, and Moore entered judgment of Case No.
2006-CA-002566-MR on Jan. 18, 2008.
Mr Lee worked for DuPont from 1950 through 1984. During his
employment at DuPont, he was exposed to asbestos fibers and
dust. In August 2002, he was diagnosed with mesothelioma and
died within several days of receiving that diagnosis.
Mrs. Lee sued DuPont and a number of other entities on behalf of
Mr. Lee and his estate.
Mrs. Lee alleged and offered evidence that DuPont had knowledge
of the dangers associated with asbestos exposure prior to and
during Mr. Lee's employment with DuPont.
During the course of this litigation, DuPont filed a motion for
summary judgment. In its motion, DuPont asserted that it was
exempt from civil liability because of its status as Mr. Lee's
employer and the exclusive remedy provisions of KRS Chapter 342.
Mrs. Lee argued that DuPont's actions amounted to an intentional
act sufficient to abrogate those exclusive remedy provisions.
The circuit court granted DuPont's motion on Nov. 9, 2006.
Mrs. Lee appealed.
The Appeals Court contended that the circuit court granted
summary judgment to DuPont based on the exclusive remedy
provisions of the Workers' Compensation Act.
Mrs. Lee argued on appeal that DuPont's actions amounted to the
deliberate intention to cause Mr. Lee's death.
The Appeals Court held that the circuit court did not
prematurely grant DuPont's motion for summary judgment because
Mrs. Lee could not have proven through additional discovery that
DuPont's conduct rose to the level necessary to show that DuPont
deliberately intended to cause injury or death to Mr. Lee.
The Appeals Court affirmed the Circuit Court's ruling.
Kenneth L. Sales, Joseph D. Satterley, Paul J. Kelley, Kevin D.
Samples, Louisville, Ky., represented Mildred Lee.
Walter M. Jones, Angela McCorkle Buckler, Lisa C. DeJaco,
Louisville, Ky., represented E.I. DuPont De Nemours and Co.
ASBESTOS LITIGATION: Ill. Board Conducts Probe Before Demolition
----------------------------------------------------------------
The Pikeland School Board in Pittsfield, Ill., on Jan. 16, 2008,
said that it will work with Klinger and Associates on an
asbestos inspection required before demolition of the old
maintenance shop and possibly additional Quonset storage huts,
Quincy Herald-Whig reports.
Superintendent Paula Hawley said the inspection involves taking
samples of "anything that looks suspicious" and having them
tested to determine whether "there is or there isn't" asbestos.
On August 2007, the district bought the city's former gas
department building, adjacent to the board office, to use for
storage. With the additional space, Ms. Hawley said, the
district can tear down obsolete storage facilities.
The maintenance shop will come down, but district officials plan
to go through the huts, which are full, to determine whether the
new building will provide enough storage space or whether they
should remain in place.
On Jan. 16, 2008, Ms. Hawley reported the state has approved a
budget implementation bill, which means districts should start
receiving money that was due them in August 2007.
Ms. Hawley estimates the district lost US$5,000 in interest by
not having the money from the beginning of the school year.
The board also closed the site and construction fund used to
replace the bus barn lost in an April 2006 fire and transferred
about US$130,000 to the building fund.
ASBESTOS LITIGATION: Factory Worker's Death Linked to Asbestos
----------------------------------------------------------------
An Oxford Coroner's Court inquest heard that the death of 74-
year-old Dennis Cofield, who was probably exposed to asbestos
while working at the Morris Motor Co. factory in Oxford,
England, was related to asbestos, Oxford Mail reports.
Oxford coroner Nicholas Gardiner, on Jan. 22, 2008, recorded an
open verdict at the hearing into Mr. Cofield's death.
Mr. Cofield died in October 2007 after suffering from lung
cancer for about two years.
The inquest heard how Mr. Cofield worked at the factory in
Cowley in 1961 and 1962 when refurbishment work was being
carried out, and it was "very likely" he was working near
asbestos dust.
Pathologist Dr. Elizabeth Soilleux told the inquest she "could
not exclude asbestos exposure as a cause of death, but couldn't
prove it either way."
Mr. Cofield, who had also worked as a lollipop man in Leckford
Road, North Oxford, smoked 15 cigarettes a day for 15 years, a
fact that Dr. Soilleux said posed a "very large risk" of causing
cancer, compared to the "small but significant" risk of asbestos
exposure.
Mr. Gardiner said, "It's very likely indeed that Mr. Cofield
would have suffered exposure to asbestos at Morris Motors at the
time he was employed there. The question remains, though, that
not everyone exposed to these conditions suffers harm. I do not
think it justifies recording a verdict of dying of industrial
disease, but that asbestos exposure did play some part in his
death."
ASBESTOS LITIGATION: Tests Continue for Marine Atlantic Workers
----------------------------------------------------------------
Testing on Marine Atlantic Inc. employees, who worked with
asbestos on the Atlantic Freighter, is continuing, The Gulf News
reports.
Union representative Sue Irvine expects the testing will
continue for some time to deal with the more than 1,000 past and
present employees and others.
Ms. Irvine works for the Canadian Auto Workers Union, which
represents almost 600 vessel employees, as well as those in two
maintenance shops. She said 58 employees underwent company-
provided health tests in December 2007.
Of those, 39 have completed all the tests which included lung X-
rays and lung function tests. Fourteen others who were offered
the testing declined to participate.
Seven participants were told to see their family doctor for
further tests as potential problems were found. Three of the
seven were told their issues could be related to asbestos.
Ms. Irvine said more issues may be identified as the other
employees complete all the testing and others begin. She said
the people invited to the first clinic, held in Port aux
Basques, were deemed by the company to have high risk of
exposure.
Ms. Irvine said the company is also contacting dock workers in
Halifax and St. John's, other contractors and truck drivers who
may have been exposed to asbestos.
Employees and retirees who develop asbestos related health
problems may be eligible for Workers' Compensation. Ms. Irvine
said the benefits will depend on the type of illness and other
factors.
As the matter is covered under the workers' compensation plan,
employees are prevented from any type of civil court action
against the company. Claims are dealt with through the plan,
said Ms. Irvine.
Meanwhile, employees are facing the possibility they will have
to return to work on the Freighter this spring with the asbestos
still onboard.
The ship is currently in winter lay-up. Ms. Irvine said her
members would have preferred to have all the asbestos removed
before the ship returned to service.
The company initially planned to remove all asbestos from the
ship, but that could take up to a year, according to Ms. Irvine.
Ms. Irvine said the encapsulation work done on the vessel in the
1990s when asbestos was first discovered may have been safe if
it had been maintained instead of being forgotten about. She
said some employees were trained in dealing with the material at
the time, and even fitted for personal protective equipment that
never arrived.
ASBESTOS LITIGATION: Botched Criminal Raid Triggers Hazard Scare
----------------------------------------------------------------
Bungling ram raiders triggered an asbestos scare when they
attacked Cross Gates Post Office in Leeds, England, U.K., cross
gates today reports.
Witnesses looked on when criminals ploughed a JCB into the side
of Cross Gates Post Office during the evening rush hour.
A Post Office spokeswoman said structural damage from the raid
had released a "low level" amount of asbestos. She said, "The
asbestos has been safely removed. Once the damage from the JCB
attack on the premises has been repaired we expect the branch to
re-open around mid February."
The ram raid, which happened on Dec. 12, 2007, took place at the
Austhorpe Road office at 6pm. Staff were still inside the
building at the time.
People reported seeing the digger driven into the side of the
building, before a man got out and walked into the post office.
Seconds later, he emerged empty handed and drove off with an
accomplice.
Reports at the time said the two men got into a small red car
and headed towards Seacroft Way. No one was injured during the
raid.
ASBESTOS LITIGATION: Panel Conducts Talks on Out-of-State Trials
----------------------------------------------------------------
A panel of lawyers, on Jan. 17, 2008, conducted discussions on
the State of Delaware's legal system on handling asbestos
trials, more specifically out-of-state trials, The News Journal
reports.
On one side of the courtroom were attorneys who represent
plaintiffs in asbestos-related lawsuits, which are being brought
into Delaware courts by parties from around the nation.
On the other side sat attorneys who defend the big companies,
claiming the lawsuits have become so numerous and the system so
overburdened that Delaware risks being saddled with a reputation
as a "judicial hellhole."
At the front presided a panel of Delaware attorneys appointed by
a Superior Court judge, trying to decide what about Delaware's
system needed fixing, or whether it was broken at all.
The parties involved say the stakes in this debate could be
enormous, both financially and legally. Delaware's courts are
regarded highly in the corporate world as a fair and efficient
forum, and damage to that perception could put millions in
incorporation revenue at risk.
That was the warning delivered by a James A. Wolfe, president
and CEO of the Delaware Chamber of Commerce, who wants the
system changed so that out-of-state asbestos plaintiffs do not
enjoy such easy access to Delaware's court system.
The chamber claims that by overloading Delaware's dockets, these
litigants are putting an unfair legal burden on defendants, and
using that advantage to push for quick settlements.
The outside litigation actually is a boon for Delaware, boosting
collateral revenue and its reputation, Wilmington, Del.,
attorney Mike Kelly said.
The Chamber's concerns are actually a thinly veiled attempt to
push tort reform through a back door, argues John J. Spillane, a
Dallas-based asbestos attorney.
The panel has not said when it will announce its recommendation
to the judge but will continue to accept written comment through
Jan. 31, 2008.
ASBESTOS LITIGATION: Asbestos Discovered in 124 Scotland Schools
----------------------------------------------------------------
Scotland's Highland Council insists there is no risk to pupils
or staff after it was found that 124 schools across the region
contain asbestos, BBC News reports.
The Highland Council's asbestos register shows the substance is
contained in more than half of its primary schools and about 80
percent of secondary schools.
Serious health problems including cancer can be caused by
exposure to high concentrations of asbestos fibers.
Most of the 124 schools included in the asbestos register
contain the least dangerous chrysotile, or white asbestos, but
some have the much more hazardous amosite, or brown asbestos.
Millburn Academy in Inverness is among nine schools listed as
having crocidolite, or blue asbestos, which is generally
considered to be the most dangerous form of asbestos.
Anti-asbestos campaigners have claimed in the past that the risk
of contracting lung cancer from inhaling large quantities of
crocidolite and amosite can be up to 50 times greater than with
chrysotile.
Campaigners also believe those exposed to blue asbestos fibers
are up to 500 times more likely to develop mesothelioma than
through exposure to chrysotile.
The council's register shows that much of the asbestos contained
in many school buildings has either been removed or sealed off
to make it safe.
David Goldie, the council's interim director of housing and
property services, said, "The presence of asbestos is taken into
account in any building maintenance work being undertaken and
any work undertaken to buildings containing asbestos is managed
within the relevant regulatory framework."
ASBESTOS LITIGATION: Florida County Assumes 70% of Entek's Claim
----------------------------------------------------------------
Palm Beach County commissioners in Florida have settled for
about US$0.70 on a dollar an asbestos claim against Entek
Environmental & Technical Services Inc., a consultant and
asbestos removal firm, Boca Raton News reports.
Because of issues related to "the reasonableness of the amount
of the change order and challenges based upon the statute of
limitations," commissioners elected to accept the 70 percent
offer, rather than test the "uncertainty of litigation."
The county had sued Entek for US$245,167, the amount incurred by
the county to remove asbestos from the Old Courthouse prior to
its initial 1996 restoration.
The county said that Entek and in turn contractor, Simpson and
Associates Inc., failed to completely identify and remove all of
the asbestos.
In March 1994, commissioners said Entek entered into a contract
to remove asbestos from county buildings including the old
courthouse. The county alleged that Entek failed to "identify
and designate" asbestos to be removed, and further failed to
"monitor the work efforts of the contractor" hired to remove the
asbestos.
ASBESTOS LITIGATION: Minn. Local Sues 10 Companies in Ill. Court
----------------------------------------------------------------
Minnesotan Bruno Zagar, on Jan. 16, 2008, filed an asbestos-
related lawsuit against 10 defendant corporations in Madison
County Circuit Court, Ill., The Madison St. Clair Record
reports.
Bruno Zagar claims his father, Anthony Zagar, was diagnosed with
mesothelioma on Jan. 1, 2004, and died on Dec. 2, 2004.
Bruno Zagar claims that during the course of his father's
employment and during home and automotive repairs, Anthony Zagar
was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers emanating from certain products he was working
with and around.
The complaint states, "The plaintiff's exposure and inhalation,
ingestion or absorption of the asbestos fibers was completely
foreseeable and could or should have been anticipated by the
defendants."
According to Bruno Zagar, his father was employed from 1942 to
1982 as a sales representative in various locations including
Illinois.
Bruno Zagar claims the defendants knew or should have known that
the asbestos fibers contained in their products had a toxic,
poisonous and highly deleterious effect upon the health of
people.
Bruno Zagar also alleges that the defendants included asbestos
in their products even when adequate substitutes were available
and failed to provide any or adequate instructions concerning
the safe methods of working with and around asbestos.
Bruno Zagar also claims that the defendants failed to require
and advise employees of hygiene practices designed to reduce or
prevent carrying asbestos fibers home.
The complaint states that, as a result of the alleged
negligence, Bruno Zagar claims his father was exposed to fibers
containing asbestos and developed a disease caused only by
asbestos which has disabled and disfigured him prior to his
death, the complaint states.
Bruno Zagar claims that prior to death, Anthony Zagar suffered
great physical pain and mental anguish, was hindered and
prevented from pursuing his normal course of employment, thereby
losing large sums of money.
Represented by Perry Browder, John Barnerd, Nicholas Angelides
and Robert Phillips of SimmonsCooper in East Alton, Ill., Bruno
Zagar seeks damages in excess of US$200,000, plus punitive
damages.
Case No. 08 L 36 has been assigned to Circuit Judge Dan Stack.
ASBESTOS LITIGATION: DoD to Prioritize Mesothelioma in Research
----------------------------------------------------------------
The Department of Defense (DoD) Peer Reviewed Medical Research
Program was appropriated US$50 million in the Defense
Appropriations Bill that the President signed in mid-November
2007, according to a Meso Foundation press release dated Jan.
23, 2008.
The Mesothelioma Applied Research Foundation (Meso Foundation)
announced that mesothelioma will be included as a research
priority within the DoD's Medical Research Program, to begin
February 2008.
As a candidate research area within the program, mesothelioma
investigators are eligible to compete for funding through the
program's 2008 grant cycle.
Chris Hahn, Executive Director of The Meso Foundation, said,
"The Meso Foundation has been working with 15 senators, led by
Senator Max Baucus (D-MT), advocating the federal government to
respond to the mesothelioma crisis through a commitment of new
federal research dollars. Our advocacy efforts in this area for
the past several years finally paid off."
Federal medical research projects must be of clear scientific
merit and have direct relevance to military health. Military
relevance is a key feature of the Investigator-Initiated award,
a connection that will not be difficult for mesothelioma
researchers to establish for their grant applications.
There is a long history of asbestos exposure in military
service, and a significant elevated risk of mesothelioma in the
military population. In fact, about one third of mesothelioma
cases have been shown to involve Navy and shipyard exposures.
Given the long latency of the disease, even if exposures are
reduced, mesothelioma will continue to affect the veteran and
military population for decades to come.
This funding opportunity can serve as a vital resource to the
meso community and is another crucial step toward advancing the
research and treatment of mesothelioma.
The Meso Foundation encourages mesothelioma investigators to
consider submitting applications for funding in 2008, as the
interest and engagement shown by the community will likely be a
factor in whether mesothelioma is included as a candidate in
future years.
ASBESTOS LITIGATION: NICE Dismisses Appeal on Mesothelioma Drug
----------------------------------------------------------------
The National Institute for Health and Clinical Excellence
(NICE), on Jan. 23, 2008, said it has rejected an appeal against
its decision to approve the use of Alimta for the treatment of
mesothelioma, Rochdale News reports.
Save Spodden Valley spokesman Jason Addy said, "Our thanks go to
local MPs Paul Rowen and Jim Dobbin who continue to work hard on
raising awareness of the injustice caused by asbestos."
The decision brings to an end an approval process which has
taken nearly three years, and which led to one of the worst
examples of post code lottery funding.
While mesothelioma patients in Scotland, the North West and
North East of England received treatment, hundreds of patients
were refused treatment in other parts of the United Kingdom.
This long appraisal process has caused untold distress for
mesothelioma patients who might have benefited from treatment
with Alimta, which, although not a cure for mesothelioma, can
extend life and alleviate symptoms for many patients.
Average life expectancy from diagnosis for mesothelioma
sufferers is 12 months.
Final guidance will now be issued by NICE so that primary care
trusts (PCTs) will at last be obliged to uniformly provide
treatment, although they have the option of a 90-day lead in
period following an official announcement by NICE.
Tony Whitston, Chair of the Asbestos Victims Support Groups
Forum, commented, "PCTs should respond immediately to NICE's
announcement today and follow Department of Health Guidance
which encourages early implementation of NICE guidance. In light
of today's clear and unequivocal decision by NICE it would be
perverse for any PCT to refuse a request for treatment after so
many years delay and anguish for patients and their families."
ASBESTOS LITIGATION: McDermott Ind. Staff Evacuated from Barge
----------------------------------------------------------------
The Australian Manufacturing Workers Union says 350 people have
been evacuated from a McDermott Industries-owned barge off the
Pilbara coast after tests confirmed traces of blue asbestos in
the elevator, ABC News reports.
The Union President Steve McCartney says the barge is owned by
McDermott Industries.
AMWU president Steve McCartney says two thirds of the workers
evacuated were AMWU members and the union wants the company to
pay for medical tests.
Mr. McCartney added, "As you would imagine those workers on
board are very concerned, because when we're talking about blue
asbestos we know the dangers that lurk behind blue asbestos."
On Jan. 23, 2008, it was confirmed the Australian Workplace
Ombudsman was investigating claims the company was exploiting
foreign workers.
ASBESTOS LITIGATION: Ore. DEP Issues $23T Penalty to Seven Lakes
----------------------------------------------------------------
The Oregon Department of Environmental Quality issued an
asbestos-related penalty of US$23,704 to Seven Lakes Development
Llc, a unit of Whitney Land Co., for asbestos mismanagement on
property for a lot at Southwest 21st Street and Southwest Dorion
Avenue, The East Oregonian reports.
However, property owner Jim Whitney contends the DEQ is
overstepping its authority.
That's because Seven Lakes contracted Hatley Construction of
Pilot Rock, Ore., to demolish buildings on the lot, and the DEQ
issued a US$17,400 fine against owner Jim Hatley for "conducting
an asbestos-abatement project without being licensed" and for
"openly accumulating improperly labeled and packaged asbestos-
containing waste material."
Both Mr. Whitney and Mr. Hatley are appealing the DEQ's fines
and local attorney Henry Lorenzen is representing each in the
case.
Whitney explained Seven Lakes hired Hatley Construction to
remove residential buildings on a commercial lot. The buildings
had asbestos siding and tile, but Whitney said residential and
commercial buildings have different regulations for asbestos
abatement.
Bryan Smith, an environmental law specialist with the DEQ's
Office of Compliance & Enforcement in Portland, explained it
would not matter if the buildings were residential in this
situation.
DEQ allows a homeowner to remove asbestos inside a house if the
owner lives in the building. However, once the owner brings the
asbestos outside, or if the owner removes asbestos siding from a
home's exterior, then DEQ regulations apply.
Mr. Smith, who issued the fines after the Pendleton office
referred the case to him, also explained the DEQ has different
classifications for violations and fines, with Class 1 being the
most serious as opposed to someone mislabeling a package of
asbestos or submitting proper work late, both of which would be
class 2.
Mr. Whitney also questioned the DEQ's judgment in first issuing
a fine against Hatley and then months later against Seven Lakes
Development.
Mr. Smith said usually he would have issued both penalties at
the same time, but because he was out of the office for a time
the fines came out separately.
Mr. Smith added because Hatley complied with the DEQ and hired a
licensed asbestos handler to clean the site, there was no
pressing urgency to push the case while he was out of the
office.
Tom Hack, the DEQ air quality specialist in Pendleton who
investigated the site, said a complaint from an asbestos
surveyor who was working in Pendleton alerted the DEQ to the
possibility Hatley was mishandling asbestos.
Mr. Hack visited the site and wrote a report that said he found
violations that resulted in the penalties.
Mr. Hack also spoke with Mr. Whitney about the possibly fines.
Mr. Whitney said Mr. Hack told him the fines would be US$3,000-
US$5,000, and that Seven Lakes Development was handling the
situation well.
ASBESTOS LITIGATION: 200 Workers to File Asbestos Suit v. Gov't.
----------------------------------------------------------------
Representative said that about 200 construction workers in the
Tokyo area and their families are planning to file a lawsuit
against the Japanese central government, saying it had failed to
take measures to prevent asbestos-related illnesses, The Asahi
Shimbun reports.
The workers live in Tokyo, Chiba, Saitama and Kanagawa
prefectures, and bereaved families of workers who have already
died. The workers had been on sites that used asbestos in the
Tokyo metropolitan area during and after the 1960s.
They will formally establish a plaintiffs' group on March 2,
2008 and plan to file the lawsuit in May 2008 with the Tokyo
District Court.
The workers will demand JPY35 million yen in compensation per
worker, or a total of about JPY7 billion from the central
government.
The workers developed mesothelioma, lung cancer and other
diseases after inhaling asbestos particles contained in
construction materials, the representatives said. The group
plans to call on other construction workers suffering from
asbestos-related illnesses to join the lawsuit.
The lawsuit will also demand the government to improve measures
to prevent workers from coming in contact with asbestos when
buildings are demolished, as well as train doctors to specialize
in asbestos-related diseases.
The government banned the manufacture and use of major asbestos-
containing products only in 2006.
The widespread health damages from asbestos became a major issue
after machinery maker Kubota Corp. in June 2005 reported
illnesses among former workers at its plant in Amagasaki, Hyogo
Prefecture, and residents near the factory.
In March 2006, the government put into effect a law to provide
relief for residents living near asbestos-related plants, who
were not covered by the employee-accident compensation
insurance.
The government now covers the medical bills and other costs for
the sufferers. The government, however, has not acknowledged
that it was responsible for the health damages caused by
asbestos.
In the 10 years through fiscal 2004, 653 cases of mesothelioma
and lung cancer were recognized as work-related damages
triggered by asbestos and eligible for workers' compensation.
The figure grew to 722 in fiscal 2005 and 1,796 in fiscal 2006.
New Securities Fraud Cases
LEAP WIRELESS: Lockridge Grindal Files Securities Fraud Suit
------------------------------------------------------------
Lockridge Grindal Nauen P.L.L.P. filed a class action lawsuit
against Leap Wireless International, Inc. and certain of its
officers and directors in the United States District Court for
the Southern District of California, on behalf of investors who
purchased or otherwise acquired Leap common stock from November
10, 2005 through November 8, 2007.
The Complaint alleges that during the Class Period, Defendants
issued materially false and misleading statements regarding the
Company's business and prospects. As a result of Defendants'
false statements, Leap stock traded at artificially inflated
prices during the Class Period, reaching its all-time high of
$99.04 per share on July 25, 2007.
In November of 2007 the Company shocked the investment world
when it announced that it was restating its financial statements
for fiscal years 2004, 2005 and 2006 and for the first and
second quarters of 2007 to correct errors in previously reported
service revenues, equipment revenues, and operating expenses.
When the truth about the Company's financials was finally
revealed on November 9, 2007, the price of the Company's
publicly traded stock plummeted to close at $36.72, damaging the
Plaintiff and the other members of the Class.
The Complaint alleges that Defendants orchestrated a fraudulent
scheme and course of business that operated as a deceit on
purchasers of Leap common stock. According to the Complaint, the
scheme:
(i) deceived the investing public regarding Leap's
prospects and business;
(ii) artificially inflated the price of Leap's common stock;
(iii) allowed Company insiders to sell their own Leap stock
at artificially inflated prices; and
(iv) caused Plaintiff and other members of the Class to
purchase Leap common stock at artificially inflated
prices.
Interested parties may move the court no later than January 28,
2008 for lead plaintiff appointment.
For more information, contact:
Karen H. Riebel, Esq.
Lockridge Grindal Nauen P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Phone: (612) 339-6900
E-mail: khriebel@locklaw.com
NATIONAL CITY: Coughlin Stoia Files Securities Suit in Ohio
-----------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP announced that a
class action has been commenced in the United States District
Court for the Northern District of Ohio on behalf of purchasers
of National City Corporation common stock during the period
between April 30, 2007 and January 2, 2008.
The complaint charges National City and certain of its officers
and directors with violations of the Securities Exchange Act of
1934.
National City, a financial holding company, provides commercial
and retail banking, mortgage financing and servicing, consumer
finance, and asset management services in the United States.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. As a result of
defendants' false statements, National City stock traded at
artificially inflated prices during the Class Period, trading
above $30 per share during much of the Class Period.
In October 2007, National City announced a big decline in
earnings due to losses related to its mortgage business but
assured the market about the dividend. Then, on January 2, 2008,
the Company announced a 49% reduction in its quarterly dividend
to $0.21 per share from $0.41 per share. On this news, National
City's stock dropped from $16.46 per share to as low as $15.45
per share, closing at $15.59 per share on January 2, 2008 on
volume of over 12.7 million shares.
The true facts, which were known by defendants but concealed
from the investing public during the Class Period, were as
follows:
(a) the subprime mortgages on the Company's books were a
much bigger risk to the Company's financial position
than represented;
(b) the Company was failing to adequately reserve for
mortgage-related exposure, causing its balance sheet
and financial results to be artificially inflated; and
(c) defendants had no reasonable basis to make favorable
predictions about the Company's future dividend
payments and future financial performance given the
problems in the business.
As a result of defendants' false statements and omissions,
National City's stock traded at artificially inflated prices
during the Class Period.
Plaintiff seeks to recover damages on behalf of all purchasers
of National City common stock during the Class Period.
For more information, contact:
Darren Robbins
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800/449-4900 or 619/231-1058
E-mail: djr@csgrr.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice
Mendoza, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed
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