/raid1/www/Hosts/bankrupt/CAR_Public/080711.mbx
C L A S S A C T I O N R E P O R T E R
Friday, July 11, 2008, Vol. 10, No. 137
Headlines
BAYER AG: Settles N.Y. Securities Lawsuit for $18,500,000
GOLDMAN SACHS: N.Y. Court Won't Reconsider Exodus Suit Dismissal
GOLDMAN SACHS: Reaches Deal in California Exodus Securities Suit
GOLDMAN SACHS: Faces N.Y. Lawsuit Over Auction Rate Securities
GOLDMAN SACHS: Seeks Summary Judgment in U.S. Treasury Lawsuit
HOOSIER LOTTERY: Indiana Suit Over Scratch-Off Tickets Certified
INDYMAC BANCORP: Continues to Face SEC Laws Violations Suit
JABIL CIRCUIT: Amended Suit in "Goodman" Adds KPMG as Defendant
LIBERTY MUTUAL: Ill. Court Certifies Questionable Practices Suit
MICRON TECH: 9th Circuit Accepts Appeal in Calif. DRAM Cases
MICRON TECHNOLOGY: Canadian DRAM Antitrust Lawsuits Drag On
MICRON TECHNOLOGY: Still Faces Several SRAM Antitrust Lawsuits
NATIONAL PREARRANGED: Faces Fraud Suit by Missouri Funeral Home
OPENWAVE SYSTEMS: Still Faces N.Y. Consolidated Shareholder Suit
SHUFFLE MASTER: Still Faces Consolidated Securities Suit in Nev.
SOLARBROOK WATER: Settles 2005 Lawsuit for Over $425,000
TAKE-TWO INTERACTIVE: Deal Gets "Lukewarm" Response, Report Says
TRIZETTO GROUP: Settles Delaware Suit Over Sale to Apax Partners
WD-40 CO: Plaintiff Allowed to Appeal Denial of "Drimmer" Class
New Securities Fraud Cases
MRV COMMUNICATIONS: Schatz Nobel Files Calif. Securities Lawsuit
Asbestos Alerts
ASBESTOS LITIGATION: 167 Claims Pending v. GenCorp Inc. at May
ASBESTOS LITIGATION: H.B. Fuller Has $4.8M at May for Liability
ASBESTOS LITIGATION: N.Y. Court Favors Knee in Goodyear Lawsuit
ASBESTOS LITIGATION: Appeals Court Favors Gov't. in Russo Action
ASBESTOS LITIGATION: La. Court Favors Prudential Lines Creditors
ASBESTOS LITIGATION: Beall's Lawsuit v. Conoco, Others Remanded
ASBESTOS LITIGATION: Kluka's Remand Motion Junked Last April 28
ASBESTOS LITIGATION: Mich. Court Favors Stearns in Pro-Tech Case
ASBESTOS LITIGATION: Supreme Court Junks Grace's Review Request
ASBESTOS LITIGATION: Fitzgerald Expands Injunction to Burlington
ASBESTOS LITIGATION: Scott's Declaratory Judgment Action Pending
ASBESTOS LITIGATION: Grace Urges Court to Deny Anderson Request
ASBESTOS LITIGATION: High Court Awards Payout to Tolley's Widow
ASBESTOS LITIGATION: Devilliers Sue Chesterton, 15 Firms in Tex.
ASBESTOS LITIGATION: Parties File Supplemental Briefs in Asarco
ASBESTOS LITIGATION: Committee to Extend Asarco's Tolling Period
ASBESTOS LITIGATION: Temporary Order Issued in Flintkote Lawsuit
ASBESTOS LITIGATION: Dinner Lady to File Suit v. Ladywood School
ASBESTOS LITIGATION: Kier Group plc Admits to Disposal Breaches
ASBESTOS LITIGATION: Former Steel Worker Sues Corus for Exposure
ASBESTOS LITIGATION: Marchwood Worker's Death Linked to Exposure
ASBESTOS LITIGATION: Vermiculite Discovered in Libby, Mont. Park
ASBESTOS LITIGATION: Staffordshire Firm Sued for Disposal Breach
ASBESTOS LITIGATION: NIOSH Urges for Comments on Asbestos Report
ASBESTOS LITIGATION: Court Issues Split Ruling in Le Sage Action
ASBESTOS LITIGATION: Ohio Appeal Court Favors CEI in Louden Case
ASBESTOS LITIGATION: Supreme Court Favors Marsh & McLennan Cos.
ASBESTOS LITIGATION: Appeals Court Favors US Gov't. in Kay Suit
ASBESTOS LITIGATION: DuPont Worker's Kin Sues 14 Firms in Texas
ASBESTOS LITIGATION: Willingdon Worker's Death Linked to Hazard
ASBESTOS LITIGATION: Ministry Issues Removal Order to Nahariya
ASBESTOS LITIGATION: Halton Locals Could be Entitled to Payout
ASBESTOS LITIGATION: Sydney Judge Calls for Reforms in Policies
ASBESTOS LITIGATION: Women at Risk of Exposure From Hair Dryers
ASBESTOS LITIGATION: James Hardie Cites 523 Open Claims at March
ASBESTOS LITIGATION: Kubota Made Relief Payments to 152 Parties
ASBESTOS LITIGATION: Compliance Order Given to Border Demolition
ASBESTOS LITIGATION: UK Actor Found to Have Died from Exposure
ASBESTOS LITIGATION: 60 Brisbane Clubs With Asbestos Identified
ASBESTOS LITIGATION: Hardie Spends AUD6MM in FY 2008 for Defense
*********
BAYER AG: Settles N.Y. Securities Lawsuit for $18,500,000
---------------------------------------------------------
Bayer AG has settled for $18,500,000 a class action lawsuit
captioned "In re Bayer AG Securities Litigation, File No. 03 CV
1546 (WHP)," which was filed in the U.S. District Court for the
Southern District of New York.
The class includes all persons or entities who or which from
Aug. 4, 2000, through and including Feb. 21, 2003:
(a) purchased or otherwise acquired ordinary shares of
Bayer AG on the U.S. over-the-counter market or
Purchased American Depository Receipts of Bayer AG on
the New York Stock Exchange, regardless of the
purchaser's country of residence at the time of
purchase; or
(b) purchased or otherwise acquired ordinary shares or ADRs
of Bayer AG on any other stock exchange and the
purchaser, or beneficial owner, was a resident or
citizen of the United States at the time of purchase.
The second amended complaint in this case alleged that from
August 4, 2000, to August 8, 2001, the defendants publicly
misrepresented the prospects for Bayer's cholesterol-lowering
drug, Baycol, while failing to disclose serious health risks,
which led Bayer to withdraw Baycol on August 8, 2001.
The lead plaintiff also alleged that from August 8, 2001, to
February 21, 2003, Bayer misrepresented its prior knowledge of
Baycol's dangers and understated its potential liability for
claims from users and purchasers of Baycol.
The lead plaintiff claimed that as a result of these alleged
material misrepresentations and omissions, the market price of
Bayer securities was artificially inflated during the Class
Period. The lead plaintiff further alleged that the market
price for Bayer securities fell following publication of an
article in the New York Times concerning Baycol on February 22,
2003, causing investors to incur losses due to violations of the
federal securities laws.
There has been no trial in this action, and there have been no
findings of liability or fault. The defendants have denied, and
continue to deny, all allegations of wrongdoing or liability.
An approval hearing on the settlement will be held by the United
States District Court for the Southern District of New York at
2:00 p.m. on Sept. 26, 2008.
Bayer Aktiengesellschaft (FRA: BAY) -- http://www.bayer.com/--
offers a range of products, including ethical pharmaceuticals,
diagnostics and other healthcare products, agricultural products
and polymers. Bayer AG is the management holding company of the
Bayer Group, which includes approximately 280 consolidated
subsidiaries. The business operations of the company are
organized into three groups: Bayer HealthCare, consisting of
Pharmaceuticals, Biological Products; Consumer Care; Diabetes
Care, Diagnostics, and Animal Health; Bayer CropScience
consisting of the Crop Protection segment and the Environmental
Science, BioScience segment, and Bayer MaterialScience
comprising the Materials segment and the Systems segment.
GOLDMAN SACHS: N.Y. Court Won't Reconsider Exodus Suit Dismissal
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
denied a motion by the plaintiffs seeking reconsideration of its
dismissal of the purported class action complaint against The
Goldman Sachs Group, Inc., over research coverage of Exodus
Communications, Inc.
Goldman Sachs is one of several investment firms named as
defendants in substantively identical purported class actions
suits that allege violations of the federal securities laws in
connection with research coverage of certain issuers and that
seek compensatory damages. The suits were filed in the U.S.
District Court for the Southern District of New York.
Initially, Goldman Sachs was named as a defendant in several
actions that commenced beginning in May 2003 and relate to a
research coverage of Exodus Communications, Inc.
These actions were consolidated, Goldman Sachs' motion to
dismiss the case was granted with leave to replead, and the
plaintiff filed a second amended complaint.
The defendants' motion to dismiss the second amended complaint
was granted by order dated Dec. 4, 2007. The plaintiff moved
for reconsideration on Dec. 21, 2007.
By an order dated June 3, 2008, the Court denied the plaintiff's
motion seeking reconsideration of the complaint's dismissal,
according to The Goldman Sachs Group, Inc.'s July 3, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended May 30, 2008.
The Goldman Sachs Group, Inc. -- http://www2.goldmansachs.com/
-- is a global investment banking, securities and investment
management firm that provides a range of services worldwide to a
client base that includes corporations, financial institutions,
governments and high-net-worth individuals. Its activities are
divided into three segments: Investment Banking, Trading and
Principal Investments, and Asset Management and Securities
Services.
GOLDMAN SACHS: Reaches Deal in California Exodus Securities Suit
----------------------------------------------------------------
A tentative settlement was reached in the consolidated class
action lawsuit, "In re Exodus Communications, Inc. Securities
Litigation, Case No. 3:01-cv-02661-MMC," which names The Goldman
Sachs Group, Inc., as a defendant, and was filed in the U.S.
District Court for the Northern District of California.
The suit was in relation to the February 2001 offering of
13,000,000 shares of common stock and $575,000,000 of
convertible subordinated notes of Exodus Communications, Inc.
By an amended complaint dated July 11, 2002, the company and the
other lead underwriters for the February 2001 offering were
added as defendants in the purported class action suit.
The complaint, which also names as defendants certain officers
and directors of Exodus Communications, alleges violations of
the disclosure requirements of the federal securities laws and
seeks compensatory damages.
On Sept. 26, 2001, Exodus Communications filed for protection
under the U.S. bankruptcy laws.
On Oct. 23, 2002, the underwriter-defendants moved to dismiss
the complaint. By a decision dated Aug. 19, 2003, the district
court granted the defendants' dismissal motion with leave to
replead, and the plaintiffs filed a third amended complaint in
January 2004.
On March 12, 2004, the underwriter-defendants moved to dismiss
the third amended complaint, and by a decision dated Aug. 5,
2005, the district court denied the motion.
The underwriter-defendants moved for reconsideration and
clarification on Aug. 30, 2005, but the motion was denied by an
order dated Sept. 12, 2005. Goldman, Sachs & Co. underwrote
5,200,000 shares of common stock for a total offering price of
approximately $96,200,000, and $230,000,000 principal amount of
the notes.
In a decision dated Aug. 14, 2006, the district court denied the
motion to intervene by two proposed new plaintiffs and entered
judgment dismissing the action. On Aug. 30, 2006, the proposed
new plaintiffs moved to vacate the judgment.
In the class action relating to certain securities offerings by
Exodus Communications, on April 19, 2008, the plaintiffs and the
defendants entered into a settlement agreement pursuant to which
the underwriters will contribute $1 million toward a settlement
fund, according to The Goldman Sachs Group's July 3, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended May 30, 2008.
The suit is "In re Exodus Communications, Inc. Securities
Litigation, Case No. 3:01-cv-02661-MMC," filed with the U.S.
District Court for the Northern District of California, Judge
Maxine M. Chesney, presiding.
Representing the the plaintiffs are:
John K. Grant, Esq. (johnkg@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
100 Pine Street, Suite 2600
San Francisco, CA 94111
Phone: 415-288-4545
Fax: 415-288-4534
- and -
Elizabeth Pei Lin, Esq. (elin@milbergweiss.com)
Milberg Weiss & Bershad LLP
One California Plaza
300 S. Grand Avenue, Suite 3900
Los Angeles, CA 90071
Phone: 213-617-1200
Fax: 213-617-1975
Representing the defendants are:
Paul J. Collins, Esq. (pcollins@gibsondunn.com)
Gibson, Dunn, Crutcher LLP
1530 Page Mill Road
Palo Alto, CA 94404
Phone: 650-849-5300
Fax: 650-849-5333
- and -
David Malcolm Furbush, Esq.
(david.furbush@pillsburylaw.com)
Pillsbury Winthrop Shaw Pittman LLP
2475 Hanover Street
Palo Alto, CA 94304
Phone: 650-233-4500
Fax: 650-233-4545
GOLDMAN SACHS: Faces N.Y. Lawsuit Over Auction Rate Securities
--------------------------------------------------------------
The Goldman Sachs Group, Inc., and Goldman, Sachs & Co. are
facing a purported securities fraud class action lawsuit filed
on April 16, 2008, before the U.S. District Court for the
Southern District of New York on behalf of customers who
purchased auction rate securities.
The suit alleges that the firm violated the federal securities
laws and seeks unspecified damages, according to The Goldman
Sachs Group, Inc.'s July 3, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 30,
2008.
The suit is "Milch v. The Goldman Sachs Group, Inc. et al., Case
No. 1:08-cv-03659-JES," filed in the U.S. District Court for the
Southern District of New York, Judge John E. Sprizzo, presiding.
Representing the plaintiffs are:
Lionel Z. Glancy, Esq.
Glancy Binkow & Goldberg L.L.P.
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Phone: 310-201-9150
Fax: 310-201-9160
e-mail: info@glancylaw.com
- and -
Edward G. Toptani, Esq.
Toptani Law Offices
127 East 59th Street, 3rd Floor
New York, NY 10022
Phone: 212-401-4906
GOLDMAN SACHS: Seeks Summary Judgment in U.S. Treasury Lawsuit
---------------------------------------------------------------
Goldman, Sachs & Co. asked the U.S. District Court for the
Northern District of Illinois for summary judgment in a lawsuit
filed on behalf of holders of short positions in 30-year U.S.
Treasury futures and options on the morning of Oct. 31, 2001.
The suit alleges that the firm purchased 30-year bonds and
futures prior to the Treasury's refunding announcement that
morning based on non-public information about that announcement,
and that such purchases increased the costs of covering such
short positions (Class Action Reporter, Feb. 1, 2008).
The complaint also names as defendants the Washington, D.C.-
based political consultant who allegedly was the source of the
information, a former Goldman Sachs economist who allegedly
received the information, and another company and one of its
employees who also allegedly received and traded on the
information prior to its public announcement.
The complaint alleges violations of the federal commodities and
antitrust laws, as well as Illinois statutory and common law,
and seeks, among other things, unspecified damages including
treble damages under the antitrust laws.
The district court dismissed the antitrust and Illinois state
law claims but permitted the federal commodities law claims to
proceed.
On Dec. 20, 2006, the plaintiff moved for class certification.
On May 7, 2008, Goldman Sachs moved for summary judgment in the
purported class action pending with the U.S. District Court for
the Northern District of Illinois, according to The Goldman
Sachs Group, Inc.'s July 3, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 30,
2008.
The Goldman Sachs Group, Inc. -- http://www2.goldmansachs.com/
-- is a global investment banking, securities and investment
management firm that provides a range of services worldwide to a
client base that includes corporations, financial institutions,
governments and high-net-worth individuals. Its activities are
divided into three segments: Investment Banking, Trading and
Principal Investments, and Asset Management and Securities
Services.
HOOSIER LOTTERY: Indiana Suit Over Scratch-Off Tickets Certified
----------------------------------------------------------------
A Marion County judge granted class-action status to a lawsuit
filed against the State Lottery Commission of Indiana -- doing
business as The Hoosier Lottery -- over alleged misleading
promotions, the Chicago Tribune reports.
In January 2007, Indiana residents Jeff Koehlinger and Jeff
Frazer filed the suit on behalf of themselves and all other
similarly situated persons who purchased non-winning tickets in
the Hoosier Lottery's Cash Blast game (Instant Game No. 743)
from May 2005 up until July 7, 2006, when the lottery was
publicly misrepresenting the number and amount of prizes
available in that game (Class Action Reporter, Jan. 8, 2007).
At $10 a ticket, the company promised seven grand prizes of a
quarter of a million dollars in addition to winnings up to
$10,000. However, in July of 2006, after selling five million
tickets, the Lottery abruptly reduced the amount of prizes in
the course of two weeks.
According to the lawsuit, the Lottery overstated the number and
amount of prizes in the Cash Blast game by $8 million. In a
release last year, the Lottery said it had a problem with its
printing company and recalled 2.5 million tickets. After
reprinting the tickets, the Lottery said the odds of the game
were not compromised.
The plaintiffs claim that the Lottery's misrepresentations
constitute intentional or negligent misrepresentation,
negligence, breach of contract, fraud, money had and received,
restitution, unjust enrichment, and deceptive sales practices
actionable pursuant to Indiana's Deceptive Consumer Sales Act,
Ind. Code 24-5-0.5-2.
The plaintiffs and the class request that all available remedies
under the law, including common law and statutory damages, and a
common fund from which all class members can claim their
damages, and from which attorney fees and costs can be paid.
With the recent certification ruling, anyone who bought a ticket
to the game can join the lawsuit, the Chicago Tribune says.
The suit is "Jeff Koehlinger and Jeff Frazer, et al. v. The
State Lottery Commission dba The Hoosier Lottery, Case No. 49C
0107 CT 730," filed in the State of Indiana, Marion County
Circuit Court.
Representing the plaintiffs is:
Richard A. Waples, Esq. (richwaples@aol.com)
Waples & Hanger
410 N. Audubon Road
Indianapolis, IN 46219
Phone: 317-357-0903
Fax: 317-357-0275
INDYMAC BANCORP: Continues to Face SEC Laws Violations Suit
-----------------------------------------------------------
Woes continue for investors in mortgage lender IndyMac Bancorp,
Inc., as the company's stock price closed on July 8 at $.44 per
share -- down almost 99% from IndyMac's share price of over $36
just one year ago. On Tuesday, the company reported that
depositors have been withdrawing cash at what IndyMac refers to
in a regulatory filing as "elevated levels."
In additional news, the company indicates that it will also be
selling more than 60 of its retail mortgage branches.
Highlighting IndyMac's problems, Senator Charles Schumer (D-NY)
said in a statement released, "It is obvious that the breadth of
the bad lending that has led to IndyMac's troubles happened over
the last few years, not the last few days. In short, IndyMac
was a junior version of Countrywide."
In the face of growing concern, on June 30, 2008, Scott+Scott
LLP filed a class action against IndyMac on behalf of those
purchasing IndyMac common stock between Aug. 17, 2007, and
May 11, 2008, inclusive, for violations of the U.S. securities
laws.
The complaint alleges that during the Class Period, the
defendants issued materially false and misleading statements
regarding IndyMac's business and financial results and, as a
result, the price of the company's securities was inflated
during the Class Period, thereby harming investors.
Interested parties may move the court no later than August 11,
2008, for lead plaintiff appointment.
For more information, contact:
Scott+Scott, LLP
108 Norwich Avenue
P.O. Box 192
Colchester, CT 06415
Phone: 800-404-7770
860-537-5537
e-mail: scottlaw@scott-scott.com
Web site: http://www.scott-scott.com/
JABIL CIRCUIT: Amended Suit in "Goodman" Adds KPMG as Defendant
---------------------------------------------------------------
A second amended class action complaint was filed in a
consolidated securities fraud lawsuit pending with the U.S.
District Court for the Middle District of Florida against Jabil
Circuit, Inc., according to the company's July 8, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended May 31, 2008.
On Sept. 18, 2006, a putative shareholder class action complaint
was filed in the U.S. District Court for the Middle District of
Florida, captioned, "Edward J. Goodman Life Income Trust v.
Jabil Circuit, Inc., et al., No. 8:06-cv-01716" against the
company and various of its present and former officers and
directors.
The suit was brought on behalf of a proposed class of plaintiffs
comprised of persons who purchased shares of the company between
Sept. 19, 2001, and June 21, 2006.
The suit asserted claims under Section 10(b) of the U.S.
Securities and Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, as well as under Section 20(a) of that Act.
Specifically, the complaint alleged that the defendants had
engaged in a scheme to fraudulently backdate the grant dates of
options for various senior officers and directors, causing the
company's financial statements to understate management
compensation and overstate net earnings, thereby inflating the
company's stock price.
In addition, the suit alleged that the company's proxy
statements falsely stated that the company had adhered to its
option grant policy of granting options at the closing price of
its shares on the trading date immediately prior to the date of
the grant.
A second putative class action suit, containing virtually
identical legal claims and allegations of fact, captioned,
"Steven M. Noe v. Jabil Circuit, Inc., et al., No., 8:06-cv-
01883," was filed on Oct. 12, 2006.
The two actions were consolidated into a single proceeding and
on Jan. 18, 2007, the Court appointed The Laborers Pension Trust
Fund for Northern California and Pension Trust Fund for
Operating Engineers as lead plaintiffs in the action.
On March 5, 2007, the lead plaintiffs filed a consolidated class
action complaint. The Consolidated Class Action Complaint is
purported to be brought on behalf of all persons who purchased
the company's publicly traded securities between Sept. 19, 2001,
and Dec. 21, 2006, and names the company and certain of its
current and former officers, including:
-- Forbes I.J. Alexander,
-- Scott D. Brown,
-- Wesley B. Edwards,
-- Chris A. Lewis,
-- Mark T. Mondello,
-- Robert L. Paver, and
-- Ronald J. Rapp,
as well as certain of the company's directors:
-- Mel S. Lavitt,
-- William D. Morean,
-- Frank A. Newman,
-- Laurence S. Grafstein,
-- Steven A. Raymund,
-- Lawrence J. Murphy,
-- Kathleen A. Walters, and
-- Thomas A. Sansone.
The Consolidated Class Action Complaint alleged violations of
Sections 10(b), 20(a), and 14(a) of the U.S. Securities and
Exchange Act and the rules promulgated thereunder
It contained allegations of fact and legal claims similar to the
original putative class action and, in addition, alleged that
the defendants failed to timely disclose the facts and
circumstances that led the company, on June 12, 2006, to
announce that it was lowering its prior guidance for net
earnings for the third quarter of fiscal year 2006.
On April 30, 2007, the plaintiffs filed a first amended
consolidated class action complaint asserting claims
substantially similar to the Consolidated Class Action Complaint
it replaced but adding allegations relating to the restatement
of earnings previously announced in connection with the
correction of errors in the calculation of compensation expense
for certain stock option grants.
At the company's request, the Court, on April 9, 2008, dismissed
the First Amended Consolidated Class Action Complaint without
prejudice, but with leave to amend the complaint by May 12,
2008.
On May 12, 2008, the plaintiffs filed a Second Amended Class
Action Complaint. The Second Amended Class Action Complaint
asserts substantially the same causes of action against the same
defendants, predicated largely on the same allegations of fact
as in the First Amended Consolidated Class Action Complaint
except insofar as plaintiffs added KPMG LLP, the company's
independent registered public accounting firm, as a defendant
and added additional allegations with respect to:
-- pre-class period option grants,
-- the professional background of certain defendants,
-- option grants to non-executive employees,
-- the restatement of the Company's financial results for
certain periods between 1996 and 2005, and
-- trading by the named plaintiffs and certain of the
defendants during the class period.
The Second Amended Class Action Complaint also includes an
additional claim for insider trading against certain defendants
pursuant to Rules 10b-5 and 10b5-1 promulgated pursuant to the
Exchange Act.
The suit is "Edward J. Goodman Life Income Trust v. Jabil
Circuit, Inc. et al., Case No. 8:06-cv-01716-SDM-EAJ," filed
with the U.S. District Court for the Middle District of Florida
under Judge Steven D. Merryday.
Representing the plaintiffs is:
William E. Hoese (whoese@kohnswift.com)
Kohn, Swift & Graf, P.C.
1101 Market St., Suite 2400
Philadelphia, PA 19107-3389
Phone: 215-238-1700
Representing the defendants is:
Michael L. Chapman, Esq. (michael.chapman@hklaw.com)
Holland & Knight, LLP
100 N. Tampa St., Ste. 4100, PO Box 1288
Tampa, FL 33601-1288
Phone: 813-227-8500
Fax: 813-229-0134
LIBERTY MUTUAL: Ill. Court Certifies Questionable Practices Suit
----------------------------------------------------------------
An Illinois Circuit Court has certified a class action case
against Liberty Mutual Insurance Company and Liberty Mutual Fire
Insurance Company filed by Illinois medical providers who accuse
the companies of questionable practices to reduce medical bills
and increase profits.
The case is pending in the Third Judicial Circuit, Madison
County, Illinois (Cause No. 04-L-1416).
According to the medical providers, Liberty Mutual has engaged
in a silent Preferred Provider Organization scheme. In a PPO,
insurance companies provide financial incentives to encourage
patients to seek treatment from the preferred or in-network
providers. Financial incentives include, for example, reduced
co-payments or greater benefit coverage for seeking treatment
from preferred or in-network providers. A "silent PPO" occurs
where an insurance company takes PPO discounts from medical
providers without financial incentives to steer patients to the
preferred or in-network providers. As a result, the medical
provider loses revenues without gaining patients, receiving
nothing in exchange for the reduced bills.
Over the past decade, insurance companies have targeted medical
bills as a means to increase profits. Whether called re-pricing
or cost containment, insurance companies have used questionable
tactics to reduce medical bills by all means possible. These
unprecedented attacks on medical bills lead to substantial
losses for medical providers and record profits for the
insurance companies.
Brad Lakin, President of The Lakin Law Firm said, "Over the past
decade, insurance companies have targeted medical bills as a
means to increase profits. Whether called re-pricing or cost
containment, insurance companies have used questionable tactics
to reduce medical bills by all means possible. These
unprecedented attacks on medical bills lead to substantial
losses for medical providers and record profits for the
insurance companies."
The trial court certified the following class: "All healthcare
providers in Illinois whose reimbursement for medical services
relating to an Illinois workers' compensation policy issued by
Liberty Mutual Insurance Company or Liberty Mutual Fire
Insurance Company was reduced pursuant to a First Health PPO
discount from January 1, 1997, through June 20, 2008."
The Court appointed Thomas L. Kaltenbronn, D.C., Coy
Chiropractic Health Center, P.C., and Dale Fischer -- d/b/a
Lebanon Chiropractic, P.C. -- as class representatives and The
Lakin Law Firm, P.C. was appointed lead class counsel.
To contact the Lakin Law Firm:
Lakin Law Firm PC
300 Evans Avenue, PO Box 229
Wood River, IL 62095-0229
Phone: 618-254-1127
800-851-5523
Fax: 618-254-0193
Web site: http://www.lakinlaw.com/
MICRON TECH: 9th Circuit Accepts Appeal in Calif. DRAM Cases
------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit accepted
plaintiffs' interlocutory appeal in connection to several
purported antitrust class action suits against Micron
Technology, Inc., and other suppliers of dynamic random access
memories (DRAM) that were transferred to California for
consolidated proceedings.
The purported class action suits generally allege violations of
antitrust statutes.
At least 68 purported class action complaints have been filed
against the company and other DRAM suppliers in various federal
and state courts in the U.S. and in Puerto Rico on behalf of
indirect purchasers alleging price-fixing in violation of
federal and state antitrust laws, violations of state unfair
competition law, and unjust enrichment relating to the sale and
pricing of DRAM products during the period from April 1999
through at least June 2002.
Cases have been filed in these states: Arkansas, Arizona,
California, Florida, Hawaii, Iowa, Kansas, Massachusetts, Maine,
Michigan, Minnesota, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Hampshire, New Jersey, New Mexico, Nevada,
New York, Ohio, Pennsylvania, South Dakota, Tennessee, Utah,
Vermont, Virginia, Wisconsin, and West Virginia, and also in the
District of Columbia and Puerto Rico.
The complaints purport to be on behalf of a class of individuals
and entities that indirectly purchased DRAM and products
containing DRAM in the respective jurisdictions during various
time periods ranging from April 1999 through at least June 2002.
They allege violations of the various jurisdictions' antitrust,
consumer protection and unfair competition laws relating to the
sale and pricing of DRAM products and seek treble monetary
damages, restitution, costs, interest and attorneys' fees.
A number of these cases have been removed to federal court and
transferred to the U.S. District Court for the Northern District
of California for consolidated proceedings.
On Jan. 29, 2008, the Northern District of California Court
granted in part and denied in part the company's motion to
dismiss a second amended consolidated complaint in the matter.
The plaintiffs subsequently filed a motion seeking certification
for interlocutory appeal of the decision. On Feb. 27, 2008,
the plaintiffs filed a third amended complaint.
On June 26, 2008, the U.S. Court of Appeals for the Ninth
Circuit accepted the plaintiffs' interlocutory appeal, according
to the company's July 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 26, 2008.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
MICRON TECHNOLOGY: Canadian DRAM Antitrust Lawsuits Drag On
-----------------------------------------------------------
Micron Technology, Inc., and other suppliers of dynamic random
access memories (DRAM) continue to face several purported class
action lawsuits in Canada that allege violations of antitrust
statutes, according to the company's July 8, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 26, 2008.
Three purported class action suits over DRAM have also been
filed in Canada, on behalf of direct and indirect purchasers,
alleging violations of the Canadian Competition Act.
The three cases have been filed in these Canadian courts:
Superior Court, District of Montreal, Province of Quebec;
Ontario Superior Court of Justice, Ontario; and Supreme Court of
British Columbia, Vancouver Registry, British Columbia.
The suits allege violations of the various jurisdictions'
antitrust, consumer protection and unfair competition laws
relating to the sale and pricing of DRAM products and seek
treble monetary damages, restitution, costs, interest and
attorneys' fees.
In May and June 2008 respectively, the plaintiffs' motion for
class certification was denied in the British Columbia and
Quebec cases. In the British Columbia case, the plaintiffs have
filed an appeal of that decision.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
MICRON TECHNOLOGY: Still Faces Several SRAM Antitrust Lawsuits
--------------------------------------------------------------
Micron Technology, Inc., along with other Static Random Access
Memory (SRAM) suppliers, continues to face a number of purported
antitrust class action lawsuits in the U.S. and Canada over the
sale of SRAM.
U.S. Litigation
At least 80 purported class action suits have been filed against
the company and other SRAM suppliers in various federal courts
on behalf of direct and indirect purchasers alleging price-
fixing in violation of federal and state antitrust laws,
violations of state unfair competition law, and unjust
enrichment relating to the sale and pricing of SRAM products
during the period from January 1998 through December 2005.
The complaints seek treble monetary damages sustained by
purported class members, in addition to restitution, costs, and
attorneys' fees.
Canadian Litigation
Three purported class action SRAM lawsuits also have been filed
in Canada, on behalf of direct and indirect purchasers, alleging
violations of the Canadian Competition Act.
The substantive allegations in these cases are similar to those
asserted in the SRAM cases filed in the U.S. cases.
The company reported no development in the matter in its July 8,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 26, 2008.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
NATIONAL PREARRANGED: Faces Fraud Suit by Missouri Funeral Home
---------------------------------------------------------------
A funeral home in Lake Ozark, Missouri, filed a class-action
lawsuit alleging a multimillion-dollar racketeering and fraud
scheme by National Prearranged Services Inc. and its bankers,
Rick Alm writes for The Kansas City Star.
The suit was filed by the James & Gahr Mortuary before the U.S.
District Court in Kansas City. The suit alleges that contracts
James & Gahr and hundreds of other funeral homes in at least 16
states signed with the St. Louis-based seller of prepaid
funerals are today worthless because "millions of dollars in
ill-gotten gains" was siphoned off by the defendants.
The federal lawsuit alleges the defendants "fraudulently
siphoned cash out" of whole life insurance policies and then
replaced them with less-valuable term life policies that do not
increase in value.
Kansas City Star relates that Missouri Attorney General Jay
Nixon, Esq., earlier sued some of the same companies, including
two in Independence, alleging state law violations.
"We're going to vigorously fight the allegations" in both
lawsuits, St. Louis lawyer Jack Spooner, Esq., told Kansas City
Star. Mr. Spooner represents many of the defendants, including
a family trust that ultimately controls an interlocked network
of funeral homes, cemeteries, insurance companies and other
firms.
"Everyone is piling on," Mr. Spooner added. "I don't think
anyone fully understands the nature of the business and what
happened."
The report recounts that Texas insurance regulators seized
National Prearranged and two of its Texas-based insurance
company affiliates in April, declaring them in "hazardous"
financial condition. According to the report, the companies are
in receivership, and at least 400 funeral homes in 19 states are
at risk to not be fully reimbursed for funerals that they
contracted to provide. Those contracts were underwritten by
National Prearranged, whose reserves do not appear sufficient to
cover the funerals' costs.
Kansas City Star writes that National Prearranged, founded in
1979, invested consumers' payments in trust funds that in turn
invested in whole life insurance policies that earned interest.
Those policies were intended to cover inflation in the costs of
providing the funerals.
Besides National Prearranged, the defendants named in the
federal action are:
-- National Heritage Enterprises Inc.;
-- Forever Enterprises Inc.;
-- Memorial Service Life Insurance Co.;
-- Lincoln Memorial Life Insurance Co.;
-- the RBT II trust and its trustee Howard Wittner and
beneficiaries Doug and Rhonda Cassity and their sons Brent
and Tyler;
-- Bremen Bank and Trust Co.;
-- Allegiant Trust Co., a National City Corp. Bank;
-- Southwest Bank, an M&I Bank; Marshall and Ilsley Trust
Co.;
-- Randall Sutton, an executive of some of the companies;
-- Wulf, Bates & Murphy Inc.; and
-- David R. Wulf, a trust adviser to the Cassitys.
OPENWAVE SYSTEMS: Still Faces N.Y. Consolidated Shareholder Suit
----------------------------------------------------------------
Openwave Systems continues to face a consolidated shareholder
lawsuit in New York over an alleged stock-option backdating
scheme.
Between Feb. 21 and March 27, 2007, four substantially similar
securities class action complaints were filed in the U.S.
District Court for the Southern District of New York against
Openwave and four current and former officers of the company.
The complaints purport to be filed on behalf of all persons or
entities who purchased Openwave stock from Sept. 30, 2002,
through Oct. 26, 2006, and allege that during the class period,
the defendants engaged in improper stock options backdating and
issued materially false and misleading statements in the
company's public filings and press releases regarding the manner
in which Openwave granted and accounted for the options.
Based on these allegations, the complaints assert two causes of
action -- one against all defendants for violation of Section
10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder,
and a second against the individual defendants for violation of
Section 20(a) of the Exchange Act.
On April 25, 2007, the company and the individual defendants
filed a joint motion to transfer the actions to the Northern
District of California where the related shareholder derivative
class actions are pending.
On May 18, 2007, the court entered an order consolidating the
four securities class action suits into a single action
captioned, "In re: Openwave Systems Securities Litigation
(Master File 07-1309 (DLC))," and appointing a lead plaintiff
and lead counsel.
On June 29, 2007, the plaintiffs filed a consolidated and
amended class action complaint. The consolidated and amended
complaint adds 17 additional defendants, including:
* several current and former Openwave officers and
directors,
* KPMG LLP,
* Merrill Lynch,
* Pierce, Fenner & Smith, Inc.,
* Lehman Brothers Inc.,
* J.P. Morgan Securities, Inc., and
* Thomas Weisel Partners LLC
The consolidated and amended complaint alleges claims for
violation of Sections 10(b), 20(a) and 20(A) of the Exchange Act
and Rule 10b-5, as well as claims for violation of Sections 11,
12(a)(2) and 15 of the U.S. Securities Act of 1933 arising out
of the company's 2005 public offering. It seeks money damages,
equitable relief, and attorneys' fees and costs.
The company is required under contracts with the individual
defendants to indemnify them under certain circumstances for
attorneys' fees and expenses.
The Arkansas Teacher Retirement System was appointed as lead
plaintiff and Bernstein Litowitz Berger & Grossmann LLP as lead
counsel for all plaintiffs in the consolidated actions and the
class.
On Aug. 10, 2007, the defendants filed motions to dismiss the
consolidated and amended class action complaint. On Oct. 31,
2007, the court granted the motions to dismiss claims asserted
under the Securities Act of 1933 as to all defendants against
whom those claims were asserted, and granted the motion to
dismiss the U.S. Securities Exchange Act of 1934 claims against
certain of the officer and director defendants. However, the
motion to dismiss the Exchange claims asserted against Openwave
and certain of the other director and officer defendants was
denied.
As a result of the court's decision, KPMG LLP, Merrill Lynch,
Pierce, Fenner & Smith, Lehman Brothers Inc., J.P. Morgan
Securities, and Thomas Weisel Partners have all been dismissed
as defendants from the consolidated lawsuit.
The remaining defendants are the company, certain former
officers of the company, and certain former and current
directors of the company.
The company reported no development in the matter in its July 7,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2001.
The suit is "In re: Openwave Systems Securities Litigation
(Master File 07-1309 (DLC))," filed in the U.S. District Court
for the Southern District of New York, Judge Denise L. Cote
presiding.
Representing the plaintiffs are:
Laura Helen Gundersheim, Esq. (Laurag@blbglaw.com)
Bernstein Litowitz Berger & Grossmann LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: 212-554-1463
Fax: 212-554-1444
- and -
Jeffrey Simon Abraham, Esq. (jabraham@aftlaw.com)
Abraham Fruchter & Twersky LLP
One Penn Plaza, Suite 1910
New York, NY 10119
Phone: 212-279-5050
Fax: 212-279-3655
Representing the defendants are:
Marshall Ross King, Esq. (mking@gibsondunn.com)
Gibson, Dunn & Crutcher LLP
200 Park Avenue, 48th Floor
New York, NY 10166
Phone: 212-351-3905
Fax: 212-351-5243
- and -
Andrew W. Stern, Esq. (astern@sidley.com)
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Phone: 212-839-5300
Fax: 212-839-5599
SHUFFLE MASTER: Still Faces Consolidated Securities Suit in Nev.
----------------------------------------------------------------
Shuffle Master, Inc., continues to face a consolidated
securities fraud class action lawsuit in the U.S. District Court
for the District of Nevada.
Initially, three complaints were filed against the company:
(1) Stocke Litigation
On June 1, 2007, a putative class action complaint over an
alleged violation of the federal securities laws against the
Shuffle Master and its chief executive officer, Mark L.
Yoseloff, and chief financial officer, Richard L. Baldwin,
was filed in the U.S. District Court for the District of
Nevada on behalf of persons who purportedly purchased the
company's stock between Dec. 22, 2006, and March 12, 2007.
The case is entitled, "Joseph Stocke vs. Shuffle Master,
Inc., Mark L. Yoseloff and Richard L. Baldwin." The
company, as well as Dr. Yoseloff and Mr. Baldwin, were
served with the complaint on June 6, 2007.
The complaint asserts claims pursuant to Sections 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934, and Rule
10b 5 promulgated thereunder. These claims allegedly relate
to the company's March 12, 2007 announcement that it would
restate its Fiscal Fourth Quarter and full year financial
results.
The complaint seeks compensatory damages in an unstated
amount.
On or about Aug. 4, 2007, four plaintiffs moved the Court
for appointment as lead plaintiff, with one withdrawing its
application in September. No decision has yet been made.
(2) Armistead Litigation
On June 12, 2007, a second putative class action complaint
for violation of the federal securities laws against the
same defendants -- the company, Dr. Yoseloff and Mr. Baldwin
-- was filed in the same court in Nevada.
The case is entitled, "Robert Armistead, Jr. vs. Shuffle
Master, Inc., Mark L. Yoseloff and Richard L. Baldwin." The
defendants were served with the complaint on June 12, 2007.
This lawsuit effectively mirrors the allegations in the
Stocke Lfiled against the same defendants, except that the
Armistead complaint was filed on behalf of persons who
purchased the company's stock between March 20, 2006, and
March 12, 2007.
(3) Tempel Litigation
On June 25, 2007, a third putative class action complaint
for violation of the federal securities laws against the
same defendants was filed in the same court.
The case is entitled, "Andrew J. Tempel vs. Shuffle Master,
Inc., Mark L. Yoseloff and Richard L. Baldwin." This
lawsuit is a "copycat" lawsuit of the Stocke Lawsuit.
On June 22, 2007, a Joint Stipulation was filed in the U.S.
District Court for the District of Nevada providing that all
presently filed and any subsequently filed related class action
suits will be consolidated and captioned, "In Re Shuffle Master,
Inc. Securities Litigation."
The company reported no development in the consolidated matter
in its July 8, 2008 Form 10-K/A filing with the U.S. Securities
and Exchange Commission for the fiscal year ended Oct. 31, 2007.
The suit is "In Re Shuffle Master, Inc. Securities Litigation,
Case No. 07-CV-00715," filed in the U.S. District Court for the
District of Nevada, Judge Kent J. Dawson, presiding.
Representing the plaintiffs are:
Mark Albright, Esq. (gma@albrightstoddard.com)
Albright Stoddard Warnick & Albright
801 South Rancho Drive, Suite D-4
Las Vegas, NV 89106
Phone: 702-384-7111
Fax: 702-384-0605
- and -
Patrick V. Dahlstrom, Esq. (pdahlstrom@pomlaw.com)
Pomerantz Haudek Block Grossman & Gross LLP
One North LaSalle Street, Suite 2225
Chicago, IL 60602
Phone: 312-377-1181
Representing the defendants are:
Joshua G. Hamilton, Esq.
(joshuahamilton@paulhastings.com)
Paul, Hastings, Janofsky & Walker LLP
515 S. Flower Street
Los Angeles, CA 90071-2371
Phone: 213-683-6000
Fax: 213-627-0705
- and -
Kirk B. Lenhard, Esq. (kbl@jonesvargas.com)
Jones Vargas
3773 Howard Hughes Pkwy., 3rd Floor So.
Las Vegas, NV 89109
SOLARBROOK WATER: Settles 2005 Lawsuit for Over $425,000
--------------------------------------------------------
SolarBrook Water and Power Corporation (PINKSHEETS: SWPC), a
developer, manufacturer and marketer of water quality and clean
power products, announced a settlement agreement related to a
class action complaint filed against the company in November
2005.
The class action was settled for the principal sum of $425,000,
plus interest, and the settlement agreement calls for 12 monthly
payments of approximately $35,967.
"We are pleased to have reached a settlement that we believe
will not materially impact the business of the company and its
subsidiaries," stated George Moore, CEO of SolarBrook Water and
Power Corporation. "With this now behind us, the company looks
forward to reporting additional progress in the execution of its
business strategy, especially as the need for clean water and
power solutions worldwide becomes even more urgent."
SolarBrook recently announced several pending projects,
including joint venture negotiations for a project in China, a
pending new sale through its distributor, Resource Management
Technologies, LLC, and negotiations for a new reseller agreement
with a Canadian marketing company.
More information on the status of each of these projects is
expected in the coming weeks.
The company provided no details regarding the lawsuit.
SolarBrook Water and Power Corporation, headquartered in
Raleigh, North Carolina, maintains a core focus of seeking out
synergistic acquisitions that will provide capital appreciation
and income for its portfolio companies. The mission of
SolarBrook is to acquire and develop innovative technologies and
businesses that will improve the quality of water throughout the
world by means of detection, treatment and removal of
contaminants. SolarBrook also seeks to provide integrated clean
power alternatives for remote and off-grid systems, further
expanding market potential.
TAKE-TWO INTERACTIVE: Deal Gets "Lukewarm" Response, Report Says
----------------------------------------------------------------
Few claimants have stepped forward to stake a claim to a
settlement that was reached in the case, captioned "In Re: Grand
Theft Auto Video Game Consumer Litigation, Case No. 1:06-md-
01739-SWK," which was filed against Take-Two Interactive
Software, Inc., and its subsidiary, Rockstar Games, according to
Jonathan D. Glater of The New York Times.
Mr. Glater writes that the lawsuit was a consolidation of
several lawsuits over hidden sex scenes discovered in the video
game Grand Theft Auto: San Andreas.
NY Times says that of the millions of people who bought the
video game after its release in 2004, exactly 2,676 filed claims
against the company. The claims totaled less than $30,000,
meaning Take-Two will make up the rest of the $1 million minimum
it pledged to spend as part of the settlement by other means,
including an $860,000 charitable contribution, the report points
out.
Case Background
In July 2005, the defendants -- Take-Two Interactive Software
and its subsidiary, Rockstar Games -- were subjects of four
purported class action complaints (Class Action Reporter,
May 28, 2008).
Two of the four complaints were filed in the U.S. District Court
for the Southern District of New York, one was filed in the U.S.
District Court for the Eastern District of Pennsylvania, and the
other was filed in the Circuit Court in St. Clair County,
Illinois (Class Action Reporter, Jan. 11, 2008).
The plaintiffs, alleged purchasers of the defendants' Grand
Theft Auto: San Andreas First Edition video game manufactured
before July 20, 2005, assert that the company engaged in
consumer deception, false advertising and breached an implied
warranty of merchantability and were unjustly enriched as a
result of the company's alleged failure to disclose that Grand
Theft Auto: San Andreas contained "hidden" content, which
resulted in the game receiving a Mature 17+ (M) rating from the
Entertainment Software Rating Board rather than an Adults Only
18+ rating.
The Judicial Panel on Multidistrict Litigation later transferred
all the cases to the U.S. District Court for the Southern
District of New York, which consolidated them under the caption,
"In re Grand Theft Auto Video Game Consumer Litigation (No. II),
06-MD-1739 (SWK)(MHD)."
Settlement
In November 2007, the defendants reached an agreement to settle
the matter.
Under the terms of the settlement, class members will be able to
claim benefits if they swear that they:
(a) bought a copy of Grand Theft Auto: San Andreas
before July 20, 2005;
(b) were offended and upset by the ability of consumers to
modify and alter the game's content using the third-
party Hot Coffee modification;
(c) would not have bought the game had they known that
consumers could modify and alter the game's content
using the third-party Hot Coffee modification; and
(d) would have returned the game, upon learning the game
could be modified and altered, if they thought this
possible.
Settlement class members who attest to these facts may apply for
benefits that range from an exchange of the game disk for an
edited copy of Grand Theft Auto: San Andreas to a cash payment
Between $5 to $35 for consumers who submit detailed proofs of
purchase.
In late 2007, the U.S. District Court for the Southern District
of New York granted preliminary approval to the settlement
(Class Action Reporter, April 18, 2008).
Objection to Legal Fees
Despite getting preliminary approval, NY Times relates that the
settlement, particularly the legal fees, have drawn an objection
from a game-player who just happens to be a lawyer as well.
Seeking to scuttle the deal is Theodore H. Frank, Esq., who
directs the Legal Center for the Public Interest at the American
Enterprise Institute, where he writes about class actions,
liability and other topics.
NY Times says that that the lawyers who brought the class
action, namely Seth R. Lesser, Esq., and his colleagues at 10
other law firms, have asked for more than $1.3 million in legal
Fees.
"There are two possibilities," Mr. Frank told NY Times of the
settlement. "Possibility one is they have a meritorious lawsuit
and they're selling out the class for attorneys' fees. The
other possibility is that, and frankly I think this is the more
likely possibility, they brought a meritless lawsuit that had no
business being brought to court at all."
GTA Class Action Settlement on the net:
http://www.gtasettlement.com/
The suit is "In Re: Grand Theft Auto Video Game Consumer
Litigation, Case No. 1:06-md-01739-SWK," filed in the U.S.
District Court for the Southern District of New York, Judge
Shirley Wohl Kram, presiding.
Representing the plaintiffs is:
Seth R. Lesser, Esq.
Locks Law Firm PLLC
110 East 55th St.
New York, NY 10022
Phone: 888-8LLF-NYC
Representing the company is:
Jeffrey S. Jacobson, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Phone: 212-909-6000
TRIZETTO GROUP: Settles Delaware Suit Over Sale to Apax Partners
----------------------------------------------------------------
The TriZetto Group, Inc., entered into a memorandum of
understanding related to a proposed settlement with the
plaintiffs in a class action lawsuit pending against it in the
Delaware Court of Chancery in connection with the proposed
merger pursuant to which TriZetto will become a wholly owned
subsidiary of TZ Holdings, L.P., an entity that is majority-
owned by Apax Partners, L.P.
In June, The TriZetto Group faced a class-action complaint filed
in the Court of Chancery of the State of Delaware for selling
itself "too cheaply" -- for $1.4 billion or $22 per share -- to
Apax Partners (Class Action Reporter, June 16, 2008).
This is a stockholders' action on behalf of the public
stockholders of TriZetto to enjoin the proposed going-private
buyout of the publicly-owned shares of TriZetto's common stock
by entities affiliated with the private equity investor, Apax,
pursuant to the Agreement and Plan of Merger dated as of
April 11, 2008.
On April 11, the defendants announced that the company's board
had approved the proposed merger for $22/share. The total
consideration offered in the proposed merger is $1.4 billion,
including consideration for stock options and shares related to
certain of TriZetto's outstanding convertible notes.
The suit says that the price offered in the proposed merger is
unfair because the intrinsic value of TriZetto common stock is
materially in excess of the amount offered given the company's
solid financial position and its opportunities for future
growth. Instead of obtaining the best reasonably available
price in this change of control transaction, the defendants
agreed to a transaction that left the company's stockholders in
a worse financial position than if the defendants had engaged in
an adequate sale process or otherwise determined to continue to
operate TriZetto as a public corporation. Moreover, in
violation of their fiduciary duty of disclosure, defendants are
soliciting shareholder votes in favor of the proposed merger on
the basis of a proxy containing omissions of material facts.
The plaintiffs sought to enjoin the proposed merger or
rescinding the proposed merger in the event of its consummation.
As part of the recently proposed settlement, TriZetto has agreed
to provide additional explanation to its stockholders regarding
the reason TriZetto's board of directors directed UBS Securities
LLC, TriZetto's financial advisor, to utilize the projections
disclosed in TriZetto's proxy statement for purposes of its
analysis in connection with its opinion issued to TriZetto's
board of directors on April 10, 2008.
TriZetto has also agreed to provide additional explanation
regarding the board of directors' reasons for selecting the
potential bidders in the process leading up to the sale of the
company that were invited to continue to participate in the
second round of the process.
In addition, as part of the proposed settlement, certain of
TriZetto's executive officers have agreed to vote their TriZetto
stock in the aggregate in the same proportion as the vote cast
by the other stockholders voting at the special meeting of
TriZetto's stockholders to approve the proposed merger.
If approved by the court, the settlement will provide releases
to all defendants of any claims arising from the process leading
to the proposed merger, any of the transactions contemplated by
the related agreement and plan of merger, and any disclosures
made in connection with TriZetto's proxy statement and
definitive additional proxy material distributed to its
stockholders in connection with the vote of TriZetto's
stockholders to approve the proposed merger. If approved by the
court, the settlement will also result in the dismissal with
prejudice of the class action lawsuits filed in the Delaware
Court of Chancery and the Superior Court of the State of
California related to the proposed merger.
As previously announced, the special meeting of stockholders
called to vote on the merger was convened as scheduled on
June 30, 2008, but, as a result of an injunction issued in the
class action litigation, was adjourned until July 14, 2008, at
10:00 a.m., local time at The Island Hotel Newport Beach, 690
Newport Center Drive, in Newport Beach, California 92660.
The injunction issued in the class action litigation was vacated
by the Delaware Court of Chancery on July 2, 2008.
The suit is "City of Fort Lauderdale Police and Firefighters'
Retirement System, et al. v. Jeffrey H. Margolis, et al.," filed
in the Court of Chancery of the State of Delaware.
Representing the plaintiffs are:
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
Rigrodsky & Long, PA
919 North Market Street, Suite 980
Wilmington, DE 19801
Phone: 302-295-5310
WD-40 CO: Plaintiff Allowed to Appeal Denial of "Drimmer" Class
---------------------------------------------------------------
The plaintiff in a purported class action lawsuit against WD-40
Co. has been granted permission to appeal an order entered by
the U.S. District Court for the Southern District of California
denying class-action status to their case.
James Drimmer filed the suit on April 19, 2006, alleging fraud
in the company's marketing of automatic toilet bowl cleaners.
After several of the plaintiff's factual claims were dismissed
by way of motion, the plaintiff filed an amended complaint on
Sept. 20, 2006.
The amended complaint sought class-action status. It alleged
that the company misrepresented that its 2000 Flushes Bleach and
2000 Flushes Blue Plus Bleach automatic toilet bowl cleaners are
safe for plumbing systems and unlawfully omitted to advise
consumers regarding the allegedly damaging effect the use of the
ATBCs has on toilet parts made of plastic and rubber.
On Aug. 24, 2007, the company successfully defeated the
plaintiff's attempt to have the case certified as a class
action.
The plaintiff then petitioned for permission to appeal the
District Court's decision and the company has opposed this move.
Recently, the plaintiff was granted permission to appeal the
District Court's ruling, according to the company's July 7, 2008
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended May 31, 2008.
The suit is "Drimmer v. WD-40 Co., Case No. 3:06-cv-00900-W-
AJB," filed in the U.S. District Court for the Southern District
of California, Judge Thomas J. Whelan, presiding.
Representing the plaintiff is:
Robert L. Kenny, Esq. (rkenny@kennylaw.net)
The Law Offices of Robert L. Kenny
401 West A Street, Suite 2300
San Diego, CA 92101
Phone: 619-234-1616
Fax: 619-234-1650
Representing the company is:
Shannon Sweeney, Esq.
Baker and McKenzie
101 West Broadway, Suite 1200
San Diego, CA 92101-8213
Phone: 619-236-1441
Fax: 619-236-0429
New Securities Fraud Cases
MRV COMMUNICATIONS: Schatz Nobel Files Calif. Securities Lawsuit
----------------------------------------------------------------
The law firm of Schatz Nobel Izard P.C., which has significant
experience representing investors in prosecuting claims of
securities fraud, has filed a lawsuit seeking class action
status in the United States District Court for the Central
District of California on behalf of all those who purchased the
common stock of MRV Communications, Inc., between March 31,
2003, and June 5, 2008, inclusive.
The Complaint charges that MRV and certain of its officers and
directors violated federal securities laws by issuing materially
false and misleading statements regarding the Company's employee
stock option grant practices and financial results.
It is alleged that the defendants caused or allowed MRV to issue
statements that failed to disclose or misstated the following:
(i) that MRV had problems with its internal controls that
prevented it from issuing accurate financial reports
and projections;
(ii) that because of improperly recorded stock-based
compensation expenses the Company's financial results
violated GAAP; and
(iii) that the Company's public disclosures covering a seven-
year period presented an inflated view of MRV's
earnings and earnings per share, which would later have
to be restated.
On June 5, 2008, MRV announced that it expects to restate its
2002 to 2008 financial statements, and that its previously-
issued financial statements, earnings press releases, and
similar communications should no longer be relied upon. The
restatement relates to the previously undisclosed stock-option
backdating problems and related accounting issues. This report
came after the Company had earlier announced that a review of
its options granting practices had found no evidence that grant
dates were designed to occur on dates with lower, more favorable
exercise prices. MRV's management now states that it is likely
that these previous conclusions were incorrect. On this news,
MRV's stock price fell approximately 24%.
Interested parties may move the court no later than September 8,
2008, for lead plaintiff appointment.
For more information, contact:
Wayne T. Boulton, Esq.
Nancy A. Kulesa, Esq.
Schatz Nobel Izard P.C.
20 Church Street, Suite 1700
Hartford, CT 06103
Phone: 800-797-5499
e-mail: firm@snilaw.com
Web site: http://www.snilaw.com/
Asbestos Alerts
ASBESTOS LITIGATION: 167 Claims Pending v. GenCorp Inc. at May
--------------------------------------------------------------
GenCorp Inc. faced 167 pending asbestos-related claims in the
six months ended May 31, 2008, compared with 160 claims in the
year ended Nov. 30, 2007, according to the Company's quarterly
report filed with the Securities and Exchange Commission on
July 2, 2008.
The Company faced 169 pending asbestos-related cases as of
Feb. 29, 2008. (Class Action Reporter, April 18, 2008)
In the six months ended May 31, 2008, the Company noted 23 new
claims filed, 13 claims dismissed, and three claims settled. The
aggregate settlement costs were US$226,000 and the average
settlement costs were US$75,000.
In the year ended Nov. 30, 2008, the Company noted 57 claims
filed, 43 claims dismissed, and eight claims settled. The
aggregate settlement costs were US$72,000 and the average
settlement costs were US$9,000.
Legal and administrative fees for the asbestos cases for the
first half of fiscal 2008 were US$300,000. Legal and
administrative fees for the asbestos cases were US$900,000 for
fiscal year 2007 and US$500,000 for fiscal year 2006.
Rancho Cordova, Calif.-based GenCorp Inc. is a manufacturer of
aerospace and defense products and systems with a real estate
segment that includes activities related to the re-zoning,
entitlement, sale, and leasing of the Company's excess real
estate assets.
ASBESTOS LITIGATION: H.B. Fuller Has $4.8M at May for Liability
---------------------------------------------------------------
H.B. Fuller Company, as of May 31, 2008, had recorded
US$4,759,000 for probable liabilities and US$2,093,000 for
insurance recoveries related to asbestos claims, according to
the Company's quarterly report filed with the Securities and
Exchange Commission on July 2, 2008.
The Company and/or its subsidiaries have been named as
defendants in lawsuits in various courts in which plaintiffs
have alleged injury due to products containing asbestos
manufactured more than 25 years ago. The plaintiffs bring these
lawsuits against multiple defendants and seek damages (both
actual and punitive) in very large amounts.
In many of these cases, the plaintiffs are unable to demonstrate
that they have suffered any compensable injuries or that the
injuries suffered were the result of exposure to products
manufactured by the Company or its subsidiaries. The Company is
typically dismissed as a defendant in those cases without
payment.
During the first six months of 2008, the Company settled two
asbestos-related lawsuits for US$93,000. The Company's insurers
have paid or are expected to pay US$61,000 of that amount.
In addition, during the fourth quarter of 2007, the Company and
a group of other defendants entered into negotiations with
certain law firms to settle a number of asbestos-related
lawsuits and claims.
Subject to finalization of the terms and conditions of the
settlement, the Company expects to contribute up to US$4,600,000
towards the settlement amount to be paid to the claimants in
exchange for a full release of claims. Of this amount, the
Company's insurers have committed to pay US$1,900,000 based on a
probable liability of US$4,600,000.
Given that the payouts will occur on certain dates over a four-
year period, the Company applied a present value approach and
has accrued US$4,384,000 and recorded a receivable of
US$1,811,000.
Vadnais Heights, Minn.-based H.B. Fuller Company, which makes
adhesives, also makes sealants, powder coatings for metals
(office furniture, appliances), and liquid paints (in Latin
America). The Company's industrial and performance adhesives
customers include companies in the packaging, graphic arts,
automotive, woodworking, and non woven textiles industries.
ASBESTOS LITIGATION: N.Y. Court Favors Knee in Goodyear Lawsuit
---------------------------------------------------------------
The Supreme Court, Appellate Division, 1st Department, New York,
upheld a prior ruling of the court, which denied The Goodyear
Tire & Rubber Company's motion for summary judgment in an
asbestos lawsuit filed by Roslyn Knee.
The case is styled Roslyn Knee, etc., Plaintiff-Respondent, v.
A.W. Chesterton Co., et al., Defendants, The Goodyear Tire &
Rubber Company, Defendant-Appellant.
Judges Tom, Friedman, Nardelli, Buckley, and Renwick entered
judgment of the case on June 17, 2008.
The deposition testimony of Ms. Knee's decedent showed that he
was exposed to gaskets and gasket materials containing asbestos
while working on a ship known as the Constellation at the
Brooklyn Navy Yard, that dust from the asbestos gaskets was
pervasive, and that he breathed it.
Deposition testimony of Ms. Knee and a second witness from an
unrelated asbestos litigation and the plaintiff from a second
unrelated asbestos litigation described work involving gaskets
on the same ship, under the same conditions, within the same
time period, and identified Goodyear as the manufacturer of the
gaskets.
Goodyear was a party in these two other actions and present at
all three depositions. The Appellate Court noted that one of
these witnesses may be available to testify at trial.
The Appellate Court rejected Goodyear's argument that these
three witness depositions from other actions cannot be used for
present purposes. These depositions raised an issue of fact as
to whether the decedent was exposed to asbestos contained in
Goodyear's gaskets.
Lynch Daskal Emery LLP, New York (Scott R. Emery of counsel),
represented The Goodyear Tire & Rubber Company.
Weitz & Luxenberg, P.C., New York (Stephen J. Riegel of
counsel), represented Roslyn Knee.
ASBESTOS LITIGATION: Appeals Court Favors Gov't. in Russo Action
----------------------------------------------------------------
The U.S. Court of Appeals, 2nd Circuit, upheld the ruling of the
U.S. District Court for the Northern District of New York, which
sentenced Frank Russo to 18 months in prison for violation of
the Clean Air Act.
The case is styled United States of America, Appellee, v. Frank
Russo, Defendant-Appellant.
Circuit Judges Ralph K. Winter, Robert D. Sack, and Debra Ann
Livingston entered judgment of Case No. 07-5047-cr on June 13,
2008.
This was an appeal from the U.S. District Court for the Northern
District of New York.
Mr. Russo pleaded guilty to one count of conspiring to violate
the Clean Air Act by conducting asbestos abatements without
following applicable Environmental Protection Agency
regulations.
The District Court sentenced Mr. Russo to a term of 18 months'
imprisonment. Mr. Russo appealed from the sentence.
Craig A. Benedict (Elizabeth S. Riker, on the brief), Assistant
U.S. Attorney, for Glenn T. Suddaby, U.S. Attorney for the
Northern District of New York, Syracuse, N.Y., for the United
States.
Max D. Stern (Alexandra H. Deal, on the brief), Stern, Shapiro,
Weissberg & Garin, LLP, Boston, represented Frank Russo.
ASBESTOS LITIGATION: La. Court Favors Prudential Lines Creditors
----------------------------------------------------------------
The U.S. Court of Appeals, 2nd Circuit, reversed the ruling of
the U.S. District Court for the Southern District of New York,
to favor creditors of Prudential Life, Inc. (Claimants).
The case is styled Asbestosis Claimants, Claimants-Appellants,
v. American Steamship Owners Mutual Protection and Indemnity
Association, Inc., Appellee. This is a case in the bankruptcy of
Prudential Lines Inc., Debtor.
Circuit Judges Miner, Leval, and Pooler entered judgment of
Docket No. 05-5925-bk on June 19, 2008.
This was an appeal by the Claimants from the trial court's
ruling, which affirmed the U.S. Bankruptcy Court for the
Southern District of New York in denying a motion jointly made
by Claimants and Prudential's Trustee in bankruptcy (Trustee)
against Prudential's liability insurer, the American Steamship
Owners Mutual Protection and Indemnity Association (Insurer).
The motion sought two orders enabling the Trustee to undertake a
proposed structure for the use of insurance indemnities to pay
the claims of the Claimants (the "Proposed Payment Structure").
The motion primarily asked the bankruptcy court (1) to reject
the objections of the Insurer to the Proposed Payment Structure
and (2) to direct that set-offs to which the Insurer was
entitled by virtue of unpaid premiums on four years of coverage
be prorated among the claims.
The Insurer, which was the appellee in this proceeding,
successfully opposed Claimants' motion in the bankruptcy court
and on appeal to the district court.
At issue in the two rulings sought was whether the Proposed
Payment Structure violates (i) the terms of Prudential's
indemnity policy with the Insurer; (ii) the Bankruptcy Plan,
which was approved in 1990; or (iii) the terms of the Insurer's
right of set-off relating to unpaid premiums (Unpaid Premiums)
for certain calendar years of Prudential's coverage by the
Insurer.
Sanford F. Young, Law offices of Sanford F. Young, New York,
(Alan Kellman, The Maritime Asbestosis Legal Clinic, a Division
of the Jacques Admiralty Law Firm, P.C., on the brief),
represented Asbestosis Claimants.
Lawrence J. Bowles, Nourse & Bowles, LLP, New York, represented
American Steamship Owners Mutual Protection and Indemnity
Association, Inc.
ASBESTOS LITIGATION: Beall's Lawsuit v. Conoco, Others Remanded
---------------------------------------------------------------
The U.S. District Court, M.D. Louisiana, remanded an asbestos-
related lawsuit styled Ernest D. Beall v. Conoco Phillips
Company, et al. to the 19th Judicial District Court for the
Parish of East Baton Rouge, La.
District Judge John V. Parker entered judgment of Civil Action
No. 08-289-JVP-DLD on June 16, 2008.
Mr. Beall filed suit on April 28, 2008, in the 19th Judicial
District Court, Parish of East Baton Rouge, State of Louisiana.
The suit was filed against various defendants alleging that Mr.
Beall suffered occupational exposure to asbestos and asbestos-
containing products designed, mined, manufactured, sold,
distributed, supplied, applied, and/or maintained on various
premises by the defendants.
Shortly after filing the petition, Mr. Beall filed a motion and
memorandum in support of preferential assignment of trial date
and scheduling order, which was supported by medical tests
results indicating that Mr. Beall suffered from malignant
mesothelioma.
Brian Francis Blackwell, Blackwell & Associates, Baton Rouge,
La., represented Ernest D. Beall.
Kathleen F. Drew, Valeria M. Sercovich, Adams & Reese, Lynn
Luker, Lynn Luker & Associates, LLC, Lawrence E. Abbott, Deborah
Kuchler, Ernest G. Foundas, Kendra L. Duay, Charlotte P.
Livingston, Laura Elizabeth Kraemer, McGready Lewis Richeson,
Michael H. Abraham, Robert E. Guidry, Sarah E. Iiams, Abbott,
Sims & Kuchler, Joshua L. Rubenstein, Barbara Bourgeois Ormsby,
Marc John Bitner, Forman, Perry, Watkins, Krutz & Tardy, New
Orleans, Robert E. Williams, IV, Sulzer & Williams, L.L.C.,
Covington, La., represented Conoco Phillips Company, et al.
ASBESTOS LITIGATION: Kluka's Remand Motion Junked Last April 28
---------------------------------------------------------------
The U.S. District Court, M.D. Louisiana, denied Letha Kluka's
Motion to Remand, in an asbestos-related lawsuit filed on behalf
of the late Albert Leroy Davis.
The case is styled Letha Kluka, et al. v. Anco Insulations,
Inc., et al.
District Judge James J. Brady entered judgment of Civil Action
No. 08-84-JJB-SCR on April 28, 2008.
Before the court was a Motion to Remand filed by Mrs. Kluka,
individually and on behalf of the late Mr. Davis. The motion was
opposed by Northrop Grumman Ship Systems, Inc. and Northrop
Grumman Ship Systems Corporation.
Mrs. Kluka alleged that Mr. Davis is deceased and that she is
his daughter and the proper party to bring a survival and
wrongful death action under Louisiana law.
Northrop is a successor by merger to Avondale Industries, Inc.
Mrs. Kluka filed this action in state court against Northrop and
numerous other defendants, alleging that during Mr. Davis's
employment at Avondale shipyards and other facilities he was
exposed to asbestos-containing products which resulted in his
injuries and death.
Mrs. Kluka alleged that Mr. Davis was exposed to asbestos while
he was employed as a welder, boilermaker and roustabout at
Avondale facilities from 1964 to 1966.
Northrop removed the case to the District Court on Feb. 7, 2008.
Mrs. Kluka moved to remand arguing that removal under the
federal officer removal statute is not proper in this case.
The District Court denied Mrs. Kluka's motion.
Cameron Ray Waddell, Jo Ann Lea, Jody E. Anderman, LeBlanc &
Waddell, LLP, Baton Rouge, La., represented Letha Kluka, et al.
Brian C. Bossier, Christopher T. Grace, III, Edwin A.
Ellinghausen, III, Blue Williams, LLP, Metairie, LA, Gary A.
Lee, Richard M. Perles, Lee, Futrell & Perles, Gordon Peter
Wilson, Halima Narcisse Smith, Lugenbuhl, Wheaton, Peck, Rankin
& Hubbard, New Orleans, represented Anco Insulations, Inc., et
al.
ASBESTOS LITIGATION: Mich. Court Favors Stearns in Pro-Tech Case
----------------------------------------------------------------
The Court of Appeals of Michigan reversed the ruling of the
Montcalm Circuit Court, which had favored Pro-Tech Environmental
& Construction Services, Inc., in a case involving asbestos
removal filed by Michael Wayne Stearns.
The case is styled Michael Wayne Stearns, Petitioner-Appellant,
v. Pro-Tech Environmental & Construction Services, Inc., and
Department of Labor and Economic Growth, Respondents-Appellees.
Judges Whitbeck, Talbot, and Fort Hood entered judgment of
Docket No. 270315 on June 19, 2008.
Mr. Stearns alleged that he was discharged from his employment
with Pro-Tech in retaliation for reporting deficiencies in the
safety equipment provided during an asbestos removal project at
a local university, Calvin College.
It was alleged that the respirators used during asbestos removal
did not comply with MIOSHA standards according to the university
supervisor of the project.
Mr. Stearns reported the complaints to Pro-Tech at the
insistence of the university supervisor. He alleged that he was
terminated from his employment as a result of his complaint
report.
Pro-Tech asserted that Mr. Stearns was lawfully discharged for
his use of vulgar language and insubordination in the presence
of co-workers and superiors at his place of employment and in
the presence of supervising personnel at the university.
The DLEG investigated Mr. Stearns' claim and concluded that Pro-
Tech violated MCL 408.1065(1) by terminating Mr. Stearns after
he reported MIOSHA violations. Pro-Tech contested the findings
by the Department of Labor and Economic Growth, and a hearing
was held before an administrative law judge (ALJ).
Pro-Tech filed a petition for review in circuit court. Following
oral argument on the petition, the Circuit Court ruled in favor
of Pro-Tech.
The circuit court also issued a written decision specifying its
reasons for reversal the ALJ decision. Although neither briefed
nor argued by Pro-Tech, the circuit court also held that
additional findings of fact rendered by the ALJ were erroneous.
Consequently, the circuit court reversed the decision of the ALJ
and dismissed the MIOSHA retaliation complaint against Pro-Tech.
The Appeals Court granted Mr. Stearns' application for leave to
appeal.
ASBESTOS LITIGATION: Supreme Court Junks Grace's Review Request
---------------------------------------------------------------
The U.S. Supreme Court rejected W.R. Grace & Co.'s request for a
review of the criminal charges filed by the U.S. Government
relating to the company's vermiculite mining in Libby, Mont.
Grace operated and mined vermiculite ore in the Libby mine from
1963 to 1992. Thereafter, Libby residents complained of serious
health problems as a result of the release of asbestos from the
mine. In response, the Government obtained an indictment in 2005
charging Grace and seven of its former officers of conspiracy to
violate environmental laws and obstruct federal agency
proceedings, violations of the federal Clean Air Act, and
obstruction of justice.
In 2006, the U.S. District Court for the District of Montana
preliminarily dismissed as time-barred the conspiracy charges
against Grace. However, in October 2007, the U.S. Court of
Appeals in the 9th Circuit reinstated the conspiracy charges.
Grace appealed from the Appellate Court's ruling and asked for
Supreme Court review.
The Government opposed Grace's request for a Supreme Court
review arguing that a review will further delay the trial. The
Government said "[s]ome witnesses and many victims...are dying
from mesothelioma, asbestosis, and other asbestos-related
diseases... As time passes, more witnesses will be unavailable
to testify, and fewer victims will be able to attend the trial."
Grace, in defense of its review request, said the Appellate
Court's ruling is "both radical and indefensible," Bloomberg
News said. "The Appellate Court vastly expanded the reach of the
criminal provision of the Clean Air Act."
The Supreme Court's refusal of Grace's review request signals a
continuation of a trial that has indefinitely delayed as a
result of numerous appeals by the Government and Grace.
Grace said in a filing with the U.S. Securities and Exchange
Commission that it may pay as much as US$280 million in fines if
convicted in the criminal case. Its former officers may face up
to 15 years of imprisonment, if convicted, Grace added. Further,
Grace said it expects legal fees for its defense in the
indictment could range from US$3 million to US$4 million per
quarter.
(W.R. Grace Bankruptcy News, Issue No. 161; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Fitzgerald Expands Injunction to Burlington
----------------------------------------------------------------
U.S. Bankruptcy Judge Judith Fitzgerald expands the preliminary
injunction order to Burlington Northern and Sante Fe Railroad.
Accordingly, all actions filed by hundreds of individuals
relating to W. R. Grace & Co.'s vermiculite mining in Libby,
Mont., are stayed against BNSF until further Court order.
The Montana Actions covered by the Injunction include more than
100 asbestos-related personal injury lawsuits involving more
than 600 plaintiffs, which named BNSF as defendant in light of
BNSF's rail transportation of vermiculite derived from the Libby
mine. Judge Fitzgerald notes that most of the actions were filed
against BNSF after the Debtors' Petition Date.
Judge Fitzgerald finds that the contractual indemnity agreements
between the Debtors and BNSF will involve a direct impact on the
Debtors' pre-confirmation estates by requiring the Debtors to
defend the Montana Actions, and any judgment against BNSF as a
result of the Montana Actions will have a direct effect on the
rest of the estates.
Judge Fitzgerald notes that BNSF and the Debtors share an
identity of interest as it is the Debtors' operations and
conduct at the Libby mines that are at the core of the issues
raised in the Montana Actions filed against BNSF.
It is anticipated that BNSF may assert in excess of 1,000
indemnification claims against the Debtors through the
contractual indemnification agreements and under the insurance
policies on which BNSF is named or additionally insured, Judge
Fitzgerald says. "[A]llowing the Montana Actions to proceed will
require the Debtors to defend BNSF while, at the same time,
defending their own products, business operations, etc., in
essence, the very claims they filed bankruptcy to stop through
the auspices of the automatic stay."
"Such a diversion of resources would retard the administration
of the Chapter 11 cases by requiring the time and commitment of
individuals intimately involved in the Chapter 11 cases at this
critical time, seven years into the case, when based on a
settlement with asbestos constituencies regarding the personal
injury estimation and issues with respect to property damage
claims are in the process of being resolved, the parties are
preparing to go forward with disclosure and plan confirmation
hearings," Judge Fitzgerald holds. "Because of the overlap of
issues relevant to the Chapter 11 proceedings and the Montana
Actions, Debtors' participation would also duplicate expenses
and unnecessarily divert if not deplete the resources and assets
of the estates," she continues.
Judge Fitzgerald also enforces a stay of order denying expansion
of injunction to include the state court actions against the
state pending the resolution of the state of Montana's Appeal
from the Order.
Evelyn J. Meltzer, at Pepper Hamilton LLP, in Wilmington, Del.,
points out that, while the Order stayed all Montana Actions
brought against BNSF, the Order does not address whether BNSF is
prohibited from continuing to settle the Montana Actions.
Ms. Meltzer relates that BNSF does not believe that Injunction
Order was intended to foreclose its ability to settle the
Montana Actions. However, to make sure that BNSF does not run
afoul of the Injunction Order by continuing to amicably resolve
the Montana Actions, it asks the Court to determine that the
Order does not prohibit it from settling the Montana Actions;
and from attending and participating in depositions for the
purpose of gathering information necessary for settlement of the
Montana Actions and deposing plaintiffs who are aged, infirmed,
or otherwise in poor health on any issue relevant to the Montana
Actions.
(W.R. Grace Bankruptcy News, Issue No. 161; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Scott's Declaratory Judgment Action Pending
----------------------------------------------------------------
During the June 23, 2008, omnibus hearing, W. R. Grace & Co.
refreshed Judge Judith Fitzgerald's memory with the declaratory
judgment action The Scotts Company filed in September 2004.
Scotts, a defendant in some asbestos-related personal injury
cases around the United States with respect to products they
sold that contained Grace-mined vermiculite, sought a
declaratory judgment that it is entitled to share in the
Debtors' liability insurance for PI Actions. The matter has been
stayed since 2004.
The Debtors' counsel, Janet Baer, at Kirkland & Ellis, LLP, in
Chicago, told Judge Fitzgerald that, now that the Debtors have
an agreement in principle with the Future Claims Representative
and the Official Committee of Asbestos Personal Injury Claimants
that indicates that the insurance that the Debtors own will be
going to the Section 524(g) Trust, new discussions involving the
PI Committee and the FCR should begin "to see where Scotts is
going."
Warren Pratt, at Drinker Biddle & Reath LLP, in Wilmington,
Del., counsel for OneBeacon America Insurance Company, successor
to Commercial Union, and Seaton Insurance Company, successor to
Uniguard, informed Judge Fitzgerald that OneBeacon's
predecessors resolved virtually all of their asbestos-related
coverage with Grace back in the 1990s.
Mr. Pratt related that, as part of the settlement entered into
between the insurance carriers and Grace, the carriers paid a
"nine-figure" settlement amount to Grace in exchange for the
resolution of virtually all of the asbestos-related insurance
coverage. He added that Grace agreed to indemnify Commercial
Union and Uniguard for any claims relating to the asbestos
insurance coverage.
Tiffany Strelow Cobb, at Vorys, Sater, Seymour & Pease, LLP, in
Columbus, Ohio, on behalf of Scotts, asserted that Scotts has
been precluded from any form of discovery, and thus does not
know the nature and extent of the asbestos insurance policies.
(W.R. Grace Bankruptcy News, Issue No. 161; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Grace Urges Court to Deny Anderson Request
---------------------------------------------------------------
W. R. Grace & Co. asks the U.S. District Court for the District
of Delaware to deny Anderson Memorial Hospital's request for
leave to file an appeal.
Anderson Memorial wants the District Court to determine know
whether the Bankruptcy Court erred in:
-- Refusing to recognize the pre-petition certification order of
the South Carolina Circuit Court, entered after nine years of
prepetition litigation, which certified a statewide class of
asbestos property damage claimants against the Debtors;
-- Refusing to recognize the class proofs of claim filed by
Anderson Memorial;
-- Retrospectively finding that it had ordered class
representatives to seek permission before filing a class
proof of claim where there is no support for the requirement
in law and where the written orders of the court and
subsequent hearings clearly demonstrate that the requirement
was never a part of a court order;
-- Denying class certification without ruling on the
admissibility of evidence of numerosity or allowing that
evidence to be proferred by appellants;
-- Finding, on the one hand, that it would be unreasonable to
require the Debtors to mail direct notice of the bar date for
filing PD claims to the address of all buildings installed
with the Debtors' asbestos-containing products, while on the
other hand, refusing to allow the class representatives to
conduct discovery regarding the Debtors' knowledge of their
own sales records and ability to provide direct notice; and
-- Finding that the only class members who could be considered
under the numerosity requirement of Rule 23 of the Federal
Rules of Civil Procedure were those who had filed an
authorized individual proof of claim before the Bar Date.
David M. Bernick, P.C., at Kirkland & Ellis LLP, in Chicago,
asserts that certification of a putative class of asbestos
property damage claimants would be utterly without merit and
would completely undermine the Bar Date process established in
2003. "Certification of a PD claimants class would take enormous
steps backwards, not forward, toward resolution of remaining PD
claims issues, and a closure of the Debtors' asbestos personal
injury liabilities," he adds.
Mr. Bernick notes that virtually all of the claims filed by
Anderson Memorial have been withdrawn or disallowed without
appeal. Of the 4,000 originally-filed PD claims, only 74 remain,
including 55 PD claims filed by Anderson Memorial, he relates.
"The hard and extensive work done to resolve Asbestos PD claims
should not be cast aside, and the delicately balanced prospect
of a plan of reorganization agreed to by the Debtors, the
current Asbestos PI claimants, future Asbestos PI claimants and
equity holders should not be jeopardized," Mr. Bernick asserts.
"Engaging in a property damage class certification process,which
would create delays so late in the game is not in the best
interests of any of the constituencies in this case."
In addition, Mr. Bernick points out that, ironically, even the
PD claimants who filed timely claims and reached settlements on
those claims would be harmed by the delay in receiving the
settlement payments.
"On the law and this record, the Bankruptcy Court correctly
denied class certification, and there is no basis to allow an
appeal," Mr. Bernick asserts.
(W.R. Grace Bankruptcy News, Issue No. 161; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: High Court Awards Payout to Tolley's Widow
---------------------------------------------------------------
The United Kingdom's High Court of Justice ordered Bob Tolley's
previous employer, Humphreys and Glasgow Ltd, to provide
asbestos compensation to his widow, Betty Tolley, Bexhill-on-Sea
Observer reports.
However, the money, which was due to be paid on June 26, 2008,
was frozen because of six test cases being heard by the High
Court.
The 67-year-old Mr. Tolley died on mesothelioma on September
2006. He was exposed to asbestos between 1973 and 1974.
Insurers are claiming in court that policies sold to employers
to cover workers made ill or injured at work become active when
a disease develops rather than when an employee comes into
contact with asbestos.
Mr. Tolley replaced asbestos sheets at work as he changed
boilers from coal gas to natural gas but developed symptoms of
the disease that killed him 32 years later. By then, employers
like Humphreys and their insurers can have ceased trading.
Excess Insurance, which is in liquidation, is refusing to pay
Mrs. Tolley and, if the High Court result is unfavorable, her
compensation, which she does not want to reveal, could be in
jeopardy.
An inquest last January 2007 heard Mr. Tolley was provided with
overalls but no mask or goggles as he worked with asbestos. The
coroner recorded an open verdict.
Mr. Tolley's family raised GBP1,403 for mesothelioma research in
2007 and are to hold a charity golf tournament this September
2008 at Eastbourne United football club.
ASBESTOS LITIGATION: Devilliers Sue Chesterton, 15 Firms in Tex.
----------------------------------------------------------------
Warren Devillier and his wife Rose, on July 1, 2008, filed an
asbestos-related lawsuit against A.W. Chesterton Company and 15
other firms in the Jefferson County District Court, Tex., The
Southeast Texas Record reports.
The Devilliers sued the defendants for conspiring to mine,
process and sell asbestos products, suppressing the information
pertaining to the fiber's hazardous influence on human health
and purposely inflicting him with an asbestos disease.
According to the plaintiffs' petition, companies like United
States Steel Corporation, Viacom Inc. and Zurn Industries knew
that the asbestos products they manufactured would hit the
market without inspection for defects.
The suit says the defendants knowingly conspired among
themselves to cause Mr. Devillier's injuries and committed
conspiracy by willfully misrepresenting and suppressing the
truth as to the risks and dangers associated with asbestos.
Furthermore, the suit goes on to allege the defendants
fraudulently represented that asbestos products were safe, when
they knew asbestos exposure could lead to death.
The Devilliers seek punitive and exemplary damages, plus damages
for Mr. Devillier's physical pain and suffering in the past and
future, mental anguish in the past and future, lost wages, loss
of earning capacity, disfigurement in the past and future,
physical impairment in the past and future, and past and future
medical expenses, including funeral costs.
Samantha Flores of the Williams Kherkher Hart & Boundas law firm
represents the Devilliers.
Judge Bob Wortham, 58th Judicial District, will preside over
Case No. B181-983
ASBESTOS LITIGATION: Parties File Supplemental Briefs in Asarco
---------------------------------------------------------------
The Official Committee of Unsecured Creditors for the Asbestos
Subsidiary Debtors and Robert C. Pate, the Future Claims
Representative, filed supplemental briefs to their responses to
Asarco Inc.'s individual objections to asbestos claims.
The FCR maintains that the U.S. Bankruptcy Court for the
Southern District of Texas does not have jurisdiction to the
asbestos claims. The FCR further maintains that the Bankruptcy
Court should proceed with the established course of estimating
the asbestos claims for purposes of plan confirmation. The FCR
notes that the Bankruptcy Court has held that summarily
disposing of a claim related to a personal injury violates the
Section 157(b0(2) of the Federal Rules of Judicial Procedure as
it is tantamount to liquidating the claim to zero for purposes
of distribution.
The Asbestos Committee maintains that the Bankruptcy Court
should dismiss Asarco Inc.'s claims objections, stay the claims
objections, or indefinitely prohibit Asarco Inc. from filing any
further claims objections. The Asbestos Committee agree with the
FCR that it is not within the Bankruptcy Court's jurisdiction to
decide matters pertaining to personal injury and wrongful death
cases.
The jurisdiction of the Bankruptcy Court is limited and it may
not enter any decision or take any action that constitutes a
final judgment of the merits of personal injury claims, the
Asbestos Committee's counsel, Sander L. Esserman, at Stutzman,
Bromberg, Esserman & Plifka, APC, in Dallas, states.
The jurisdiction of the Bankruptcy Code is limited when dealing
with personal Injury Claims, Mr. Esserman contends. The U.S.
Code requires that personal injury and wrongful death claims be
liquidated by the district courts. Under Article III of the U.S.
Constitution, bankruptcy courts are prohibited from exercising
judicial power of the U.S. and deciding civil claims founded on
state law, he points out.
Moreover, Mr. Esserman says that if the Court is inclined to
consider the merits of Asarco Inc.'s claims objections, the
asbestos claimants must be given due notices and full
opportunities to be heard in each instance.
Lipitz & Ponterio, LLC, representing several asbestos personal
injury claimants, concur with the Official Committee of
Unsecured Creditors for the Asbestos Debtors that Asarco Inc.'s
objections to the asbestos claims are premature, untimely, and
designed to disrupt and retard the Debtors' bankruptcy cases.
Lipitz & Ponterio maintains that the Court should convert the
claims objections to adversary proceedings to give the firm time
to investigate Asarco Inc.'s contentions and take discovery
pursuant to Rule 9014 of the Federal Rules of Bankruptcy
Procedure.
In separate Court-approved stipulations, the Asbestos Committee,
Mt. McKinley Insurance Company and Everest Reinsurance Company,
and the Fireman's Fund Insurance Company, agreed to extend the
time for the Insurance Companies to object to the Asbestos
Committee's request for a protective order prohibiting the
disclosure of personal information of asbestos claimants.
The Asbestos Committee and the Insurance Companies agree that
the confidential information of the asbestos claimants will only
be disclosed to parties to the confidentiality agreement.
(ASARCO Bankruptcy News, Issue No. 76; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Committee to Extend Asarco's Tolling Period
----------------------------------------------------------------
ASARCO LLC and the Official Committee of Unsecured Creditors for
the Asbestos Subsidiary Debtors agree to further toll and extend
until Dec. 1, 2008, the time by which the Asbestos Committee any
commence actions under Chapter 5 of the Bankruptcy Code.
(ASARCO Bankruptcy News, Issue No. 76; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Temporary Order Issued in Flintkote Lawsuit
----------------------------------------------------------------
The U.S. District Court, N.D. California, issued a temporary
memorandum and order in an asbestos-related insurance lawsuit
filed by The Flintkote Company against various insurers.
The case is styled The Flintkote Company, a Delaware
Corporation, Plaintiff, v. General Accident Assurance Company of
Canada, a Canada insurance company; General Accident Fire and
Life Assurance Corporation Limited of Perth, Scotland, a
Scotland insurance company; and Does 1 through 10, Defendants.
District Judge Marilyn Hall Patel entered judgment of Case No. C
04-01827 MHP on June 18, 2008.
On April 14, 2004, Flintkote filed an action in San Francisco
Superior Court against General Accident Assurance Company of
Canada and General Accident Fire and Life Assurance Corporation
Limited of Perth, Scotland, predecessors of Aviva Insurance
Company of Canada.
The complaint alleged breach of contract for defendants' failure
to defend or indemnify plaintiff for claims covered under a
primary insurance policy issued to two of Flintkote'
subsidiaries. Defendants removed the action to the District
Court.
Before the District Court were Aviva's "Motion for Summary
Judgment Regarding Assignments" as well as Flintkote's "Motion
to Streamline Damages Presentation at Trial."
Presently based in San Francisco, Flintkote is a company that
formerly mined and sold asbestos and asbestos-based products.
Flintkote sought bankruptcy protection in 2004 as a result of
its exposure to asbestos-related lawsuits. Flintkote asserted
that between 1988 and 2004, it defended and paid over 270,000
asbestos tort claims at a cost of about US$630 million.
This action concerned an insurance policy Flintkote purchased
from Aviva to cover general commercial liability, including
liability for asbestos-related bodily injury claims. The Aviva
policy, numbered L-90-5010, was in force between Jan. 1, 1958
and Jan. 1, 1961.
Flintkote brought the present action to recover from Aviva
defense and liability costs paid out as a result of asbestos-
related tort claims brought against Flintkote.
In addition to the Aviva policy, between 1942 and 1985,
Flintkote purchased over 200 policies from some 30 separate
insurance companies. Like the Aviva policy, two of these
policies, issued by Liberty Mutual and American Mutual, were
primary insurance policies. The remaining policies are excess
insurance policies.
On Aviva's motion for summary judgment, the Court found that:
-- Flintkote was directly harmed by Aviva's failure to pay on
past claims insofar as other insurance was prematurely
exhausted and was unavailable to pay on future claims;
-- Under recently executed settlement agreements containing
undisputed assignments, as well as under the Wellington
Agreement and others like it, Flintkote had the authority to
assert claims on behalf of its other insurers to recover
amounts those insurers paid in lieu of Aviva; and
-- The claims of the other insurers were equitably tolled.
On Flintkote's motion for summary judgment, the District Court
adopted a standard to determine damages.
ASBESTOS LITIGATION: Dinner Lady to File Suit v. Ladywood School
----------------------------------------------------------------
Jean Bourne, a 75-year-old former dinner lady from Birmingham,
England, is set to launch a legal battle against the Ladywood
Comprehensive School after being diagnosed with mesothelioma,
Birmingham Mail.net reports.
Mrs. Bourne says she believes she may have been exposed to
asbestos while working as a kitchen assistant at Ladywood
Comprehensive School in the 1970s.
Studies have shown that asbestos was present in many Birmingham
schools during the 1960s and 1970s. However, Mrs. Bourne now
needs former colleagues who may have information about the
Ladywood school to come forward and help her in the compensation
battle.
Mrs. Bourne said she thinks she may have inhaled asbestos dust
when her duties involved preparing food, washing up and serving
school dinners to pupils in the kitchen between 1973 and 1977.
This case is just one of a soaring number involving former
school workers, including teachers, who have become unexpected
victims of the disease.
Mrs. Bourne's solicitor Iain Shoolbred, from Irwin Mitchell,
said, "We are aware that asbestos was prevalent in a number of
Birmingham schools during the period that Jean worked as a
kitchen assistant.
"No amount of compensation will make up for her contracting this
industrial disease. But in order for her to obtain some
recompense for this debilitating disease, we are appealing for
anyone, particularly former colleagues of Mrs. Bourne, who may
have information relating to Ladywood Comprehensive School and
its working practices to contact me."
ASBESTOS LITIGATION: Kier Group plc Admits to Disposal Breaches
---------------------------------------------------------------
Construction firm Kier Group plc has admitted failing to comply
with health and safety regulations in the disposal of "low risk"
asbestos, Harrow Times reports.
Kier staff have been carrying out building work in Brookside
Close, Eastcote, England, where they have been called on to
dispose of household goods, like Bakelite cisterns, which
contain asbestos.
In a report given to Harrow Council, the Company admits its
staff did not adhere to their own procedure or regulations set
by the Health and Safety Executive.
Mr. C. Bunker, a general manager at the firm, said, "The correct
procedure dictates that these materials should have been double
bagged within the property and placed in encapsulated hazardous
waste skips for removal by a licensed contractor."
The report follows calls by Labour Councilor Bob Currie, of
Roxbourne Ward, who lives in Brookside Close, for an
investigation into asbestos disposal on the estate.
The report states the workers responsible have already left the
company.
Councilor Currie said he was not worried for the residents of
Brookside Close but thought there could be health risks when it
is processed as waste. He said, "If you throw this substance
into the incinerator it turns into toxic fumes."
The Kier Group has been carrying out refurbishment work in
Brookside Close as part of Decent Homes, a project aimed at
improving council and social housing in the borough.
Councilor Bill Stephenson, newly elected leader of the group,
said, "I supported Kier and I'm very disappointed because they
came with good references and on Decent Homes they just have not
delivered."
Description:
Bedfordshire, United Kingdom-based Kier Group plc is a
construction, development and service group specializing in
building and civil engineering, support services, private house
building, property development and the Private Finance
Initiative.
ASBESTOS LITIGATION: Former Steel Worker Sues Corus for Exposure
----------------------------------------------------------------
Kenneth Hicks, a 78-year-old former steelworker from South
Yorkshire, England, has launched an asbestos legal battle
against steel maker Corus, The Star reports.
Mr. Hicks worked at the former Parkgate Iron and Steel Works,
now owned by Corus, for 33 years from 1953 until his retirement
in 1989.
Solicitor Simon Allen, from Sheffield law firm Russell, Jones
and Walker representing Mr. Hicks, said, "The steelworks were
big employers in the area and it is very unlikely that he is the
only one to have been exposed.
"The symptoms of asbestosis can take years to develop so there
could be a sharp increase in the number of related diseases
reported in South Yorkshire over the coming years."
ASBESTOS LITIGATION: Marchwood Worker's Death Linked to Exposure
----------------------------------------------------------------
An inquest heard that the death of Malvyn Fulford, who spent
nine years at the Marchwood Power Station at Southampton,
England, was linked to asbestos, Gazette reports.
Mr. Fulford, of Stinchcombe, Gloucestershire, worked for the
Central Electricity Generating Board between 1961 and 1970, and
between 1972 and 1981 where he spent a lot of time at the
Marchwood Power Station. From 1962, he worked near the boilers,
replacing tubes and similar work.
In a statement before his death, Mr. Fulford said, "In nine
years at Marchwood, there were no health and safety systems for
dealing with the asbestos waste - not until the 1970s when
things like safety masks came in."
Dr. Martin Freeman, Mr. Fulford's GP, said his patient was
generally fit and active until he came into the surgery in July
2006 with a dry cough. In August 2006, Mr. Fulford had a chest
X-ray which confirmed the presence of mesothelioma.
Despite radiotherapy and chemotherapy, Mr. Fulford died at home
on July 5, 2008 at the age of 64.
Pathologist Dr. Jonathan Christie-Brown told the Gloucester
inquest that mineral fibers from Mr. Fulford's lung tissue had
been sent for analysis and returned a result of 1,053,172
mineral fibers per gram - 240,497 of which were coated.
Gloucestershire Coroner Alan Crickmore said the pathology
results were very high and was satisfied that Mr. Fulford died
of the industrial disease of mesothelioma.
ASBESTOS LITIGATION: Vermiculite Discovered in Libby, Mont. Park
----------------------------------------------------------------
Vermiculite has been discovered at the Riverfront Memorial Park
in Libby, Mont., on July 1, 2008, The Western News reports.
Mike Cirian, who works with the U.S. Environmental Protection
Agency, found a six-inch wide, 50-yard long line of vermiculite.
It was found in a high traffic area that follows the length of
the parking lot near the boat ramp and pavilion building site.
Mr. Cirian sent vac trucks to the area for emergency cleanup and
informed the City of Libby, which owns the property, as well as
Libby Police.
Mr. Cirian added the chunks were too big to come from
underground, and they did not come off any of the contractors'
trucks doing the multi-million Superfund asbestos cleanup. He
said, "Flakes this big don't work themselves up from underground
and make it to the top and stay intact. I don't know how it got
there. It's really unusual."
Formerly the old Export Plant site, the park has been cleaned at
least three times in the past. One was a removal action done by
W. R. Grace & Co.; the second occurred during the building of
the boat ramp; and the third was the EPA's cleanup of the park,
digging down as far as 18 inches.
Mr. Cirian said the vermiculite had been tracked up and down the
parking lot by vehicles, creating a 12,000-square-foot of space
to be cleaned of potential contamination.
According to Mr. Cirian, the two active companies hired by the
EPA for the vermiculite removal in Libby are ASW Associates and
Environmental Restoration, each working on nine properties
apiece.
In 2006, Environmental Restoration's parking lot received a
similar mysterious deposit of vermiculite.
Libby police chief Clay Coker said they are opening an
investigation into the spill, and could potentially punish an
assailant under a felony Criminal Mischief law, which includes
vandalism or tampering with property to endanger or interfere
with its use, with damages over US$1,000.
Mr. Coker said at this point there are no known suspects and
nothing to investigate except that it happened, but that law
enforcement would be on the lookout for any suspicious activity.
The discovery of vermiculite is not expected to affect the
pavilion project slated to begin July 8, 2008. The Libby
pavilion is part of an order awarded last July 1, 2008, which
also moved seven properties in Troy to the front of the line for
vermiculite asbestos removal.
ASBESTOS LITIGATION: Staffordshire Firm Sued for Disposal Breach
----------------------------------------------------------------
Staffordshire Demolition Limited, which is based in Burslem,
Staffordshire, England, was charged for disposal violations near
a primary school, The Sentinel reports.
Stoke-on-Trent Crown Court, on July 2, 2008, heard that asbestos
was allowed into the air near the primary school after a
building was demolished. The work, at a site on Stanier Street,
Newcastle, was carried out by Staffordshire Demolition.
The Environment Agency sued Staffordshire Demolition for causing
a potential threat to human health. The Company was charged with
three counts of depositing controlled non-special waste in or on
land without a license, and handling or transferring waste
without taking reasonable measures.
Site manager Owen Griffiths, aged 67, pleaded guilty to three
counts of depositing controlled non-special waste in or on land
without a license, and the disposal of controlled non-special
waste in a manner likely to cause pollution or harm to human
health.
Director and secretary Philip Eardley, aged 58, admitted
depositing controlled non-special waste in or on land without a
license.
The Court heard how between mid-January 2006 and the beginning
of February 2006, a building with two types of asbestos was
demolished.
More than 220 tons of asbestos-contaminated rubble was found at
the site by Environment Agency officials when they inspected on
March 2006.
In addition, 264 kg of asbestos insulating board, which must
only be removed by licensed contractors, was later taken away
from the site.
The Environment Agency also pressed charges against the Company
for the unlawful depositing and treatment of controlled waste
which had been brought on to a site on Woodbank Street, Burslem.
The court was told surveillance shots were taken of Mr.
Griffiths as he directed staff to burn items including
mattresses, refrigerators and television sets, and others showed
him standing beside burning material. The offenses were between
Nov. 22, 2005 and Jan. 21, 2006.
Richard Kimblin, in mitigation, said most of the materials
crushed at Woodbank Street were used in the construction of the
A500.
On the Stanier Street incident, Mr. Kimblin said, "Philip
Eardley was out of the country at the time of the demolition.
Mr. Griffiths has been in this business a long time and people
have good things to say about him."
Judge Paul Glenn imposed a 12-month community order on Mr.
Griffiths, with an unpaid work requirement of 160 hours.
Mr. Eardley was fined GBP4,000 for his role, and ordered to pay
costs of GBP2,000. Staffordshire Demolition is now insolvent.
ASBESTOS LITIGATION: NIOSH Urges for Comments on Asbestos Report
----------------------------------------------------------------
The National Institute for Occupational Safety and Health
(NIOSH), on June 30, 2008, issued for public comment a revised
draft strategic research document, "Asbestos Fibers and Other
Elongated Mineral Particles: State of the Science and Roadmap
for Research."
The revised draft incorporates public comments and peer review
comments on the initial version of the draft scientific
document, which was issued for open review in 2007.
The revised draft--along with the rest of a package that
includes the original draft, presentations at a 2007 public
meeting, public comments to the docket, peer reviewer comments,
and responses to peer reviewer comments--is available at
http://www.cdc.gov/niosh/review/public/099-A/
The document is intended to address scientific uncertainties
about occupational exposure and toxicity issues related to
asbestos fibers and other elongated mineral particles; identify
needs and opportunities for research to resolve those
uncertainties; and stimulate such research, providing a sound
scientific foundation for future policy developments. It does
not contain any new recommendations for exposure limits or other
policy issues.
NIOSH said it will incorporate public comments on the revised
draft into a final document that will inform national research.
Once the final draft document is prepared, NIOSH plans to seek
independent scientific review through the National Academies, in
line with NIOSH's policy on making its research transparent to
stakeholders and the public.
NIOSH Director John Howard, M.D. said, "We appreciate the
participation and assistance of our diverse stakeholders in this
effort to move the state of scientific knowledge about the
health effects of asbestos fibers and other elongated mineral
particles into the 21st Century.
"Achieving agreement on needed research is an important step in
answering questions that need to be answered for protecting
workers' health. After decades, these uncertainties continue to
consume time, concern, and resources for the whole range of
parties who have a stake in asbestos health issues."
With the revised draft, NIOSH seeks comment in particular on
changes that were prompted by public comment and peer review on
the original draft.
The draft document requests that comments be sent by Sept. 30,
2008 to NIOSH by e-mail through a link at the Web page shown
above; by fax to the NIOSH Docket Office at (513) 533-8285; or
by mail to NIOSH Mailstop: C-34, Robert A. Taft Laboratory, 4676
Columbia Parkway, Cincinnati, Ohio 45226.
ASBESTOS LITIGATION: Court Issues Split Ruling in Le Sage Action
----------------------------------------------------------------
The Court of Appeal, 1st District, Division 4, California,
issued split ruling in an asbestos-related lawsuit filed by Neil
and Gabriel Le Sage against Union Carbide Corporation.
The case is styled Neil Le Sage et al., Plaintiffs and
Appellants, v. Union Carbide Corporation, Defendant and
Respondent.
Judges Sepulveda, Ruvolo, and Rivera entered judgment of Case
No. No. A119010 on June 20, 2008.
Union Carbide began mining and milling asbestos in August 1963.
The short-fiber raw chrysotile asbestos it mined was marketed
under the brand name "Calidria" and sold to various companies
that used the asbestos in several finished products.
The Le Sages claimed that Mr. Le Sage was exposed to Union
Carbide's asbestos that was included in joint compounds made by
five different companies, as well as other products containing
respondent's asbestos.
Georgia-Pacific Corporation manufactured several varieties of
asbestos-containing joint compound in the 1960s and 1970s.
During the late 1960s and most of the 1970s, Mr. Le Sage worked
as a painter at various commercial, industrial, and
institutional job sites in and around Milwaukee. One of his jobs
as a painter was to prepare walls for painting, which involved
sanding the walls in areas where joint compound had been
applied.
Mr. Le Sage also installed and repaired drywall, which involved
mixing, applying, and sanding drywall joint compound. He also
frequently worked in the same or nearby rooms when other workers
installed drywall, which involved sanding both dry and premixed
drywall joint compound. He also frequently swept and cleaned
dust from the joint compound products.
The Le Sages filed a complaint on Oct. 10, 2006, for personal
injuries from asbestos exposure. They alleged that Mr. Le Sage
had been exposed to products containing asbestos. The complaint
named 21 defendants, including Union Carbide.
On May 4, 2007, Union Carbide filed a motion for summary
judgment/summary adjudication, arguing that the Le Sages could
not establish causation.
The trial court granted summary judgment on July 5, 2007. It
concluded that Union Carbide had shifted its burden on summary
judgment by presenting evidence that the Le Sages could not
establish that Mr. Le Sage was exposed to Union Carbide's
asbestos. It also concluded that appellants could not
demonstrate a triable issue of fact regarding exposure.
The Le Sages timely appealed from the subsequent judgment. They
argued that there was a triable issue of material fact over
whether Mr. Le Sage was exposed to Union Carbide's asbestos.
The judgment was reversed in part and affirmed in part. Summary
adjudication as to the first, second, and tenth causes of action
was reversed. Summary adjudication as to the third and fourth
causes of action was affirmed.
Gloria E. Chun, Paul Hanley & Harley, Berkeley, Calif.,
represented Neil and Gabriele Le Sage.
James Carl Parker, Brydon Hugo & Parker, San Francisco, Kim
Zeldin, Liner Yankelevitz Sunshine & Regenstreif LLP, San
Francisco, represented Union Carbide Corporation.
ASBESTOS LITIGATION: Ohio Appeal Court Favors CEI in Louden Case
----------------------------------------------------------------
The Court of Appeals of Ohio, 8th District, Cuyahoga County,
affirmed the ruling of the Cuyahoga County Court of Common
Pleas, which granted summary judgment to Cleveland Electric
Illuminating Company (CEI), in an asbestos-related action filed
by Bertha Louden on behalf of her late husband, Roger Louden.
The case is styled Bertha Louden, Executor, et al., Plaintiffs-
Appellants v. A.W. Chesterton Company, et al., Defendants-
Appellees.
Judges Colleen Conway Cooney, Ann Dyke, and Frank D. Celebrezze
entered judgment of Case No. 90183 on July 3, 2008. Judge
Celebrezze dissented.
Mr. Louden was employed at a CEI power plant in Ashtabula, Ohio
from 1977 to 2000 as a "plant helper" and a "maintenance man."
As a plant helper, he swept up the asbestos insulation that had
fallen from pipes and boilers and assisted with boiler "blow-
outs," which filled the air with asbestos dust. As a maintenance
man, he also assisted with the clean-up of boiler "blow-outs"
and worked with machinery and parts containing asbestos.
Mr. Louden was diagnosed with mesothelioma in March 2006.
In April 2006, the Loudens sued multiple defendants, including
CEI, alleging injuries from asbestos exposure. The Loudens
asserted an employer intentional tort claim against CEI,
alleging that CEI knowingly exposed Mr. Louden to levels of
asbestos dust that were substantially certain to cause him harm.
In November 2006, CEI moved for summary judgment. Mrs. Louden
opposed CEI's motion for summary judgment, and when CEI filed
its reply brief, she also responded. The trial court heard oral
arguments in June 2007 and granted summary judgment in favor of
CEI.
Mrs. Louden appealed.
Accordingly, the Appeals Court concluded that Mrs. Louden did
not satisfy her burden of establishing that genuine issues of
material fact exist. Thus, it found that the trial court
correctly granted summary judgment in favor of CEI.
Bryan M. Frink, John I. Kittel, Farmington Hills, Mich., Paul W.
Flowers, Paul W. Flowers Co., LPA, Cleveland, Ohio, represented
Bertha Louden.
Anthony F. Stringer, Thomas I. Michals, Calfee, Halter &
Griswold, LLP, Cleveland, Ohio, represented Cleveland Electric
Illuminating Co.
ASBESTOS LITIGATION: Supreme Court Favors Marsh & McLennan Cos.
---------------------------------------------------------------
The Supreme Court, Appellate Division, 1st Department, New York,
rules against the plaintiffs in an asbestos-related case styled
George Aldrich, et al., Plaintiffs-Appellants, v. Marsh &
McLennan Companies, Inc., et al., Defendants-Respondents.
Judges Saxe, Nardelli, Moskwitz, Acosta, and DeGrasse entered
judgment of the case on June 26, 2008.
On June 7, 2007, the New York Supreme Court granted defendants'
motion to confirm a Special Referee's report recommending
dismissal of plaintiffs' causes of action for fraud as barred by
the statute of limitations, unanimously affirmed, with costs.
This was an action filed by former investors in Lloyd's of
London against defendants brokers arising out of the brokers'
alleged failure to disclose, in procuring insurance for a non-
party manufacturer of asbestos products, and facts relating to
the magnitude of the manufacturer's exposure to asbestos claims.
The Supreme Court has considered plaintiffs' other contentions
and found them unavailing.
Law Offices of David L. Trueman, P.C., Mineola (David L. Trueman
of counsel), represented the appellants.
Willkie Farr & Gallagher LLP, New York (Christopher J. St.
Jeanos of counsel), represented the respondents.
ASBESTOS LITIGATION: Appeals Court Favors US Gov't. in Kay Suit
---------------------------------------------------------------
The U.S. Court of Appeals, 3rd Circuit, affirmed the ruling of
the U.S. District Court for the Eastern District of
Pennsylvania, which denied John Kay's motion for termination of
supervised release.
The case is styled United States of America v. John Kay,
Appellant.
Circuit Judges Fisher, Jordan, and Van Antwerpen entered
judgment of Case No. 07-4708 on June 30, 2008.
Mr. Kay "illegal[ly], improper[ly], and unsafe[ly]" removed
asbestos-covered heating pipes from a factory that he renovated,
even though the Environmental Protection Agency had notified him
of his duty to properly manage and remediate the worksite.
On June 9, 2005, after being indicted, Mr. Kay pleaded guilty to
seven counts of criminal violations of the Clean Air Act. He was
sentenced to 10 months' imprisonment and three years' supervised
release.
On Oct. 4, 2007, after serving 10 months in prison and one year
and two months of his supervised release, Mr. Kay petitioned the
District Court for termination of his supervised release. The
District Court denied Kay's motion for termination of supervised
release.
Mr. Kay timely appealed the District Court's denial of his
motion for termination. He argued that the District Court erred
in denying his motion by improperly requiring proof of
extraordinary circumstances warranting early termination.
Mr. Kay also maintained that the District Court erred by
considering factors not expressly provided for in the statute
governing modification of supervised release.
The Appeals Court affirmed the District Court's denial of Mr.
Kay's motion for termination of supervised release.
Leo R. Tsao, Robert A. Zauzmer, Office of U.S. Attorney,
Philadelphia, represented the United States of America.
James M. Becker, Saul Ewing, Philadelphia, represented John Kay.
ASBESTOS LITIGATION: DuPont Worker's Kin Sues 14 Firms in Texas
---------------------------------------------------------------
Brandy Kieschnick, the daughter of former E. I. du Pont de
Nemours and Company employee Walter Dunn, on June 24, 2008,
filed an asbestos-related suit against DuPont and 13 other
companies in Orange County District Court, Tex., The Southeast
Texas Record reports.
As an alleged result of being exposed to asbestos, Mr. Dunn died
on June 23, 2006.
Some of the defendants listed in the suit (Case No. A-080244-c)
include Viacom Inc., Union Carbide Corporation, and Metropolitan
Life Insurance Co.
Although MetLife did not manufacture, sell or use asbestos
products, the suit alleges the insurance company was negligent
in failing to convey and actively suppressed information
regarding the dangers of asbestos.
According to the plaintiff's petition, Mr. Dunn worked as an
inspector and pipefitter for DuPont and other companies for a
"period of many years."
Mr. Dunn was exposed to asbestos "while working in powerhouses,
refineries, commercial buildings, steel mills and plants," the
suit says, adding that he "inhaled great quantities of asbestos
fibers."
The suit accuses all of the defendants of maliciously conspiring
to conceal the dangers of asbestos and of purposely exposing the
public despite of their actual knowledge.
Mrs. Kieschnick also sues for her father's physical pain and
suffering in the past and future, mental anguish in the past and
future, lost wages, loss of earning capacity, disfigurement in
the past and future, physical impairment in the past and future,
and past and future medical expenses, plus attorneys' fees.
Mrs. Kieschnick is also demanding a trial by jury and is
represented by attorney Andrew McEnaney of Hissey Kientz LLP in
Austin, Tex.
ASBESTOS LITIGATION: Willingdon Worker's Death Linked to Hazard
---------------------------------------------------------------
An inquest heard that the death of retired mechanical engineer
Francis Sharp, of Willingdon, England, was linked to asbestos,
Eastbourne Today reports.
An open verdict has been recorded into Mr. Sharp's death who
died weeks after being admitted to hospital.
Mr. Sharp was taken to the DGH on Jan. 23, 2008 after suffering
from shortness of breath. He died in the hospital on Feb. 11,
2008.
A post mortem examination carried out by pathologist, Dr. Jane
Mercer, showed the 95-year-old Mr. Sharp had mesothelioma and
asbestos bodies were identified in his lungs.
Mr. Sharp's daughter, Rosemary Sharp, told the inquest he used
to install oxygen pumps, sometimes in steel work companies,
which she believed could have caused him to come into contact
with asbestos.
Ms. Sharp said she did not have full knowledge of Mr. Sharp's
work history and added, "He refused to say he had ever been in
contact with asbestos."
ASBESTOS LITIGATION: Ministry Issues Removal Order to Nahariya
--------------------------------------------------------------
The northern regional office of the Ministry of Environmental
Protection issued a nuisance removal order to the municipality
of Nahariya, Israel for a botched excavation, according to a
report by the Israel Ministry of Environmental Protection.
The Ministry also issued a nuisance removal order to Financial
Levers Ltd. The order was issued under the Abatement of
Nuisances Law, 1961.
On June 29, 2008, during a patrol of a Green Police inspector in
Nahariya, Levers was discovered undertaking excavation work for
the purpose of constructing a mall in an asbestos contaminated
area within the heart of a residential neighborhood.
The order calls for taking the following measures immediately:
-- Immediate cessation of all earthworks at the site.
-- Closure of the site to public entry, by means of insulating
tape.
-- Wetting of the entire work site to prevent dispersal of
asbestos fibers to the air.
-- Appointment of a friable asbestos inspector for work at the
site.
-- Presentation of a work plan on the removal of asbestos from
the site to the technical committee on harmful dust.
-- Posting of asbestos hazard warning signs.
The northern regional office further stated that implementation
of the order does not preclude the Ministry of Environmental
Protection from taking additional legal measures.
ASBESTOS LITIGATION: Halton Locals Could be Entitled to Payout
--------------------------------------------------------------
Residents of Halton, Cheshire, U.K. were advised by Cheshire
Asbestos Victim Support Group that they could be entitled to
compensation if they have ever been exposed to asbestos in the
workplace, icCheshireOnline.co.uk reports.
Brian Dellaway, group support manager, said he believes that
many sufferers of asbestos related illnesses in Widnes and
Runcorn may not yet be aware of their rights.
Mr. Dellaway's comments came after more than 50 families of
asbestos victims won a combined GBP2 million in compensation
payouts from American-owned company Turner and Newall Ltd.
More than 100 former employees also died while waiting to
receive compensation from Federal-Mogul Corp., which had
factories in Everite Road in Ditton.
ASBESTOS LITIGATION: Sydney Judge Calls for Reforms in Policies
---------------------------------------------------------------
Judge Bill Kearns is urging the New South Wales Government to
change its policies over a system introduced in 2005 to help
save costs but is disadvantageous to mesothelioma sufferers,
Mesothelioma Web reports.
Judge Kearns stated in June 2008 that under the system,
individuals are dying before their compensation cases come to a
close.
The new system was implemented as a result of the amount of
criticism drawn from extensive legal costs in a 2004 case. Under
the system, the standard method for resolving claims became
mediation, with a set timetable in place.
If there is medical evidence which shows that a plaintiff will
likely die before the timetable is over, the case can be
referred to a judge of the Dust Disease Tribunal to speed up the
process.
The Government reported that after a year, it saw the legal
costs for plaintiffs decreasing slightly and for defendants
decreasing significantly.
However, Judge Kearns said in February 2008 that he was aware of
at least 10 cases during his two years of service where the
mesothelioma patient died within two weeks of being removed from
the claims resolution process under the new system.
Judge Kearns criticized the system for denying a plaintiff
access to a judge until the individual was extremely close to
dying, which by then the person is in such a poor state that
there is little chance for the case to conclude before he or she
dies.
Judge Kearns' comments have been referred to the Attorney-
General, whose spokesman has said that his office is looking
into ways of improving the resolution process.
ASBESTOS LITIGATION: Women at Risk of Exposure From Hair Dryers
---------------------------------------------------------------
According to Asbestos.com, hair dryers put women at risk for
asbestos exposure and mesothelioma.
In 1979, the U.S. Consumer and Product Safety Commission
received an independent analysis which confirmed that asbestos
fibers emitted from hair dryers may pose a significant health
threat to consumers.
Asbestos-containing dryers were recalled and pulled from
shelves, but by that time it was estimated that 90 percent of
consumer-grade hair dryers already in existence did contain
asbestos fibers.
According to the Consumer Product Safety Commission, the
majority of hair dryers tested emitted asbestos fiber levels
comparable to or greater than those found in certain school
buildings and near construction sites.
Because hair dryers are most commonly used by women, some
researchers say they believe that they will see an increase in
cases of females diagnosed with mesothelioma over the next few
decades.
Due to the long latency period between exposure and diagnosis,
many seemingly healthy women that used asbestos-containing hair
dryers in the 1960s and 1970s are at risk for developing
mesothelioma.
Asbestos-containing hair dryers were manufactured and sold by
the following companies: Andis Company Inc., Bonat Inc.,
Clairol, Conair Corporation, Dominion Division of Scovill
Manufacturing, General Electric Company, The Gillette Company,
Hamilton Beach Division of Scovill Manufacturing, J.C. Penney,
Korvette, Montgomery Ward & Company, Norelco, North American
Philips Corporation, Presto, Schick, Inc., Sears, Roebuck & Co.,
Sperry Rand Corp. (Remington), and Sunbeam Corporation.
Individuals who are concerned that they or a loved one may be at
risk for developing mesothelioma should contact The Asbestos and
Mesothelioma Center for additional information.
ASBESTOS LITIGATION: James Hardie Cites 523 Open Claims at March
----------------------------------------------------------------
James Hardie Industries N.V. recorded 523 open asbestos claims
as of March 31, 2008, compared with 490 open claims as of
March 31, 2007, according to the Company's annual report, on
Form 20-F, filed with the Securities and Exchange Commission on
July 8, 2008.
As of March 31, 2008, the Company recorded 552 new claims filed
and 519 claims closed. As of March 31, 2007, the Company
recorded 463 new claims filed and 537 claims closed.
In Australian dollars, the average settlement amount per case
closed was AUD126,340 as of March 31, 2008, compared with
AUD128,723 as of March 31, 2007.
In U.S. Dollars, the average settlement amount per case closed
was US$109,832 as of March 31, 2008, compared with US$98,510 as
of March 31, 2007.
In Australian dollars, the average settlement amount per settled
claim was AUD147,349 as of March 31, 2008, compared with
AUD166,164 as of March 31, 2007.
In U.S. Dollars, the average settlement amount per settled claim
was US$128,096 as of March 31, 2008, compared with US$127,163 as
of March 31, 2007.
Based in Amsterdam, The Netherlands, James Hardie Industries
N.V. uses cellulose-reinforced fiber cement to create products
for residential and commercial construction, including siding
(Hardiplank), external cladding, walls, fencing, and roofing.
The Company also makes fiber-reinforced concrete (FRC) pipe
through its Hardie Pipe business.
ASBESTOS LITIGATION: Kubota Made Relief Payments to 152 Parties
---------------------------------------------------------------
Kubota Corporation has established "Relief Payment System for
the Asbestos-Related Patients and the Family Members of the
Deceased near the Former Kanzaki Plant" on April 17, 2006 and
paid the relief payments to 152 parties up to March 31, 2008.
The Company has paid contributions before Sept. 30, 2007 to
Hyogo College of Medicine and Osaka Medical Center for Cancer
and Cardiovascular Diseases for the purpose of medical treatment
and research of asbestos-related diseases, which was allocated
for the fiscal year ended March 31, 2008.
Osaka, Japan-based Kubota Corporation makes tractors and farm
equipment like rice transplanters and combine harvesters. The
Company also produces iron ductile pipe used in water-supply
systems. The Company makes industrial castings (ductile tunnel
segments), PVC pipe, building materials (siding, cement roofing,
and prefabricated houses), waste-recycling plants, and
agricultural and industrial engines.
ASBESTOS LITIGATION: Compliance Order Given to Border Demolition
----------------------------------------------------------------
The New Mexico Environment Department issued a compliance order
to El Paso, Tex.-based Border Demolition and Environmental, Inc.
for not notifying the department before conducting work on the
demolition of base housing at White Sands Missile Range, New
Mexico Business Weekly reports.
The department could fine Border Demolition up to US$15,000 per
day for failure to file a proper notice and up to US$5,000 per
day for solid waste violations for failing to account for
asbestos. White Sands and other contractors on the project also
could face enforcement actions.
White Sands hired Border Demolition to clean up asbestos waste
uncovered by another contractor at the southern New Mexico
demolition site.
State officials said the Company failed to notify the department
of the work and failed to account for several bags of asbestos
waste from the project.
Jim Norton, division director of the Environmental Protection
Division, said the managers at White Sands and contractors
working for the base were aware of the presence of concrete
asbestos pipe at the project site and failed to inform the
department of the fact.
State Air Quality regulations require contractors to determine
if asbestos is present in buildings prior to starting demolition
or renovation work.
If asbestos is found, contractors must file a
demolition/renovation notification form with the department's
Air Quality Bureau before beginning work.
ASBESTOS LITIGATION: UK Actor Found to Have Died from Exposure
--------------------------------------------------------------
The 58-year-old David Nicholls, an actor from Leeds, England,
has died of mesothelioma, which he developed from exposure to
asbestos as a teenager, Yorkshire Evening Post reports.
Mr. Nicholls had parts in blockbuster films including Gladiator
and Gangs of New York. He also had parts in a range of TV
productions including Emmerdale, Coronation Street, Waiting for
God and The Commander.
Originally from Tipton in the Black Country, Mr. Nicholls left
school at the age of 15 and became a factory worker. There he
had contact with asbestos lagging used to insulate pipes.
Mr. Nicholls left the factory and joined the Army by saying he
was older than he was. After leaving the Army he became a police
officer, working in West and North Yorkshire. He had come to
Leeds in the mid-1980s. He left the police to pursue his acting
career.
More than 40 years after his teenage contact with asbestos, Mr.
Nicholls was diagnosed with mesothelioma. He was diagnosed in
May 2007 and died on June 23, 2008.
During the last months of his life, Mr. Nicholls campaigned to
raise funds for research into the disease, and awareness about
the dangers of asbestos.
ASBESTOS LITIGATION: 60 Brisbane Clubs With Asbestos Identified
---------------------------------------------------------------
Asbestos has been found in more than 60 sporting and community
clubs in Brisbane, Australia, The Courier-Mail reports.
However, many of these clubs say that they have not been told
there is a problem. The buildings, also leased by arts and
school groups, are considered asbestos risks requiring regular
monitoring.
The Brisbane City Council said there was no danger from the
asbestos and claimed all had been informed but at least a dozen
contacted by The Courier-Mail were either unaware of the problem
or did not know it was their responsibility.
Queensland Sporting Club general manager Michael Sullivan said,
"We don't know about it. I've never seen any documents."
Morningside AFL clubhouse maintenance coordinator Leo Wallin
also had not heard of the asbestos contamination but said the
Council should fix it.
Brisbane Institute of Art manager Peter Shaw said the Council
had an inspection years ago but there was no mention of
asbestos.
The council said "high risk" facilities had been dealt with but
would not reveal the risk rating of individual clubs.
Community Services chairwoman Geraldine Knapp said the Council
had written to "every single club." She said, "We've let them
know their responsibility in terms of dealing with it."
Councilor Knapp said funding had been set aside in the budget to
manage asbestos if any of the clubs planned to undertake
renovations.
The Queensland Asbestos-Related Disease Support Society said the
Council was "shirking" its responsibility by leaving it to
clubs, which were not qualified to monitor the risk.
ASBESTOS LITIGATION: Hardie Spends AUD6MM in FY 2008 for Defense
----------------------------------------------------------------
James Hardie Industries N.V. has spent AUD6 million for the year
ended March 31, 2008, on its defense for a forthcoming civil
penalty case relating to asbestos compensation, The Age reports.
The cost may be higher this financial year when the suit from
the Australian Securities and Investments Commission comes to
trial.
Hearings are set to start in the New South Wales Supreme Court
on Sept. 29, 2008 and are expected to run well into 2009.
In its annual report filed with the Securities and Exchange
Commission, the Company said, "Losses and expenses arising from
the ASIC proceedings could have a material adverse effect on our
financial position, liquidity, results of operations and cash
flows."
Another possibility is that the Australian taxpayer could foot
the bill if ASIC fails to prove its allegations of misleading or
deceptive conduct in relation to shares and breaches of
director's duties.
ASIC is suing the Dutch parent company, the former Australian
parent company and eight former executives and directors
involved in the 2001 establishment of an asbestos compensation
trust that was later revealed to be grossly underfunded.
Part of the defense costs are being advanced by "third parties,"
presumably a reference to the Company's professional indemnity
insurers.
James Hardie is paying the balance for the individual defendants
under deeds of indemnity and under the articles of association.
The report notes that if ASIC succeeds against any of the
individual defendants, the terms of their indemnities might
require them to reimburse the company.
Meanwhile, the Company continues to transfer funds under new
compensation arrangements negotiated with the NSW Government
during the furor over the previous underfunding.
The Asbestos Injuries Compensation Fund, which received AUD184
million when it was set up in February 2007, will receive AUD115
million this financial year.
That sum is 35 percent of the Company's net operating cash flow
in the year to March 2008, in line with a formula agreed with
the Government.
The fund paid claims to sufferers of asbestos diseases of AUD74
million in the year to March 31, 2008. A report from KPMG
Actuaries estimates that claim payments will be AUD81 million in
2008 to 2009 and AUD83 million next financial year.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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