/raid1/www/Hosts/bankrupt/CAR_Public/080919.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 19, 2008, Vol. 10, No. 187
Headlines
APPLE INC: New iPhone-Related Lawsuit in Arkansas Seeks $5 Mln.
BABY BOTTLE MAKERS: Face Georgia Lawsuit Over "Toxic" Bottles
BELL EXPRESSVU: May Pay Back CDN$40 Mln. in Late Fees Collected
BRUISTER & ASSOCIATES: Cable TV Firm Accused Of Race Baiting
BUCA INC: Court Gives Final OK to $650,000 Workers' Suit Deal
CATERPILLAR LOGISTICS: Retirees Win Preliminary Injunction
CHAMPION LABORATORIES: Automotive Filter Suit Lead Counsel Named
CONSTELLATION ENERGY: Property Damage Suit Still Panding in Md.
CYPRESS SEMICONDUCTOR: SRAM Suits Still Pending in U.S. & Canada
DIRECTV INC: Charges Unlawful Termination Fees, Calif. Suit Says
ENERGY TRANSFER: Plaintiffs in "Hershey" Oppose Dismissal Motion
ENERGY TRANSFER: Seeks Dismissal of "Rio Grande" Suit in Texas
GEHL CO: Faces Lawsuit in Illinois Over Cheap Sale Price
GENERAL MOTORS: Judge Narrows Scope of Defective Seatback Suit
GUIDANT CORP: Aug. 1, 2009 Trial Set for Age Discrimination Suit
GUIDANT CORP: Court Dismisses Certain Claims in Ind. ERISA Suit
GUIDANT CORP: Faces Lawsuits Over Pacemakers, Defibrillators
GUIDANT CORP: Plaintiffs Appeal Ind. Securities Suit Dismissal
GUIDANT CORP: To Settle U.S. Pacemakers/Defibrillators Lawsuits
INSURANCE COS: Armenian Genocide Victims File Lawsuit in Calif.
MEDQUIST: October Hearing Set for Shareholder Suit Dismissal Bid
MEDQUIST INC: Tentative Settlement Reached in "Myers" Lawsuit
NEW YORK CITY: Settles Lawsuit Over Homeless Families
PLAZA PATRIA: Settles Housing Discrimination Suit for $618,000
SEMGROUP: Lead Plaintiff Application Deadline is Today, Sept. 19
TRIBUNE COMPANY: Reacts to Reporters' Reckless Takeover Lawsuit
UNDERWRITERS: Sued for Fraud Related to Fannie Mae Offering
WALGREEN CO: Hit With Another Wal-born Product-Related Lawsuit
New Securities Fraud Cases
BANKUNITED FINANCIAL: Izard Nobel Files Florida Securities Suit
FIRST TRUST: Shuman Law Firm Files Ill. Securities Fraud Lawsuit
HANSEN NATURAL: Scott+Scott Files Calif. Securities Fraud Suit
HARRIS STRATEX: Howard Smith Files Securities Fraud Suit in Del.
MEMC ELECTRONIC: Federman & Sherwood Files Securities Fraud Suit
NEXTWAVE WIRELESS: Federman & Sherwood Files Securities Lawsuit
QUEST RESOURCE: Glancy Binkow Files Okla. Securities Fraud Suit
REDDY ICE: Bronstein Gewirtz Files Securities Suit in Michigan
SIGNALIFE INC: Scott+Scott Files Securities Fraud Suit in S.C.
Asbestos Alerts
ASBESTOS LITIGATION: Fields Case Filed v. 63 Firms in Ill. Court
ASBESTOS LITIGATION: Hazard Discovered in Gilbert Bain Hospital
ASBESTOS LITIGATION: Hazard in Ind. Apartments Poses Health Risk
ASBESTOS LITIGATION: All Phase Tests Wastewater Plant for Hazard
ASBESTOS LITIGATION: J. C. Penney Still Cites $43Mil for Cleanup
ASBESTOS LITIGATION: American Locker Still Facing Injury Actions
ASBESTOS LITIGATION: W. R. Grace Settles CSU Claims for $300,000
ASBESTOS LITIGATION: Grace Urges Court to OK $290T Bayshore Deal
ASBESTOS LITIGATION: Grace Seeks Court OK on $172T Jameson Deal
ASBESTOS LITIGATION: Buckwalter Bars Anderson From Taking Appeal
ASBESTOS LITIGATION: Notification Law Takes Effect in New Jersey
ASBESTOS LITIGATION: Split Rulings Issued in Anderson's Lawsuit
ASBESTOS LITIGATION: Court Favors Electric Boat in Birnie Action
ASBESTOS LITIGATION: Appeals Court Junks Ruling in Veteran Case
ASBESTOS LITIGATION: Court Issues Split Ruling in Flintkote Case
ASBESTOS LITIGATION: MDL Panel Orders Transfer of 8 Suits to Pa.
ASBESTOS LITIGATION: Lunbery Suit Filed v. 68 Firms on Sept. 11
ASBESTOS LITIGATION: Pryor's Suit Filed v. 54 Firms on Sept. 12
ASBESTOS LITIGATION: Stabley Suit Filed v. 76 Companies in Ill.
ASBESTOS LITIGATION: Md. Contractor Charged for Cleanup Breaches
ASBESTOS LITIGATION: EPA Ireland Calls for Incineration of Waste
ASBESTOS LITIGATION: K-Sea Affiliate Aims To Settle Lone Action
ASBESTOS LITIGATION: McCart Charged with 7 Regulatory Violations
ASBESTOS LITIGATION: ADAO Applauds Congress' Bill to Ban Hazard
ASBESTOS LITIGATION: MYR Group Still Subject to Asbestos Claims
ASBESTOS LITIGATION: ASARCO LLC's Amended Plan Filed on Sept. 12
ASBESTOS LITIGATION: Committee Moves for Asarco to Deposit $2.7B
ASBESTOS LITIGATION: Insurance Cos. Object to ASARCO Disclosure
ASBESTOS LITIGATION: Objections Filed on Asarco Inc. Disclosure
ASBESTOS LITIGATION: Knoblauch Sues 55 Firms in Madison County
ASBESTOS LITIGATION: Lyne Widow Not to Get Payout from U.K. Navy
ASBESTOS LITIGATION: Winslow City To Pay $240T for CAA Breaches
ASBESTOS LITIGATION: Manor House Demolition Estimated at $30,000
ASBESTOS LITIGATION: Plowman Gets GBP177,000 from Carter Design
ASBESTOS LITIGATION: Jackson Favors Bridgeton Locals on Cleanup
ASBESTOS LITIGATION: Eastbourne Builder's Death Linked to Hazard
ASBESTOS LITIGATION: UCATT Urges Officials to Strengthen Cleanup
ASBESTOS LITIGATION: Asbestos Raises Concern in Stratford, Conn.
ASBESTOS LITIGATION: Polk County Men Blamed for Disposal Breach
ASBESTOS LITIGATION: Willcocks Widow to Establish Support Group
ASBESTOS LITIGATION: Cleanup at Ore.'s Freewater School Ongoing
ASBESTOS LITIGATION: Asbestos Found in Public Housing in Darwin
ASBESTOS LITIGATION: Gloucester Inquest Rules on Woodall's Death
ASBESTOS LITIGATION: Hazard Forces Closure of School in Munhall
ASBESTOS LITIGATION: Campaign Ongoing v. Development in T&N Site
ASBESTOS ALERT: Martin Suit v. MGP Ingredients Filed Last Aug. 8
*********
APPLE INC: New iPhone-Related Lawsuit in Arkansas Seeks $5 Mln.
---------------------------------------------------------------
A Little Rock, Arkansas resident has commenced a class action
lawsuit seeking at least $5 million in damages from Apple Inc.
and AT&T for overselling iPhone 3G relative to the network load,
Aidan Malley writes for Apple Insider.
According to the Apple Insider, Aaron Walters' lawsuit came
despite a fix already being put into place. The suit was filed
on Sept. 12, 2008, just as Apple released its iPhone 2.1
firmware update that appears to have settled most network
issues.
IT Examiner notes that the suit, which has over 100 class
members, alleged that the defendants "have wrongfully and
unfairly deceived the public and their customers by
misrepresenting the speed, strength and performance of their new
Iphone 3G device and its related 3G bandwidth network protocol".
Apple Insider says that Mr. Walters and his legal team allege
that Apple, and by extension AT&T, misled the public and
violated state trade laws by advertising claims that the new
iPhone's cellular data speeds would be "twice as fast" as the
original model when it was clear this would never play out in
practice. In fact, Mr. Walter says, his device and others have
spent most of their time on the slower EDGE (2G) network and
have suffered dropped calls.
According to Apple Insider, the Arkansas case, like certain
earlier lawsuits, turns to Internet-derived leaks as an
explanation for the faltering performance: as the two defending
companies sold more iPhones than AT&T's 3G network could handle,
the carrier's network has been overwhelmed and triggered the
drops. The firms "should have known that the strain on the
network would make it impossible to provide reliable and
sustained connectivity," the 16-page lawsuit states.
The plaintiff also points to problems with the handsets
themselves that were named in those same unofficial reports,
asserting that the phones haven't been sufficiently sensitive to
3G signals and have worsened the problem as a result, Apple
Insider further relates.
Mr. Walters argues that AT&T specifically is exploiting its
captive audience. While complaints have surfaced before
regarding the need for a two-year contract that prevents an easy
escape to another network, Mr. Walters takes issue with the
inability to choose another carrier at any cost and accuses AT&T
of charging a $10 premium over the original iPhone for monthly
fees.
Apple Insider says that while Mr. Walters asks for class action
status for the lawsuit to reflect the sheer scale of iPhone
subscribers affected by the problem, he is also one of the first
to put a more definitive cost to the perceived losses. Mr.
Walters and his representatives estimate that the total
financial impact of the claims is likely to exceed $5 million
and more than 100 affected users, qualifying it for the bulk
legal representation.
The report adds that, with Apple having announced its firmware
upgrade mending the issues a full three days before the lawsuit
was filed, Mr. Walters no longer has an ongoing example of
apparent neglect by the involved companies to support his
complaint. While aware of the source of the problem as
mentioned online, he makes no references to the patches that
were said to be enroute.
BABY BOTTLE MAKERS: Face Georgia Lawsuit Over "Toxic" Bottles
-------------------------------------------------------------
On September 12, 2008, Rights For America attorneys Robert H.
Weiss, Esq., and Stephen David Murakami, Esq., of The Law
Offices of Robert H. Weiss, PLLC, in New York, along with Yehuda
Smolar, Esq., and William Cromwell, Esq., of Weiss & Associates
in Atlanta, Georgia, filed a consumer class action complaint in
the United States District Court for the Northern District of
Georgia on behalf of four Georgia families against the top four
polycarbonate plastic baby bottle manufacturers for their use of
the synthetic hormone known as Bisphenol-A (BPA) as a chemical
component in their plastic baby bottles and toddler training
cups.
Bisphenol-A, also referred to as "BPA" was developed in the
1930s as a synthetic estrogen, but instead gained wide usage
beginning in the 1950s for its rigid and shatterproof qualities
in scores of plastic products, including baby bottles and
children's training cups. Unfortunately, over 150 independent
peer reviewed studies by the world's leading scientists and
researchers in this area have repeated shown that BPA can
activate estrogen receptors that lead to the same effects as the
body's own estrogens. Exposure to BPA (even at very low doses)
has been linked to prostate and breast cancer, diabetes,
premature onset of puberty in females, lowered sperm count and
infertile sperm in men, developmental toxicity, attention
deficit disorders and neurological toxicity in laboratory
animals.
BPA is also classified as an endocrine disruptor, which can
interfere with or disrupt the finely orchestrated balance of
hormones that are active during critical periods of the
development and formation of the brain and sexual organs in the
fetus, infants or young children who have been identified as
being particularly vulnerable and therefore are at an even
greater risk to the harmful effects of BPA.
The Georgia class action concerns the intentional and negligent
failure by the baby bottle and training cup manufacturers, such
as:
-- North Philips Electronics North America (Avent America,
Inc. is subsidiary),
-- Evenflo Company, Inc.,
-- Gerber Products Company, and
-- Playtex Products, Inc.,
to disclose the fact that a dangerous synthetic hormone (BPA) is
a component of the chemical formula which leaches from the
plastic baby bottles and cups and migrates into the baby
formula, food and liquid which the infants ingest and thereby
exposes them to an increased risk of harm. Studies have also
shown that heating these baby bottles in a microwave oven, or
washing them in a dishwasher at high temperatures can accelerate
the leaching process.
The lawsuit was filed pursuant to the State of Georgia Consumer
Protection Laws on behalf of Georgia residents as well as
parents throughout the United States who purchased polycarbonate
plastic baby bottles, bottle liners and training cups.
Several local retail stores were also named as defendants for
their participation in selling polycarbonate plastic baby
bottles and toddler training cups. These retail defendants
include:
-- CVS Caremark Corporation,
-- Target Corporation,
-- The Kroger Co.,
-- Toys "R" Us, Inc., and
-- Wal-Mart Stores, Inc.
As the fourth class action filed this year, Robert Weiss
continues his fight against corporate America. Robert Weiss and
Rights For America is committed to protecting our infants and
will not stop until the infants of America are no longer used as
laboratory subjects for testing the safety of high volume
chemicals like BPA.
BELL EXPRESSVU: May Pay Back CDN$40 Mln. in Late Fees Collected
---------------------------------------------------------------
The Class Action Reporter reported on Sept. 18, 2008, that
Ontario Superior Court Justice Paul Perell ruled that Bell
ExpressVu's collection of a $25 late payment charge is illegal.
According to the CAR report, Justice Perell released his
decision on Sept. 15 which elated plaintiff Peter De Wolf, who
filed the suit on behalf of Bell ExpressVu's 1.7 million
customers nationwide. The suit was already certified as a class
action earlier.
A CAR story published on Feb. 18, 2008, related that Mr. De Wolf
was charged a $19 administrative fee after he failed to pay his
satellite TV bill on time. He alleges that the fee, coupled
with interest charges, is illegal. Court filings indicate that
about 33,000 ExpressVu customers are charged the administrative
fee, which has then been raised to $25, each month.
Mr. De Wolf argued that a $25 fee charged by the company for
late payment does not comply with Canada's Criminal Code because
it amounts to an annual interest rate greater than the 60%
allowed under anti-usury provisions. Justice Perell agreed with
Mr. De Wolf, and entered a ruling in his favor.
According to Doug Alexander of Bloomberg News, BCE Inc.'s
television unit may have to return about CDN$40 million
(US$37.6 million) in late fees it collected from its customers
after losing the class-action lawsuit.
Montreal-based BCE, which is Canada's biggest phone company, has
30 days to appeal Judge Perell's decision, Bloomberg notes.
BRUISTER & ASSOCIATES: Cable TV Firm Accused Of Race Baiting
------------------------------------------------------------
Cable TV installers Bruister & Associates is facing a race
discrimination class-action complaint filed in the U.S. District
Court for the Middle District of Tennessee alleging it allows
white employees to threaten to lynch black co-workers, call them
"niggers" and "boys" and otherwise discriminate against them,
CourtHouse News Service reports.
The eight named plaintiffs say managers for the Meridian, Miss.-
based company condone and join in this behavior.
Bruister does $87.5 million in annual business, according to the
company Web site. Much or all of this business is done on
contracts with DirecTV, according to the Yezbak Law Offices,
which represents the plaintiffs in this case.
The complaint states: "Defendant, and its managers and
supervisors, continually subjected plaintiffs to highly
offensive, derogatory and unwelcome racial insults, slurs,
comments, statements and other inappropriate conduct of a racial
nature because they are black."
These comments include, without limitation:
-- use of the words 'nigger' and 'boy' to refer to black
workers;
-- numerous racial jokes;
-- references to racial stereotypes;
-- reference and threats of lynching of blacks in rural
Tennessee;
-- a trainer telling black employees that he did not want
to work with blacks.
According to the suit, many of these racially offensive comments
were made by or in the presence of the company's managers. Many
other comments were reported to managers. The defendants took
no corrective action.
The plaintiffs seek lost wages and punitive damages.
The suit is "Strohn Johnson, et al. v. Bruister & Associates
Inc., Case No. 3:2008cv00874," filed in the U.S. District Court
for the Middle District of Tennessee .
Representing the plaintiffs is:
Charles P. Yezbak, III (yezbak@yezbaklaw.com)
2002 Richard Jones Rd., Suite B200
Nashville, TN 37215
Phone: 615-250-200
Fax: 615-250-2020
BUCA INC: Court Gives Final OK to $650,000 Workers' Suit Deal
-------------------------------------------------------------
The Los Angeles County Superior Court, State of California, gave
final approval to the $650,000 settlement in a purported class-
action lawsuit against BUCA, Inc.
The suit was filed in January 2008 by one of the company's
former hourly employees. It alleges causes of action for
failure to pay wages and overtime, failure to provide meal
breaks, failure to provide accurate wage statements, failure to
ensure that paychecks can be cashed without discount, failure to
pay wages at termination, negligent misrepresentation, and
unfair business practices.
On April 23, 2008, the company agreed to settle the matter for a
cash payment of $650,000 to be paid to claimants upon the
earliest to occur of:
-- March 31, 2009,
-- 30 days following a sale, merger or other business
combination of the company with another company or
-- the company filing a petition for bankruptcy.
The settlement received preliminary approval from the court on
May 7, 2008. It received final approval from the court on
Aug. 5, 2008, according to the company's Aug. 11, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 29, 2008.
BUCA, Inc. -- http://www.bucainc.com/-- develops, owns and
operates a chain of Italian restaurants under the name Buca di
Beppo. The company's Buca di Beppo restaurants are full service
restaurants that offer Italian cuisine served in family-style
portions meant for sharing, as well as single portions for
individuals, in an atmosphere that reflects the decor and
ambiance of post-War Italian/American restaurants. Most recipes
come from the southern region of Calabria, although Buca also
offers northern Italian favorites. Majority of the Buca di
Beppo restaurants are open seven days a week for lunch and
dinner. Its dinner-only restaurants typically are open during
the week days, as well as on the weekends. As of Dec. 30, 2007,
the Company has 90 existing Buca di Beppo restaurants located
across the U.S. in 25 states and in the District of Columbia.
CATERPILLAR LOGISTICS: Retirees Win Preliminary Injunction
----------------------------------------------------------
Judge Aleta A. Trauger of the U.S. District Court for the Middle
District of Tennessee granted a motion for a preliminary
injunction brought by Caterpillar Services retirees to provide
them with retiree healthcare they were promised by the company.
Caterpillar was ordered to provide CLS retirees with the same
level of retiree healthcare currently provided to Caterpillar
retirees who retired before January 1, 1992.
"This is an important victory for the retirees who can now get
the health care they desperately need and can fully enjoy the
benefits they were promised for the decades of service they
provided to the company," said attorney Beth Alexander, of Lieff
Cabraser Heimann & Bernstein, in Nashville.
Background of the Litigation
Caterpillar was enjoined from deducting monthly charges for
retiree healthcare from the pensions of the CLS subclass. These
monthly charges ranged from $115 to $250 per month, reducing
these former hourly workers' modest pensions as much as 25%.
Caterpillar was also enjoined from charging the retirees
deductibles of $300 (for individuals) or $600 (for families)
before the health insurance applies and other costs specified in
the court's order.
The Court held a three-day hearing on the Motion in July. On
September 16, 2008, the Court found that the testimony of the
retirees demonstrated irreparable harm from the financial
hardship that they are suffering and will continue to suffer due
to the changes in their retiree healthcare that took effect in
2004, resulting in ever-increasing costs since then.
The evidence showed that the retirees were delaying surgery,
stopping their prescribed medications, and putting off doctor
visits to reduce their increasingly unmanageable medical costs.
One of the class members put off amputation surgery despite
continued pain in his legs because he could not afford it, while
another was taking only half of her prescribed blood pressure
medicine to save money. Class members also testified that the
premiums caused them extreme financial anxiety during
retirement.
The Court found that Caterpillar and the UAW entered an
agreement extending the 1988 Central Labor Agreement to the CLS
employees in return for a no-strike clause. When a labor
dispute arose in 1991, the CLS employees continued to work,
honoring the no-strike clause. The Court found that the
extension of the Agreement provided for the 1988 Central Labor
Agreement to remain in full force and effect. CLS employees who
retired before the labor dispute ended had their retiree
healthcare benefits vest under the 1988 agreement, which
provided premium-free retiree healthcare.
In so ruling, the Court rejected Caterpillar's argument that the
CLS retirees were automatically subject to conditions it
unilaterally implemented during the labor dispute and in
subsequent Central Labor Agreements, which imposed a cap on
retiree medical benefits.
In sum, the Court found that the subclass was likely to prevail
on the merits of its claim because subclass members have a
vested contractual right to retiree healthcare benefits based on
the Caterpillar Logistics Services Agreement's extension of the
1988 labor agreement.
The suit is "Winnett et al. v. Caterpillar, Inc., Case No. 3:06-
cv-00235," filed in the U.S. District Court for the Middle
District of Tennessee, under Judge Aleta A. Trauger.
Representing the plaintiffs are:
Elizabeth A. Alexander, Esq. (ealexander@lchb.com)
Lieff, Cabraser, Heimann & Bernstein, LLP
3319 West End Avenue, Suite 600
Nashville, TN 37203-1074
Phone: 615-313-9000
Kathryn E. Barnett, Esq. (kbarnett@lchb.com)
Lieff, Cabraser, Heimann & Bernstein, LLP
One Nashville Place
150 4th Avenue, N, Suite 1650
Nashville, TN 37219-2423
Phone: 615-313-9000
- and -
Alexandra Coulter Cross, Esq. (acc@h3gm.com)
Harwell, Howard, Hyne, Gabbert & Manner
315 Deaderick Street
1800 First American Center
Nashville, TN 37238
Phone: 615-256-0500
Representing defendant is:
Lawrence Slade Eastwood, Jr., Esq.
(leastwood@bakerdonelson.com)
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Commerce Center
211 Commerce Street, Suite 1000
Nashville, TN 37201
Phone: 615-726-5600
CHAMPION LABORATORIES: Automotive Filter Suit Lead Counsel Named
----------------------------------------------------------------
Judge Robert W. Gettleman of the U.S. District Court for the
Northern District of Illinois appointed Chicago-area law firm
Freed Kanner London & Millen to be one of the interim co-lead
class counsel representing direct purchaser plaintiffs in the
class-action antitrust suit brought against:
-- Champion Laboratories Inc.,
-- Purolator Filters N.A. L.L.C.,
-- Honeywell International Inc., and
-- other manufacturers of automobile filters.
"We are gratified to be recognized at this level and pleased
that the courts have recognized the quality of our practice and
leadership skills by choosing Freed Kanner London & Millen from
among the many renowned plaintiffs' antitrust firms in the
country, as interim class counsel in one of the most significant
antitrust class actions to be brought this year," said Michael
Freed, Esq., a founding partner of the firm, who specializes in
complex litigation with an emphasis in antitrust and securities
actions and who will head up the case.
The suit alleges that the defendants engaged in a conspiracy to
fix, raise, maintain or stabilize the price of automotive
filters, including air, transmission, fuel and oil filters, over
a more than eight-year period.
The plaintiffs charge that the defendants:
-- attended meetings and otherwise exchanged information
regarding the pricing and sale of filters;
-- sold filters to customers at collusive and non-competitive
prices;
-- agreed to sell filters at specified, pre-arranged prices;
-- agreed not to compete for each other's customers;
-- accepted payment at non-competitive prices;
-- gave actual and apparent authority to employees'
participation in furtherance of the wrongful conduct; and
-- fraudulently concealed the wrongful conduct.
As a result of the alleged wrongful conduct, the plaintiffs were
injured by virtue of their paying more for filters than they
would have paid in the absence of the alleged price fixing.
"Antitrust violations impact us all and given today's great
financial uncertainty, it is especially important that corporate
price-fixers be held accountable for their conduct," explained
Mr. Freed who has been in practice for more than 40 years and
has litigated class action cases for more than 30 years. "We
intend to justify the confidence shown us by the court by
obtaining significant financial recoveries on behalf of the many
businesses, both large and small, that were victims of the
alleged price fixing."
CONSTELLATION ENERGY: Property Damage Suit Still Panding in Md.
---------------------------------------------------------------
A subsidiary of Constellation Energy Group, Inc., continues to
face a purported class-action suit in Maryland over ash
placement operations that damaged surrounding properties.
In November 2007, a class-action complaint was filed in
Baltimore City Circuit Court alleging that the subsidiary's ash
placement operations at the third-party site damaged surrounding
properties. The suit seeks injunctive and remedial relief
relating to the alleged contamination, unspecified compensatory
damages for any personal injuries and property damages
associated with the alleged contamination, and unspecified
punitive damages.
Constellation Energy Group, Inc., reported no development in the
matter in its Aug. 11, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
Baltimore, Maryland-based Constellation Energy Group, Inc. --
http://www.constellation.com/-- is an energy company that
conducts its business through various subsidiaries, including a
merchant energy business and Baltimore Gas and Electric Company
(BGE). The Company's merchant energy business is a provider of
energy solutions for a variety of customers. BGE is a regulated
electric transmission and distribution utility company and a
regulated gas distribution utility company with a service
territory that covers the City of Baltimore and all or part of
10 counties in central Maryland. The company's operating
segments are Merchant Energy, Regulated Electric and Regulated
Gas. Its remaining non-regulated businesses design, construct
and operate renewable energy, heating, cooling and cogeneration
facilities for commercial, industrial and governmental customers
throughout North America, as well as provide home improvements,
service electric and gas appliances, service heating, air
conditioning and plumbing to residential customers in Central
Maryland.
CYPRESS SEMICONDUCTOR: SRAM Suits Still Pending in U.S. & Canada
----------------------------------------------------------------
Cypress Semiconductor Corp. continues to face several consumer
class-action lawsuits filed in various federal courts throughout
the United States and Canada in connection with static random
access memory.
Federal Suits
In October 2006, Cypress, along with a majority of the other
SRAM manufacturers, was sued in over 82 purported consumer class
action suits in various U.S. Federal District Courts.
The cases variously allege claims under the Sherman Antitrust
Act, state antitrust laws and unfair competition laws. They
seek restitution, injunction and damages in an unspecified
amount.
The cases are now consolidated in the U.S. District Court for
the Northern District of California. The cases have been
largely stayed with the exception of document production, which
Cypress continues to deliver to the plaintiffs.
Canadian Suits
In addition to the federal class action lawsuits, Cypress, along
with a number of the SRAM manufacturers, was also sued in
purported consumer anti-trust class action suits in three
separate provinces in Canada.
The company reported no further development regarding the cases
in its Aug. 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 29, 2008.
Cypress Semiconductor Corp. -- http://www.cypress.com/-- is a
broad-line semiconductor company. The company delivers mixed-
signal, programmable solutions. Its offerings include the
Programmable System-on-Chip products, universal serial bus or
USB controllers, general-purpose programmable clocks and
memories. Cypress also offers wired and wireless connectivity
solutions. Cypress serves numerous markets, including consumer,
computation, data communications, automotive and industrial.
DIRECTV INC: Charges Unlawful Termination Fees, Calif. Suit Says
----------------------------------------------------------------
Sprenger + Lang PLLC and Schneider, Wallace Cottrell Brayton
Konecky LLP filed a class action lawsuit in the Superior Court
for the County of Los Angeles challenging DirecTV Group, Inc.'s
imposition of early termination fees against its customers.
The lawsuit alleges that under DirecTV's normal procedures,
customers never enter into a valid contract to pay this type of
charge. They also claim that, even if customers signed an
agreement, the early termination fees constitute illegal
punitive damages on customers.
The complaint alleges that DirecTV collected early termination
fees directly from the accounts of Plaintiffs Amy Imburgia and
Marlene Mecca without their knowledge and consent, when they
cancelled their service. According to the complaint, neither of
the plaintiffs agreed to a term commitment nor were they told
about the potential application of an early termination fee.
Plaintiffs are pursuing a refund of the early termination fees
paid by DirecTV customers in California and seek to require
changes in DirecTV's policies.
"Our clients allege DirecTV deceives and traps its customers by
not informing them of contract terms or even that they are under
contract until they want to discontinue service. This type of
business practice is a direct violation of California's consumer
protection laws," said Deanna Dailey, Esq., of Sprenger & Lang,
one of the attorneys for the plaintiffs.
"All too often, companies are imposing illegal and unfair
penalties on consumers in an effort to lock consumers into long-
term contracts and limit consumer choice. We are proud of Ms.
Imburgia and Ms. Mecca for standing up for their rights and look
forward to their day in court," said Todd Schneider, Esq., who
also represents the plaintiffs.
For more information, contact:
Deanna D. Dailey, Esq. (ddailey@sprengerlang.com)
Dan Bryden, Esq. (dbryden@sprengerlang.com)
Sprenger + Lang, PLLC
310 Fourth Avenue South
Minneapolis, MN 55415
Phone: 612-871-8910
Fax: 612-871-9270
- or -
Todd Schneider, Esq.
Joshua Konecky, Esq.
Schneider, Wallace Cottrell Brayton Konecky LLP
180 Montgomery Street, Suite 2000
San Francisco, CA 94104
Phone: 415-421-7100
Fax: 415-421-7105
e-mail: info@schneiderwallace.com
ENERGY TRANSFER: Plaintiffs in "Hershey" Oppose Dismissal Motion
----------------------------------------------------------------
The plaintiffs in a purported class-action lawsuit, "Hershey v.
Energy Transfer Partners, L.P. et al., Case No. 4:07-cv-03349,"
are opposing a motion that sought the dismissal of the case,
which names Energy Transfer Equity, L.P., as a defendant.
The lawsuit, filed in the U.S. District Court for the Southern
District of Texas, alleges that the company engaged in
intentional and unlawful manipulation of the price of natural
gas futures and options contracts on the New York Mercantile
Exchange, in violation of the Commodity Exchange Act.
It further alleges that during the class period from Dec. 29,
2003, to Dec. 31, 2005, the company had the market power to
manipulate index prices, and that it used this market power to
artificially depress the index prices at major natural gas
trading hubs, including the Houston Ship Channel, in order to
benefit the company's natural gas physical and financial trading
positions and intentionally submitted price and volume trade
information to trade publications.
The action asserts that the unlawful depression of index prices
by the company manipulated the NYMEX prices for natural gas
futures and options contracts to artificial levels during the
class period, causing unspecified damages to the plaintiff and
all other members of the putative class who purchased or sold
natural gas futures and options contracts on NYMEX during the
class period.
Initially, two class-action lawsuits were filed against the
company. Following the consolidation order, the plaintiffs who
had filed the two earlier cases filed a consolidated complaint.
The plaintiffs have requested certification of their
consolidated suit as a class action, unspecified damages, court
costs and other appropriate relief.
On Jan. 14, 2008, the company filed a motion to dismiss the
consolidated suit on the grounds of failure to allege facts
sufficient to state a claim.
On March 20, 2008, the plaintiffs filed a second consolidated
class action complaint. In response to this new pleading, on
May 5, 2008, the company filed yet another motion to dismiss the
complaint. On June 19, 2008, the plaintiffs filed a response
opposing the company's motion to dismiss, according to the
company's Aug. 11, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
The suit is "Hershey v. Energy Transfer Partners, L.P. et al.,
Case No. 4:07-cv-03349," filed in the U.S. District Court for
the Southern District of Texas, Judge Keith P. Ellison,
presiding.
Representing the plaintiffs are:
Gregory Asciolla, Esq. (gasciolla@labaton.com)
Labaton & Sucharow LLP
140 Broadway
New York, NY 10005
Phone: 212-907-0700
Fax: 212-883-7527
Craig Briskin, Esq. (cbriskin@findjustice.com)
Mehri & Skalet, PLLC
1250 Connecticut Avenue, Suite 300
Washington, DC 20036
Phone: 202-822-5100
Fax: 202-822-4997
- and -
Anthony G. Buzbee, Esq.
Attorney at Law
1910 Ice Cold Storage Building, 104 21st St Moody Ave.
Galveston, TX 77550
Phone: 409-762-5393
Fax: 409-762-0538
Representing the defendants is:
Charles W. Schwartz, Esq. (schwartz@skadden.com)
Skadden Arps
1000 Louisiana, Ste. 6800
Houston, TX 77002
Phone: 713-655-5160
Fax: 888-329-2286
ENERGY TRANSFER: Seeks Dismissal of "Rio Grande" Suit in Texas
--------------------------------------------------------------
Energy Transfer Partners, L.P., is seeking the dismissal of a
purported class-action lawsuit entitled, "Rio Grande Royalty
Company Inc v. Energy Transfer Partners LP et al, Case No.
4:2008-cv-00857."
The suit was filed in the U.S. District Court for the Southern
District of Texas on March 17, 2008, as a class-action
complaint. It alleges that the company engaged in unlawful
restraint of trade and intentional monopolization and attempted
monopolization of the market for fixed-price natural gas
baseload transactions at the Houston Ship Channel from December
2003 through December 2005 in violation of federal antitrust
law.
The complaint further alleges that during this period, the
company exerted monopoly power to suppress the price for these
transactions to non-competitive levels in order to benefit from
its own physical natural gas positions.
The plaintiff has, individually and on behalf of all other
similarly situated sellers of physical natural gas, requested
certification of the suit as a class action and seeks
unspecified treble damages, court costs and other appropriate
relief.
On May 19, 2008, the company filed a motion to dismiss this
complaint, according to the company's Aug. 11, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
The suit is "Rio Grande Royalty Company Inc. v. Energy Transfer
Partners LP et al., Case No. 4:08-cv-00857," filed in the U.S.
District Court for the Southern District of Texas, Judge Keith
P. Ellison presiding.
Representing the plaintiffs are:
Gregory Asciolla, Esq. (gasciolla@labaton.com)
Labaton & Sucharow LLP
140 Broadway
New York, NY 10005
Phone: 212-907-0700
Fax: 212-883-7527
- and -
Robert A Chaffin, Esq. (robert@chaffinlawfirm.com)
Chaffin & Stiles
4265 San Felipe, Ste 1020
Houston, TX 77027
Phone: 713-528-1000
Fax: 713-952-5972
Representing the defendants is:
Charles W. Schwartz, Esq. (schwartz@skadden.com)
Skadden Arps et al
1000 Louisiana, Ste 6800
Houston, TX 77002
Phone: 713-655-5160
Fax: 888-329-2286
GEHL CO: Faces Lawsuit in Illinois Over Cheap Sale Price
--------------------------------------------------------
Gehl Co.'s recently announced sale agreement with Manitou BF SA
has drawn a lawsuit from a shareholder who claims the West Bend-
based construction equipment maker is being sold at a price well
below its actual value.
The suit, which is seeking class action status, was filed on
behalf of West Bend shareholder Chuck Kandel.
The lawsuit, filed in Washington County Circuit Court
(Illinois), says Gehl is worth $55.09 a share.
Gehl announced last week that it is being acquired by Manitou,
which is its largest shareholder, for $30 a share.
Michael Mulcahy, Gehl's general counsel, said today the company
had no comment on the lawsuit.
Gehl Co.'s principal activities are to design, manufacture and
distribute compact equipment for construction and agriculture
applications.
GENERAL MOTORS: Judge Narrows Scope of Defective Seatback Suit
--------------------------------------------------------------
Chief Judge Benson E. Legg has narrowed the scope of a lawsuit
against General Motors Corp. and three other car manufacturers
over cars alleged to have defective seatbacks, Caryn Tamber
writes for The Daily Record.
According to the report, the putative class-action suit,
captioned "Lloyd et al. v. General Motors Corp. et al.," gained
attention in 2007 when the Maryland Court of Appeals held that
car owners could sue automakers over the seatbacks even if they
had not suffered any physical injury. The report recounts that
the case was subsequently transferred to the U.S. District Court
for the District of Maryland.
Last week, Judge Legg decided that some of the plaintiffs do not
count as members of the putative class, Daily Record relates.
Specifically, Judge Legg eliminated from the case six plaintiffs
who did not own a class vehicle, though they may rejoin if the
class is expanded. The remaining plaintiffs can continue to
pursue their tort claims against the car companies but are
barred from pressing their breach of implied warranty claims,
the judge ruled.
Judge Legg also took up the defendants' argument that the
plaintiffs' claims came too late. He wrote that in Maryland,
the statute of limitations for tort claims is three years, but
it's tolled until the plaintiff discovers the injury. The
defendants argued that the seatbacks problem had been publicized
before the plaintiffs bought their cars, so they should have
known about it then.
"What the named plaintiffs knew and when they knew it, however,
is a fact-intensive question that cannot be determined from the
face of the amended complaint," Judge Legg wrote. "Despite the
Defendants' assertions, the mere fact that information was
'publicly available,' even if featured on an episode on '60
Minutes,' does not compel the conclusion that each individual
plaintiff should have been aware of [] it at the time they
purchased their vehicle. . . . Although such a conclusion is
plausible, the Court is persuaded that this is a question for
discovery," he continued.
The statute of limitations for implied warranty actions is four
years from when the car is first put into service and cannot be
tolled, Judge Legg added. Because of that statue of
limitations, the eight remaining plaintiffs cannot sustain their
implied warranty claims, he decided.
Judge Legg's decision will have "minimal" effect on the case,
Stephen H. Ring, Esq., a Germantown solo practitioner who is
part of the plaintiffs' legal team, told Daily Record. "There
are sufficient additional counts in tort that we feel the case
is amply supported under several theories of law," he said.
Mr. Ring added that the plaintiffs are prepared to enter the
discovery phase and declined to comment on whether there have
been settlement negotiations.
"GM is pleased that certain of plaintiffs' claims and some of
the plaintiffs' cases as a whole have been dismissed, and GM
looks forward to defending what remains of the case," GM
spokeswoman Geri Lama wrote in a statement. "All of GM's seat
designs at issue in the case, and indeed all GM seat designs,
meet or exceed all applicable Federal Motor Vehicle Safety
Standards."
Case Background
Daily Record recalls that the suit was filed nine years ago in
Montgomery County by Timothy and Bernadette Lloyd, who named GM,
Chrysler L.L.C. and Ford Motor Co. as defendants. The Lloyds
alleged that the car companies all produced seatbacks between
1990 and 1999 that could not withstand the impact of a rear
collision. Several car owners in other states sued over the
seatbacks as well, some claiming the seats caused physical
injury or death.
In a later amended complaint, the Lloyds added as a defendant
Saturn Corp., maker of their 1995 Saturn, the report further
recoutns. Over time, they added more plaintiffs too.
Eventually, the Lloyds sold their Saturn and bought a 1997 Dodge
minivan.
In 2000, the Montgomery County Circuit Court dismissed the suit
on grounds that the plaintiffs had not shown any injury from the
seatbacks. The Court of Special Appeals agreed.
The case was argued before the Court of Appeals in 2003 but not
decided until 2007. The top court held that the potential
injury -- death or paralysis -- was so great and the probability
of injury so high that the owners could sue under a purely
economic loss theory.
After the case was reinstated, the plaintiffs added more
plaintiffs and expanded the putative class, changes that
resulted in the removal of the case to federal court.
GUIDANT CORP: Aug. 1, 2009 Trial Set for Age Discrimination Suit
----------------------------------------------------------------
A trial was scheduled for Aug. 1, 2009, in connection with a
purported class-action lawsuit against Guidant Corp., an
acquisition of Boston Scientific Corp., over allegations of age
discrimination against the company's former employees.
In April 2006, 61 former employees sued Guidant in the U.S.
District Court for the District of Minnesota, alleging that
Guidant discriminated against them on the basis of their age
when it terminated their employment in August 2004 as part of a
reduction in force.
All but one of the plaintiffs in the federal court action signed
a full and complete release of claims that included any claim
based on age discrimination, shortly after their employments
ended in 2004.
The parties filed cross motions for summary judgment on the
issue of validity of the releases. A hearing was held on
Feb. 21, 2007.
On April 4, 2007, the Court issued a decision in which it held
that the releases did not bar the plaintiffs from pursuing their
claims of age discrimination against Guidant.
On April 30, 2007, Guidant moved for permission to appeal the
District Court's decision to the U.S. Court of Appeals for the
Eighth Circuit. The Court of Appeals, however, declined to
accept the company's appeal.
In August 2007, the counsel for the plaintiffs voluntarily
dismissed two of their clients from the case, leaving a total of
59 individual plaintiffs, and moved the District Court for
preliminary certification of the matter as a class action.
On Sept. 28, 2007, the District Court granted the plaintiffs'
motion for preliminary certification of their proposed class.
Following the preliminary certification, notice was communicated
to other potential class members of their right to join the
class and 47 former employees of Guidant have exercised that
right. Two of these additional plaintiffs have since dismissed
their claims from the lawsuit. As a result, the class currently
consists of 104 individual plaintiffs.
Discovery is on-going and the deadline for any additional
motions for summary judgment is on May 1, 2009. The case is to
be ready for trial on Aug. 1, 2009, according to Boston
Scientific Corp.'s Aug. 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
Boston Scientific Corp. -- http://www.bostonscientific.com/--
is a developer, manufacturer and marketer of medical devices
worldwide that are used in a range of interventional medical
specialties including interventional cardiology, cardiac rhythm
management, peripheral interventions, cardiac surgery, vascular
surgery, electrophysiology, neurovascular intervention,
endoscopy, urology, gynecology and neuromodulation.
GUIDANT CORP: Court Dismisses Certain Claims in Ind. ERISA Suit
---------------------------------------------------------------
The U.S. District Court for the Southern District of Indiana
dismissed certain claims in a lawsuit that was filed against
Guidant Corp. -- which was acquired by Boston Scientific Corp.
-- on behalf of participants in Guidant's employee pension
benefit plans, according to Boston Scientific Corp.'s Aug. 8,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
Initially, a purported class-action complaint was filed in July
2005, before the U.S. District Court for the Southern District
of Indiana against Guidant and its directors. The complaint
alleges breaches of fiduciary duty under the Employee Retirement
Income Security Act, 29 U.S.C. Section 1132.
Specifically, the complaint alleges that Guidant fiduciaries
concealed adverse information about Guidant's defibrillators and
imprudently made contributions to Guidant's 401(k) plan and
employee stock ownership plan in the form of Guidant stock.
The complaint seeks class certification, declaratory and
injunctive relief, monetary damages, the imposition of a
constructive trust, and costs and attorneys' fees.
A second, similar complaint was filed and later consolidated
with the initial complaint.
A consolidated amended complaint was then filed on Feb. 8, 2006.
The defendants moved to dismiss the consolidated complaint, and
on Sept. 15, 2006, the Court dismissed the case for lack of
jurisdiction.
In October 2006, the Plaintiffs appealed the Court's decision to
the U.S. Court of Appeals for the Seventh Circuit. In June
2007, the Seventh Circuit vacated the dismissal and remanded the
case to the District Court. The Seventh Circuit specifically
instructed the District Court to consider potential problems
with the plaintiffs' ability to prove damages or a breach of
fiduciary duty.
In September 2007, the company filed a renewed motion to dismiss
the complaint for failure to state a claim. In June 2008, the
District Court dismissed the complaint in part, but ruled that
certain of the plaintiffs' claims may go forward to discovery.
The suit is "Harzewski v. Guidant Corporation et al., Case No.
1:05-cv-01009-LJM-TAB," filed in the U.S. District Court for the
Southern District of Indiana, Judge Larry J. McKinney,
presiding.
Representing the plaintiffs is:
Edward O'Donnell DeLaney, Esq. (ed@delaneylaw.net)
Delaney & Delaney LLC
3646 North Washington Blvd.
Indianapolis, IN 46205
Phone: 317-920-0400
Fax: 317-920-0404
Representing the defendants are:
Jeremy P. Blumenfeld, Esq.
(jblumenfeld@morganlewis.com)
Morgan Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Phone: 215-963-5258
Fax: 215-963-5001
Keith E. Eggleton, Esq. (keggleton@wsgr.com)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Phone: 650-320-4893
Fax: 650-565-5100
- and -
James H. Ham, III, Esq. (jhham@bakerd.com)
Baker & Daniels LLP
300 North Meridian Street, Suite 2700
Indianapolis, IN 46204
Phone: 317-237-1256
Fax: 317-237-1000
GUIDANT CORP: Faces Lawsuits Over Pacemakers, Defibrillators
------------------------------------------------------------
Guidant Corp., an acquisition of Boston Scientific Corp., is
facing several purported class action suits in Canada concerning
the company's pacemakers and defibrillators.
Six of those suits pending in Canada are putative class actions.
A hearing on whether the first of these putative class actions
should be certified as a class was held in mid-January 2008 and
on April 10, 2008, the Court certified a class of all persons in
whom defibrillators were implanted in Canada and a class of
family members with derivative claims.
Guidant has moved for leave to appeal the Court's class-
certification decision, and a hearing on Guidant's motion was
held on August 15, 2008.
The second of these putative class actions encompasses all
persons in whom pacemakers were implanted in Canada and involves
claims similar to the defibrillator class action.
A hearing on whether the pacemaker putative class action should
be class certified is set for mid-November 2008, according to
Boston Scientific Corp.'s Aug. 8, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 30, 2008.
Boston Scientific Corp. -- http://www.bostonscientific.com/--
is a developer, manufacturer and marketer of medical devices
worldwide that are used in a range of interventional medical
specialties including interventional cardiology, cardiac rhythm
management, peripheral interventions, cardiac surgery, vascular
surgery, electrophysiology, neurovascular intervention,
endoscopy, urology, gynecology and neuromodulation.
GUIDANT CORP: Plaintiffs Appeal Ind. Securities Suit Dismissal
--------------------------------------------------------------
The plaintiffs in a securities fraud class-action suit against
Guidant Corp., an acquisition of Boston Scientific Corp., are
appealing the dismissal of their case to the U.S. Court of
Appeals for the Seventh Circuit.
On Nov. 3, 2005, a securities class-action complaint was filed
on behalf of purchasers of Guidant stock between Dec. 1, 2004,
and Oct. 18, 2005, in the U.S. District Court for the Southern
District of Indiana, against Guidant and several of its officers
and directors.
The complaint alleges that the defendants concealed adverse
information about Guidant's defibrillators and pacemakers and
sold stock in violation of the federal securities laws. It
seeks a declaration that the lawsuit can be maintained as a
class action, monetary damages, and injunctive relief.
Several additional, related securities class action suits were
filed in November 2005 and January 2006, and were consolidated
with the initial complaint. The Court then appointed the Iron
Workers of Western Pennsylvania Pension Plan and David Fannon as
lead plaintiffs.
The lead plaintiffs filed a consolidated amended complaint. In
August 2006, the defendants moved to dismiss the complaint.
On Feb. 27, 2008, the District Court granted the dismissal
motion and entered final judgment in favor of all the
defendants.
On March 13, 2008, the plaintiffs filed a motion seeking to
amend the final judgment to permit the filing of a further
amended complaint.
On May 21, 2008, the District Court denied the plaintiffs'
motion to amend the judgment. On June 6, 2008, the plaintiffs
appealed the judgment to the U.S. Court of Appeals for the
Seventh Circuit, according to Boston Scientific Corp.'s Aug. 8,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
The company reported no further development regarding the case
in its regulatory filing.
The suit is "IN RE: Guidant Corporation Securities Litigation,
Case No. 1:05-cv-01658-SEB-WTL," filed in the U.S. District
Court for the Southern District of Indiana, Judge Sarah Evans
Barker, presiding.
Representing the plaintiffs are:
Willie Charles Briscoe, Esq.
Provost & Umphrey Law Firm LLP
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Phone: 214-744-3000
Fax: 214-744-3015
e-mail: kendalllawgroup@gmail.com
James A.L. Buddenbaum, Esq. (jbuddenbaum@parrlaw.com)
Parr Richey Obremskey & Morton
225 West Main Street
P.O. Box 668
Lebanon, IN 46052
Phone: 317-269-2500
Fax: 317-269-2514
- and -
Scott D. Gilchrist, Esq.
(sgilchrist@cohenandmalad.com)
Cohen & Malad LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Phone: 317-636-6481
Fax: 317-636-2593
Representing the defendants is:
Keith E. Eggleton, Esq. (keggleton@wsgr.com)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Phone: 650-320-4893
Fax: 650-565-5100
GUIDANT CORP: To Settle U.S. Pacemakers/Defibrillators Lawsuits
---------------------------------------------------------------
Guidant Corp., an acquisition of Boston Scientific Corp., is
working to settle purported class action lawsuits in the U.S.
which concerns the company's pacemakers and defibrillators.
Approximately 76 product liability class action lawsuits and
more than 2,277 individual lawsuits involving approximately
5,550 individual plaintiffs are pending in various state and
federal jurisdictions against Guidant, alleging personal
injuries associated with defibrillators or pacemakers involved
in the 2005 and 2006 product communications.
The majority of the cases in the U.S. are pending in federal
court, but approximately 250 cases are currently pending in
state courts.
On Nov. 7, 2005, the Judicial Panel on Multi-District Litigation
established MDL-1708 (MDL) with the U.S. District Court for the
District of Minnesota and appointed a single judge to preside
over all the cases in the MDL.
In April 2006, the personal injury plaintiffs and certain third-
party payors served a Master Complaint in the MDL asserting
claims for class action certification, alleging claims of strict
liability, negligence, fraud, breach of warranty and other
common law and statutory claims and seeking punitive damages.
The majority of claimants allege no physical injury, but are
suing for medical monitoring and anxiety.
On June 13, 2006, the Minnesota Supreme Court appointed a single
judge to preside over all Minnesota state court lawsuits
involving cases arising from the product communications.
On July 12, 2007, the company reached an agreement to settle
certain claims associated with the 2005 and 2006 product
communications, which deal was amended on Nov. 19, 2007.
Under the terms of the amended agreement, subject to certain
conditions, the company will pay a total of up to $240 million
covering 8,550 patient claims, including all of the claims that
have been consolidated in the MDL as well as other filed and
unfiled claims throughout the U.S.
The plaintiffs in these cases are eligible to participate in the
settlement, and activities in all Minnesota State court cases
are currently stayed pending an individual plaintiff's decisions
whether to participate in the settlement, according to Boston
Scientific Corp.'s Aug. 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
Boston Scientific Corp. -- http://www.bostonscientific.com/--
is a developer, manufacturer and marketer of medical devices
worldwide that are used in a range of interventional medical
specialties including interventional cardiology, cardiac rhythm
management, peripheral interventions, cardiac surgery, vascular
surgery, electrophysiology, neurovascular intervention,
endoscopy, urology, gynecology and neuromodulation.
INSURANCE COS: Armenian Genocide Victims File Lawsuit in Calif.
---------------------------------------------------------------
Descendants of Armenian genocide victims filed a class-action
complaint in the U.S. District Court for the Central District of
California alleging Turkey stole insurance money from the
victims, CourtHouse News Service reports.
Four British insurance companies were named in the complaint:
-- Aviva
-- Norwich Union
-- Commercial Union
-- General Accident
The complaint recounts that after killing an estimated
1.5 million Armenians during World War I, the government of
Turkey had the nerve to collect on the victims' insurance
policies.
The plaintiffs cite an insurer commenting to another that Turkey
was first murdering Armenians and "then proceeding to collect
his policy money!"
Class members Raffi Baghtchedjian and Nisan Papazyan say more
than 10,000 of the estimated 1.5 million Armenians killed during
the genocide had insurance policies with the defendant
companies.
The plaintiffs cite this 1919 letter from the general manager of
Norwich Union to New York Life Insurance Co.: "I gather from the
advises of your Head Office that in characteristic fashion the
Turkish Government have shown some tendency to consider the
propriety first of murdering the Armenian and his dependents and
then proceeding to collec[ting] his policy money! The brazenness
of such an attitude is of course beyond all comment and I should
not have been inclined to attach much weight to the rumors were
it not that I understand the subject is one which is having your
own full attention in conjunction with the French Offices
interested in the Levant. We should certainly wish to be
associated with the protest which is no doubt contemplated
against such a monstrous proposal, should the latter really be
serious, and I shall accordingly value a word from you as to the
position."
The complaint cites a second letter from Norwich Union
mentioning "the remarkable and characteristic attitude which
Turkey is understood to be taking in regard to insurance on the
lives of those whom she has murdered."
The plaintiffs want compensatory and punitive damages, costs and
fees.
The suit is "Raffi Baghtchedjian, et al. v. Aviva, et al., Case
No. CV08-06030 AHM," filed in the U.S. District Court for the
Central District of California.
Representing the plaintiffs are:
Vartkes Yeghiayan, Esq. (vartkesy@sbcglobal.net)
Rita Mahdessian, Esq.
Yeghiayan & Associates
535 N. Brand Blvd., Suite 270
Glendale, CA 91203
Phone: 818-242-7400
Fax: 818-242-0114
MEDQUIST: October Hearing Set for Shareholder Suit Dismissal Bid
----------------------------------------------------------------
The Superior Court of New Jersey, Chancery Division, Burlington
County set a tentative October 2008 hearing for a motion that
sought the dismissal of a putative shareholder class-action
lawsuit filed against MedQuist, Inc.
The action, entitled "Alan R. Kahn v. Stephen H. Rusckowski, et
al., Docket No. BUR-C-000007-08," was filed on Jan. 22, 2008,
against the company and its four non-independent directors,
Clement Revetti, Jr.; Stephen H. Rusckowski; Gregory M. Sebasky;
and Scott Weisenhoff. The plaintiff purports to bring the
action on his own behalf and on behalf of all current holders of
the company's common stock.
The suit alleges that the defendants breached their fiduciary
duties of good faith, fair dealing, loyalty, and due care by
purportedly agreeing to and initiating a process for the
company's sale or a change of control transaction which will
allegedly cause harm to plaintiff and the putative class.
The plaintiff seeks damages in an unspecified amount, plus costs
and interest, a judgment declaring that defendants breached
their fiduciary duties and that any proposed transactions
regarding the company's sale or change of control are void, an
injunction preventing the company's sale or any change of
control transaction that is not entirely fair to the class, an
order directing the company to appoint three independent
directors to its board of directors, and attorneys' fees and
expenses.
On June 12, 2008, the plaintiff filed an amended class-action
complaint, naming as defendants the company, eight of the
company's current and former directors, and Philips Group of
Companies in the Superior Court of New Jersey, Chancery
Division.
In the amended complaint, the plaintiff alleges that the
company's current and former directors breached their fiduciary
duties of good faith, fair dealing, loyalty, and due care by not
permitting our public shareholders the opportunity to decide
whether they wanted to participate in a share purchase offer
with non-party CBaySystems Holdings that would have allowed the
public shareholders to sell their shares of our common stock for
an amount above market price.
The plaintiff further alleges that CBaySystems Holdings also
made the share purchase offer to our majority shareholder,
Philips, and that Philips breached its fiduciary duties by
accepting CBaySystems Holdings' offer. Based on these
allegations, plaintiff seeks declaratory, injunctive, and
monetary relief from all defendants.
On July 14, 2008, the company moved to dismiss the plaintiff's
amended class-action complaint, arguing:
-- that plaintiff's amended class action complaint did
not allege that the company engaged in any wrongdoing
which supported a breach of fiduciary duty claim and
-- that a breach of fiduciary duty claim is not legally
cognizable against a corporation.
The plaintiff filed an opposition to the company's motion to
dismiss on July 21, 2008. The court will hold oral argument on
the company's motion some time in October 2008, according to the
company's Aug. 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
Medquist Inc. -- http://www.medquist.com/-- is a provider of
medical transcription technology and services. The company
services health systems, hospitals and large group medical
practices throughout the U.S. In the clinical documentation
workflow, the company provide, in addition to medical
transcription technology and services, digital dictation, speech
recognition, electronic signature and medical coding technology
and services. The company is a member of the Philips Group of
Companies and collaborate with Philips Medical Systems in
marketing and product development. The Company performs a
substantial majority of the medical transcription services
utilizing the DocQment Enterprise Platform (DEP), the company's
Web-based dictation and medical transcription management system.
MEDQUIST INC: Tentative Settlement Reached in "Myers" Lawsuit
-------------------------------------------------------------
A tentative settlement was reached in a consolidated lawsuit
captioned "Myers et al. v. MedQuist, Inc., et al. Case No. 1:05-
cv-04608-JBS-AMD," which was filed in the U.S. District Court
for the District of New Jersey, according to the company's
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
Myers Putative Class Action
A putative class action lawsuit, entitled "Myers, et al. v.
MedQuist Inc. and MedQuist Transcriptions, Ltd., Case No. 05-cv-
4608 (JBS)," was filed against the company on Sept. 22, 2005, in
the U.S. District Court for the District of New Jersey.
The suit was brought on behalf of a putative class of the
company's employee and independent contractor transcriptionists
who claim that they contracted with the company to be paid on a
65 character line, but were allegedly underpaid due to
intentional miscounting of the number of characters and lines
transcribed.
The named plaintiffs asserted claims for breach of contract,
unjust enrichment, and request an accounting.
Hoffmann Putative Class Action
A putative class action complaint was filed on Nov. 29, 2004, in
the U.S. District Court for the Northern District of Georgia
against the company and certain current and former officials.
The suit is entitled "Brigitte Hoffmann, et al. v. MedQuist,
Inc., et al., Case No. 1:04-CV-3452."
The Hoffman Suit was purportedly brought on behalf of an alleged
class of current and former employees and statutory workers, who
are or were compensated on a "per line" basis for medical
transcription services from Jan. 1, 1998, to the time of the
filing of the complaint. It specifically alleged that the
defendants systematically and wrongfully underpaid the class
members during the class period.
The complaint asserted the following causes of action: fraud,
breach of contract, demand for accounting, quantum meruit,
unjust enrichment, conversion, negligence, negligent
supervision, and violations of the Racketeer Influenced and
Corrupt Organizations Act.
The plaintiffs sought unspecified compensatory damages, punitive
damages, disgorgement and restitution.
On Dec. 1, 2005, the Hoffmann Suit was transferred to the U.S.
District Court for the District of New Jersey. On Jan. 12,
2006, the Court ordered the case consolidated with the Myers
Action.
Force Putative Class Action
A putative class action complaint, entitled "Force v. MedQuist
Inc. and MedQuist Transcriptions, Ltd., Case No. 05-cv-2608-
WSD," was filed against the company on Oct. 11, 2005, in the
U.S. District Court for the Northern District of Georgia.
The action was brought on behalf of a putative class of current
and former employees who claim they are or were compensated on a
"per line" basis for medical transcription services but were
allegedly underpaid due to the actions of defendants.
The named plaintiff asserted claims for breach of contract,
quantum meruit, unjust enrichment, and for a erroneous
accounting.
Upon stipulation and consent of the parties, on Feb. 17, 2006,
the Force Suit was transferred to the U.S. District Court for
the District of New Jersey.
Subsequently, on April 4, 2006, the parties entered into a
stipulation and consent order wherein the Force Suit was also
consolidated with the Myers Action. The consolidated amended
complaint filed in the Myers Action on Jan. 31, 2006, was deemed
to supersede the original complaint filed in the Force Suit.
Consolidation & Case Developments
The allegations contained in the Myers case are substantially
similar to those contained in the Hoffmann and Force Suits and
the three cases have now been consolidated.
A consolidated amended complaint was filed on Jan. 31, 2006,
wherein the plaintiffs assert claims for breach of contract,
breach of the covenant of good faith and fair dealing, unjust
enrichment and demand an accounting.
On March 7, 2006, the company filed a motion to dismiss all
claims in the consolidated amended complaint. The dismissal
motion was later denied by the court.
On Jan. 19, 2007, the company filed an answer denying the mutual
allegations pleaded in the consolidated amended complaint.
The court then issued an order scheduling all pretrial fact
discovery to be completed by Jan. 14, 2008. The court also
subsequently ordered the plaintiffs to file their motion for
class certification by Dec. 14, 2007.
On Oct. 18, 2007, the court heard oral argument on the
plaintiffs' motion to compel further responses to written
discovery regarding the company's billing practices. At the
conclusion of that hearing, the court denied the plaintiffs'
request, finding they had not established that the billing
discovery sought was relevant to the claims or defenses
regarding transcriptionist pay alleged in their case.
In December 2007, the plaintiffs filed their motion for class
certification, identifying a proposed class of all of the
company's transcriptionists who were compensated on a per line
basis for work completed on MedRite, MTS or DEP transcription
platforms from Nov. 29, 1998, to the present and alleging that
the proposed class was underpaid by more than $80 million, not
including interest.
The parties have already completed depositions of identified
witnesses. Specifically, the company has deposed each of the
named plaintiffs and all witnesses who offered declarations in
support of the plaintiffs' motion for class certification, and
the plaintiffs have deposed numerous present and former MedQuist
employees.
The parties also exchanged their initial disclosures. The
plaintiffs' disclosures limited their damages estimate to $41
million, related to alleged underpayment on the MedRite
transcription platform; however, they stated that they were
continuing to analyze potential undercounting and would
supplement their damages claim.
In March 2008, the plaintiffs moved for leave to file an amended
motion for class certification, dropping all allegations
involving the company's DEP transcription platform and narrowing
the claims asserted regarding the legacy MTS transcription
platform. The company did not oppose the plaintiffs' motion for
leave, which was subsequently granted by the court.
On April 4, 2008, the company filed its opposition to the
plaintiffs' amended motion for class certification.
On or about April 21, 2008, the parties reached a tentative
settlement of all claims in exchange for payment by MedQuist of
$1.5 million plus certain injunctive relief.
The suit is "Myers et al. v. MedQuist, Inc., et al. Case No.
1:05-cv-04608-JBS-AMD," filed in the U.S. District Court for the
District of New Jersey, Judge Jerome B. Simandle, presiding.
Representing the plaintiffs are:
Laura A. Feldman, Esq. (lfeldman@feldmanpinto.com)
Feldman & Pinto
1604 Locust Street, 2R
Philadelphia, PA 19103
Phone: 215-546-2604
Fax: 215-546-9904
- and -
Donna Siegel Moffa, Esq. (donna@trrlaw.com)
Trujillo Rodriguez & Richards, LLC
8 Kings Highway West
Haddonfield, NJ 08033
Phone: 856-795-9002
Representing the defendant is:
Marc J. Gross (mgross@greenbaumlaw.com)
Greenbaum, Rowe, Smith & Davis, LLP
75 Livingston Avenue, Suite 301
Roseland, NJ 07068-3701
Phone: 973-535-1600
Fax: 973-577-1785
NEW YORK CITY: Settles Lawsuit Over Homeless Families
-----------------------------------------------------
The administration of Mayor Michael Bloomberg has decided to
settle a longstanding class-action lawsuit over homeless
families' access to shelter in New York City, the New York Times
reports.
According to NY Times, the settlement ends a costly litigation
that has dragged on since May 1983, through four mayoral
administrations. The deal, which Mayor Bloomberg announced at a
news conference this morning, comes as city officials
acknowledge that the mayor's plan to reduce homelessness by two-
thirds by 2009 has fallen far short of its goals.
The report relates that while the number of homeless single
adults has fallen a bit, the number of homeless families has
risen. There are about 9,000 homeless families, including about
14,000 children, sleeping in city shelters every night this
month. Moreover, NYC's spending on homelessness prevention has
risen, to $191.2 million in 2007 from $160.6 million in 2004,
and spending on homeless shelters has grown to $603.5 million
from $563.4 million, the city's Independent Budget Office found
in a study in August.
The lawsuit, "McCain v. Koch," was filed in 1983 by the Legal
Aid Society to draw attention to the plight of homeless
families, after similar lawsuits had been filed over the rights
of homeless men and women. Those lawsuits had resulted in the
establishment, unusual in the United States, of a right to
shelter in New York City, the report points out.
The suit was filed by Yvonne McCain, who was evicted from a
Brooklyn apartment in 1982 after withholding rent to protest her
landlord's refusal to make repairs. The McCain suit argued that
the city had failed to provide adequate shelter or develop
standards governing shelter for families.
NY Times notes that over the years, related lawsuits were filed,
arguing that homeless families were improperly denied shelter or
even barred from applying for it. These additional lawsuits,
too, are part of the recent settlement.
The report also recounts that a court-appointed panel of special
masters had urged an end to the McCain litigation nearly three
years ago. However, the case was revived in 2005 after a two-
year hiatus. The city moved in 2006 to dismiss the lawsuit,
saying it had taken major steps to transform the system, but the
case dragged. The recently announced settlement occurred after
talks between the city's top lawyer, Corporation Counsel Michael
A. Cardozo, Esq., and Steven M. Banks, Esq., attorney in chief
at the Legal Aid Society.
Under the settlement, the parties agreed a new case would be
filed and, following a class action settlement hearing, all
cases against the city and state, as well as the new one, would
be thrown out. The city will regain full control and oversight
of its family services system, "no longer having to enforce over
40 highly-detailed court orders or spend precious staff time and
agency resources complying with or litigating these cases," City
Hall said in a statement.
The statement also added that as part of the settlement, the
parties have agreed that New York City would continue its long-
standing interpretation of state and local laws ensuring safe
and decent emergency shelter for homeless families with
children. The settlement also includes provisions that outline
current agency standards and protocols for assessing shelter
eligibility; under the terms of the agreement, these provisions
sunset on Dec. 31, 2010, unless the agency were to be found in
"systemic non-compliance" with its provisions in a separate
successful litigation.
PLAZA PATRIA: Settles Housing Discrimination Suit for $618,000
--------------------------------------------------------------
The owners and managers of an apartment complex in Stanton that
fined families $50 and threatened to evict them if their
children played outside agreed to pay $618,000 to settle a
housing discrimination lawsuit, Tony Barboza writes for the Los
Angeles Times.
The report says that in the class-action suit, nine families
alleged that Plaza Patria Court Ltd., the owner of the Plaza
Court Apartments, targeted families by fining them if their
children were outside unsupervised, playing on the grass or
taking out the trash. Also named in the suit were JDC
Management Co. and former on-site manager Catherine Gomez.
LA Times relates that Plaza Patria Court has received loans from
the Stanton Redevelopment Agency as part of a plan to
rehabilitate the complex. Families at the 104-unit low-income
building said they paid managers hundreds of dollars in fines
and late fees even though those payments were not allowed under
their leases.
The suit had said that a memo Ms. Gomez sent to tenants in 2001
read, "Children are not allowed to be outside alone, ever. If I
find out or I see them outside you will receive 1 warning, then
you will be asked to leave."
According to the report, after residents complained in 2002, the
non-profit Fair Housing Council of Orange County launched a two-
year investigation. The state Department of Fair Employment and
Housing filed suit in 2005. Connie Der Torossian, the Fair
Housing Council's marketing director, said it was important to
change the apartment manager's policies because they were
displacing many families with children.
"They didn't even want to go outside because they were in fear
that they would end up losing their housing if they weren't able
to pay the fines," Ms. Torossian said. "Affordable housing is a
difficult thing to find, so the on-site manager really had them
between a rock and a hard place."
The report notes that the defendants admitted no wrongdoing, but
under the deal, they agreed to change their rules and policies
to comply with fair housing laws, provide informational
pamphlets and offer employee training about fair housing.
LA Times points out that the settlement is one of the county's
largest payouts for a housing discrimination case involving
families with children.
SEMGROUP: Lead Plaintiff Application Deadline is Today, Sept. 19
----------------------------------------------------------------
On July 21, 2008, Federman & Sherwood filed a securities class
action lawsuit in the United States District Court for the
Southern District of New York against SemGroup Energy Partners,
L.P.
Federman & Sherwood reminds current and former shareholders of
SemGroup Energy that they only have until today, September 19,
2008, to move for appointment as a lead plaintiff in this case.
The Complaint alleges violations of Section 10(b) and Section
20(a) of the Securities Exchange Act, and Rule 10b-5 promulgated
thereunder.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com/
TRIBUNE COMPANY: Reacts to Reporters' Reckless Takeover Lawsuit
---------------------------------------------------------------
Tribune Company issued the following statement from Chairman and
Chief Executive Officer Sam Zell, reacting to a lawsuit accusing
him of recklessness in the takeover and management of the
newspaper's parent:
"The lawsuit filed [yesterday] is filled with frivolous and
unfounded allegations, and I hope every partner in this company
is as outraged as I am at having to spend the time and money
required to defend ourselves against it. The media industry is
in crisis, the advertising environment is extremely difficult
and the economy is in turmoil. The overwhelming majority of our
employees have taken up the challenge -- they are working hard,
leading by example, and devoting themselves to re-inventing our
businesses by developing new and innovative products for our
readers, viewers and advertisers. As a company we are attacking
our problems and revolutionizing the media industry.
"This lawsuit is a mere distraction, and we will work quickly to
see that it is dismissed. It will not deter us from completing
the work ahead."
The complaint was filed in Federal District Court in Los Angeles
and seeks class-action status to represent employees across the
company (Class Action Reporter, Sept. 18, 2008).
According to the CAR report, citing the New York Times, Mr.
Zell, the chairman and chief executive officer of Tribune, took
control of the company in December 2007 in an $8.2-billion deal
that took it private but tripled its debt at a time of falling
revenue. Since then, the company has eliminated more than 1,000
jobs, and sold assets to raise capital and meet debt payments.
CAR also related that the Tribune's credit has also been
downgraded.
CAR said that the plaintiffs include some of the best-known L.A.
Times writers of the last generation, including Pulitzer Prize-
winning automotive writer Dan Neil; former Washington bureau
chief, Jack Nelson; and longtime legal affairs reporter Henry
Weinstein.
Aside from Mr. Zell, the suit also named as defendants the
company as well as current and former members of its board. It
accused the former management of profiting from a deal that it
knew would cripple the company.
The report also notes that the unusual takeover turned Tribune's
stock over to an employee stock ownership plan, or ESOP, so the
employees technically became the owners. But those employees
were given no say on the deal, no seats on the board and no
ability to sell shares for years to come.
The complaint adds that Mr. Zell and his aides have compounded
that breach in the way they have run the company, and by using
money from the employees' pension fund to pay for buyouts and
severance. The complaint seeks unspecific monetary damages and
the removal of Mr. Zell and other board members.
The suit further claims that contrary to public statements, Mr.
Zell planned all along to sell Tribune assets and has acted
without regard to the long-term health of the company or the
interests of its owners, the employees.
Several analysts have said the price paid for Tribune was too
high, and it left the company too heavily leveraged, the NY
Times report said.
TRIBUNE is America's largest employee-owned media company,
operating businesses in publishing, interactive and
broadcasting. In publishing, Tribune's leading daily newspapers
include the Los Angeles Times, Chicago Tribune, The Baltimore
Sun, Sun Sentinel (South Florida), Orlando Sentinel, Hartford
Courant, Morning Call and Daily Press. The company's
broadcasting group operates 23 television stations, WGN America
on national cable, Chicago's WGN-AM and the Chicago Cubs
baseball team. Popular news and information websites complement
Tribune's print and broadcast properties and extend the
company's nationwide audience. At Tribune we take what we do
seriously and with a great deal of pride. We also value the
creative spirit and are nurturing a corporate culture that
doesn't take itself too seriously.
UNDERWRITERS: Sued for Fraud Related to Fannie Mae Offering
-----------------------------------------------------------
Pomerantz Haudek Block Grossman & Gross LLP filed a class action
lawsuit in the United States District Court, Southern District
of New York, against these underwriters:
-- Merrill Lynch, Pierce, Fenner & Smith Incorporated;
-- Citigroup Global Markets, Inc.;
-- Morgan Stanley & Co. Incorporated;
-- UBS Securities LLC; and
-- Wachovia Capital Markets LLC.
Four senior executives were also named as defendants.
The complaint alleges violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. The class action was filed on behalf of purchasers
of the Federal National Mortgage Association a/k/a Fannie Mae's
$2 billion offering of 8.25% Non-Cumulative Preferred Stock,
Series T that were initially offered to the public on or about
May 13, 2008, through September 6, 2008. The class includes
investors who purchased shares on the offering or afterwards, in
the market. The Preferred Shares traded on the New York Stock
Exchange.
The Offering involved the sale of approximately 80 million
shares of non-cumulative, non-convertible, perpetual fixed-rate
preferred stock, at an offering price of $25 per share. It was
part of Fannie Mae's effort to raise at least $6 billion in new
capital through public offerings of new securities during May,
2008. The new capital was to help shore up the Company's
balance sheet so that capital requirements could continue to be
satisfied, enhance shareholder value and provide stability to
the secondary mortgage market. Fannie Mae's senior officers,
defendants here, repeatedly assured the marketplace that this
round of capital-raising would put the company on a sound
financial footing and that they believed that additional
infusions of cash would not be necessary for the foreseeable
future.
The five Underwriter Defendants were the managing underwriters
for the Offering. As such, they participated in the review and
drafting of the Offering Circular, which was the official sales
document for the Offering, solicited sales of the shares, and
identified themselves, on the cover of the Offering Circular, as
the underwriters for the Offering. The Underwriter Defendants
purchased 14 million shares each of the Offering, delivered the
Offering Circular to prospective investors, and resold those
shares to investors in the Offering.
The complaint alleges that the Underwriter Defendants'
statements made in connection with the Offering were materially
false and misleading because:
(a) they grossly overstated Fannie Mae's capitalization,
claiming that the Company had a substantial capital
surplus when, in fact, it was including on its balance
sheet, at full value, about $36 billion in deferred tax
assets that were, in fact, valueless;
(b) they failed to disclose the serious risk that current
account changes under consideration by the FASB could
force the Company to bring over $2 trillion of
currently off-balance-sheet obligations onto its
financial statements, depleting its capital surplus
even further; and
(c) the individual defendants falsely asserted that
management believed that the current securities
offerings of the company would be adequate to see the
Company through the end of the year.
Interested parties may move the court no later than November 7,
2008, for lead plaintiff appointment.
For more information, contact:
Teresa Webb, Esq. (tlwebb@pomlaw.com)
Pomerantz Haudek Block Grossman & Gross LLP
100 Park Avenue
New York, NY 10017-5516
Phone: 888-476-6529
888-4-POMLAW
WALGREEN CO: Hit With Another Wal-born Product-Related Lawsuit
--------------------------------------------------------------
A class action lawsuit filed in St. Clair County on Sept. 2,
2008, alleges that Walgreen Co. engaged in unfair and deceptive
practices designed to mislead the public in marketing its "Wal-
born" products, Kelly Holleran writes for St. Clair Record.
According to the report, class plaintiff Ryan Presson of Madison
County alleges that Walgreen misled the public into believing
its Wal-born products cure or prevent colds and other illnesses
and boost the immune system.
Mr. Presson and the putative class are represented by Paul M.
Weiss, Esq., and Geroge K. Lang, Esq., of Freed & Weiss in
Chicago, Kevin T. Hoerner, Esq., and Brian T. Kreisler, Esq., of
Becker, Paulson, Hoerner & Thompson in Belleville, and Richard
J. Burke, Esq., of St. Louis.
"Walgreen's Wal-born product is designed to piggyback on the
increasing popularity and recognition of 'health care products'
and in particular -- Airborne," the suit states. "Walgreen
purposefully shelves Wal-born next to or nearby Airborne in
Walgreen's stores."
In his suit, Mr. Presson alleges the product falsely claims that
it protects users from airborne viruses, is a form of immune
system defense and decreases a person's likelihood of getting
sick. He also claims Walgreen's "unfair, unjust and deceptive
practice" has caused him and the class to incur substantial
damages.
"Walgreen has no scientific or otherwise legitimate basis for
making any of its health efficacy claims, and such claims are
thus unfair, unjust and deceptive," the complaint states.
Because Wal-born did not perform as intended, Walgreen is in
violation of the Consumer Fraud Act, the suit adds.
Mr. Presson is asking that the case be certified as a class
action, that Walgreen's actions and practices be judged as
fraudulent and that the court award him and the class damages,
attorney's fees and costs of the suit.
According to St. Clair Record, a similar class action suit was
filed in Madison County on Aug. 14.
As reported in the Class Action Reporter on Aug. 21, 2008, the
earlier complaint was filed by Francis Talley before the Circuit
Court of Madison County, State of Illinois. This suit was also
brought to redress Walgreen's numerous unfair and deceptive acts
and practices designed to mislead the public into believing that
its Wal-Born products cure or prevent colds and other illnesses
and boost the immune system when, in fact, they do not.
New Securities Fraud Cases
BANKUNITED FINANCIAL: Izard Nobel Files Florida Securities Suit
---------------------------------------------------------------
The law firm of Izard Nobel LLP, which has significant
experience representing investors in prosecuting claims of
securities fraud, commenced a lawsuit seeking class action
status in the United States District Court for the Southern
District of Florida on behalf of those who purchased the common
stock of BankUnited Financial Corporation between April 18,
2006, and June 18, 2008.
The Complaint charges that BankUnited and certain of its
officers and directors violated federal securities laws by
issuing materially false statements. Specifically, the
Complaint alleges that defendants misrepresented the following:
(i) the losses the Company was likely to suffer due to
BankUnited's poor underwriting standards, which would
occur once interest rates reset on the billions of
dollars of pay-option arms (adjustable rate mortgages
where borrowers had the ability to choose their payment
amount during the initial period of the loan);
(ii) BankUnited's appraisal process, which permitted
borrowers to obtain mortgages in excess of their
ability to pay and in excess of the value of the
underlying property; and
(iii) BankUnited's policies with regard to "piggy-back"
loans, which are essentially second mortgages made at
the time a home is purchased to fund a down payment.
Interested parties may move the court no later than November 17,
2008, for lead plaintiff appointment.
For more information, contact:
Wayne T. Boulton, Esq.
Nancy A. Kulesa, Esq.
Izard Nobel LLP
20 Church Street, Suite 1700
Hartford, CT 0610
Phone: 800-797-5499
e-mail: firm@izardnobel.com
Web site: http://www.izardnobel.com/
FIRST TRUST: Shuman Law Firm Files Ill. Securities Fraud Lawsuit
----------------------------------------------------------------
The Shuman Law Firm commenced a lawsuit seeking class action
status in the U.S. District Court for the Northern District of
Illinois on behalf of all those who purchased shares of certain
mutual funds offered by First Trust Portfolios L.P., including
shares of the:
-- First Trust Strategic High Income Fund (FHI Fund),
-- First Trust Strategic High Income Fund II (FHY Fund), and
-- First Trust Strategic High Income Fund III (FHO Fund)
between July 26, 2005, and July 7, 2008, inclusive, and on
behalf of all persons or entities who purchased or otherwise
acquired shares of the Funds issued in connection with the
Funds' initial public offerings.
The complaint alleges that during the Class Period, the Funds
and the Funds' registrants, the Funds' adviser, First Trust
Advisors L.P., the Funds' sub-advisers, and certain of the
Funds' officers and directors violated the Securities Exchange
Act of 1934 and the Securities Act of 1933 by issuing materially
false and misleading statements regarding the Funds' portfolios
and financial results. As a result of defendants' false
statements, the Funds' shares traded at artificially inflated
prices during the Class Period.
Interested parties may move the court no later than November 11,
2008, for lead plaintiff appointment.
For more information, contact:
Kip B. Shuman, Esq. (kip@shumanlawfirm.com)
Rusty E. Glenn, Esq. (rusty@shumanlawfirm.com)
The Shuman Law Firm
885 Arapahoe Avenue
Boulder, CO 80203
Phone: 866-974-8626
Fax: 303-484-4886
Web site: http://www.shumanlawfirm.com/
HANSEN NATURAL: Scott+Scott Files Calif. Securities Fraud Suit
--------------------------------------------------------------
On September 17, 2008, Scott+Scott LLP filed a class action
lawsuit against Hansen Natural Corporation and certain officers
and directors in the U.S. District Court for the Central
District of California.
The action is on behalf of those purchasing Hansen Natural
common stock during the period beginning May 23, 2007, and
through November 23, 2007, inclusive, for violations of the
Securities Exchange Act of 1934.
The complaint alleges that defendants made false and misleading
statements and material omissions regarding the Company's
business operations and that, as a result, the price of the
Company's shares was inflated during the Class Period, thereby
harming investors.
Interested parties may move the court no later than November 10,
2008, for lead plaintiff appointment.
For more information, contact:
Scott+Scott, LLP
29 West 57th Street
New York, NY 10019
Phone: 800-404-7770
860-537-5537
e-mail: scottlaw@scott-scott.com
HARRIS STRATEX: Howard Smith Files Securities Fraud Suit in Del.
----------------------------------------------------------------
The Law Offices of Howard G. Smith filed a securities class
action lawsuit on behalf of all purchasers of the securities of
Harris Stratex Networks, Inc. (Nasdaq: HSTX) between January 29,
2007, and July 30, 2008, inclusive, including shareholders of
Stratex Networks Inc. who exchanged shares of Stratex Networks
for shares of Harris Stratex pursuant to the Company's
registration statement/prospectus that became effective on
January 8, 2007.
The class action lawsuit was filed in the United States District
Court for the District of Delaware.
The Complaint alleges that the defendants violated federal
securities laws by issuing material misrepresentations to the
market concerning Harris Stratex's business and financial
performance, thereby artificially inflating the price of Harris
Stratex securities.
Interested parties may move the court no later than November 14,
2008, for lead plaintiff appointment.
For more information, contact:
Howard G. Smith, Esq. (howardsmithlaw@hotmail.com)
Law Offices of Howard G. Smith
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Phone: 215-638-4847
Toll-Free: 888-638-4847
Web site: http://www.howardsmithlaw.com/
MEMC ELECTRONIC: Federman & Sherwood Files Securities Fraud Suit
----------------------------------------------------------------
On September 16, 2008, a class action lawsuit was filed in the
United States District Court for the Eastern District of
Missouri against MEMC Electronic Materials, Inc.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is from June 13, 2008, through July 23, 2008.
Plaintiff seeks to recover damages on behalf of the Class.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com/
NEXTWAVE WIRELESS: Federman & Sherwood Files Securities Lawsuit
---------------------------------------------------------------
On September 16, 2008, a class action lawsuit was filed in the
United States District Court for the Southern District of
California against NextWave Wireless Inc.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is from March 30, 2007, through August 7, 2008.
Plaintiff seeks to recover damages on behalf of the Class.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com/
QUEST RESOURCE: Glancy Binkow Files Okla. Securities Fraud Suit
---------------------------------------------------------------
Glancy Binkow & Goldberg LLP has filed a Class Action lawsuit in
the United States District Court for the Western District of
Oklahoma on behalf of a class consisting of all persons who
purchased the common units of Quest Energy Partners L.P.
pursuant and traceable to the Company's Registration Statement
and Prospectus issued in connection with the Company's Initial
Public Offering on November 7, 2007, through August 25, 2008,
and on behalf all persons who purchased the securities of Quest
Resource Corporation (Nasdaq:QRCP) between May 2, 2005, through
August 25, 2008.
The Complaint charges Quest Energy and its parent company, Quest
Resource, among others, with violations of federal securities
laws.
Quest Resource is engaged in the exploration, development,
production and transportation of natural gas. Quest Energy is
the gas and oil production operation arm of Quest Resource and
engages in the acquisition, exploitation and development of oil
and natural gas properties.
The Complaint alleges that throughout the Class Period
defendants knew or recklessly disregarded that their public
statements concerning Quest Resource and Quest Energy's business
and operations were materially false and misleading.
Specifically, the Complaint alleges that defendants failed to
disclose that the related party transactions, which existed at
the time of Quest Energy's IPO, between Quest Energy and
Rockport Energy -- an entity controlled by Quest Energy's chief
executive officer -- in violation of Generally Accepted
Accounting Principles and SEC regulations. These failures by
defendants caused Quest Resource's disclosures on related party
transactions to be materially incomplete and false.
On August 25, 2008, the Company announced, among other things,
the resignation of its CEO, Jerry Cash, the formation of a Joint
Special Committee to conduct an investigation of improper
transfers of Company funds by Cash to Rockport Energy, and an
inquiry launched by the Oklahoma Department of Securities in
connection with the improper transfers.
This announcement shocked the market and caused the Company's
stock to fall $2.05 per share, or nearly 30%, to $4.88 per share
on August 25, 2008.
The plaintiff seeks to recover damages on behalf of Class
members.
Interested parties may move the court no later than November 4,
2008, for lead plaintiff appointment.
For more information, contact:
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Phone: 310-201-9150
888-773-9224
e-mail: info@glancylaw.com
Web site: http://www.glancylaw.com/
REDDY ICE: Bronstein Gewirtz Files Securities Suit in Michigan
--------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, filed a class action lawsuit
in the United States District Court for the Eastern District of
Michigan against Reddy Ice Holdings, Inc. (NYSE: FRZ - News) and
various individuals on behalf of purchasers of Reddy Ice who
purchased common stock between August 10, 2005, and August 6,
2008.
According to the complaint, the true facts, which were known by
the defendants but concealed from the investing public during
the Class Period, were as follows:
(1) that the Company had engaged, and continued to engage,
in illicit business practices with its competitors in
the packaged ice industry;
(2) that the company had joined with its competitors in the
packaged ice industry in colluding and agreeing to
allocate territories and customers in the United
States' packaged ice market;
(3) that the Company had agreed with competitors in the
industry to fix, raise, maintain and stabilize prices
for packaged ice in the United States market;
(4) that the Company's revenues had been significantly
increased through the use of such illicit business
practices;
(5) that, as a result, the Company's financial statements
were false and misleading at all relevant times;
(6) that such illicit business practices, when they were
revealed, would initiate an investigation by the
federal authorities into the Company's business
practices;
(7) that the Company lacked adequate internal and financial
controls; and
(8) that, as a result of the foregoing, the Company's
statements about its financial well- being and future
business prospects were lacking in any reasonable
basis.
Interested parties may move the court no later than October 7,
2008, for lead plaintiff appointment.
For more information, contact:
Bronstein, Gewirtz & Grossman, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Phone: 212-697-6484
Fax: 212-697-7296
SIGNALIFE INC: Scott+Scott Files Securities Fraud Suit in S.C.
--------------------------------------------------------------
On September 17, 2008, Scott+Scott LLP filed a class action
complaint against Signalife, Inc., and certain officers and
directors in the U.S. District Court for the District of South
Carolina.
The action is brought on behalf of those purchasing Signalife
common stock during the period beginning January 29, 2004,
through April 14, 2008, inclusive, for violations of the
Securities Exchange Act of 1934.
The complaint against Signalife alleges that during the Class
Period the defendants made materially false and misleading
statements concerning, among other things, the Company's model
100 ECG heart monitoring device, which the Company described as
"revolutionary."
Throughout the Class Period, Signalife touted its heart
monitoring product as a marketable and viable product that would
be rolled out nationwide through the Company's purported
marketing partnership with Rubbermaid Medical Solutions (RMS)
that would include the formation of a national sales force to
market Signalife's model 100 heart monitor. Additionally,
during the Class Period, defendants disclosed the receipt of
purchase orders for the model 100 heart monitor and told
investors that "we anticipate that the orders should be fully
filled by the end of the first quarter of fiscal 2008." As a
result of these statements, defendants artificially inflated the
Company's stock price throughout the Class Period.
However, as the complaint alleges, it became clear at the end of
the Class Period that, among other things, defendants had misled
investors by failing to disclose that Signalife had insufficient
resources and means to market the model 100 heart monitor and
that RMS was not marketing Signalife's heart monitoring product
and had no plans to market Signalife's product because it was
"not commercially ready for sale."
Moreover, Signalife revealed that the Company was unable to fill
its product orders and the Company had not made a single sale of
its highly-touted heart monitor during the entire first quarter
of 2008. Consequently, the Company's stock price plummeted.
Interested parties may move the court no later than October 28,
2008, for lead plaintiff appointment.
For more information, contact:
Scott+Scott, LLP
29 West 57th Street
New York, NY 10019
Phone: 800-404-7770
860-537-5537
e-mail: scottlaw@scott-scott.com
Asbestos Alerts
ASBESTOS LITIGATION: Fields Case Filed v. 63 Firms in Ill. Court
----------------------------------------------------------------
Wayne E. Fields asbestos case on behalf of his father, Lawson H.
Fields, against 63 defendant corporations was filed on Sept. 8,
2008, in Madison County Circuit Court, Ill., The Madison St.
Clair Record reports.
Wayne Fields claims mesothelioma, with which his father was
diagnosed on Jan. 18, 2007, was wrongfully caused. Lawson Fields
died on July 29, 2007.
According to the suit, Wayne Fields says his father worked from
1944 until 1997 as an auto and aircraft mechanic at various
locations throughout Illinois, Kansas and Oklahoma.
Wayne Fields states Mr. Lawson's exposure was foreseeable and
should have been anticipated by the defendants, according to the
lawsuit. He claims his father's disease was caused after he was
exposed to and inhaled, ingested or otherwise absorbed asbestos
fibers.
Wayne Fields alleges the asbestos-related disease caused great
medical costs. Lawson Fields experienced great physical pain and
suffering and emotional distress before his death, Wayne Fields
claims in the lawsuit.
The disease caused Lawson Fields a shorter and less enjoyable
life, Wayne Fields claims. According to the suit, mesothelioma
hindered and prevented Lawson Fields from pursuing his normal
course of employment.
Wayne Fields' family has been deprived of Lawson Fields' support
and his society and incurred funeral and burial costs, according
to the complaint.
In the seven-count lawsuit, Wayne Fields seeks sums in excess of
US$525,000 and unspecified economic damages. He has demanded a
jury trial.
Wayne Fields is represented by Andrew O'Brien, Esq., Christopher
Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J.
Baumstark, Esq., and Gerald J. Fitzgerald, Esq., of O'Brien Law
Firm in St. Louis.
ASBESTOS LITIGATION: Hazard Discovered in Gilbert Bain Hospital
---------------------------------------------------------------
NHS Shetland has sealed off part of Gilbert Bain Hospital, in
Lerwick, Shetland Islands, Scotland, after workmen found
asbestos, The Shetland News reports.
NHS closed some parts of the hospital despite a 2007 survey
saying the building was asbestos free.
Surgical ward patients will have to be moved to a neighboring
ward when specialists are called in to remove the toxic
substance from the service cupboard where it was found.
On Sept. 11, 2008, public health director Sarah Taylor reassured
local people that there was no risk to health and promised to
minimize disruption when the panel is removed in a few weeks.
The health board has asked the company which carried out a "type
two" inspection in 2007 why they failed to detect the insulation
panel which contains asbestos, and has ordered a more detailed
repeat survey to make sure the substance is not lurking
elsewhere.
Dr. Taylor said that it would be much easier to move patients
upstairs to Ward Two in a few weeks, when current refurbishments
there are complete, than bring in specialists immediately to do
the job which is expected to only take a few days.
Dr. Taylor added that asbestos is very common in older buildings
throughout Shetland and elsewhere.
ASBESTOS LITIGATION: Hazard in Ind. Apartments Poses Health Risk
----------------------------------------------------------------
The Timber Ridge Apartments on Indianapolis' northeast side has
asbestos, which causes health risks to residents, TransWorldNews
reports.
The Timber Ridge apartment complex, in addition to its asbestos
problems, has a history of health code violations. Health
department records indicate more than 70 violations have been
filed in environmental court.
The 70 violations, however, do not include the most recent
violations stemming from an inspection in July 2008, when health
officials found vacant units full of trash, human waste, and
signs of criminal activity and damage done by animals.
After several months worth of complaints from residents about
health code violations, including the discovery of exposed
asbestos in at least five of the complex's buildings, a judge
ordered the owners of the complex to pay for asbestos abatement.
The owners initially complied and cleanup of the complex began
in August 2008. However, the owners, New Jersey-based company
W.K. Holdings, subsequently neglected to pay for the necessary
asbestos abatement, causing laborers to stop working at the
site.
Now, Marion County Health Department workers have been forced to
go door-to-door at the apartment buildings to let residents know
their homes are no longer safe. Almost 100 residents have been
told they must leave the apartment complex within 13 days.
Health department spokesperson John Althardt said of the
incident, "The Marion County Health Department is serious when
it says we're going to enforce our codes and it doesn't matter
whether you're in state or out of state, you are going to follow
our rules."
ASBESTOS LITIGATION: All Phase Tests Wastewater Plant for Hazard
----------------------------------------------------------------
All Phase Environmental Consultants will process samples from
the Pueblo, Colo., wastewater treatment plant to see if asbestos
is found in a scrap metal pit, KOAA reports.
On Sept. 10, 2008, 11 inmates, a sheriff's deputy, and three
volunteers were decontaminated after working near a substance
that could be asbestos.
The inmates were collecting scrap metal for the GAIA Institute,
as part of a labor program.
All Phase visited the wastewater plant on Sept. 11, 2008 to
collect samples.
ASBESTOS LITIGATION: J. C. Penney Still Cites $43Mil for Cleanup
----------------------------------------------------------------
J. C. Penney Company, Inc., as of Aug. 2, 2008, estimated its
total potential environmental liabilities to range from US$38
million to US$49 million and recorded management's best estimate
of US$43 million in other liabilities in the Consolidated
Balance Sheet as of Aug. 2, 2008.
This estimate covered potential liabilities related to
underground storage tanks, remediation of environmental
conditions involving the Company's former Eckerd drugstore
locations and asbestos removal in connection with approved plans
to renovate or dispose of Company facilities.
Management continues to assess required remediation and the
adequacy of environmental reserves as new information becomes
available and known conditions are further delineated.
The Company estimated to incur US$43 million, as of Feb. 2,
2008, for potential environmental liabilities, which was
recorded in other liabilities in the consolidated balance sheet.
(Class Action Reporter, April 25, 2008)
Headquartered in Plano, Tex., J. C. Penney Company, Inc. was
created in 2002 as a holding company for department store
operator J. C. Penney Corporation, its wholly owned subsidiary.
J. C. Penney Corporation is one of the largest department store,
catalog, and e-commerce retailers in the U.S. The retailer runs
more than 1,000 JCPenney department stores throughout the U.S.
and Puerto Rico.
ASBESTOS LITIGATION: American Locker Still Facing Injury Actions
----------------------------------------------------------------
American Locker Group Incorporated continues to face asbestos-
related injury actions, according to the Company's quarterly
report filed with the Securities and Exchange Commission on
Sept. 12, 2008.
Beginning in September 1998 and continuing through June 30,
2008, the Company has been named as an additional defendant in
165 asbestos cases pending in state court in Massachusetts.
The plaintiffs in each case assert that a division of the
Company manufactured and furnished components containing
asbestos to a shipyard during the period from 1948 to 1972 and
that injury resulted from exposure to such products. The assets
of this division were sold by the Company in 1973.
During the process of discovery in certain of these actions,
documents from sources outside the Company have been produced
which indicate that the Company appears to have been included in
the chain of title for certain wall panels which contained
asbestos and which were delivered to the Massachusetts
shipyards.
Defense of these cases has been assumed by the Company's
insurance carrier, subject to a reservation of rights.
Settlement agreements have been entered in 20 cases with funds
authorized and provided by the Company's insurance carrier.
Further, over 100 cases have been terminated as to the Company
without liability to the Company under Massachusetts procedural
rules.
Therefore, the balance of unresolved cases against the Company
as of May 9, 2008 was 45 cases.
Headquartered in Grapevine, Tex., American Locker Group
Incorporated sells and rents coin-, key-, and electronically
controlled lockers used by the recreation and transportation
industries, bookstores, and libraries. The Company also makes a
coin- and credit card-operated baggage cart system for use in
airports. Customers have included Walt Disney World, The UPS
Store, and the University of Colorado.
ASBESTOS LITIGATION: W. R. Grace Settles CSU Claims for $300,000
----------------------------------------------------------------
W. R. Grace & Co. asks the U.S. Bankruptcy Court to approve a
settlement they negotiated with the California State University,
which will resolve the university's asbestos-related property
damage claims against the Debtors.
The Debtors agree to pay US$300,000 in settlement of Claim Nos.
9888, 9925, 9928, 9970, 9988, 9993, 10018 to 10020, 10053,
10058, 10078, 10160, 10208, 10230, 10237, 10303, 10319, 10597,
10621, 11735, 11745, 11800, 11802, 11817, 11819, 11866, 11876,
11918, 11957, 11962, and 12616.
The Settlement Amount represents a liquidation and allowance of
the Claim for all purposes, including but not limited to the
allowance and valuation of those Claims for purposes of voting
on a plan of reorganization.
The Debtors denied, and continues to deny, all allegations of
liability, wrongdoing, or violations of law or breaches of duty
and has asserted and continues to assert that the Claims have no
substance in fact or law.
But to avoid further expense, inconvenience, and the distraction
of expensive, burdensome and protracted litigation over the
Claims' merit and value, the Debtors entered into the
settlement, James E. O'Neill, Esq., at Pachulski Stang Ziehl &
Jones, LLP, in Wilmington, Del., tells the Court.
(W.R. Grace Bankruptcy News, Issue No. 164; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Grace Urges Court to OK $290T Bayshore Deal
----------------------------------------------------------------
W. R. Grace & Co. asks the U.S. Bankruptcy Court to approve a
settlement they entered into with Bayshore Community Hospital to
resolve Bayshore's asbestos property damage claim.
Bayshore previously filed a claim asserting that the Debtors are
liable for property damage caused by the Debtors' manufacture
and sale of asbestos-containing products.
The Debtors denied Bayshore's assertions and negotiated a
settlement to avoid further expense and protracted litigation.
Under the Settlement, Bayshore's Claim is settled US$290,000.
The amount will be paid in cash and not later than 30 days after
the effective date of the Debtors' Chapter 11 Plan of
Reorganization.
A full-text copy of the Settlement Agreement is available for
free at http://bankrupt.com/misc/BayshoreSettlement.pdf
During the Sept. 2, 2008, omnibus hearing, the Debtors' counsel
informed Judge Fitzgerald that they would be seeking the Court's
approval of settlement agreements resolving the PD Claims
asserted by the University of California and Pacific Free Homes.
(W.R. Grace Bankruptcy News, Issue No. 164; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Grace Seeks Court OK on $172T Jameson Deal
---------------------------------------------------------------
W. R. Grace & Co. filed with the U.S. Bankruptcy Court an
amended motion seeking approval of the settlement they entered
into with Jameson Memorial Hospital, which settled the
hospital's asbestos property damage claim for US$172,500.
The amended motion includes additional signature of the Debtors'
counsel. The settlement retains its original terms.
(W.R. Grace Bankruptcy News, Issue No. 164; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Buckwalter Bars Anderson From Taking Appeal
----------------------------------------------------------------
Judge Ronald Buckwalter of the U.S. District Court for the
District of Delaware denied Anderson Memorial Hospital's motion
for leave to appeal from Judge Judith Fitzgerald's order denying
the hospital's class certification request.
Judge Buckwalter agreed with Judge Fitzgerald's ruling that
Anderson Memorial has not satisfied the numerosity requirement
under Rule 23(a) of the Federal Rules of Civil Procedure.
Anderson Memorial is class representative on behalf of a class
of building owners who asserted asbestos-related property damage
claims as a result of their use of asbestos-containing materials
manufactured by W. R. Grace & Co. Anderson Memorial has filed
about 3,000 PD claims against the Debtors.
Anderson Memorial argued that the decision to allow an appeal
from Judge Fitzgerald's order denying class certification should
be governed by Rule 23(f). The Debtors argued that Rule 23(f)
does not govern the District Court's review of bankruptcy court
decisions regarding class certification, and thus the usual
standard governing interlocutory appeals -- Section 1292(b) of
the Judiciary and Judicial Procedure Code -- should be applied.
Both the Debtors and Anderson Memorial pointed to In re the
Eleventh Circuit's decision in In re Chrysler Financial Corp. v.
Powe, 312 F.3d 1241 (11th Cir.2002), holding that Rule 23(f)
does not permit direct interlocutory review by a circuit court
of class certification orders entered by bankruptcy court
judges, to support their contentions.
Judge Buckwalter, however, found that Powe is inconclusive with
respect to the issue presented by Anderson Memorial, where the
appeal is sought from a bankruptcy court to the district court,
not the court of appeals.
Judge Buckwalter adds that the Third Circuit has yet to address
the applicability of Rule 23(f) in the context of bankruptcy
class certification decisions. He said, even applying the Rule
23(f) standard requested by Anderson, he found that the
circumstances do not justify granting Anderson's motion for
leave to appeal.
Judge Buckwalter agreed Judge Fitzgerald that certifying the
Anderson Memorial class would effectively render the bar date
useless and adversely affect claimants who filed timely proofs
of claim.
(W.R. Grace Bankruptcy News, Issue No. 164; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Notification Law Takes Effect in New Jersey
----------------------------------------------------------------
TRENTON – Sept. 8, 2008 -- A law sponsored by Assembly members
Linda Greenstein, John McKeon and Joan Voss to ensure local
officials and residents are properly notified when polluted
buildings and properties are cleaned up has taken effect.
The state Department of Environmental Protection this month
announced it has adopted regulations implementing the law that
passed the Legislature and was signed by Gov. Jon S. Corzine in
2006.
The regulations require those responsible for cleaning
contaminated sites to either post signs or distribute letters
notifying local residents of cleanup work. Those responsible for
the cleanups must provide such notice no later than two weeks
before initiating certain cleanup phases.
The law grew out of Assembly hearings into worries about
asbestos contamination at the former W.R. Grace/Zonolite
facility in Hamilton Township, Mercer County. The hearings
highlighted holes in the notification process.
"The W.R. Grace situation spotlighted flaws in our reporting
system that wrongly kept many residents and local officials in
the dark," said Ms. Greenstein (D-Middlesex/Mercer), who
spearheaded the Assembly inquiry. "Residents and local officials
deserve to know about cleanup efforts in their community and
will from now be made aware well in advance of any concerns that
may arise."
Under the DEP regulations, signs must be placed in locations
clearly visible to the public and must be at least 2 feet by 3
feet and include the wording, "Environmental
Investigation/Cleanup in Progress at this Site."
They must also list a contact person and telephone number for
those responsible for the cleanup and for the DEP's community
relations office.
If a letter is used, it must include the name and location of
the site, a common-language description of the contamination and
a statement that the party doing the cleanup will provide copies
of all environmental reports to the municipality upon request.
If contamination spreads off a site, the responsible party must
distribute a fact sheet to the community and publish it in a
local newspaper.
The DEP can also require additional outreach if petitioned to do
so by local residents and officials.
"Communities must be properly informed whenever a contaminated
site is slated to be cleaned," said Mr. McKeon (D-Essex). "We
have raised the bar to ensure our residents know what is
happening near their homes."
"Residents have a right to not only know when a polluted site in
their neighborhood will be cleaned, but to play an active role
in ensuring the effort is not undertaken in secret," said Mr.
Voss (D-Bergen).
(W.R. Grace Bankruptcy News, Issue No. 164; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Split Rulings Issued in Anderson's Lawsuit
---------------------------------------------------------------
The Court of Appeals of Washington, Division 1, issued split
rulings in an asbestos-related case filed by Ruby Anderson, on
behalf of her husband Kenneth L. Anderson, against various
defendants including Lockheed Shipbuilding Company, Todd
Shipyards Corporation, and Caterpillar, Inc.
Judge Ronald E. Cox entered judgment in Case No. 60271-3-I.
Mrs. Anderson claimed that her husband, during his employment
with Marine Construction & Design Company (Marco), worked on
some of the same ships at piers 90 and 91 in Seattle as did
Owens Corning Fiberglass (OCF). OCF was an insulation
subcontractor for Todd and Lockheed.
Mrs. Anderson claims that Mr. Anderson was exposed to asbestos
through insulation work done by OCF for Todd and Lockheed.
The trial court granted the summary judgment motions of Todd and
Lockheed. Mrs. Anderson also claimed that her husband, during
his employment with Marco, worked near engines manufactured by
Caterpillar. The Caterpillar engines allegedly contained gaskets
made of asbestos.
The trial court denied Caterpillar's motion for summary
judgment, and Mrs. Anderson proceeded to trial against
Caterpillar as the sole defendant.
At trial, the court granted Caterpillar's motion in limine to
exclude any evidence related to Mrs. Anderson's alternative
theory of liability against Caterpillar - that Caterpillar had a
duty to warn about asbestos insulation used on or around the
engines it manufactured. The trial ended in a defense verdict.
Mrs. Anderson appealed. She also appealed the trial court's
order in limine at trial excluding the theory of the case that
Caterpillar had a duty to warn of the dangers of using asbestos
insulation with the engines it manufactured.
Mrs. Anderson failed in her burden to show there were genuine
issues of material fact for trial, and Lockheed and Todd were
entitled to judgment as a matter of law.
However, the order in limine at the trial of the claims against
Caterpillar incorrectly barred pursuit of a theory based on
Caterpillar's alleged duty to warn.
The Appeals Court affirmed the summary dismissals of Todd and
Lockheed, reversed the judgment in favor of Caterpillar, and
remanded for further proceedings.
ASBESTOS LITIGATION: Court Favors Electric Boat in Birnie Action
----------------------------------------------------------------
The Supreme Court of Connecticut reversed the ruling of the
Compensation Review Board to favor Electric Boat Corporation, in
an asbestos lawsuit filed by Jean Birnie on behalf of James
Birnie.
The case is styled Jean Birnie v. Electric Boat Corporation.
Judges Flemming L. Norcott, Jr., Joette Katz, Richard N. Palmer,
Christine S. Vertefeuille, and Peter T. Zarella entered judgment
in Case No. 17764 on Aug. 19, 2008.
Mr. Birnie had worked for Electric Boat from 1980 until his
death on June 9, 2001, when he suffered a fatal myocardial
infarction, or heart attack, in the defendant's fitness center.
Thereafter, Mrs. Birnie filed a timely claim for death benefits
under the federal Longshore Act, asserting that:
-- Mr. Birnie's exposure to industrial irritants and
asbestos, while working for the defendant, contributed
to the development of his lung disease; and
-- That lung disease contributed to Mr. Birnie having
suffered the myocardial infarction that had resulted in
his death.
In response, Electric Boat claimed that the evidence had failed
to establish that Mr. Birnie's death was "caused, hastened, or
accelerated by his workplace exposures."
Thereafter, Electric Boat appealed from the decision of the
administrative law judge to the U.S. Department of Labor
benefits review board.
On June 22, 2004, the benefits review board affirmed the
decision of the administrative law judge. On May 6, 2005, the
commissioner issued a decision concluding that "[t]he issue of
causation or compensability was actually litigated and
necessarily determined as the [decision of the administrative
law judge] could not have been validly rendered without such
determination."
Electric Boat appealed from board ruling, which affirmed the
decision of the workers' compensation commissioner for the
second district, awarding survivor benefits to Mrs. Birnie,
based on the commissioner's conclusion that Electric Boat was
collaterally estopped from relitigating the issue of causation
because that issue was actually litigated and necessarily
determined in a previous Longshore Act proceeding.
On appeal, Electric Boat claimed that the "contributing factor"
causation standard that had been applied in the Longshore Act
proceeding is "significantly less strenuous" than the
"substantial factor" standard utilized under the state act, and,
therefore, it should not have been collaterally estopped from
litigating the issue of causation in the state action.
The Supreme Court concluded that the application of collateral
estoppel was improper in this case because the decision of the
administrative law judge in the Long-shore Act proceeding does
not articulate clearly the scope of the contributing factor
standard he had applied, and there is no basis, therefore, to
conduct an adequate comparison of the contributing factor and
the substantial factor causation standards.
Accordingly, the Supreme Court reversed the decision of board.
The case was remanded to the board with direction to reverse the
decision of the commissioner, and to remand the case to a
commissioner for further proceedings according to law.
Peter D. Quay, Esq., represented Electric Boat Corporation.
Amy M. Stone, Esq., and Frank Eppinger, Esq., represented Jean
Birnie.
ASBESTOS LITIGATION: Appeals Court Junks Ruling in Veteran Case
---------------------------------------------------------------
The U.S. Court of Appeals for Veterans Claims set aside a
May 22, 2006 asbestos-related Board of Veterans' Appeals ruling
that denied U.S. Army veteran Timothy J. Short entitlement to
service connection for asbestosis.
The matter was remanded for further proceedings.
The case is styled Timothy J. Short, Appellant v. James B.
Peake, M.D., Secretary of Veterans Affairs, Appellee.
Judge Robert Davis entered judgment in Case No. 06-2556 on
Aug. 5, 2008.
Mr. Short appealed the May 22, 2006 ruling.
Mr. Short advanced two arguments on appeal. First, he contended
that the two VA medical opinions on which the Board relied were
inadequate. Mr. Short further contended that this flaw in the
first examination carried through to the second VA examination
report and opinion because the second VA physician merely
asserted his agreement with the analysis and research in the
first opinion.
As his second argument, Mr. Short asserted that these flaws in
the medical opinions resulted in an inadequate statement of
reasons and bases by the Board. He argued that "the Board failed
to analyze the accuracy of the factual predicate underlying the
November 2002 and April 2004 medical opinions."
ASBESTOS LITIGATION: Court Issues Split Ruling in Flintkote Case
----------------------------------------------------------------
The U.S. District Court, Northern District of California, issued
split rulings in asbestos-related litigation involving The
Flintkote Company and other insurance companies.
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 in Case No. C
04-01827 MHP on Aug. 6, 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 Flintkote for claims, including asbestos-
related, covered under a primary insurance policy issued to two
of Flintkote's subsidiaries. Defendants removed the action to
this court.
Before the court were Aviva's "Motion for Summary Judgment
Regarding Assignments" and Flintkote's "Motion to Streamline
Damages Presentation at Trial."
The court had considered the parties' arguments fully, and for
the reasons set forth below, the court ruled as follows.
With respect to 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 is
prematurely exhausted and is 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.
With respect to Flintkote's motion for summary judgment, the
court adopted a pro rata by per occurrence standard to determine
damages.
ASBESTOS LITIGATION: MDL Panel Orders Transfer of 8 Suits to Pa.
----------------------------------------------------------------
The U.S. Judicial Panel on Multidistrict Litigation transferred
eight asbestos products liability actions from courts in
California, Florida, and Rhode Island to the Eastern District of
Pennsylvania for inclusion in MDL No. 875.
The case is styled In re: Asbestos Products Liability Litigation
(No. VI).
The panel (comprised of Acting Chairman D. Lowell Jensen,
Chairman John G. Heyburn II, Judges Frederick Motz, Robert L.
Miller, Jr., Kathryn H. Vratil, David R. Hansen, and Anthony J.
Scirica) entered judgment in MDL No. 875 on June 6, 2008.
Plaintiffs in eight actions listed on Schedule A and pending in
the Central District of California (three actions), Southern
District of California, Middle District of Florida, Southern
District of Florida (two actions), and District of Rhode Island,
moved to vacate the respective portions of the MDL Court's
orders conditionally transferring the actions to the Eastern
District of Pennsylvania for inclusion in MDL No. 875.
Defendants opposed the motions to vacate. These defendants were:
-- Foster Wheeler Energy Corp. (with respect to the
Central District of California Dyer and Munn actions
and the Southern District of California Ball action);
-- Viad Corp. (with respect to the Central District of
California Munn actions and the Southern District of
Florida Marley and Papp actions);
-- Lorillard Tobacco Co. (with respect to the Middle
District of Florida Krause action);
-- Elliott Turbomachinery Co., Inc. (with respect to the
Southern District of Florida Marley action); and
-- General Electric Co. (with respect to the District of
Rhode Island Kortekamp action).
As of June 2, 2008, over 77,000 actions have been closed in the
transferee district, and over 1,375 actions or claims therein
had been returned to their originating transferor districts.
ASBESTOS LITIGATION: Lunbery Suit Filed v. 68 Firms on Sept. 11
---------------------------------------------------------------
Antonio Lunbery, of Nebraska, and on behalf of his father,
Raymond Lunbery, filed an asbestos-related lawsuit against 68
defendant corporations in Madison County Circuit Court, Ill., on
Sept. 11, 2008, The Madison St. Clair Record reports.
Antonio Lunbery claims Raymond Lunbery was diagnosed with
mesothelioma on July 12, 2008.
According to the suit, Antonio Lunbery says Raymond Lunbery
worked from 1955 until 1993 as a roofer, construction worker,
machine operator and mixer at various locations throughout
Illinois.
According to the suit, Antonio Lunbery states Raymond Lunbery's
exposure was foreseeable and should have been anticipated by the
defendants. He claims his father's disease was caused after he
was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers.
Antonio Lunbery alleges the asbestos-related disease caused
Raymond Lunbery to incur substantial medical costs.
Antonio Lunbery says that Raymond Lunbery also experienced great
physical pain and mental anguish as a result of the disease.
Because of Raymond Lunbery's death, his family has been deprived
of his support and has lost his society, the suit states.
In the 15-count lawsuit, Antonio Lunbery seeks sums in excess of
US$350,000, unspecified economic damages, and compensatory
damages in excess of US$400,000.
Antonio Lunbery also seeks punitive damages in an amount
sufficient to punish the defendants for their misconduct and to
deter similarly situated parties from committing like acts of
misconduct in the future.
Shane F. Hampton, Esq., and Paul M. Dix, Esq., of SimmonsCooper
LLC in East Alton, Ill., represent Antonio Lunbery.
ASBESTOS LITIGATION: Pryor's Suit Filed v. 54 Firms on Sept. 12
---------------------------------------------------------------
Joseph N. Pryor's lawsuit on behalf of Charles D. Tucker was
filed on Sept. 12, 2008 against 54 defendant corporations in
Madison County Circuit Court, Ill., The Madison St. Clair Record
reports.
Mr. Pryor, of Tennessee, says Mr. Tucker, of Alabama, was
diagnosed with mesothelioma on October 2007 and died on Feb. 1,
2008.
In the suit, Mr. Pryor says Mr. Tucker worked from the 1960s
through the 1980s as a construction worker and mechanic at
various locations. Mr. Pryor states Mr. Tucker's exposure was
foreseeable and should have been anticipated by the defendants.
Mr. Pryor alleges the asbestos-related disease caused Mr. Tucker
to incur substantial medical costs. Mr. Tucker also has
experienced great physical pain and mental anguish as a result
of the disease, Mr. Pryor claims in the lawsuit.
Because of his death, Mr. Tucker's family has been deprived of
his support and has lost his society. His family spent
substantial amounts on funeral and burial costs, according to
the complaint.
In the three-count lawsuit, Mr. Pryor seeks sums in excess of
US$100,000 and punitive and exemplary damages in excess of
US$50,000.
Richard L. Saville, Esq., Robert J. Evola, Esq., Ethan A. Flint,
Esq., and David Page, Esq., of Saville, Evola & Flint in Alton,
Ill., represent Mr. Pryor.
ASBESTOS LITIGATION: Stabley Suit Filed v. 76 Companies in Ill.
---------------------------------------------------------------
Irene Stabley's asbestos lawsuit against 76 defendant
corporations was filed in Madison County Circuit Court, Ill., on
Sept. 11, 2008, The Madison St. Clair Record reports.
Mrs. Stabley was diagnosed with mesothelioma on July 16, 2008,
according to the suit. She says she worked from 1947 until 1986
as a secretary and office worker at various locations throughout
Illinois.
Mrs. Stabley claims her husband, Jere Stabley, worked from 1951
until 1986 as a production worker and engineer at RCA.
According to the suit, Mrs. Stabley alleges Mr. Stabley was
exposed to asbestos fibers and would carry them home on his
clothing. She then was repeatedly exposed to the asbestos
through his clothing.
Mr. Stabley states her exposure was foreseeable and should have
been anticipated by the defendants, according to the lawsuit.
In the eight-count lawsuit, Mrs. Stabley seeks sums in excess of
US$50,000 and compensatory damages in excess of US$200,000, and
punitive and exemplary damages in excess of US$100,000.
Mrs. Stabley also seeks punitive damages in an amount sufficient
to punish the defendants for their misconduct and to deter
similarly situated parties from committing like acts of
misconduct in the future.
Shane F. Hampton, Esq., and Paul M. Dix, Esq., of SimmonsCooper
LLC in East Alton, Ill., represent Mrs. Stabley.
ASBESTOS LITIGATION: Md. Contractor Charged for Cleanup Breaches
----------------------------------------------------------------
Charles Victoria, of Parkville, Md., has been sentenced to six
months of home detention by a federal judge in Pittsburgh for
improper asbestos removal, Pittsburgh Tribune-Review reports.
The 49-year-old Mr. Victoria was hired to supervise the removal
of asbestos from buildings on the grounds of the former
Woodville State Hospital.
Prosecutors said that Mr. Victoria failed to follow proper
procedures for removing the asbestos and made misrepresentations
to government officials in connection with an investigation of
the cleanup.
ASBESTOS LITIGATION: EPA Ireland Calls for Incineration of Waste
----------------------------------------------------------------
Environmental Protection Agency Ireland recommends incineration
as part of a strategy to deal with Ireland's hazardous waste,
which includes asbestos, irishtimes.com reports.
The National Hazardous Waste Management Plan, published on
Sept. 15, 2008, recommends reducing hazardous waste through
prevention, but also the use of incineration and landfill for
other types of dangerous substances.
The EPA's Plan aims to make Ireland self-sufficient in handling
its hazardous wastes which range from chemicals and
pharmaceuticals to batteries, paints, asbestos and herbicides.
Key aspects of the plan include recommendations that national
and regional landfills are developed for asbestos while
incineration is used for other types of hazards.
Dr. Mary Kelly, EPA's Director General, said, "Ireland must find
new ways to become self sufficient in dealing with our hazardous
waste.
"Whilst there has been some improvement in Ireland's
infrastructure, there is still a deficit and this Plan
recommends alternative methods for the reduction, collection and
management of this waste within Ireland."
The EPA will take implement a large number of the plan's
recommendations as well as monitoring the implementation of the
overall plan.
Several other public bodies are identified in the plan for the
implementation of the recommendations, including the Department
of the Environment, Heritage and Local Government and local
authorities.
ASBESTOS LITIGATION: K-Sea Affiliate Aims To Settle Lone Action
---------------------------------------------------------------
K-Sea Transportation Partners L.P. says its affiliate, EW
Transportation LLC, still seeks to settle the remaining
asbestos-related case filed against the affiliate, according to
the Company's quarterly report filed with the Securities and
Exchange Commission on Sept. 15, 2008.
EW Transportation and its predecessors have been named, together
with a large number of other companies, as co-defendants in 39
civil actions by various parties, including former employees,
alleging unspecified damages from past exposure to asbestos and
second-hand smoke aboard some of the vessels that it contributed
to the Company in connection with its initial public offering.
EW Transportation and its predecessors have been dismissed from
38 of these lawsuits for an aggregate sum of about US$47,000.
The Company may be subject to litigation in the future from
these plaintiffs and others alleging exposure to asbestos due to
alleged failure to properly encapsulate or remove friable
asbestos on its vessels, as well as for exposure to second-hand
smoke and other matters.
Headquartered in East Brunswick, N.J., K-Sea Transportation
Partners L.P. provides marine transportation, distribution and
logistics services for refined petroleum products in the United
States. As of Sept. 1, 2008, the Company operated a fleet of 74
tank barges and 66 tugboats that serves customers, including
major oil companies, oil traders and refiners. The Company has
about 4.4 million barrels of capacity.
ASBESTOS LITIGATION: McCart Charged with 7 Regulatory Violations
----------------------------------------------------------------
Robert McCart, owner of Sussex Asbestos Solutions, has been
charged with seven asbestos-related regulatory violations,
cnplus.co.uk reports.
Mr. McCart was summonsed to appear at the Eastbourne Magistrates
Court, in Eastbourne, Sussex, England, after safety inspectors
found that he did not have the correct license for the removal
of asbestos insulation boards at a property in Eastbourne in
2007.
Mr. McCart failed to attend the Sept. 9, 2008 hearing and a
warrant was issued for his arrest. He was caught three days
later and has now been bailed and is set to appear on Oct. 22,
2008.
Charges against Mr. McCart include failing to transport toxic
materials as per regulations and failing to ensure employees
exposed to asbestos were kept under adequate medical
surveillance.
The Health and Safety Executive and the Environment Agency
jointly handled the prosecution.
ASBESTOS LITIGATION: ADAO Applauds Congress' Bill to Ban Hazard
---------------------------------------------------------------
The Asbestos Disease Awareness Organization, on Sept. 16, 2008,
applauded the U.S. House of Representatives and the Subcommittee
on Environment and Hazardous Materials for introducing H.R.
6903, the "Bruce Vento Ban Asbestos and Prevent Mesothelioma Act
of 2008," according to an ADAO press release dated Sept. 16,
2008.
The bill is a critical piece of legislation that, once passed,
will help to stop exposure to asbestos.
The bill, introduced by Chairman Gene Green (D-TX), will amend
the Toxic Substances Control Act to reduce the health risks
posed by asbestos-containing products and help fuel public
education programs.
ADAO praises Chairman John D. Dingell (D-MI) and Chairman Gene
Green (D-TX) and Cosponsors Reps. Betty McCollum (D-MN); Hilda
Solis (D-CA), the Vice-Chair of the Subcommittee; Lois Capps (D-
CA); Jan Schakowsky (D-IL); G.K. Butterfield (D-NC); Doris
Matsui (D-CA); Tammy Baldwin (D-WI) and Steve Cohen (D-TN) for
their leadership role in moving this important, bipartisan piece
of legislation forward.
ADAO has worked with Congress for more than four years to
advocate for the passage of such a bill and strongly encourages
the House to quickly move it through to the President for his
signature.
The bill is also strongly supported by the Committee to Ban
Asbestos in America (CBAA), recently formed by ADAO and The John
McNamara Foundation, dedicated to preventing asbestos exposure
and eliminating asbestos-caused diseases.
Linda Reinstein, co-founder and Executive Director of the
Asbestos Disease Awareness Organization, said, "As we remember
the tragedy of 9-11, thousands still suffer from the
irreversible damage caused from asbestos exposure. An asbestos
ban prohibiting its importation, manufacturing, processing and
distribution is absolutely necessary and long overdue.
"Other countries look to us to set global examples of
responsibility and accountability. We must ban asbestos to
eradicate the deadly diseases caused from asbestos exposure that
plague so many families. As the largest volunteer organization
in the United States, we are enormously pleased to support H.R.
6903 banning asbestos, a known human carcinogen, to protect
public health."
Asbestos Disease Awareness Organization (ADAO) seeks to give
asbestos victims and concerned citizens a united voice to help
ensure that their rights are fairly represented and protected,
while raising public awareness about the dangers of asbestos
exposure and often deadly asbestos related diseases.
ASBESTOS LITIGATION: MYR Group Still Subject to Asbestos Claims
---------------------------------------------------------------
MYR Group Inc. is still subject to civil claims, litigation and
arbitration (including asbestos-related), and regulatory
investigations, arising in the ordinary course of its present
business and its divested businesses.
Some of these claims and litigations include claims related to
the Company's current services and operations, and asbestos-
related claims concerning historic operations of a predecessor
affiliate.
The Company said it believes that it has strong defenses to
these claims as well as adequate insurance coverage in the event
any asbestos-related claim is not resolved in its favor.
Headquartered in Rolling Meadows, Ill., MYR Group Inc. performs
construction services in two business segments: Transmission and
Distribution, and Commercial and Industrial. The Company's range
of services includes design, engineering, procurement,
construction, upgrade, maintenance and repair services with a
particular focus on construction, maintenance and repair
throughout the continental United States.
ASBESTOS LITIGATION: ASARCO LLC's Amended Plan Filed on Sept. 12
----------------------------------------------------------------
ASARCO LLC and its debtor affiliates delivered to the U.S.
Bankruptcy Court a first amended Joint Plan of Reorganization
and a Disclosure Statement explaining the Plan on Sept. 12,
2008.
The Amended Plan maintains the sale of substantially all of the
Debtors' tangible and intangible operating assets to Sterlite
(USA), Inc.
The Amended Plan, however, says the sale does not include the
copper smelter in El Paso, Tex.; the Globe, Colo., facility; the
East Helena, Mont., facility; the AR Sacaton site; or the Perth
Amboy, N.J., site. Those assets will be transferred to
Environmental Custodial Trusts under the Plan unless ASARCO
reaches an agreement with the concurrence of the governments for
the sale of those assets prior to the Effective Date.
The Amended Plan provides for the Subsidiary Debtors other than
Covington Land Company, to be substantively consolidated with
and into ASARCO LLC. Alternatively, the Debtors reserve the
right to consolidate those debtors into ASARCO under Section
1123(a)(5)(C) of the Bankruptcy Code, in which case, votes on
the Plan will be counted on a Debtor-by-Debtor basis.
As a third alternative, the Debtors reserve the right to proceed
with the Plan as to only ASARCO, Covington, ASARCO Master, Inc.,
and the Asbestos Subsidiary Debtors, with the Other Subsidiary
Debtors hereafter by filing one or more separate plans under
chapter 11 of the Bankruptcy Code or converting their cases to
liquidation cases under chapter 7 of the Bankruptcy Code.
The Amended Plan also incorporates the global resolution of the
Debtors' asbestos and environmental liabilities. ASARCO LLC
entered into separate agreements with the U.S. Government and
various states, on the one hand, and the Official Committee of
Unsecured Creditors for the Asbestos Debtors and the Future
Claims Representative, on the other hand.
A full-text copy of the Amended Plan's blacklined version is
available for free at http://ResearchArchives.com/t/s?3222
A full-text copy of the blacklined version of the Disclosure
Statement explaining the First Amended Plan is available for
free at http://ResearchArchives.com/t/s?3223
The Asbestos Settlement Agreement provides for the establishment
of an Asbestos Trust; the channeling of the Unsecured Asbestos
Personal Injury Claims and Demands to the Asbestos Trust,
pursuant to Section 524(g); the Debtors' contribution of the
Asbestos Trust Assets. The Asbestos Settlement also provides for
the release by the Asbestos Subsidiary Committee and the FCR, on
behalf of each of the Asbestos Debtors, of the ASARCO Protected
Parties from:
-- All claims and causes of action that the Asbestos
Debtors may now have or have in the future based on
Alter Ego Theories or similar theories seeking to
impose liability on any ASARCO Protected Party for
asbestos PI Claims asserted against the Asbestos
Subsidiary Debtors; and
-- All claims relating to intercompany transactions or
dealings between ASARCO and the Asbestos Debtors
relating to Unsecured Asbestos Personal Injury Claims
and Demands.
A list of the ASARCO Protected Parties is available for free at
http://bankrupt.com/misc/exhibit01.pdf
The Asbestos Settlement also provides for the dismissal with
prejudice of all claims in Adversary Proceeding No. 05-02048 and
the contested matter seeking to resolve the issues of ASARCO
LLC's liability for the Derivative Asbestos Claims and the
aggregate amount of any liability.
Jack F. Lapinsky, ASARCO LLC's chief executive officer, related
that the Asbestos Subsidiary Committee has agreed to recommend
that holders of Unsecured Asbestos Personal Injury Claims vote
in favor of the Plan and specifically in favor of the creation
of the Asbestos Trust and the entry of the Permanent Channeling
Injunction; and agreed, together with the FCR, to support
confirmation of the Plan.
The Debtors will transfer to the Asbestos Trust:
-- Up to US$750 million in Cash, referred to in the Plan
as the Asbestos Trust's share of the Class 5 and Class
9 Primary Payment;
-- Up to an additional $102,000,000 that may be available
after paying other creditors in accordance with the
Plan, referred to in the Plan as the Asbestos Trust's
share of the Class 5 and Class 9 as Supplemental
Distribution;
-- The Asbestos Insurance Recoveries, including all of the
Debtors' rights to avoid any liens or assignments
asserted by any claimant on any portion of the Asbestos
Insurance Recoveries;
-- The Asbestos Trust's Priority Litigation Proceeds,
which is the payment of up to US$100 million of the
Litigation Proceeds after Class 3, 4, 6, 7 and 8
Litigation Proceeds are paid, plus 50 percent of the
Litigation Trust Interests to be distributed by the
Litigation Trustees;
-- Assignment of all of the Debtors' rights, title and
interest in the Debtors' Privileges associated with the
Asbestos PI Claims and other recoveries; and
-- 100 percent of the interests in reorganized Covington.
A list of the Asbestos Insurance Recoveries is available for
free at http://bankrupt.com/misc/exhibit15.pdf
A full-text copy of the Asbestos Trust Agreement is available
for free at http://bankrupt.com/misc/exhibit05.pdf
A full-text copy of the Global Asbestos Settlement is available
for free at http://bankrupt.com/misc/exhibit06.pdf
(ASARCO Bankruptcy News, Issue No. 84; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Committee Moves for Asarco to Deposit $2.7B
----------------------------------------------------------------
The Official Committee of Asbestos Claimants asks the U.S.
Bankruptcy Court to require Asarco Incorporated and Americas
Mining Corporation to deposit the US$2.7 billion funds necessary
to consummate the Plan of Reorganization they filed for ASARCO
LLC, Southern Peru Holdings, LLC, and AR Sacaton, LLC.
The Parent's Plan is premised almost completely on a proposed
US$2.7 billion contribution by the Parent. If this contribution
is not made, the Plan collapses and the Debtors must begin the
plan process anew, Sander L. Esserman, Esq., at Stutzman,
Bromberg, Esserman & Plifka, APC, in Dallas, proposed counsel
for the Asbestos Committee asserts.
Mr. Esserman points out that the Parent's Plan and the Parent's
conduct in the Debtors' Chapter 11 cases raise serious concerns
regarding whether the Parent intends to fund the plan at all or
is simply seeking to delay and derail confirmation of the
Debtors' competing plan of reorganization. Regardless of whether
the Parent's Plan has been submitted in good faith or for
nefarious purposes like delay, the concerns regarding whether
the Parent's Plan will be adequately funded on the unlikely
circumstance of its confirmation can only be addressed by
requiring the Parent to place its money in the hands of the
Court, he asserts.
Although the Parent has repeatedly made bold assertions in open
court that it will fund its proposed plan with a US$2.7 billion
contribution, the plan itself says otherwise, Mr. Esserman
complains. The Parent's Plan does not impose an obligation on
the Parent to make the financial contributions it has continued
to use as a "proverbial carrot" in the Debtors' bankruptcy
cases, he notes. Instead, the Parent's Plan allows the Parent to
avoid funding at any time and essentially for any reason.
Mr. Esserman further asserts that even if the Parent could be
trusted to not walk away from its plan, which is not at all
certain given the Parent's conduct thus far in the Debtors'
Chapter 11 cases, the Parent's Plan nonetheless requires an
estimation of asbestos claims that serves no other purpose than
to further delay any Parent obligation to pay the Debtors'
asbestos personal injury creditors.
The Court, at the very least, should require the Parent to place
its US$2.7 billion plan contribution into the Court's registry,
the Asbestos Committee maintains. Only by the requirement of a
plan deposit may the Court insure that the Court itself is not
drawn into a waste of time and effort by parties who are not
meaningfully committed to seeing their plan consummated, Mr.
Esserman asserts.
The Asbestos Committee, according to Bloomberg News, has
"serious concerns regarding whether the parent intends to fund
the plan at all or is simply seeking to delay and derail
confirmation of Asarco's competing plan."
(ASARCO Bankruptcy News, Issue No. 84; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Insurance Cos. Object to ASARCO Disclosure
---------------------------------------------------------------
Several entities holding environmental claims against ASARCO
LLC, some insurance companies that have provided insurance
policies covering the Debtors' asbestos liabilities, some
individuals, and trade creditors objected to the Disclosure
Statement explaining the Debtors' Joint Plan of Reorganization,
arguing that the Disclosure Statement does not contain "adequate
information."
Fireman's Fund Insurance Company complains that the Debtors'
Disclosure Statement does not provide basic and meaningful
information about the mechanics and the risks of the payment of
Asbestos Personal Injury Claims pursuant to the Plan, given that
the payment of these claims will be dependent on the
availability of insurance proceeds the Debtors seek to recover
from FFIC.
Mt. McKinley Insurance Company and Everest Reinsurance Company
objects to the Disclosure Statement on the grounds that it
attempts to describe a Plan, which contains several missing "to
be provided" components, including the Asbestos Trust Agreement,
which MMIC called a "devil in the details" type of document.
MMIC states that it needs to be adequately informed because the
Debtors purport to use its money to pay their asbestos
liabilities.
American Home Assurance Company and Lexington Insurance Company
jointly complain that the Debtors' Disclosure Statement fails to
meet the legally accepted definition of containing "adequate
information" due to, among others, (i) the omission of any
exhibit setting forth Section 524(g) trust or the trust
distribution procedures; and (ii) the lack of adequate
information concerning which executory contracts are to be
assumed or rejected.
Century Indemnity Company objects to the Debtors' Disclosure
Statement explaining their First Amended Plan because they have
not provided Century with final versions of certain Plan-related
documents, which define the procedures for liquidating and
paying Asbestos Claims.
(ASARCO Bankruptcy News, Issue No. 84; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Objections Filed on Asarco Inc. Disclosure
---------------------------------------------------------------
The U.S. Government; the Official Committee of Asbestos
Claimants, joined by Robert C. Pate, Future Claims
Representative; environmental claimants; insurance companies;
and individuals complained that the Disclosure Statement
explaining the Plan of Reorganization filed by Asarco
Incorporated and Americas Mining for ASARCO LLC, Southern Copper
Holdings, LLC, and AR Sacaton LLC, does not provide "adequate
information."
The Asbestos Committee asks the Court to disapprove the Parent's
Disclosure Statement, arguing that the Parent's Plan provides no
reorganization for the many ASARCO Debtors needing it, and
leaves the Subsidiary Debtors and their creditors in a
reorganizational limbo never envisioned by the Bankruptcy Code.
The Asbestos Committee's proposed counsel, Jacob L. Newton,
Esq., at Stutzman, Bromberg, Esserman & Plifka, APC, in Dallas,
tells the Court that because of the activities of Americas
Mining Corporation, the Debtors' bankruptcy cases has lasted
longer than it should have, much to the detriment of injured
asbestos claimants.
AMC and its parent Grupo Mexico, S.A.B. de C.V., may have
directly cause the Debtors' bankruptcy through their improper
prepetition stripping of the Debtors' assets, their prepetition
saddling of the Debtors with crippling amounts of debt, and the
hostile labor relationship the created during AMC's and Grupo
Mexico's reign, which directly led to a crippling labor strike,
Mr. Newton asserts.
Fireman's Fund Insurance Company complains that the Parent's
Disclosure Statement fails to provide adequate information
regarding material aspects of the Plan that affect FFIC and
fails to disclose material risks associated with the Parent's
Plan.
American Home Assurance Company and Lexington Insurance Company
jointly complain that the Debtors' Disclosure Statement fails to
meet the legally accepted definition of containing "adequate
information" due to (i) the omission of any exhibit setting
forth Section 524(g) trust or the trust distribution procedures;
and (ii) the lack of adequate information concerning which
executory contracts are to be assumed or rejected.
Mt. McKinley Insurance Company and Everest Reinsurance Company,
object to the Parent's Disclosure Statement because it does not
contain exhibits that are material for MMIC's consideration of
the Parent's Plan.
Century Indemnity Company complains that the Parent has not
provided Century with copies of certain Plan-related documents,
which define the procedures for liquidating and paying Asbestos
Claims.
(ASARCO Bankruptcy News, Issue No. 84; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Knoblauch Sues 55 Firms in Madison County
--------------------------------------------------------------
David R. Knoblauch, on Sept. 12, 2008, filed an asbestos-related
lawsuit against 55 defendant corporations in Madison County
Circuit Court, Ill., The Madison St. Clair Record reports.
Mr. Knoblauch claims he was diagnosed with lung cancer in
November 2007.
According to the suit, Mr. Knoblauch says he worked from 1959
until 1961 as a truck driver at Comfort Heating, from 1961 until
1965 as a laborer in the U.S. Marines and from 1965 until 1968
as a laborer at Amstan Supply, according to the lawsuit.
Mr. Knoblauch claims he also worked from 1968 until 1973 as a
malt blender at Kurth Malting, from 1973 until 1980 as a laborer
at Portec Rail Products, Inc. and from 1980 until 2006 as a
laborer at various locations.
Mr. Knoblauch states his exposure was foreseeable and should
have been anticipated by the defendants, according to the
lawsuit. He claims his disease was caused after he was exposed
to and inhaled, ingested or otherwise absorbed asbestos fibers.
Mr. Knoblauch alleges the asbestos-related disease has disabled
and disfigured him and has and will continue to compel him to
expend and become liable for large sums of money for hospital,
medical, and other health and services necessary for the
treatment of the disease. He also has and will continue to
experience great physical pain and mental anguish as a result of
the disease, he claims in the lawsuit.
In the six-count lawsuit, Mr. Knoblauch seeks sums in excess of
US$50,000, punitive and exemplary damages in excess of
US$100,000 and compensatory damages in excess of US$150,000,
plus costs of the suit.
Mr. Knoblauch also seeks punitive damages in an amount
sufficient to punish Ferris Kimball Company, Sprinkmann Sons
Corporation, Sprinkmann Insulation and Young Insulation Group of
St. Louis for their misconduct and to deter similarly situated
parties from committing like acts of misconduct in the future.
Randy L. Gori, Esq., of Gori, Julian & Associates in Alton,
Ill., represents Mr. Knoblauch.
ASBESTOS LITIGATION: Lyne Widow Not to Get Payout from U.K. Navy
----------------------------------------------------------------
Denise Lyne, Jerry Lyne's widow, will not get any compensation
from the United Kingdom's Royal Navy over Mr. Lyne's exposure to
asbestos, the Swindon Advertiser reports.
Legal precedent means that the Forces cannot be sued on behalf
of anyone who served before 1987 and later died an asbestos-
linked death.
Mr. Lyne was diagnosed with mesothelioma in August 2007 and
passed away on Dec. 30, 2007. Mrs. Lyne believes he contracted
the disease through his exposure to asbestos during his years in
the Royal Navy from 1961 to 1970.
Mrs. Lyne is angry that if Mr. Lyne worked on the railways
instead of serving his country he would have been compensated
for the disease that killed him.
Mrs. Lyne said, "It's not the money, it's about showing respect.
When I read in the Adver about the women getting damages from
British Rail because her dad was exposed to asbestos at work, I
thought – how is that fair?"
The terrible irony is that Mr. Lyne, who was 64 when he died,
was extremely cautious about asbestos after leaving the navy.
Mrs. Lyne said, "He wouldn't touch asbestos – he even wrote to
councilors about the use of it. He took it very seriously."
A spokeswoman for the Ministry of Defence said, "Members of the
Armed Forces exposed to asbestos dust and fiber during service
before May 1987 are prevented by law (Section 10 of the Crown
Proceedings Act 1947) from receiving any other compensation from
the Ministry of Defence."
Brigitte Chandler, solicitor acting for Mrs. Lyne, said, "This
situation is very unfair I agree and it would take an Act of
Parliament to change the law as it stands."
ASBESTOS LITIGATION: Winslow City To Pay $240T for CAA Breaches
---------------------------------------------------------------
The U.S. Environmental Protection Agency, on Sept. 17, 2008,
announced that the City of Winslow will pay a US$240,400 civil
penalty to resolve alleged violations of Clean Air Act asbestos
provisions, according to an EPA press release dated Sept. 17,
2008.
The consent decree, if entered by the Court, would resolve a
2007 complaint against the City of Winslow, former City
Administrator John Roche, and former owner William Christie for
the improper demolition of nine buildings, collectively known as
the Apache Apartments, located on the 1100 block of Apache
Avenue.
The complaint named Mr. Roche a defendant in the case because of
his key role in controlling and supervising the alleged unlawful
demolition activities, including the breaking up, collection,
transport and burning of asbestos-containing materials.
Deborah Jordan, Air Division Director for the EPA's Pacific
Southwest region, said, "We are glad the City of Winslow is
taking responsibility for these serious violations. These laws
protect workers and the public from exposure to friable
asbestos, a known carcinogen."
In 2002, the City declared the apartment buildings uninhabitable
and proceeded to demolish four of the nine buildings. Under
federal law, certain demolition activities require prior
notification to proper authorities and inspection for asbestos-
containing materials.
The City failed to conduct such an inspection and also failed to
notify the Arizona Department of Environmental Quality of its
intent to carry out these activities. Tipped off by local
residents, ADEQ inspectors ordered Winslow to cease the
demolition, pending an inspection for asbestos-containing
materials.
Follow-up investigations revealed asbestos-containing materials
were present in the remaining five buildings at levels which
required demolition and disposal to be regulated. Despite the
inspection results and instructions from ADEQ on proper
demolition and disposal, the City, under Mr. Roche's
supervision, demolished the remaining five buildings and hauled
some debris to a City-owned vacant parcel, where it was burned –
resulting in additional asbestos release and exposure to workers
and the public.
The proposed Consent Decree, lodged in the U.S. District Court
for the District of Arizona, resolves defendants' alleged
violations of the Clean Air Act's National Emission Standard for
Asbestos, including:
-- Failure to notify the Arizona Department of
Environmental Quality of asbestos removal activities,
-- Failure to remove asbestos-containing materials that
were susceptible to being broken up during the
demolition,
-- Failure to keep the regulated asbestos-containing
materials adequately wet to prevent air-borne fibers,
-- Failure to ensure that no visible emissions from
asbestos-containing waste materials were emitted into
the air, and
-- Failure to keep waste shipment records for all
asbestos-containing materials transported off the
demolition site.
For more information on asbestos removal, visit:
http://www.epa.gov/iaq/asbestos.html
ASBESTOS LITIGATION: Manor House Demolition Estimated at $30,000
----------------------------------------------------------------
The demolition of the 84-year-old Manor House in Macedonia,
Ohio, is expected to cost US$30,000, including the removal of
asbestos, The-News-Leader.com reports.
Gene Hill, an engineer with Akron-based GPD Group, said the
combined cost of removing asbestos from the house and the
demolition should be about US$30,000. This is about US$15,000
less than Mr. Hill previously said it could cost.
On Aug. 28, 2008, Council approved a motion to delay action on
the home's destruction for 60 days to give the Longwood Manor
Historical Society time to possibly come up with an estimated
US$500,000 to renovate the building.
On Sept. 15, 2008, Kathy Thomas, president of the Society, said
the group has not come up with a plan to raise the money, but is
hoping to have the home sealed until funds become available.
Law Director Joseph Diemert told Council on Sept. 11, 2008, that
the city would be in violation of its own ordinances, as the
deadline for the home's destruction was Sept. 12, 2008.
That date is six months from the day the home was condemned by
the Macedonia Building Department.
"As your legal adviser, I have to give you the lay of the land,"
Mr. Diemert said, adding that without clear plans to either
demolish the house or make repairs, the city is technically
guilty of a third-degree misdemeanor under its ordinances.
Mr. Diemert said he could find nothing, either in the ordinances
or under state law, that allows the city to grant an extension
if safety issues are involved, but did not offer a
recommendation on how the city should proceed.
ASBESTOS LITIGATION: Plowman Gets GBP177,000 from Carter Design
---------------------------------------------------------------
A source says that Roger Plowman received GBP177,000 from his
former employer, Carter Design Group, in an out-of-court
settlement over Mr. Plowman's exposure to asbestos in the 1970s,
Safety Med!a reports.
Mr. Plowman, a 61-year-old designer, gets to receive an
undisclosed six-figure sum from Carter Design Group. (Class
Action Reporter, Sept. 12, 2008)
The Harborough Mail reports that Carter Design Group's former
insurer has made the payment after a 15-month court case.
Mr. Plowman was diagnosed with mesothelioma in 2006 and told he
had less than two years to live. The designer was exposed to
asbestos while using cutting equipment at the firm between 1974
and 1977.
The managing director of Carter Design Group expresses sympathy
for its ex-employee and claims it places "great emphasis" on
worker safety, the news provider reveals.
Since contracting mesothelioma, Mr. Plowman has undergone four
operations.
ASBESTOS LITIGATION: Jackson Favors Bridgeton Locals on Cleanup
---------------------------------------------------------------
U.S. District Judge Carol Jackson, on Sept. 15, 2008, favored
Bridgeton residents, who challenged how asbestos was removed
from homes demolished to make way for a runway expansion at
Lambert-St. Louis International Airport, St. Louis-Post Dispatch
reports.
Judge Jackson said that officials of the airport and the city of
St. Louis, which owns it, violated federal regulations even
though they were told by St. Louis County and the U.S.
Environmental Protection Agency that their methods were
approved.
Bruce Morrison, Esq., an attorney with Great Rivers
Environmental Law Center, said neighbors of the area continue to
worry about health effects and plan to seek civil penalties and
the cleanup of any contaminated soil.
Another of the plaintiffs' lawyers, Jim Hecker, Esq., said it
marked the first time a city had been held liable for violating
federal asbestos standards.
Contractors had used the "wet method" to demolish commercial and
residential buildings that contained asbestos, essentially
spraying them with water to keep potentially carcinogenic
asbestos fibers from becoming airborne.
The method was approved by the St. Louis County Health
Department and was reported to be five times faster and four
times cheaper than removing asbestos by hand. It also was
against federal regulations.
When it found out in 2003, EPA ordered the practice halted.
However, then then-airport director Leonard Griggs Jr. won a
nearly two-year reprieve from the EPA through a consent decree,
with the help of Sen. Christopher "Kit" Bond, R-Mo.
Two weeks after a May 2004 Post-Dispatch article revealed that
wet method demolition was going on amid occupied homes, the
practice was stopped. Contractors then used other removal
methods for some homes. The demolition of several dozen others
has been on hold.
In 2005, Bridgeton residents who call themselves Families for
Asbestos Compliance, Testing and Safety sued St. Louis and
Lambert Field, alleging that their health was endangered by air
and soil contamination. Airport authorities said then the
demolition had been approved and did not pose a danger.
Judge Jackson ruled that the county did not have the authority
to approve demolition practices not allowed under federal
regulations.
Judge Jackson also said airport officials did not provide the
EPA enough information to allow it to approve the consent
decree. She ruled that regulations had been violated on 99 homes
because FACTS lawyers had documentation on that many.
About 250 buildings were knocked down using the wet method.
ASBESTOS LITIGATION: Eastbourne Builder's Death Linked to Hazard
----------------------------------------------------------------
An inquest at Eastbourne, East Sussex, England, heard that the
death of 61-year-old builder John Leonard Arthur Lavender was
linked to exposure to asbestos, the Sussex Express reports.
Mr. Lavender had worked as a builder before running his own
garage.
At the inquest, East Sussex coroner Alan Craze recorded a
verdict of death from industrial disease on Mr. Lavender.
Mr. Lavender died on Oct. 10, 2008 last year after suffering
from mesothelioma. Post mortem evidence showed he was suffering
from a large tumor, which had caused his right lung to collapse.
ASBESTOS LITIGATION: UCATT Urges Officials to Strengthen Cleanup
----------------------------------------------------------------
The Union of Construction, Allied Trades and Technicians urges
local authorities not to weaken asbestos cleanup procedures,
following cleanup problems at St. Ledger Homes in Doncaster,
South Yorkshire, England, abeceder reports.
Derek Johnson, regional secretary of UCATT Yorkshire, said,
"UCATT is seeking answers from St Ledger Homes about how many
people could have been exposed to asbestos. We will make sure
that such problems are not repeated.
"Local authorities must not let current financial constraints
act as an excuse when it comes to removing asbestos. Highly
trained specialist contractors are the only people who should be
removing asbestos."
St. Ledger Homes has suspended and sacked several managers after
it was discovered that contractors had been disturbing and
removing asbestos without being trained and without protective
equipment.
The problems at St. Ledger Homes have emerged at the same time
that several UCATT representatives, from different areas of the
country have reported that several local authorities are now
pressuring members to remove asbestos materials. In the past
specialist contractors have always done such work.
The problem has become more complicated due to recent changes in
the law, which mean that it is legal for non-specialist
contractors to remove certain types of asbestos materials.
However, due to confusion about the law and a lack of knowledge
of the substance, it is feared that workers could be potentially
risking their health.
ASBESTOS LITIGATION: Asbestos Raises Concern in Stratford, Conn.
----------------------------------------------------------------
Asbestos continues to be present in certain sites in Stratford,
Conn., which housed a factory owned by Raybestos-Manhattan Inc.
and its successor Raymark Industries, TransWorldNews reports.
Raybestos and Raymark Industries were generous corporate
sponsors that donated property to the city of Stratford. Most of
the soil was used for public parks and a world-class softball
field, but as it turns out, the soil was heavily contaminated
with asbestos.
In 1989, after the dangers of asbestos had long been talked
about, Raymark Industries closed its Stratford facilities. To
date, asbestos still lingers in the ball field, parks, and at
the site of the old plant.
The federal Environmental Protection Agency capped the 34-acre
plant site many years ago, and in 1992 capped the softball field
and closed it off to the public.
In 2007, the EPA proposed excavating no less than 24
contaminated sites around Stratford, including recapping the
softball field again.
However, locals who live near the field are concerned that
recapping the field might heighten the risks of asbestos cancer.
However, EPA spokesperson Jim Murphy says to remove the soil
would cost in excess of US$60 million, and that capping the site
is perfectly safe.
ASBESTOS LITIGATION: Polk County Men Blamed for Disposal Breach
---------------------------------------------------------------
Three residents from Polk County, Fla., have been arrested
following a probe into illegal disposal of asbestos-containing
demolition debris in the Green Swamp, NewsChief.com reports.
Arrested were 35-year-old Ronnie Lee Spears Jr. of 795 Highlands
Blvd., Bartow, Fla.; 58-year-old Warren Gregory "Greg" Gay of
260 Lake Howard Drive, S.W., Winter Haven, Fla.; and 44-year-old
Thomas C. Barnhill of 555 Walk In Water Road, Lake Wales, Fla.
The arrests, announced Sept. 8, 2008 by the Polk County
Sheriff's Office, capped a joint investigation by the Sheriff's
Office and the Florida Department of Environmental Protection
Division of Law Enforcement.
According to the Sheriff's Office, people associated with a
local branch of an environmental clean-up company dumped
demolition debris containing asbestos tiles in Green Swamp
wetlands area north of Auburndale, Fla.
As a result of a tip called into Florida's Environmental Crime
Reporting Line, investigators with the Florida Department of
Environmental Protection and the Sheriff's Office began on Aug.
20, 2008 an investigation of alleged dumping of debris from the
demolition of the old Pan-Hellenic dormitories at Florida
Southern College in Lakeland, Fla.
According to the Sheriff's Office, the three-week-long
investigation revealed that between July 3, 2008 and July 23,
2008, the Winter Haven office of Florida Environmental
Compliance Corp. Inc. was responsible for illegally dumping at
least 43 large container loads (30-cubic-yard dumpsters) of
construction debris, including asbestos tiles, in the wetlands
area.
The dumping location is between Lake Mattie and Lake Van off
Lake Mattie Road, in an unincorporated area north of Auburndale.
The area is designated as a Class III surface water area by the
Florida Administrative Code and is inside the wetlands boundary
of Florida's Green Swamp.
Corporate ownership of FECC Inc., based in Orlando, Fla., has
fully cooperated with the investigation, according to the
Sheriff's Office. Investigators believe the Winter Haven-based
office was operating outside the direction of the corporate
office.
Mr. Spears avoided paying disposal fees by allowing the debris
to be taken to the illegal dump site, according to the Sheriff's
Office. It is estimated that Mr. Spears saved his employer about
US$10,540 by not taking the debris to the landfill.
According to the affidavit, Spears also authorized a front-end
loader from FECC Inc. to be taken to the dump site. The loader
reportedly was used by employees and the property owner to push
the piles of debris down while attempting to construct a road
bed and remove scrap metal from the piles.
Mr. Spears has been charged with 43 counts of felony dumping for
commercial purposes, a third-degree felony.
The property is co-owned and used by Mr. Gay, according to the
Sheriff's Office. Cypress Sticks Inc., with a business address
of 595 Sixth St., N.W., Winter Haven, is the listed owner of the
property, according to the Polk County Property Appraiser's
Office.
According to the affidavit, Mr. Gay allowed and arranged,
without a permit, for the 43 truck loads of demolition debris to
be brought and dumped onto his property and placed within the
wetlands area to be used as a road bed.
Mr. Gay has been charged with two misdemeanors: Storage of solid
waste without a permit and failure to comply with an
environmental rule (dredge and fill into a wetlands). Both are
Florida Administrative Code violations.
Mr. Barnhill has been charged with three counts of felony
dumping for commercial purposes, a third-degree felony. An
acquaintance of Mr. Gay, Mr. Barnhill was a truck driver for
FECC Inc. and arranged to dump the debris containing the
asbestos material. According to the Sheriff's Office, Barnhill
has been fired by FECC Inc.
The Sheriff's Office reported that since the discovery of the
dumping, FECC Inc. has, at the direction of the DEP and at the
company's expense, removed all of the debris from the dump site,
disposed of it properly and is in the process of restoring the
wetlands area.
The three suspects were arrested on Sept. 8, 2008 and were
booked into the Polk County Jail in Bartow, Fla.
ASBESTOS LITIGATION: Willcocks Widow to Establish Support Group
---------------------------------------------------------------
Dave Willcocks' widow, Gill Wollcocks, will set up the Dave
Willcocks Asbestos Victim Support Group, to help those affected
with mesothelioma, the Crewe & Nantwich Guardian reports.
Mr. Willcocks died of mesothelioma, which is caused by exposure
to asbestos, in October 2007. He was exposed to asbestos while
working for ICI, which is now part of AkzoNobel N.V., at the
Wallerscote works in Northwich, Cheshire from 1970 to 1973.
While caring for Mr. Willcocks, Mrs. Willcocks vowed to help
other people affected by mesothelioma by providing more
information and advice on the disease. Her plans were announced
at the inquest into her husband's death, held in Crewe, England,
at the Municipal Buildings before Coroner for Cheshire Nicolas
Rheinburg.
The group will help anyone in the South and Mid Cheshire and
Staffordshire areas who have been affected by asbestos related
diseases, helping families to gain practical support and advice.
It will also put victims in touch with experts that can help
them apply for benefits and compensation.
Mrs. Willcocks said the group will meet regularly to provide a
warm and friendly environment for sufferers and their families
to meet and share their experiences. She added, "We want to
provide an environment where those suffering from asbestos
related diseases and their families can gain support on a
practical and emotional level."
ASBESTOS LITIGATION: Cleanup at Ore.'s Freewater School Ongoing
---------------------------------------------------------------
3 Kings Environmental Inc.'s asbestos asbestos at the old
Freewater school in Oregon has been ongoing since Sept. 12,
2008, The East Oregonian reports.
On Sept. 12, 2008, workers sealed off windows and vents and
began the setup process. The actual abatement process was
scheduled for Sept. 15, 2008.
On Sept. 12, 2008, Oregon Department of Environmental Quality
Environmental Specialist Tom Hack, Milton-Freewater School
District Facilities Manager Bryan Rittenhouse, 3 Kings Division
Manger Ed Woodward and several 3 Kings employees met with media
and community members to ensure the abatement would be done in a
safe, timely and monitored manner.
The school board voted to hire a different company, Groat
Brothers Inc., to complete demolition by the end of 2008.
Mr. Woodward said 3 Kings is responsible for removing asbestos
material from 50 feet of pipe lining, 5,000 square feet of
roofing and 15,000 to 17,000 square feet of flooring. He expects
the work to take between seven and 10 days.
Mr. Hack said DEQ is making sure 3 Kings complies with Oregon
safety measures and Woodward said the company is abiding and
sometimes going beyond the requirements.
Because of the interest in this project, Mr. Hack said he would
be stopping by the site periodically to check things are meeting
DEQ standards.
ASBESTOS LITIGATION: Asbestos Found in Public Housing in Darwin
---------------------------------------------------------------
A "low concentrate" of chrysotile asbestos has been found in the
vinyl floor tiles of one of the ground-level units at the
Wirrinya Flats in Parap, Darwin, Australia, the Northern
Territory News reports.
The asbestos was found in August 2008 during a vacating
inspection after the young female who was living there moved
out. However, licensed removers did not swoop on the area and
start clearing the deadly fibers until recently.
Residents claim they knew nothing about it until three asbestos
removal vans arrived on Sept. 10, 2008 and yellow warning tape
saying "Danger: Asbestos Dust Hazard" was set up.
One resident who lives several doors down said she feared her
unit may also be plagued with asbestos. However, Territory
Housing spokeswoman Trish Grimshaw said the residents were not
at risk.
Ms. Grimshaw said on completion of the removal, air monitoring
would be completed to ensure the property was safe for others to
enter.
Asbestos was widely used in the building industry before 1980
and is found in schools and houses throughout the Territory.
ASBESTOS LITIGATION: Gloucester Inquest Rules on Woodall's Death
----------------------------------------------------------------
An inquest in Gloucester, England, heard that the death of power
station worker David Woodall was linked to exposure to asbestos,
the Gazette reports.
Mr. Woodall, who was exposed to asbestos dust and fibers in the
1950s, died on Jan. 2, 2008 from mesothelioma at the age of 71.
The inquest heard that Mr Woodall had been apprenticed with the
British Electricity Authority, later the Central Electricity
Generating Board, at the age of 15 in 1951. He worked at power
stations in Manchester, Stockport and elsewhere in the North
West of England.
In a statement, Mr. Woodall's widow, Margaret Woodall, said her
husband had worked as an apprentice from 1951 to 1958 and that
he worked on plant and machinery after asbestos lagging had been
stripped. He was often present when the asbestos was removed and
the atmosphere was "heavily contaminated with dust and fibers."
He was not provided with a protective face mask and was not
aware of any health dangers posed by asbestos, she stated.
Mrs. Woodall added that after National Service in the RAF, Mr.
Woodall returned to the electricity industry in engineering and
managerial positions, and may have been exposed to asbestos.
Mr. Woodall was diagnosed with mesothelioma on October 2007.
The inquest heard that analysis of Mr. Woodall's lung tissue
indicated significant exposure to asbestos.
Gloucestershire Coroner Alan Crickmore recorded a verdict of
death from an industrial disease.
ASBESTOS LITIGATION: Hazard Forces Closure of School in Munhall
---------------------------------------------------------------
The presence of asbestos has forced the closure of Park
Elementary School in Munhall, Pa., the Pittsburgh Post-Gazette
reports.
Two days after Steel Valley school officials acknowledged
asbestos had been found in the roof of Park Elementary School,
district officials announced that the school will be closed
until concerns over the asbestos have been resolved.
The board directed Superintendent William Kinavey to immediately
close Park Elementary in Munhall, Pa. It was not clear last
night how long the school would remain closed or what the
district would do for the 380 students who attend grades 1-5.
Dr. Kinavey said he will try to find another location for Park
students to use while the building is closed. The school's
teachers will report to work at another location, district
officials said.
On Sept. 16, 2008, an inspector from the Allegheny County Health
Department was on-site and took air samples inside the building.
Those air samples will be tested for the presence of asbestos.
The board learned that asbestos had been found in core samples
taken from the roof after a roofing contractor discovered what
was suspected to be asbestos.
The roofing contractor, Phoenix Roofing, has submitted an
asbestos abatement plan to the health department, and board
members said on Sept. 16, 2008 they also want to review that
document.
The discovery of the asbestos did not become public until
Sept. 16, 2008, when it was published in an article in the
Pittsburgh Post-Gazette.
On Sept. 15, 2008, the district's director of operations, Mark
Cherpak, confirmed for the Post-Gazette that repair work on the
roof had stopped and that asbestos had been found in the core
samples.
Mr. Cherpak also acknowledged that he lied to a Post-Gazette
reporter when he was asked on Sept. 11, 2008 if there was
asbestos in the school building's roof. At the time, he said the
tests on the core samples had not been completed.
However, the district received the report on the core samples on
Sept. 8, 2008, and board members were briefed on the results the
following day.
When parents asked why the information was not shared with them
earlier, Dr. Kinavey defended Mr. Cherpak, saying he did "an
excellent job."
Dr. Kinavey also said he did not want to send out information
that would create a panic in the community.
ASBESTOS LITIGATION: Campaign Ongoing v. Development in T&N Site
----------------------------------------------------------------
A campaign against the proposed construction of residences on
the old Turner Brothers site in Rochdale, Greater Manchester,
England, is ongoing, the Rochdale Observer reports.
Campaigners protesting against controversial plans to build
houses on the site are opening up their archives to the public.
Members of Save Spodden Valley are reacting following
controversial claims that the firm covered up the dangers of
asbestos.
The campaigners say the papers reveal company directors and
management were aware of the dangers of developing asbestos-
related cancer from as early as the 1960s.
Jason Addy, a spokesman for the group, told the Observer that
the documents, which date back to the 1890s and form part of the
Turner and Newall archives, are a damning indictment of the
firm.
Mr. Addy said, "The documents demonstrate a clear understanding
of the health and cancer risks from asbestos and the corporate
response to this deadly knowledge.
They give a damning insight into Turner and Newall's emerging
knowledge, attitude and reaction to cancer and health throughout
the 20th century. As the SSV campaign and others state, history
should not repeat itself regarding asbestos and the Spodden
Valley site."
Some of the documents are taken from the letters pages of the
Observer in the 1930s.
Mr. Addy added, "The pages of the Rochdale Observer saw several
accounts of asbestos worker cancer deaths in the 1930s,
including that of TBA worker William Pennington, whose death in
1936 from 'endothelioma of the pleura' was later recognized by
Turner and Newall as its first mesothelioma death."
ASBESTOS ALERT: Martin Suit v. MGP Ingredients Filed Last Aug. 8
----------------------------------------------------------------
An asbestos-related suit, on Aug. 8, 2008, was filed in Circuit
Court in Madison County, Ill., captioned Douglas Martin v. A.W.
Chesterson, Inc. et. al, 08-L-697 and naming MGP Ingredients,
Inc. and more than 100 other parties as defendants.
The suit claims that Mr. Martin has mesothelioma and that he was
exposed to asbestos in the Company's facility in Pekin, Ill.
Plaintiff seeks compensatory and punitive damages of an
unspecified amount in excess of US$50,000.
The Company has started the process of investigating the claim,
has not yet filed a response and is unable to estimate the
possible loss with respect to this claim.
Company Profile:
MGP Ingredients, Inc.
100 Commercial Street, Box 130
Atchison, Kans.
Phone: 913-367-1480
The Company produces certain ingredients and distillery products
derived from grain and has three reportable segments: ingredient
solutions, distillery products and other. Ingredient solutions
products consist of specialty proteins, specialty starches,
vital wheat gluten, commodity wheat starch and mill by-products.
The distillery products consist of food grade alcohol, fuel
grade alcohol, and distillers feed and carbon dioxide.
*********
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.
*********
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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